Editorial: Court Upholds Act 250 Process

Monday, October 24, 2016

In its ruling last week on the proposed Quechee Highlands project, the Vermont Supreme Court not only affirmed the authority of regional plans to curb sprawl but also struck a blow for a common-sense reading of legal requirements.

The high court’s decision, issued Friday, came in an appeal of Environmental Court Judge Thomas Walsh’s February ruling that B&M Realty, the developer of the mixed-used project proposed for 168 acres at the Interstate 89 interchange at Exit 1 in Quechee, was entitled to the Act 250 permit that the District 3 Environmental Commission had denied it. The commission had unanimously ruled that the project did not conform with the regional plan created in 2007 by the Two Rivers-Ottauquechee Regional Commission.

Walsh’s ruling was rightly understood to potentially undermine the ability of regional planning commissions to further the land-use goals established by the Legislature by channeling growth into already-developed downtowns or designated growth centers and away from green spaces and major highways. Not surprisingly, other regional planning commissions, the Vermont Natural Resources Council, the Preservation Trust of Vermont and the Vermont Natural Resources Board joined Two Rivers in appealing to the Supreme Court. 

One key issue centered on this central provision of the regional plan: “Principal retail establishments must be located in town centers, designated downtowns, or designated growth centers to minimize the blighting effects of sprawl and strip-development along major highways and maintain rural character.” The application by B&M, of which U.S. Senate candidate Scott Milne is a principal, contemplated a mixed-use business park with 115,000 square feet of office, retail, restaurant and residential space to be constructed in its first phase.

Given that the village of Quechee is 2 miles away and White River Junction 5 miles away, the largely undeveloped site off Route 4 clearly did not satisfy the regional plan’s requirement as to location. Walsh, however, construed “principal retail establishment” to mean that retail had to be the project’s chief or leading use in order for the plan’s prohibition to be in effect. That, he concluded, would require that a majority of the space be designated for retail use, which was not the case in Quechee Highlands. The Supreme Court rejected this line of reasoning on the basis “of the plain language of the plan itself,” and because it “would lead to results squarely at odds with the purpose of the plan.” The justices concluded that, “This project, which proposes to create a restaurant and almost 35,000 square feet of new retail space, clearly includes ‘principal retail establishments’ as contemplated by the plan, and thus squarely runs afoul of the requirement” that such establishments “must be located in designated areas that do not include the site of this project.”

Walsh similarly tortured logic and language in his interpretation of the plan’s requirements that, “Major growth or investments must be channeled into or adjacent to existing or planned settlement centers and to areas where adequate public facilities are available.” He somehow concluded that the meaning of terms such as “major growth or investments” and “planned settlement area” was so unclear that the provision did not establish a clear standard for evaluating the project.

Again the high court rejected that reasoning, noting that, “A proposal that contemplates 115,000 square feet of new construction in a largely undeveloped area near an interstate exchange falls within a common-sense understanding” of the terms.

As important as this decision was in the specific case of Quechee Highlands, the broader implications are perhaps even more significant. Walsh’s ruling basically stood on their head the plain meaning and obvious intent of the planning provisions at issue, which threatened to subvert the whole planning and Act 250 process that has served the state so well over many years. By finding that the Two Rivers plan included provisions that were “clear and enforceable” and that “reinforce each other in establishing a clear and mandatory framework for development,” the Supreme Court affirmed that regional plans mean what they say they mean and must be adhered to.