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Editorial: Ruling Could Enable Sprawl Along Vermont Highways



Sunday, March 06, 2016
One of the distinguishing features of the Vermont landscape is the relative absence of the kind of sprawling development at its highway interchanges that characterizes, say, the retail red light district at Interstate 89’s Exit 20 in West Lebanon.

But at present, two proposed developments along I-89 — one at Exit 4 in Randolph and another at Exit 1 in Quechee — carry the potential to undo what Vermont has accomplished in this regard. That’s why so much could be riding on a pending appeal of a court ruling that would pave the way for the Quechee project.

The massive mixed-use project in Randolph, called Green Mountain Center, now appears to be in abeyance. Developer Jesse “Sam” Sammis, in the face of vigorous opposition by environmental advocacy groups and some members of the community, earlier this month withdrew his request to the District 3 Environmental Commission for a partial review under Act 250 criteria of a couple of aspects of the project. But in doing so, Sammis said he was keeping his options open and still intended to develop in some fashion the 172-acre site with its sweeping vistas and rolling fields.

The Quechee development, called Quechee Highlands, appears much closer to realization. Proposed by B&M Realty, a principal of which is former Republican gubernatorial candidate Scott Milne, it would encompass 100,000 square feet of office, retail and residential space in 10 buildings on 168 acres near Quechee Mobil, at the interchange. The project was initially rejected by the District 3 commission, partially on the grounds that it did not comply with the regional plan. But Judge Thomas Walsh of the Superior Court’s Environmental Division overturned that ruling in November and ordered that an Act 250 permit be issued. Two Rivers-Ottaquechee Regional Commission is preparing an appeal to the state Supreme Court.

At issue appears to be whether provisions in the regional plan pertaining to development at interstate interchanges are sufficiently clear and unqualified so as to establish legally binding requirements. Walsh found them to be merely aspirational and as such, to leave the regional planning commission with “unbridled discretion.”

For his part, Peter Gregory, executive director of Two Rivers, contends that, “The language in our regional plan, we believe, is not aspirational. It’s specific. It’s directive and prescriptive. If language that is that clean and unambiguous is still not enough to be useful in Act 250, I can’t image what kind of language could be useful.”

That is perhaps why, as staff writer Matt Hongoltz-Hetling reported recently, other regional planning commissions, the Vermont Natural Resources Board and the Preservation Trust of Vermont are preparing to join Two Rivers in litigating the case. (The Quechee case could also have implications for the Randolph development, given that one of the criteria on which Sammis was seeking guidance was whether his proposal complied with the regional plan.)

This is a dense legal thicket that the Supreme Court will have to hack through, and we do not hazard a guess on how it will turn out. But it seems to us that planning language by its nature states goals, because its purpose is to effect a vision of the future. For instance, one of the provisions at issue here requires that a major development be located in “a planned settlement area,” which pretty clearly is not the case with Quechee Highlands, which would be located in no-man’s land between the villages of White River Junction and Quechee. While that would seem clear enough to a layman, Walsh found “planned settlement area” insufficiently defined to establish a clear legal standard. If plain meaning cannot be decisive, it’s not clear to us how that term could be defined with the precision required to remove all judgment from the equation.

One thing that does seem clear is that a ruling adverse to the planning commission, which represents 30 member towns, will surely shift the ground away from settled state policy that has pretty successfully channeled development away from the interstate interchanges and given due weight to the regional impact of the kind of large developments proposed by Sammis and Milne. As such, it could alter the legal and physical landscape of the state very much for the worse.

Correction

The Vermont Natural Resources Board administers Act 250, the state’s land-use law. An earlier version of this editorial referred incorrectly to another state agency.