For many of us, a house on a couple dozen acres in the woods is a dream property. As a result, there is significant residential demand for Vermont’s forestlands. As the value of forest products declines, owners of commercial forestlands are increasingly willing to enter the real estate market. But such land use choices wreak havoc on the ecological values of forests and ultimately undermine the forest products industry. 
Aware of these concerns, the drafters of Act 250 sought to preserve the environmental and economic benefits of primary forestry soils by limiting development on these finite resources. This post discusses how Act 250 protects primary forestry soils and reviews New England Land Associates, a case concerning the subdivision of commercial forestlands.
The protections for “forest soils” are found in Criterion 9(C) of Act 250, which provides that the applicant must demonstrate that any development (including subdivision) “will not significantly reduce the potential of [the forest] soils for commercial forestry . . . .’” 10 V.S.A. § 6086(a)(9)(C). “Productive forest soils” are defined as soils “which are not primary agricultural soils but which have a reasonable potential for commercial forestry and which have not been developed. In order to qualify … the land containing such soils shall be of a size and location, relative to adjoining land uses, natural condition, and ownership patterns so that those soils will be capable of supporting or contributing to a commercial forestry operation.” 10 V.S.A. 6001(8). If the reviewing authority determines the proposed subdivision or development will “reduce the potential of [the forest] soils for commercial forestry,” an applicant can still obtain an Act 250 permit by satisfying the three subcriteria of 9(C). Specifically, the applicant must demonstrate that the project will not (i) significantly interfere with agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential, (ii) design the project on nonproductive forest lands where possible, and (iii) investigate design alternatives that minimize impacts to productive forest lands.
New England Land Associates concerned the proposed subdivision of a 3,915 acre tract of forestland in Duxbury, Vermont. New England Land Associates (“NELA”) sought to subdivide the land into 33 tracts ranging from 28 acres to 1,787 acres in size. The land had historically been used for commercial forestry and was enrolled in the state’s current use appraisal program. Additionally, the tract contained important habitat for wildlife, wetlands, and several historical sites. The District Commission granted NELA an Act 250 permit, but extensively conditioned the permit based on natural resource concerns and the effects of scattered development.
NELA filed an appeal to the Environmental Board challenging both the District Commission’s ability to condition the permit in addition to specific conditions. First, NELA argued that an Act 250 permit was not necessary because it was simply subdividing the land and not engaging in any actual development. In response, the Board held that 10 V.S.A. § 6081(a) requires Act 250 permits for both developments and subdivisions.
Secondly, NELA challenged the specific conditions placed on the permit under Criterion 9(C). In particular, NELA argued that the subdivision would not reduce the potential of the soils for commercial forestry because the act of subdivision has no physical effect on the land and any future owners of the newly created lots could still pursue commercial forestry management. The Board held that it is appropriate to consider the future effects of the project. For this subdivision, future effects would include new development requiring infrastructure. This development would inevitably take some forest soils out of production. Additionally, the Board held that the subdivision would threaten the potential for commercial forestry because NELA could not ensure future owners would continue commercial forest management. Also, the lots were drawn so that commercial forestry would be difficult if not unviable.
As the project reduced the potential for commercial forestry, the Board then evaluated whether the project could qualify for an Act 250 permit by satisfying the 9(C) subcriteria. At the time of this case, the 9(C) subcriteria required the applicant to show that a reasonable return could only be obtained by devoting forest soils to uses that significantly reduce their forestry potential. 9 (C) also required the applicant to minimize the reduction of forestry soils “by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning . . . designed to economize on the cost of roads, utilities, and land usage.” 10 V.S.A. § 6086(a)(9)(C)(i) and (iii) (later amended). NELA failed to submit any evidence that it could not produce a reasonable return from commercial forest management on the property and did not submit any design alternatives. Accordingly, the Board held that the subdivision did not meet Criterion 9(C).
Subsequent Changes to 9(C):
Although New England Land Associates was decided under the old subcriteria, the 9(C) analysis remains largely the same and NELA’s permit application would likely not meet the current subcriteria. Similar to the test laid out in In re Spear Street Associates, 145 Vt. 496 (1985), evaluation of Criterion 9(B) requires a two-step analysis. First, the reviewing body must determine if the project, including its future effects, will reduce the potential for commercial forestry. If so, then the project must satisfy all of the current subcritieria; (i) not significantly interfere with agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential, (ii) design the project on nonproductive forest lands where possible, and (iii) investigate design alternatives that minimize impacts to productive forest lands. NELA’s project would probably not satisfy current subcriteria (ii) and (iii), although the traffic generated by future lot owners may sufficiently interfere with neighboring forestry operations to violate subcriteria (i). Because NELA drew the subdivision lines in disregard to the physical location of the productive forest soils, it did not design the subdivision around productive forest soils where possible. Additionally, NELA did not consider or submit any alternatives to the subdivision lines drawn to minimize the impacts on forest soils.
This case is important because it demonstrates Act 250’s ability to conserve finite resources and prevent forest fragmentation by steering development away from productive forest soils. It also exemplifies how Act 250 is triggered by subdivision, which in the forest soils context, is critical because subdivision may lead to backdoor fragmentation as subsequent owners of smaller parcels can more readily develop their property. Additionally, this case demonstrates the proper analysis for evaluating satisfaction of Criterion 9(C). By maintaining larger blocks of commercial forest, Act 250 not only promotes the state’s forestry sector, but also helps preserve the ecological benefits of larger contiguous forests such as wildlife habitat.
New England Land Associates #5W1046-EB-R (revised 1/7/92; previous version 10/1/91)
Interesting analysis. Thanks!