On September 3, 2021, the Vermont Supreme Court issued a decision regarding Act 250 jurisdiction in “one-acre towns” that promptly became the focus of much commentary within the land use planning and permit community.  “One-acre towns” are municipalities that have not enacted zoning bylaws and subdivision regulations, thereby triggering a one-acre threshold for Act 250 jurisdiction as opposed to ten acres, which is the threshold in towns that have enacted such bylaws and regulations.

In its September 2021 decision, the Supreme Court ruled that the one-acre jurisdictional threshold was measured with reference to the area occupied by the actual development activity, not the size of the parcel on which the development was located. This approach was a departure from the manner in which the one-acre threshold had been interpreted previously by district coordinators around the state, who had traditionally looked to the size of the parcel not the footprint of the development.

In a rare occurrence, the Supreme Court agreed to entertain reargument on its original Snowstone decision as requested by the appellant- neighbors, as well as by the Natural Resources Board, the Vermont Natural Resources Council, and a group of former Environmental Board and Natural Resources Board chairs. Reargument took place on January 12, 2022, and the Supreme Court promptly issued its revised decision on February 11. A copy of the Supreme Court’s February 11 decision can be found here.

The Supreme Court’s new decision replaced its prior one, and took a different approach to the jurisdictional question before it. After reargument, the Court based its decision on the fact that the parcel on which the development activity would occur was less than one acre. The Court then deferred to the factual finding of the Environmental Division that the lot had been created as part of an arm’s-length transaction between an unrelated buyer and seller that did not confer any control onto one party over the land owned by the other.

Absent a finding of control over other land, the tract of land at issue in the appeal was less than one acre in size (0.93 acres). Therefore, even if one were to assume that the one-acre threshold relates to size of the tract on which development occurs – as opposed to the footprint of the development activity itself – absent a finding of control, the tract of land at issue in the appeal was less than one acre in size, meaning that Act 250 jurisdiction was not triggered.

Both sides of the appeal get something that they wanted out of the Supreme Court’s reconsidered decision. The landowner was successful in having the Supreme Court affirm that Act 250 jurisdiction did not attach to its proposed quarry operation on a 0.93-acre tract of land. The Supreme Court further affirmed that the underlying transaction creating the subject parcel was arm’s-length in nature. Finally, the Supreme Court further recognized that parties structuring a land sale in a manner designed to lawfully avoid Act 250 jurisdictional triggers is not a nefarious act creating a joint venture or control. Meanwhile, the parties that sought reargument were successful in persuading the Supreme Court to abandon, at least for the time being, the narrower reading of the one-acre jurisdictional threshold as being measured with reference to the development’s footprint, not the tract of land on which it is situated.