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S.177

Introduced by Senator Shumlin of Windham County

Referred to Committee on

Date:

Subject: Conservation; Act 250; subdivisions; appeals; hearings on the record; cumulative growth; public information hearings

Statement of purpose: This bill proposes to revise Act 250 jurisdiction over subdivisions in three ways: by invoking jurisdiction when a tract is divided by any person or persons into 15 or more lots within any period of five years; by repealing the 800-foot road rule that had been adopted by the environmental board; and by providing that jurisdiction would be triggered when six or more lots are created within a municipality that lacks subdivision and zoning bylaws. It proposes to require the environmental board to adopt rules that establish a consistent statewide standard to be followed by a district commission or the board in establishing permit conditions that require the use of earth berms. It proposes to provide that a person who completely transfers ownership and control of property that is subject to an Act 250 permit shall not be liable for later violations of that permit by another person. It proposes to allow the delay of permit issuance to an applicant who is in substantial violation of another permit issued under Act 250. It proposes to allow a permit applicant, or potential permit applicant, to request a gathering of the "local Act 250 club," at which representatives of state, regional, and local entities will provide an early idea of the issues that are likely to be raised in the process, and of options for assuring a smoother, more predictable permitting experience. It proposes to allow 10 members of the public, within a specified time frame, to petition and require a permit applicant to schedule and convene an informal public information meeting at which the applicant or the applicant’s representatives shall present an overview of the proposed project to any interested members of the public. It proposes to allow appeals from environmental board decisions to be taken to the supreme court by adjoining property owners who have obtained party status, but it prohibits an appeal to the board from a party who received party status solely to materially assist the district commission. Except in the case of a minor application, it proposes to prohibit a person who is granted a permit from a district commission from conducting certain construction activities, until the 30-day appeal period has run, and, in case of an appeal to the environmental board, prohibits certain activities until the board has issued a final permit. It proposes to establish a pilot project pursuant to which any party would be able to move that the hearings before the district commission shall be "recorded hearings," and that any appeal from the decision of a district commission following recorded hearings shall be an appeal on the record. The bill proposes to require the granting of such a motion, unless it clearly appears that the public interest would be adversely affected by recorded hearings. The bill proposes to establish procedures that would be followed in the conduct of recorded hearings, it requires that the hearings be conducted so as to maintain the flexibility and informality of administrative proceedings, it requires the party requesting recorded hearings to pay the costs of recording and to provide free copies of the transcript to other parties who request a copy, it allows the board to receive evidence beyond that presented to the district commission, it allows the board to substitute its judgment for that of the district commission, and it establishes the scope of the pilot project and requires interim reports and a final report on its implementation. The bill proposes to provide that presumptions accorded to certain determinations issued by a municipal development review board may only be rebutted by clear and convincing evidence. The bill proposes to amend the state’s planning goals by making it a goal to identify positive and negative effects of cumulative growth and limit the detrimental effects of that growth. Finally, the bill requires the executive branch to establish a working group to report back to the general assembly regarding a review of state requirements for the regulation o f land development, which review shall address opportunities for improving the consistency in state and federal land development permitting requirements, omitting redundant requirements, and streamlining the process of obtaining permits while assuring appropriate and timely citizen participation.

AN ACT RELATING TO ACT 250 JURISDICTION OVER SUBDIVISIONS, PUBLIC INPUT, APPEALS BY ADJOINERS, HEARINGS ON THE RECORD, WEIGHT TO LOCAL PERMITS, CUMULATIVE GROWTH, AND CONSISTENCY IN THE ENVIRONMENTAL PERMITTING PROCESS

It is hereby enacted by the General Assembly of the State of Vermont:

* * * Act 250 Definition of Subdivision * * *

Sec. 1. 10 V.S.A. § 6001(19) is amended to read:

(19) "Subdivision" means a tract or tracts of land, owned or controlled by a person, which the person has partitioned or divided for the purpose of resale into 10 or more lots within a radius of five miles of any point on any lot, or within the jurisdictional area of the same district commission, within any continuous period of five years. In determining the number of lots, a lot shall be counted if any portion is within five miles or within the jurisdictional area of the same district commission. The word "subdivision" shall not include a lot or lots created for the purpose of conveyance to the state or to a qualified organization, as defined under section 6301a of this title, if the land to be transferred includes and will preserve a segment of the Long Trail. The word "subdivision" shall not include a lot or lots created for the purpose of conveyance to the state or to a "qualified holder" of "conservation rights and interest," as those terms are defined in section 821 of this title. "Subdivision" also means a tract of land, owned or controlled by a person, which is partitioned or divided by any person or persons for the purpose of resale, if there would result 15 or more lots, within any continuous period of five years. Notwithstanding the above, "subdivision" shall also mean a tract or tracts of land, owned or controlled by a person, which the person has partitioned or divided for the purposes of resale into six or more lots, within a continuous period of five years, in a municipality which does not have duly adopted zoning and subdivision regulations.

* * * Act 250 Penalties * * *

Sec. 2. 10 V.S.A. § 6003 is amended to read:

§ 6003. PENALTIES

A violation of any provision of this chapter or the rules promulgated hereunder is punishable by a fine of not more than $500.00 for each day of the violation or imprisonment for not more than two years, or both. A person who completely transfers ownership and control of property that is the subject of a permit under this chapter shall not be liable for later violations of that permit by another person.

* * * Statewide Policy on Use of Berms * * *

Sec. 3. 10 V.S.A. § 6025(d) is added to read:

(d) The board shall adopt rules that establish a consistent statewide standard to be followed by a district commission or the board in establishing permit conditions that require the use of earth berms. The standards shall identify the situations in which it is appropriate to require that berms be installed, and shall establish appropriate berm characteristics and dimensions.

* * * Permit Applicant in Violation of Other Permits * * *

Sec. 4. 10 V.S.A. § 6083 is amended to read:

§ 6083. APPLICATIONS

* * *

(d) *[The]* Except as otherwise provided under subsection (g) of this section, the board and commissions shall make all practical efforts to process permits in a prompt manner. The board shall establish time limits for permit processing as well as procedures and time periods within which to notify applicants whether an application is complete. The board shall report annually by February 15 to the house and senate committees on natural resources and energy and government operations. The annual report shall assess the performance of the board and commissions in meeting the limits; identify areas which hinder effective performance; list fees collected for each permit; summarize changes made by the board to improve performance; describe staffing needs for the coming year; and certify that the revenue from the fees collected is at least equal to the costs associated with those positions.

* * *

(g) The board or a district commission may delay issuance of a permit or amendment or stay the effective date or processing of a permit or amendment if it finds by clear and convincing evidence that the applicant is a person who is in substantial violation of the terms or conditions of any other permit issued under this chapter. For purposes of this subsection, the substantial violation sufficient to trigger delay may be by an individual or entity who has an affiliation with the applicant sufficient to make it the same "person" as that term is defined in section 6001 of this title.

(h) On request of an applicant, or potential applicant, for a permit under this chapter, the district coordinator shall arrange and convene a gathering of the "local Act 250 club" with individuals invited as appropriate for the likely scope of the project in question. Participants generally shall include the district coordinator together with representatives from the following: the regional office of the agency of natural resources, one or more regional planning commissions, any local planning commission that may have an interest, and any other appropriate state, regional, or local entities invited by the district coordinator. The purpose of the gathering shall be to give the applicant or potential applicant an early idea of the issues that are likely to be raised in the process, and of options for assuring a smoother, more predictable permitting experience.

* * * Public Information Meeting * * *

Sec. 5. 10 V.S.A. § 6084(c) is added to read:

(c) If 10 members of the public submit a written request to an applicant, asking for an informal public information meeting, and that request is submitted at least 15 days before the first prehearing conference or hearing (if there is no prehearing conference), an applicant shall schedule and convene such a meeting. At the public information meeting, the applicant or the applicant’s representatives shall present an overview of the proposed development or subdivision to any interested members of the public. At the request of the applicant, the district coordinator shall determine whether or not this requirement has been previously met.

* * * Appeals by Adjoining Property Owners * * *

Sec. 6. 10 V.S.A. § 6085(c)(1) is amended to read:

(c)(1) Parties shall be those who have received notice, adjoining property owners who have requested a hearing, and such other persons as the board may allow by rule. For the purposes of appeal to the supreme court, only the applicant, the landowner if the applicant is not the landowner, a state agency, adjoining property owners who have obtained party status, the regional and municipal planning commissions and the municipalities required to receive notice shall be considered parties. An adjoining property owner may participate in hearings and present evidence only to the extent the proposed development or subdivision will have a direct effect on his or her property under section 6086(a)(1) through (a)(10) of this title.

* * * Construction Pending Appeal * * *

Sec. 7. 10 V.S.A. § 6085(g) is added to read:

(g) Until the 30-day period for appeals to the board has run, a person who is granted a permit by a district commission shall not conduct construction pursuant to that permit, or cause construction to be conducted, if that construction would create substantial or irreversible impacts to natural resources. If a permit issued by a district commission is appealed to the board, then until the board has issued a final permit, the permit recipient shall not conduct construction pursuant to that permit, or cause construction to be conducted, if that construction would create substantial or irreversible impacts to natural resources, unless those impacts are unrelated to matters that are subject to the appeal. This subsection shall not apply in the case of an application treated as a minor application.

* * * On-the-Record Review Pilot Program * * *

Sec. 8. 10 V.S.A. § 6085a is added to read:

§ 6085a. APPEALS ON THE RECORD FROM DISTRICT ENVIRONMENTAL COMMISSION DETERMINATIONS

(a) Within seven business days from the date a district commission completes its determinations with respect to all requests for party status that were filed at a prehearing conference, the applicant, or any other person accorded party status, may move that proceedings before the district commission be conducted in a manner that will create an adequate record of those proceedings, and that any appeal to the environmental board be conducted on that record. Such a motion shall be referred to as a motion for "recorded hearings" before the district commission. The district commission shall give parties an opportunity to comment in writing on whether the public interest would likely be served by the granting or refusing to grant such a motion, and shall grant the motion unless it clearly appears that the public interest would be adversely affected by recorded hearings. In considering the public interest, the commission may consider, among other matters, the cost to the state of recorded hearings, the efficiency of the application process, and whether recorded hearings will likely result in providing more complete information for the commission’s consideration. The commission shall announce its determination publicly and in writing to all parties; the decision shall not be subject to appeal. If the commission grants the motion, it shall also grant all parties a reasonable time to prepare for recorded hearings.

(b) In situations where a motion for recorded hearings before the district commission has been granted, but prior to commencement of hearings in accordance with that decision, the district commission, on its own motion or on written request of no fewer than 10 members of the public, shall schedule and convene an informal public informational meeting, at which the applicant or the applicant’s representatives, or both, shall present the proposal in detail to any interested members of the public. The district commission shall announce that the purpose of the informational meeting is to help prepare the public to participate fully in recorded hearings, and that the public informational meeting itself shall not be part of the record presented to the environmental board, in the event an appeal is taken to the board. Prior to the close of the informational meeting, the district commission shall entertain applications for party status.

(c) Where a motion for recorded hearings has been granted, the district commission shall take all steps necessary to facilitate the timely exchange of information between the parties. The district commission shall have authority to issue such orders as may be necessary to assure the parties a fair and reasonable ability to review the application and its implications with respect to the criteria established under section 6086 of this title, and to allow the applicant the same ability to review information developed by other parties. If the commission determines that any party has failed to provide significant and substantial information to other parties, the commission at any time prior to the close of the evidence may impose appropriate sanctions, including:

(1) recessing proceedings for a period of time sufficient to allow the parties to review and prepare to respond to the information in question;

(2) excluding all or a portion of the evidence in question;

(3) rescinding its granting of a motion for recorded proceedings.

(d) Recorded hearings before the district commission shall be conducted in a manner that assures that the procedural and evidentiary standards employed maintain the flexibility and informality which is characteristic of administrative proceedings. Those standards shall be construed with particular flexibility in allowing the introduction of evidence.

(e) In preparation for recorded hearings, the district commission shall secure a stenographic reporter at the expense of the party making the motion. In the event of an appeal to the environmental board, the reporter shall prepare and provide a verbatim, written transcript of the evidentiary proceedings before the commission. The original and 10 copies of the transcript shall be provided to the board at the expense of the party who made the motion for a recorded hearing, who shall also provide a copy free of charge to any other party who requests a copy.

(f) Motions under this section for recorded hearings before the district commission may be granted no more than 12 times throughout the state, without further legislative authority, and no more than three motions for recorded hearings may be granted by the same district commission. Upon receipt of a request from a district commission for additional assistance in managing a recorded hearing, the board shall provide temporary additional resources. The board shall monitor the implementation of this section throughout the state, and shall provide interim reports on that implementation to the general assembly, by no later than January 15, 2002 and January 15, 2003. The chief coordinator shall work with the district coordinators, and shall present to the legislative committees on natural resources and energy a portion of the report which shall detail the range of projects for which there were recorded hearings, the districts where the recorded hearings took place, the outcomes of completed hearings, whether appeals were taken, and if so, by what party. The report also shall address the following, both from the perspective of the board and from the perspective of the district commissions: the timeliness of the process, manageability of the process, any perceived effects on public participation, and any additional resource demands or resource efficiencies. The board shall provide the general assembly with a final report on implementation of this section, once the board has disposed of all appeals on the record taken under this section, unless the appeals were disposed of in sufficient time to allow the board to combine the final report with one of the interim reports.

* * * Weight Accorded Local Development Review Board Decisions * * *

Sec. 9. 10 V.S.A. § 6086(d) is amended to read:

(d)(1) The board may by rule allow the acceptance of a permit or permits or approval of any state agency with respect to (1) through (5) of subsection (a) or a permit or permits of a specified municipal government with respect to (1) through (7) and (9) and (10) of subsection (a), or a combination of such permits or approvals, in lieu of evidence by the applicant. *[The board shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, with respect to local Act 250 review of municipal impacts.]* The acceptance of such approval, *[positive determinations,]* permit, or permits shall create a presumption that the application is not detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. Such a rule may be revoked or amended pursuant to the procedures set forth in 3 V.S.A. chapter 25, the Vermont Administrative Procedure Act.

(2) The district commissions and the board shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, with respect to local Act 250 review of municipal impacts. The acceptance of a positive determination under that section shall create a presumption, that may be rebutted only by clear and convincing evidence, that the application is not detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. The acceptance of negative determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, with respect to local Act 250 review of municipal impacts shall create a presumption, that may be rebutted only by clear and convincing evidence, that the application is detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. Any determinations, positive or negative, under the provisions of 24 V.S.A. § 4449 shall create presumptions only to the extent that the impacts under the criteria are limited to the municipality issuing the decision. *[Such a rule may be revoked or amended pursuant to the procedures set forth in 3 V.S.A., chapter 25, the Vermont Administrative Procedure Act.]*

(3) The district commissions and the board shall not approve the acceptance of a permit or approval of such an agency or a permit of a municipal government unless it satisfies the appropriate requirements of subsection (a) of this section.

* * * On the Record Review * * *

Sec. 10. 10 V.S.A. § 6089 is amended to read:

§ 6089. APPEALS

(a)(1) An appeal from the district commission shall be to the board and shall be accompanied by a fee prescribed by section 6083a of this title.

(2) An appellant to the board, under this section, shall file with the notice of appeal a statement of the issues to be addressed in the appeal, a summary of the evidence that will be presented, and a preliminary list of witnesses who will testify on behalf of the appellant.

(3)(A) *[The]* Except in the case of appeals taken on the record under section 6085a of this title, the board shall hold a de novo hearing on all findings requested by any party that files an appeal or cross appeal, according to the rules of the board; provided that, no appeal may be taken by a party who was granted party status solely in order to materially assist the district commission.

(B) In the case of appeals taken on the record, as provided under section 6085a of this title, the following shall apply:

(i) the board, in its sole discretion, may request that additional evidence be presented, and may receive and consider evidence offered beyond that which was presented before the district commission;

(ii) the board may review any area of law or fact which has been appealed, and may substitute its judgment for the judgment of the district commission without finding that the district commission erroneously applied the law.

* * *

* * * Planning Goals for Municipalities, Regions, and State Agencies * * *

Sec. 11. 24 V.S.A. § 4302(c) is amended to read:

(c) In addition, this chapter shall be used to further the following specific goals:

* * *

(13) To identify positive and negative effects of cumulative growth, and limit the detrimental effects of that growth.

* * * Study on Consistency in Environmental Permitting * * *

Sec. 12. STUDY ON CONSISTENCY IN ENVIRONMENTAL PERMITTING

(a) The agency of natural resources, in coordination with the environmental board, the water resources board, the department of labor and industry, the agency of transportation, and representatives of the federal government, shall establish a working group on consistency in the environmental permitting process. The working group shall report back to the General Assembly by January 15, 2003, regarding a review of state requirements for the regulation of land development, which review shall be designed to identify and evaluate opportunities for:

(1) Improving the consistency between state and federal land development permitting requirements.

(2) Improving the substantive and procedural consistency between the permitting requirements of Act 250 and those of other state land development permits.

(3) Omitting any unnecessary or redundant permitting requirements.

(4) Reducing the cost of compliance with permitting requirements.

(5) Simplifying and streamlining the process of obtaining state land development permits, while assuring appropriate and timely citizen participation.

(6) Assigning permit specialists to guide applicants for multiple state and federal environmental permits.

(7) Creating a glossary that provides definitions of crucial terms that may have different meanings in different state and federal environmental permits.

(b) The agency of natural resources shall submit a preliminary report, containing a work plan, by no later than January 15, 2002.

* * * Repeal of 800-foot Road Rule * * *

Sec. 13. REPEAL OF ADMINISTRATIVE RULE

Environmental Board Rule 2(A)(6) (the 800-foot road rule) is repealed. Subdivisions that were subject to jurisdiction under the 800-foot road rule when it was in effect shall remain under the jurisdiction of chapter 151 of Title 10.

Sec. 14. SUNSET

On July 1, 2003, 10 V.S.A. § 6085a shall be repealed and 10 V.S.A. § 6089 shall revert to the language it contained before enactment of this act, although proceedings pursuant to a motion for recorded hearings that is filed prior to that time shall continue under those sections, until hearings before the board are completed.