VERMONT'S LANDMARK ACT 250VIRGINIA L. CLOSE
THE WINTER OF 1990-1991 was for Vermont the twentieth anniversary of its Land Use and Development Law, Title 10, Chapter 151, of its Vermont Statutes Annotated. This legislation is known across the country. It is an accomplishment toward which Vermont can look with pride in its bicentennial year.
The history of Act 250 has been anything but calm; there has been controversy from the beginning between advocates and detractors. The Land Use Plan part of the legislation was never implemented and in 1984 that part of the law was deleted. Since then Act 200, a planning law, and other environmental legislation has been enacted. In an interview in 1989 Deane C. Davis, the governor who guided the passage of Act 250, said:
As I look back I'm actually amazed at what we did get. Really this whole thing, Act 250, runs counter to Vermont's tradition with reference to the use of land. I mean, Vermonters feel land is sacred, and we don't want anybody messing around with our land, much less government. 1
That the legislation did become law is perhaps an illustration of Vermont's motto, `Freedom and Unity.' That a vice president of the Bank of Vermont can be quoted as saying the following speaks for the law in the ongoing debates between environmentalists and developers.
It's hard to prove, but I believe that Act 250 should get some credit for tempering speculation in real estate in Vermont so that we are not as subject to economic downturns. Act 250 has had a positive effect on the real estate market by weeding out the ill-conceived larger projects. Act 200 should extend this principle further-and good planning does result in a healthier real estate market. 2
Study of Vermont's environmental legislation offers a variety of opportunities and specific instances where Act 250 might be involved: a proposed shopping mall or a threatened archeological or historic site; differences in states or communities -- why does legislation pass in one state or community and not in another? What are the real facts about the impact of Act 250, the sort of information that sometimes is buried in a hail of claims and counterclaims? One finds the possibilities for paper topics endless as one reads the debates, the pros and cons, involving permits and approvals. 3
For study of the law there are, among the sources: a) Vermont Statutes Annotated (a compilation of the current laws of the State of Vermont that provides citations to law review articles and to cases that have arisen under particular points of law); b) the Vermont Key Number Digest; Covering Cases from State and Federal Courts, a topical and ongoing approach providing access to all reported decisions of the Vermont Supreme Court, United States Supreme Court decisions related to state cases, and to other federal courts when the cases arose in Vermont; c) Shepard's Vermont Citations, A Compilation of Citations Reported in the Various Series of Vermont Reports and in the Atlantic Reporter, to the United States Constitution and Statutes and to the Vermont Constitution, Statutes, Acts, Ordinances and Court Rules; some twenty-four law reviews are included in the citing sources; d) the Environment Reporter, a loose-leaf service with several sections (Cases, Current Developments, Decisions, Federal Laws, Federal Regulations, Mining, Monographs, State Air Laws, State Solid Waste-Land Use, and State Water Laws); and e) the Vermont Law Review, published by the Vermont Law School since 1976 and frequently including articles on aspects of Act 250 (as well as other Vermont environmental legislation). Useful, along with these sources, are the Current Legal Index and the Index to Legal Periodicals.
Were one to want to present an historical discussion of the environmental movement in Vermont and in this country, a starting point might be taken with George Perkins Marsh's Address Delivered Before the Agricultural Society of Rutland County, Sept. 30, 1847. 4 Marsh was born in Woodstock, Vermont, graduated in 1820 from Dartmouth College, and moved to Burlington, Vermont, where he studied law. Subsequently he served in both the Vermont legislature and in the United States House of Representatives. In 1849 he became minister to Turkey, and later in 1861 to Italy. This last post he held until his death in 1882. According to David Lowenthal's biography it was in the Address of 1847 that Marsh first put forth the philosophy that came to fruition in his book, Man and Nature; or Physical Geography as Modified by Human Action, published in 1864. Lowenthal refers to the book as 'the most important and original American geographical work of the nineteenth century'; 5 Lewis Mumford called it 'the fountainhead of the conservation movement.' 6
Publications issued by the various agencies of Vermont offer another way of sketching out the background to the present condition in the state. Take, for example, the 1892 booklet published by the State Board of Agriculture. Resources and Attractions of Vermont with a List of Desirable Homes for Sale is a 'selling job' for Vermont, depicted as a place of 'Cheap Lands and Fine Business Opportunities.' 7 The booklet discusses progress during 1891, assessed through a survey, and characterizes manufactures, horses, dairying, sheep, summer resorts (a descriptive listing by place), and the fish and game supply of Vermont. Finally, there is a section on desirable farms and businesses for sale. Here is a listing for property in Plymouth:
Farm of 150 acres: woodland sufficient to supply farm. Fences in good condition, stone wall and brush. House of 8 rooms, in fair repair. Three barns, two sheds, hog house, sugar house and carriage house. Young orchard in bearing condition; also sugar orchard. Water from spring at house and barn. Railroad station, Ludlow, 8 miles; post office, Tyson, 3 1/2 miles; school, 1 mile.
Price, $1,100 ; cash at sale, $500; interest, 3 per cent.
Address C.W. Scott
Vermont Summer Resorts appeared in 1912, With a foreword intended to entice the tourist.
To you, whether weary in mind and body you seek repose, or whether in the flush of health you seek recreation, whosoever you may be and wheresoever you may abide, but more especially to you who dwell in the brick and marble canyons of great cities, and are weary of the never-ending crash and clangor of man-made noises and the ceaseless refrain of hurrying feet, this
Handbook of Vermont
is presented, in the sincere hope that in the balsam laden breezes that murmur over her hilltops, or in the silvery whisper of her lakes and streams, or in the peace that abides in the shadow of her mountains, you may find your heart's desire. 9
After an opening section about the state, a number of topics are covered: accessibility, comfort, mountains, the Green Mountain Club and its trails, the forests, lakes and ponds, fishing, boating, and athletics. County-by-county sections include photographs and personalized descriptions of boarding houses and hotels.
Much of the debate about growth and development in present-day Vermont has centered on the influx of out-of-staters, as retirees, as tourists, as second-home owners, as weekend skiers. The earlier publicity brochures issued by the state, as mentioned above, sought visitors and summer people for the economic benefits they would bring to Vermont. The popularity of skiing that would cause major changes in the state had not yet developed. But evidence was there that Vermont, though beautiful, rural, unsophisticated, and essentially a place of villages, and of no great wealth, did have concern about the quality of life of its citizens.
In 1925 there had been a eugenics survey of the state organized by Professor Henry E Perkins of the University of Vermont, a study which revealed the '... sub-standard environments from which many Vermonters sprang and in which they passed their childhood and youth.' 10 In 1927 Perkins presented a plan that resulted in the creation of the Vermont Commission on Country Life, as he later wrote, ' --to see if anything could be done to better the living conditions in which so large a part of our population is born and grows up.' 11 In 1930 a 385-page report by the commission was published, drawn from the work of sixteen committees and fourteen sub-committees, which examined every facet of Vermont life. In the report is a chapter on Summer Residents and Tourists (VIII); it opens with the statement that 'Vermont's development as a recreational region affords the most promising opportunity for business growth in the state at the present time, and so far as can be foreseen, for a considerable period in the future.' 12 The recommendations at the end of chapter VIII are interesting. Among them: 'As rapidly as possible, the state should extend the scope of the Vermont State Bureau of Publicity... The improvement of our highways as rapidly as may be possible is an essential feature of recreational development. . . . In considering the attitude of Vermonters toward summer visitors, two extremes should be avoided. There should be no fawning or servility in their relations toward their guests. On the other hand, a narrow, intolerant, suspicious attitude should be avoided. . . . The Committee would recommend that the state take over, as rapidly as possible, the summits of the principal mountains for park and forestry purposes. ...In the larger development of our recreational resources, which may be expected, care should be taken to avoid features that disfigure the landscape and are an offense to good taste.' 13 The ski industry is still in the future but the stage is being set.
By 1932 the Vermont Bureau of Publicity was using a more sophisticated approach. It recruited Dorothy Canfield Fisher to write 'An Open Letter' about summer homes complete with pictures of beautiful examples mostly owned by out-of-staters: `"Woodlyn," home of Mrs. Harry C. Durand of Lake Forest, Illinois,' the home of 'Prof. Geo. K. Cherrie, friend and fellow explorer of Theodore Roosevelt . . ,' 'An old Vermont Cape Cod cottage-type of farmhouse recently acquired by Prof. Walter Hendricks of Chicago,' and '. . . the charming home of Mr. Sinclair Lewis -- a Vermont farmhouse remodelled. 'Mr. Lewis contributed an encomium of his own, which he concluded by saying, `I can see coming to Vermont, people with long vacations who will establish estates here ... doctors, writers, college professors.' 14 And, as we know, they did come.
At the back of this little booklet is a list of brochures available from the Bureau of Publicity --Vermont Lakes and Mountains, Hotel and Resort Directory, Vermont Agriculture, Cottages and Camps for Rent, Farms and Summer Homes for Sale, and Vermont Bridle Paths. So far not much about winter sports.
By the 1960s Vermonters realized that their world was changing. A report published in 1968, Vision and Choice, declared that,
The traditional rural scene in Vermont ... is disappearing. The sharp distinction between village and countryside is blurring throughout the state.
Highways between towns are becoming ribbons of residential and commercial development. Where strip development has become intense, particularly on the outskirts of the larger towns and in the most popular ski and recreation areas, the effects have been highly detrimental. 15
Several years after this 1968 report, Act 250 came into being, signed into law by Governor Deane Davis on 4 April 1970. Eight years later the Report of the Governor's Commission on Vermont's Future: Guidelines for Growth appeared. 16 One of the common themes of all of these various reports is the attention paid to Vermont values. So this last one speaks of community life, agricultural heritage, environmental quality, and opportunity. The report describes the background from which Act 250 eventually developed. It states the problems facing the state: decline of communities, loss of control, growth management, economic development, the property tax, deterioration of natural and historic resources, agriculture, and lack of affordable housing. The report then proceeds to make a series of recommendations and describe a process, a guide, for the future. Act 250 is integral to all of this.
1.'The Origins of Act 250. A Talk with Former Governor Deane C. Davis,' Vermont Environmental Report, Fall1989:19.
2. '20 Years of Act 250: What's the Difference? Quotes from the Field,' Ibid., 21.
3. Susan Clark, 'Deane Davis and Act 250,' Ibid., Spring 1991:2.
4. (Rutland, Vt.: Printed at the Herald Office, 1848).
5. George Perkins Marsh: Versatile Vermonter (New York: Columbia University Press, 1958),.
6. The Brown Decades (New York: Harcourt Brace and Company, 1931, 78
7. (Montpelier, Vt.: Press of the Warchman Publishing Co., 1892), 6.
8. Ibid., 61.
9. Vermont. Secretary of State.... Issued from the Bureau of Publicity of the Department of State (Burlington, Vt.: Free Press Printing Co., 1912), Foreword, .
10. Henry E Perkins, 'The Vermont Commission on Country Life,' Vermont History, 23
12. Rural Vermont a Programf or the Future, by Two Hundred Vermonters (Burlington, Vt.: Vermont Commission on Rural Life, 1931), 117.
13. Ibid., 123-131.
14.Vermont Summer Houses (Montpelier, Vt.: Vermont Bureau of Publicity, ), .
15. Vermont. Central Planning Council, Vision and Choice: Vermont's Future, the State Framework Plan. A Statement by the Vermont Planning Council, 1968[n.p.], 31.
16. Vermont. Governor's Commission on Vermont's Future: Guidelines for Growth, Report [Montpelier, Vt.: The Commission, 1988]