H.784

Introduced by Representatives Johnson of Canaan, Allard of St. Albans Town, Angell of Randolph, Atkins of Winooski, Baker of West Rutland, Barbieri of Wallingford, Barney of Highgate, Blanchard of Essex, Bourdeau of Hyde Park, Bristol of Brattleboro, Brown of Walden, Buckland of Newport Town, Clark of St. Johnsbury, Cleland of Northfield, Colvin of Bennington, Crawford of Burke, DePoy of Rutland City, Dominick of Starksboro, Edwards of Swanton, Flaherty of South Burlington, Flory of Pittsford, Follett of Springfield, Freed of Dorset, Fyfe of Newport City, Gervais of Enosburg, Ginevan of Middlebury, Gray of Barre Town, Gretkowski of Burlington, Hathaway of Barton, Helm of Castleton, Hoag of Woodford, Holmes of Bethel, Houston of Ferrisburgh, Howrigan of Fairfield, Hube of Londonderry, Hudson of Lyndon, Hyde of Fayston, Keenan of St. Albans City, Kinsey of Craftsbury, Koch of Barre Town, LaBarge of Grand Isle, Larocque of Barnet, Larrabee of Danville, Little of Shelburne, Mallary of Brookfield, Marron of Stowe, Maslack of Poultney, Mazur of South Burlington, McGrath of Ferrisburgh, Metzger of Milton, Milne of Washington, Mullin of Rutland Town, Neiman of Georgia, O'Donnell of Vernon, Palmer of Pownal, Peaslee of Guildhall, Pembroke of Bennington, Perry of Richford, Pike of Mendon, Quaid of Williston, Richardson of Weathersfield, Robb of Swanton, Rogers of Castleton, Rusten of Halifax, Schaefer of Colchester, Schiavone of Shelburne, Severance of Colchester, Sheltra of Derby, Smith of New Haven, Starr of Troy, Steele of Waterbury, Suchmann of Chester, Sweetser of Essex, Towne of Berlin, Valsangiacomo of Barre City, Vinton of Colchester, Voyer of Morristown, Westman of Cambridge, Willett of St. Albans City, Winters of Williamstown, Wood of Brandon and Young of Orwell

Referred to Committee on

Date:

Subject: Conservation; Act 250

Statement of purpose: This bill proposes to revise Act 250 jurisdiction over subdivisions by repealing the 800-foot road rule, and by providing that the act would be triggered when six or more lots are created within a municipality that lacks subdivision and zoning bylaws. It proposes to require that district commission chairs, when appointed, be subject to the advice and consent of the senate. It proposes to allow the delay of permit issuance to an applicant who is in substantial violation of another permit issued under Act 250, if the violation adversely affects the values protected by the act. It proposes to establish an option that would allow any party 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, and it allows the board to substitute its judgment for that of the district commission. The bill proposes to provide that presumptions accorded to approvals and permits issued by the agency of natural resources may only be rebutted by clear and convincing evidence.

AN ACT RELATING TO ACT 250 JURISDICTION, DISTRICT COMMISSION CHAIRS, REVIEW ON THE RECORD, VIOLATIONS, AND PRESUMPTIONS ACCORDED TO AGENCY PERMITS

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

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. 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.

* * * Senate Confirmation of District Commission Chairs * * *

Sec. 2. 10 V.S.A. § 6026(b) is amended to read:

(b) A district environmental commission is created for each district. Each district commission shall consist of three members from that district appointed in the month of February by the governor so that two appointments expire in each odd numbered year. Two of the members shall be appointed for a term of four years, and the chair (third member) of each district shall be appointed for a two-year term with the advice and consent of the senate. In any district, the governor may appoint not more than four alternate members from that district whose terms shall not exceed two years, who may hear any case when a regular member is disqualified or otherwise unable to serve.

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

Sec. 3. 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, provided that the violation adversely affects the values protected by 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 them the same "person" as that term is defined in section 6001 of this title.

* * * On the Record Review Option * * *

Sec. 4. 10 V.S.A. § 6085 is amended to read:

§ 6085. HEARINGS

(a) Anyone required to receive notice by section 6084 of this title and any adjoining property owner may request a hearing by filing a request within 15 days of receipt of notice. Upon receipt of notice the district commission shall treat the application pursuant to section 814 of Title 3. The district commission may order a hearing without a request within 20 days of receipt of the application.

(b) The hearing or a prehearing conference shall be held within 40 days of receipt of the application or notice of appeal. Any person seeking party status may request a prehearing conference. The parties shall be given not less than 10 days notice. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not less than 10 days before the hearing date.

* * *

Sec. 5. 10 V.S.A. § 6085a is added to read:

§ 6085a. APPEALS ON THE RECORD FROM DISTRICT

ENVIRONMENTAL COMMISSION DETERMINATIONS

(a) The applicant, at the time an application is filed, or any other person accorded party status, at a district commission prehearing conference or prior to commencement of hearings, may move that any appeals to the environmental board be conducted on the record made before the district commission, and that proceedings before the district commission be conducted in a manner that will facilitate these appeals. 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 all parties of recorded hearings versus the potential costs of an appeal de novo, 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, which shall not be less than 30 days, 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.

(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 ten 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.

* * * Effect of Permits Issued by the Agency of Natural Resources * * *

Sec. 6. 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, and in the case of approvals and permits issued by the agency of natural resources, the presumption may only be rebutted by clear and convincing evidence. 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 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 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 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 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 Conforming Amendment * * *

Sec. 7. 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.

(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.

* * *

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

Sec. 8. REPEAL OF ADMINISTRATIVE RULE

Environmental Board Rule 2(A)(6) (the 800-foot road rule) is repealed.