Act 181, passed last year, created a new set of rules to modernize Act 250 and make it possible to exempt some parts of the state from Act 250 review when it was duplicated by review in local municipalities. We at Let's Build Homes see this as a real opportunity to eliminate unecessary barriers to new housing construction in the places where we most want and need to build new homes, and have been engaging with the process for implementing Act 181 as best we can.

One element of this process is making sure that it is simple and efficient for eligible municipalities to apply for "Tier 1A" exemption status, meaning that designated areas are fully exempt from Act 250. We've submitted a detailed letter to the new Land Use Review Board—responsible for overseeing this process—to offer suggestions for improvement for their draft process.

Read the full letter below.

Dear Board Member Hadd,

Thank you for your service and the opportunity that you have given the public to comment on your Tier 1A Framework.

Let’s Build Homes is an advocacy organization dedicated to advancing land use and housing policy that meets the scale of Vermont’s acute housing shortage. Since our launch in January more than 235 Vermont organizations and 800 individuals have signed on to our coalition letter that calls for reforms that address our shortage, including “new Act 250 exemption maps (Tier 1A and 1B) that promote housing supply and affordability by dramatically expanding housing opportunities.”

To that end, we have convened a working group composed of industry leaders, planning professionals, developers, and land use experts to engage with the Act 181 Tier Mapping process, from big-picture process down to parcel level designations. This working group has reviewed the Land Use Review Board’s “Draft Tier 1A Framework” through a housing abundance lens, and drafted the targeted feedback below for your consideration. Our primary goal in this review is to ensure that the Tier 1A application process is as clear, predictable, and efficient as possible. Through such an approach we hope that Vermont municipalities will be encouraged to apply for Tier 1A status, and thereby achieve the purpose articulated in Act 181 of “supporting equitable access to infrastructure, including housing.” (Sec. 1. 10 V.S.A. § 6000)

We’ve grouped this feedback into three categories: issues of high concern, direct suggestions for changes to improve the draft, and areas of the draft where we believe clarification would be helpful.

Finally, we want to note that LBH has concerns about the underlying Act 181 legislation and whether in its current form it will result in a sufficient expansion of Vermont housing opportunities. For example, in comparison to the straightforward roll-back of CEQA requirements for infill housing just passed by the California legislature, Act 181 prescribes a much more complicated path for exempting Vermont’s infill areas from Act 250, and those complications may undermine its efficacy. Our concerns about the underlying legislation go beyond the proposed framework, and, thus, are not all detailed here.

That said, those concerns could be mitigated by LURB’s framework and approach. From our perspective, the test of Act 181’s success will be whether or not by January 1, 2027 a meaningful percentage of the state will be designated Tier 1A, thereby creating significant opportunities for new housing projects that are fully exempt from Act 250. As you make judgments about how to finalize the Tier 1A framework, we urge you to use the discretion the legislation gives you to create a process that is as clear, predictable, efficient and otherwise appealing as possible to municipalities that are considering applications.

Issues of high concern

• In our conversations with municipalities it has become clear that the requirement of Act 181 that municipalities assume responsibility for the enforcement of existing Act 250 conditions in Tier 1A areas may cause some municipalities to decline to pursue Tier 1A status, or to reduce the size of Tier 1A areas they apply for. The framework should include provisions to address this serious concern.

  It is LBH’s sense that confusion and uncertainty over what is meant by the legislation is driving much of this concern. LBH urges the LURB to address this in the framework by:

  • Clarifying that Tier 1A municipalities will have full authority to transition existing Act 250 permits to municipal permits pursuant to 24 V.S.A. § 4460(g)(2)(D).
  • Clarifying that this statutory ability to transition Act 250 permits to local permits includes the ability to remove any and all conditions that are inconsistent with existing municipal regulations, and that would not be imposed on new projects applying for permits in a Tier 1A area.
  • Including other guidance that clarifies what enforcement is required (i.e. must municipalities take proactive steps or simply respond to permit complaints?).

  LBH would welcome further discussion with you on this issue. Another possible approach (which may require legislative change) to this challenge would be for responsibility for enforcement of existing Act 250 conditions to remain with the District Commission until an applicant requests a modification of their permit. At such time the municipality would have the full authority to make any modifications to align with their current regulations. Once the municipality has approved the modification, it would then be their responsibility to ensure compliance and undertake any necessary enforcement action.

• The draft framework would unnecessarily require municipalities with Tier 1A areas to make multiple applications and manage multiple Tier 1A areas. This could be simplified into a one-application system where municipalities are able to include separate geographic areas that are approved as a whole, and where future expansions are treated amendments instead of requiring new applications.

  The draft framework states on page 1 that “A municipality applying for non-contiguous areas for Tier 1A shall make separate applications for each.”

  However, multiple applications are not required by statute, as 10 V.S.A. § 6034(a)(1) states: “A municipality may apply for multiple noncontiguous areas to be receive Tier 1A area status. Applications may be submitted at different times.”

  We see no clear benefit to any party to be gained by requiring multiple applications and significant efficiency to be gained from a consolidated application. Since the LURB has the authority to not include all areas submitted in their final decision, this should be simplified to allow municipalities to submit a single application covering all Tier 1A areas they are proposing.

  In addition, future changes to the map should be explicitly allowed and treated as an amendment to a municipality’s Tier 1A area, not an entirely new application with separate submission and review deadlines. The review of such amendments should be streamlined or automatic once adopted by an RPC in the regional plan.

• The Tier 1a application should not require or encourage local regulations that regulate “character” or introduce subjective “design” assessments.

  In draft Application Section (E)(vii) municipalities would be required to demonstrate how their regulations evaluate project “design” and “character”. We strongly advise against such requirements as both of these criteria are highly subjective and, as a result, are a major driver of permit appeals. Such tests have been removed from many modern zoning ordinances (especially as municipalities have adopted “form-based codes”), and Act 181 should not incentivize such criteria to be included in municipal zoning codes. Moreover, the remaining criteria in (E)(vii) — arrangement, building bulk, form, and landscaping — are sufficient and objective standards for satisfying the goals of ensuring “a livable, harmonious, and diverse environment.”

Suggestions for Improvement

• Expiration: For check-in processes, any and all state agency annual certifications and reporting should be streamlined into a single form that passes through the LURB, so that municipalities have a single filing requirement to a single body.
• Application Section (D) and (E): 10 V.S.A. § 6034(b)(1)(D) and 10 V.S.A. § 6034(b)(1)(E) require that Tier 1A areas have “permanent zoning and subdivision bylaws” with minimal exemptions in addition to “permanent land development regulations” that embody smart growth principles, which translates to sections (D) and (E) in the draft framework application. We feel this is largely redundant, and easily simplified. A single application requirement that covers the need for “smart growth zoning without broad exceptions” would cover the statutory requirements in a smaller package.
• Application Section (E): It is called out that the smart growth zoning should provide a diverse collection of amenities “within close proximity”, but does not specify what “close proximity” means. Since this goes beyond the statutory definition of “Smart Growth” under 24 V.S.A. Chapter 76A, we’d recommend being explicit, and to use walking distance—and preferably 15 minutes—to define this measure of “close proximity”.
• Application Section (E)(v): The term “neighborhood” is used to describe the Tier 1A area. While Tier 1A can be composed of designated areas that meet both the Center and the Neighborhood designation, we feel it would be better to consistently use the language “center”, in order to minimize subjectivity or colloquial interpretation in the process.
• Application Section (F): In the title of the section, it requires that the Tier 1A area is “compatible with the character” of adjacent historic sites. This is again too subjective, has an unclear meaning, and is redundant given the very explicit requirements detailed in that section. We recommend removing the language “compatible with the character of”, and replacing it with “The Tier 1A area considers adjacent National Register Historic Districts, …”.

Areas That Would Benefit From Clarification

• Pre-application/Hearing requirements: 10 V.S.A. § 6034(c)(3)(A)(ii) requires notice of the Tier 1A hearing to be given to a long list of state and local agencies and departments, to be delivered by the municipality. It seems that this required notice is driving the pre-application recommendation to “solicit preliminary input in advance of the pre-application meeting” from a similar, but larger group of organizations. To quote: “their RPC, their regional development corporation, their municipal services (fire, police, and school system), adjacent municipalities and RPCs, VT Community Investment Board, VT Agency of Agriculture, VT Agency of Natural Resources, VTrans, VT Division for Historic Preservation, VT Department of Housing and Community Development, the general public of the municipality, and any business, conservation, low-income advocacy, and community or interest groups within their community.”}(em)

  As the draft framework is written, it is not clear what type of feedback needs to be solicited from these groups, when in the application that feedback will be used, and how the input of those groups will impact the outcome of the hearing. Additionally, several of the additional organizations required in the draft framework that go beyond the statute are not concretely defined, yet are required to be notified and solicited for the hearing. In particular, it would be very subjective to determine if all “business, conservation, low-income advocacy, and community or interest groups within their community”}(em) were notified and solicited for the hearing.

  We ask that you more clearly define what the criteria for input from these external groups should look like so that municipalities understand what is being asked of them, and that these clarifications of input criteria be as simple and objective as possible. We also advocate that the subjective “interest groups” not be kept as a requirement, but as a suggestion, due to their lack of basis in statute and the difficulty of determining compliance.

• Expiration: In the statutory language, 10 V.S.A. § 6034(d)(1) states that “check-in” on the Tier 1A status will occur after 4 years, and that “review” will occur every 8 years. The draft framework further adds that annual compliance reports or more frequent check-ins may be required, though it’s not clear under what circumstances those more frequent check-ins will be required. As it stands, there looks to be up to three different types of status check-in processes, and the draft framework doesn’t make clear what happens after 8 years—can the status be renewed, or must a full new application be submitted?

  As municipalities consider whether or not to apply for Tier 1A status, they are evaluating the new responsibilities that this will require. Given the public benefits of having as many Tier 1A communities as possible, we recommend this check-in process to be simplified into as few processes as possible. As written in statute, a check-in process every four years with a presumed renewal after satisfactory review of the 8th-year check-in would meet the requirements, and minimize the administrative burden for both municipalities and the LURB.

Let’s Build Homes is committed to continuing to engage with the processes launched by Act 181 in the months ahead. We appreciate the chance to offer our feedback and look forward to continued collaboration. I would be happy to meet with you about this letter and other Act 181 topics if that is of interest and helpful to you.

Sincerely,

Miro Weinberger
Executive Chair, Let’s Build Homes