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NO. 40. AN ACT RELATING TO ACT 250 APPEALS ON THE RECORD AND OTHER TECHNICAL MATTERS.

(H.475)

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" shall also mean 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 six or more lots, within a continuous period of five years, in a municipality which does not have duly adopted permanent zoning and subdivision bylaws.

* * * 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.

* * * Assistance to Applicants * * *

Sec. 3. 10 V.S.A. § 6024 is amended to read:

§ 6024. INTRAGOVERNMENTAL COOPERATION

Other departments and agencies of state government shall cooperate with the board and make available to it data, facilities and personnel as may be needed to assist the board in carrying out its duties and functions. There shall be established a regular schedule of project review that shall assure that all affected departments and agencies recognize and pursue their respective responsibilities. State employees whose job is to assist applicants in the permitting process established under this chapter, shall endeavor to assist all applicants regardless of the size and value of the projects involved.

* * * Stay of Permit Processing of Applicant in Violation * * *

Sec. 4. 10 V.S.A. § 6083(g) is added to read:

(g)(1) A district commission, pending resolution of noncompliance, may stay the issuance of a permit or amendment if it finds, by clear and convincing evidence, that a person who is an applicant:

(A) is not in compliance with a court order, an administrative order, or an assurance of discontinuance with respect to a violation that is directly related to the activity which is the subject of the application; or

(B) has one or more current violations of this chapter, or any rules, permits, assurances of discontinuance, court order, or administrative orders related to this chapter, which, when viewed together, constitute substantial noncompliance.

(2) Any decision under this subsection to issue a stay may be subject to an interlocutory appeal to the board.

(3) If the same violation is the subject of an enforcement action under chapter 201 of this title, then jurisdiction over the issuance of a stay shall remain with the environmental court and shall not reside with the district commission.

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

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

(a) At the time of application, the applicant may file a motion for recorded hearings which provides that any appeal to the board will consist of a review on that record.

(b) In the absence of a motion for recorded hearings properly filed by an applicant with the filing of a complete application and, within ten calendar days of the date that a district commission provides notice of a hearing under section 6084 of this title, any statutory party or any prospective party may file a motion for recorded hearings which provides that any appeal to the board will consist of a review on that record.

(c) Within ten calendar days of its receipt of a motion for recorded hearings properly filed by an applicant or a prospective party and the receipt of a complete application, the commission shall provide notice of the motion. If necessary, the commission shall cancel any previously scheduled hearings, and the commission shall schedule a prehearing conference. The purpose of the prehearing conference includes, but need not be limited to, determining party status and affording an opportunity to object to the motion for recorded hearings.

(d) After a final determination of preliminary party status is made, in determining whether to grant a motion for recorded hearings, the district commission shall consider the public interest, including, but not limited to: the cost of recorded hearings, the efficiency of the application process, the anticipated value of the particular proceeding in evaluating the recorded hearing pilot project, relative costs or cost savings to the parties, and whether recorded hearings will likely result in providing more complete or less complete information for the commission’s consideration. If it is clear that the public interest would be served, the commission may grant such motions for recorded hearings, with the consent of all parties. The commission’s decision on this issue shall not be subject to appeal.

(e) 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.

(f) In situations in which recorded hearings are convened, the district commission shall extend the hearing schedule or take other appropriate action as necessary to provide a fair and reasonable opportunity for the parties to prepare, present, and respond to evidence presented, while preventing undue delay. Parties may prefile testimony and exhibits. If prefiled testimony is used, the applicant shall file its prefiled testimony, and then other parties shall be given the opportunity to file their prefiled testimony. Any rebuttal testimony shall be filed in similar sequence.

(g) Recorded hearings before the commission shall maintain the procedural and evidentiary flexibility and informality characteristic of administrative proceedings. Those standards shall be construed with particular flexibility in allowing the introduction of evidence.

(h) The commission hearing shall be recorded on videotape, at the expense of the board, to preserve the words and identity of the speakers, and to allow for the ready recovery of the testimony on the videotape by the parties and the board, if necessary to clarify the written record. In the event that an appeal is taken to the board, the commission shall provide the board with the original videotape of the hearing and the complete commission written record. The commission shall make and preserve a copy of the original tape for access and subsequent use by the parties and the board.

(i) The board shall adopt emergency rules following one or more public hearings and a written comment period to guide the implementation of this section throughout the state. In this adoption process, the board need not believe that there exists an imminent peril to public health, safety, and welfare. Review of these emergency rules by the legislative committee on administrative rules shall not include the issue of whether or not the rules are necessitated by an imminent peril to public health, safety, or welfare. These emergency rules shall remain in effect until the pilot project is terminated or the rules are amended through the normal rulemaking process. Upon receipt of a request from a commission for additional assistance in managing a recorded hearing, the board shall provide temporary additional resources as necessary.

(j) In the case of appeals taken on the record under this section, notwithstanding provisions to the contrary in section 6089 of this title, the following shall apply:

(1) Parties to the appeal shall conform with the filing and procedural requirements in the board rules adopted in accordance with emergency rulemaking authority granted to the board under this section.

(2) The board may require that additional evidence be presented, and may receive and consider evidence offered beyond that which was presented before the commission.

(3) The board shall remand the case to the district commission if it is persuaded that the district commission improperly excluded evidence, did not provide adequate notice or opportunity to prepare or to be heard, or otherwise failed to comply with the requirements of 3 V.S.A. chapter 25 pertaining to contested cases. The board need not remand for harmless error. Party status disputes shall be resolved through interlocutory appeal to the board prior to the district commission’s convening hearings on the merits.

(4) The board may, in its discretion, substitute its judgment for the judgment of the commission without finding that the commission erroneously applied the law.

(k) The board shall provide interim reports on implementation of the recorded hearing pilot project to the general assembly, by no later than March 15, 2002 and January 15, 2003. The executive director of the board shall present to the legislative committees on natural resources and energy those interim reports, which shall detail the range of projects for which there were recorded hearings, the districts where the recorded hearings took place, the time required and the outcome of completed commission hearings, whether appeals were taken, and if so, by which party, and the time required for and the outcome of appellate proceedings before the board. The reports shall indicate the number of instances in which requests for recorded hearings were duly filed, but consent of all the parties was not obtained, and shall describe the nature of the projects involved, what were the concerns of the parties that refused to consent, and other circumstances regarding each case. In addition, the reports shall address the following, both from the perspective of the board and from the perspective of the 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 the implementation of this section following the date for sunset and after all proceedings before the board are completed.

(l) This section shall be repealed on September 1, 2004, although proceedings pursuant to a motion for recorded hearings that is filed prior to that date shall continue under those sections until all of these proceedings before the board are completed.

* * * Compliance with Town Plan * * *

Sec. 6. 10 V.S.A. § 6086(a)(10) is amended to read:

(10) Is in conformance with any duly adopted local or regional plan or capital program under chapter 117 of Title 24. In making this finding, if the board or district commission finds applicable provisions of the town plan to be ambiguous, the board or district commission, for interpretive purposes, shall consider bylaws, but only to the extent that they implement and are consistent with those provisions, and need not consider any other evidence.

* * * Agency of Natural Resources Permits * * *

Sec. 7. 10 V.S.A. § 6086(d) is amended to read:

(d) 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. In the case of approvals and permits issued by the agency of natural resources, technical determinations of the agency shall be accorded substantial deference by the commissions and the board. 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. 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.

* * * Termination of Jurisdiction Over Temporary Film Developments * * *

Sec. 8. 10 V.S.A. § 6086(e) is added to read:

(e) This subsection shall apply with respect to a development that consists of the construction of temporary physical improvements for the purpose of producing films, television programs, or advertisements. These improvements shall be considered "temporary improvements" if they remain in place for less than one year, unless otherwise extended by the permit or a permit amendment, and will not cause a long-term adverse impact under any of the 10 criteria after completion of the project. In situations where this subsection applies, jurisdiction under this chapter shall not continue after the improvements are no longer in place and the conditions in the permit have been met, provided there is not a long-term adverse impact under any of the 10 criteria after completion of the project; except, however, if jurisdiction is otherwise established under this chapter, this subsection shall not remove jurisdiction. This termination of jurisdiction in these situations does not represent legislative intent with respect to continuing jurisdiction over other types of development not specified in this subsection.

* * * Stay in Construction After Permit Issuance * * *

Sec. 9. 10 V.S.A. § 6086(f) is added to read:

(f) Prior to any appeal of a permit issued by a district commission, any aggrieved party may file a request for a stay of construction with the district commission together with a declaration of intent to appeal the permit. The stay request shall be automatically granted for seven days upon receipt and notice to all parties and pending a ruling on the merits of the stay request pursuant to board rules. The automatic stay shall not extend beyond the 30-day appeal period unless a valid appeal has been filed with the board. The automatic stay may be granted only once under this subsection during the 30-day appeal period. Following appeal of the district commission decision, any stay request must be filed with the board pursuant to board rules. A district commission shall not stay construction authorized by a permit processed under the board’s minor application procedures.

* * * Studies * * *

Sec. 10. STUDY ON THE LAND USE PERMITTING PROCESS

(a) The secretary of natural resources, together with the chair of the environmental board, the chair of the water resources board, the commissioner of agriculture, food and markets, and the secretary of transportation, or their designees, two members each from the house and the senate committees on natural resources and energy, as appointed respectively by the speaker of the house and the committee on committees, and a representative from each of the following, as appointed by the governor: the business community, municipalities, environmental organizations, and the general public, shall meet to examine the land use permitting process for the purpose of recommending legislation that will accomplish the following, while assuring citizen participation and environmental protection:

(1) categorize the existing permits that have or should have similar processes, and identify the environmental protection goals that each process seeks to achieve;

(2) list those permits which have or should have processes and underlying statutory criteria that should enable the permits to receive presumptive evidentiary weight in Act 250;

(3) recommend, for a pilot project, permits or parts of permits that could be reviewed for approval by different regulatory units acting together;

(4) recommend different permits that could be consolidated;

(5) review common parts of the permitting processes for all land use permits, from the point of application on through the entire regulatory process, including an identification of those parts that make provision for public participation, for strategies that would result in standardization;

(6) review the end result of the entire land use permitting process for overlap, redundancy, and efficiency, and for logical sequencing of appeal routes and appeal procedures; and report the positive and negative effects of allowing all parties to appeal to the supreme court;

(7) recommend strategies for "predictability" from the viewpoint of each participant, applicant, agency, or group that is involved in the land use permitting process.

(b) The committee shall report to the house and senate committees on natural resources and energy by January 15, 2002, with appropriate legislative proposals. Legislative committee members shall be entitled to compensation and expenses as provided in 2 V.S.A. § 406, for up to six meetings. The committee shall be entitled to the services of the legislative council.

Sec. 11. LEGISLATIVE COUNCIL STUDY

Legislative council staff, in consultation with the house and senate committees on natural resources and energy, shall investigate mechanisms used by other governmental entities to address the issue of cumulative growth, with a particular focus upon approaches that might be adapted for use in Vermont, and shall report back to the committees with the results of that investigation.

* * * Facilitator and Mediator Pilot Projects * * *

Sec. 12. ACT 250 FACILITATOR PILOT PROJECT

(a) Pilot project. There is created a pilot project pursuant to which a limited service position of Act 250 facilitator is authorized until September 1, 2004. For purposes of this subsection, there is appropriated $50,000.00 during fiscal year 2002 from the Act 250 permit fund created by 10 V.S.A. § 6029. The facilitator may be assigned for various periods of time in one or more district commissions by the executive director of the environmental board, according to where the services are most needed at the time. The facilitator, while retaining neutrality, shall work to facilitate the process and shall not serve as staff to a district commission when it is functioning in its quasi-judicial capacity. The facilitator’s functions shall be to:

(1) Assist applicants for small projects in preparing for their participation in proceedings under Act 250.

(2) Assist parties who are not applicants in preparing for their participation in proceedings under Act 250.

(3) Assist applicants for small projects in developing a complete application.

(4) Assist applicants in identifying parties to proceedings under this chapter.

(5) Assist applicants in the exchange of information between an applicant and the other parties.

(b) Persons receiving assistance from a facilitator shall be given an evaluation sheet, with questions about their interactions with the facilitator, the assistance provided by the facilitator, and their satisfaction with those services. Input received in response to evaluation sheets shall be compiled and presented as part of the reports on the effectiveness of this pilot project. These reports shall be provided on the same schedule as reports concerning the recorded hearing pilot project, and shall address the following, both from the perspective of the board and from the perspective of the commissions: the timeliness of the process, manageability of the process, any perceived effects on public participation, and any additional resource demands or resource efficiencies.

Sec. 13. MEDIATOR PILOT PROJECT

(a) There is created a pilot project pursuant to which mediation services shall be provided until September 1, 2004, at no cost to applicants or other parties. The purpose of the mediation pilot project shall be to provide mediation services through contract to resolve disputes within Act 250 proceedings. Mediated agreements shall not be binding on the district commission or on the board. For purposes of this subsection, there is appropriated $25,000.00 during fiscal year 2002 from the Act 250 permit fund created by 10 V.S.A. § 6029.

(b) Parties to proceedings involving the mediator shall be given an evaluation sheet with questions about their interactions with the mediator, the effectiveness of the mediation services, and their satisfaction with the proceedings and the outcome of the proceedings. Input received in response to evaluation sheets shall be compiled and presented as part of the report on the effectiveness of this pilot project. These reports shall be provided on the same schedule as reports concerning the recorded hearing pilot project, and shall evaluate the success of the project in resolving disputes in the Act 250 process.

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

Sec. 14. REPEAL OF ADMINISTRATIVE RULE

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

Approved: June 13, 2001