HALIFAX — I've spent months trying to report about the intertwined policies, politics, and passions of the current land use debate in Halifax in advance of the Aug. 9 vote (by Australian ballot) of whether to repeal the town's zoning bylaw in its entirety.
The vote is the result of a public petition that circulated in the wake of the Zoning Board of Adjustment (ZBA) decision denying a conditional-use permit necessary to allow Russell Denison to construct and operate a schist quarry in the town's Conservation District.
I've spent countless hours researching the issue. I spoke with Mr. Denison, to members of regional commissions and to former and current members of various planning commissions, including in towns that lack zoning. I spoke with people involved with the original adoption of zoning in Halifax.
I listened to the recordings of the Act 250 hearings on the quarry and reread the ZBA's decision. I analyzed two town petitions - one to repeal zoning, one to express support for the quarry - to see if and how they overlapped and whether any abutters had signed either petition. (One did.)
I read cases decided by the Vermont Supreme Court concerning appeals from zoning decisions in towns that lacked zoning and other cases that analyzed Act 250 decisions as they related to town plans.
But even after all of that, I had trouble getting the first word down on paper.
Why? Because I have strong views about the issue and the way it's been debated, and everything I learned confirmed my fears and deepened my convictions.
I am therefore writing this as a commentary.
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At the June 21 public hearing on the petition held by the Selectboard, opponents voiced some commonly expressed arguments in favor of repeal.
Just to highlight the few that stood out to me, Steve Barrows described the current bylaws as the work of “trust fund babies” with time on their hands to meddle in other people's business, and he lauded Guilford and Vernon as examples of towns that have no zoning and no problems.
Joe Tamburrino argued that the current zoning bylaws are overly complicated - the newly adopted amendments are 56 pages long - and include all sorts of rules that, he said, don't apply to a small town. He proposed that the newly reorganized planning commission - made up of people who, he said, “have the town interests at heart” - could and should simplify the bylaws to include only things like setback requirements.
Wayne Courser, who circulated the original petition, similarly expressed his view that things had gone too far and that Halifax should have nothing but a simple, short set of provisions.
Selectboard member Mitch Green asserted that in the absence of zoning, both Act 250 and the state land use statute would still apply to land use development in Halifax.
Although she didn't take a position for or against zoning, Lister Mary Brewster described Act 250 requirements as “very strict.”
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Here's what I've learned and why I will be voting to preserve zoning on Aug. 9.
Local control, clarity, and flexibility: those are the benefits of zoning in Vermont that I heard again and again from individuals deeply involved in land-use matters but who have no skin in the game.
Hollis Burbank-Hammerlund, for example, worked for Windham Regional Commission for five years and then spent 15 years consulting with municipalities, including testifying in courts on behalf of those towns.
Burbank-Hammerlund worked with the Halifax planning commission that adopted the first zoning bylaw - she drafted it. She remembered Halifax residents of all stripes attending public hearings and expressing the desire to define and preserve for themselves the character of the town.
Andy Rice, who was on that original planning commission, recalled, for example, an interest in protecting large tracts for hunting as one aspect of “local control” that motivated people to adopt zoning.
What about the suggestion that Act 250 and Chapter 117 of the Vermont Statutes both apply in the absence of zoning?
Burbank-Hammerlund, regional commissioners, state officials, and planning commissioners in towns that have no zoning, repeated - again and again - that in the absence of zoning, Act 250 is the only statute that applies.
Chapter 117 of the Vermont Statutes only kicks in when towns adopt zoning bylaws. That statute authorizes municipalities to adopt bylaws; it requires that bylaws include certain provisions and meet certain requirements - including, it bears noting, that bylaws “conform with the Town Plan.” For those who haven't read it, that concept is one of the central pillars of the 10-page analysis that led the ZBA to deny a conditional-use permit for the quarry.
Thus, Chapter 117 has no independent force in the absence of zoning, and any zoning bylaw must cover topics - and include provisions - that might be among those that opponents believe are unnecessary for a small, rural town like Halifax.
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What about the suggestion that Act 250 is strict and sufficiently protective?
I scoured the Act 250 database. Of the 1,786 applications that have been resolved through a grant or denial of a permit since the act was adopted, only 15 were denied - that is, 99 percent were approved.
Yes, most of those permits probably imposed conditions. But it would have been the state, not the town, that defined those conditions according to state, not town, priorities.
And that rate reflects a presumption that all land-use projects should go forward and that all land-use disputes can be resolved with state-mandated tweaks. The story of King Solomon suggesting that a custody dispute be resolved by splitting the baby epitomizes how harsh and destructive that kind of a resolution might be in some cases.
Burbank-Hammerlund volunteered that in her 20 years working with municipalities and the courts on the issue of land-use regulation, she discovered that many people equate a long bylaw with a complicated bylaw.
To the contrary, she said: she had seen firsthand that bylaws lacking detail are confusing and require costly and nettlesome judicial intervention to resolve.
The cure? Lots of definitions.
The problem? Definitions can go on for pages.
Consequently, clear, simple bylaws might be lengthy.
Furthermore, she went on, the best bylaws pair clarity with flexibility. And the mechanism for introducing flexibility is a performance standard rather than an outright permission or prohibition.
Performance standards are town-wide agreed-upon ranges and thresholds that give local authorities the power and guidance to help neighbors resolve their differences. (The newly adopted sound ordinance is one such performance standard.)
But performance standards, like definitions, add length, and thus they sacrifice brevity for flexibility.
A review of the recently amended Halifax bylaws bears out this concept. The document is 56 pages long. Take out the title page, table of contents, definitions, and performance standards, and it's down to 48 pages. Take out the flood regulations and the telecommunication/tower standards (each of which even towns like Guilford have adopted as stand-alone documents), and the bylaws are only 29 pages long, and include some provisions that are required by state law.
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Why not scrap the whole thing and start from scratch?
For one, I believe that is disrespectful of those who volunteered their time over several years - the effort goes back to before I served on the planning commission in 2011 and 2012 - and who did so without input from the majority of people who now are voicing their strong objections, according to various officials who spoke at that June 21 hearing.
Is there room for change? Yes! And it's clear that there's a strong desire for more change. But, as Chris Campany, executive director of the Windham Regional Commission, put it, why throw the baby out with the bathwater?
It took years of effort to get the grant money necessary to hire a WRC planner to help Halifax draft its amended bylaws. To draft an entirely new ordinance that meets the town needs and satisfies the state requirements, the Planning Commission will need that help again. It could be years before another bylaw is adopted.
And there's no guarantee that any ever will be adopted.
Former Guilford Planning Commission members Susan James and Peter Hetzel described the most recent effort, in 2011, to adopt what James described as simple “soft touch” zoning.
James said that neither the goal nor the text of the proposed Guilford bylaw was to prevent development. Rather, it was drafted to provide a review mechanism for the town to discuss development that made neighbors “uncomfortable” in order find local, “win-win” solutions.
Hetzel said that Guilford officials had circulated surveys that suggested an even split between those who favored and those who opposed zoning. But, James said, at the end of the day, public hearings - and the ultimate vote on those “soft touch” regulations - revealed deep philosophical divides about regulations of any kind.
Passionate opposition, she said, is often a stronger motivator of get-out-the-vote efforts than quiet support, so the effort failed by a significant margin and left the Planning Commission members fairly burned out.
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But even if the planning commission is able to put forward a new bylaw for voters by next March, and even if such a bylaw is adopted, there would be a gap in the regulatory landscape in Halifax in the meanwhile.
What's wrong with that?
As several planners and officials noted, in Vermont, project proponents have “vested rights” in the regulatory framework in force on the day they submit a completed application (if one is necessary) or break ground.
Interested in creating a utopian community of 20,000 people (like the “New Vista” project that is the brainchild of David Hall, a Utah resident, on land in four towns in central Vermont, three of which lack zoning)?
Interested in putting up that wood-fired furnace, building a humanure pile, or scrap heap but want it to be as far away as possible from your home? Submit your completed application or break ground on a day when the regulatory hurdles are low, and you might be good to go.
And while Bob Spencer, the chair of the Vernon Planning Commission, said that there hadn't been any effort to adopt zoning in that town, (and, he emphasized, people seemed content with the status quo) he acknowledged that a drive around town would reveal lots of structures built right on property lines - structures that, he said, had fueled feuds between neighbors.
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It's also hard to escape the conclusion that the effort to repeal zoning is a referendum on the ZBA's decision to deny the application for one specific conditional-use permit. But that means that heated passions over a single project are driving a major decision about all manner of land use regulation in every part of town affecting every resident.
Furthermore, the question whether the ZBA was right is an open one.
Were they correct that the then-existing bylaws, the ones in which Mr. Denison had a “vested right,” prohibited the operation of a schist quarry in the Conservation District because it didn't “conform” with the bylaws and the Town Plan?
Maybe they were. Maybe they weren't. That question was going to end up in the hands of the Environmental Court regardless of how the ZBA ruled, so why not let that process play out?
If they were wrong, then Mr. Denison has a 99-percent chance of getting an Act 250 permit, and his extraction operation will likely be good to go. But if they were right, then it means that the amended bylaws might be longer but are hardly more restrictive than the old bylaws.
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Lastly, what about the charge that anyone who supports zoning (or opposed the quarry, as was asserted during those hearings) is a “trust fund baby”?
I support zoning, and my only asset is my home - my one, full-time home in Halifax, a home that I cherish, built on a small parcel on which I feel more rooted than I have in any other place and any other time in my life.
I don't live in the Conservation District, but I cherish the peace and quiet in my corner of heaven and so empathize with some of those who testified at the Act 250 hearings about having made Halifax their home - and often, the home of their full-time home businesses - in reliance of a protected degree of peace and quiet.
These weren't rich people meddling in other people's business. Many of them were ordinary people trying to protect their interests in the only property they own and in their ability to continue to support themselves through their home-based businesses.
Mr. Denison graciously welcomed me into his Halifax home to talk about these issues. He is a smart, proud man, with a solid grasp of the issues and an energy that belies his 85-plus years.
With the charge of “trust fund babies” in my head, and his publicly expressed opposition to zoning, I pressed him on his complaint (made on the floor of Town Meeting and repeated when we spoke) about the $8,000 in non-residential property tax he has to pay.
Why not make Halifax his home so he could vote in local matters and cut his property taxes down to size? Because, he said, he'd lose the estate-tax benefits of maintaining his residence at his other home in Florida.
And he described the great timber value on his land in 1,000-plus acres in Halifax, including his efforts to donate that land to the National Rifle Association in exchange for a valuable charitable trust. That effort was thwarted by the IRS, which challenged the value that he and the NRA had agreed upon, and that is what prompted him to explore the possibility of leasing the land for a quarry.
I don't begrudge Mr. Denison the good fortune of being born into a family that holds vast tracts of land, nor do I begrudge him his business success, nor his desire to maximize the value of his land and business holdings, nor his need to choose from among his homes and among the options for passing his good fortune along to his children and grandchildren.
And while I vigorously disputed his assertion that zoning is evidence of a global agenda to eliminate all private property rights, it was a cordial disagreement. He's not a villain; he's just a man with different values and a different way of ordering his priorities.
But being frustrated by not being able to maximize the value of one's many possessions is a wonderful and privileged problem to have - and one that bears much more in common with the problems I assume are shared by “trust fund babies.”
It's not a problem I heard expressed by any of the people I heard testify at the Act 250, ZBA hearings, and public hearings on the zoning bylaws - nor one with which I can relate.
I strongly support land-use regulations precisely because I don't have a trust fund or an inheritance or a large tract of land: I want and need to protect the monetary and qualitative value of the little bit of land and the only home I own.
If we all believed that everyone's intentions were good, then maybe we could get by without any regulations, and maybe we could resolve every land use dispute over a cup of coffee and a handshake.
But the more one side vilifies the other, the more we need a mechanism and framework for resolving these issues with the help of town leaders.
On Aug. 9, I'll be voting in favor of preserving zoning in Halifax.
And I hope that everyone who cares about the issue will vote to protect the fact of zoning in Halifax.
And I hope that then everyone will commit to getting involved in the process of revisiting the question whether the bylaws and Town Plan fairly reflect the shared vision of all our residents.