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Rep. Kirker of Essex explained her vote as follows:

“Mr. Speaker:

H. 629 is a bill that I have struggled with. I believe that bullying is a symptom of larger, pervasive, social and cultural issues in our society.

This bill is one more example of the state expecting schools to assume parental responsibilities.

However, I support the bill in the hope that a clear message about the importance of respect in our society will be brought to the forefront. Let us all remember that children learn from adults who model behaviors and set expectations for right and wrong.”

Rep. Young of Orwell explained his vote as follows:

“Mr. Speaker:

The childhood poem “sticks and stones will break my bones, but names will never hurt me”, is hereby repealed.”

Bill Amended; Third Reading Ordered

H. 779

Rep. Sweeney of Colchester, for the committee on Local Government, to which had been referred House bill, entitled

An act relating to the charter of the city of Winooski;

Reported in favor of its passage when amended as follows:

First: By striking Sec. 1 in its entirety and inserting in lieu thereof the following:

Sec. 1. CHARTER AMENDMENT

Notwithstanding the certification requirements of 17 V.S.A. § 2645, the Charter of the City of Winooski is amended as it appears in this act. The voters approved the amendments on March 4, 2003 except for the amendment repealing § 5.20 related to the Gilbrook Property which the voters approved on November 5, 2002.

Second: In Sec. 16, 24 App. V.S.A. chapter 17 § 2.17 by striking subsection (c).

Third: By adding a new Sec. 19a to read:

Sec. 19a. 24 App V.S.A. chapter 17 § 5.12 is amended to read:

§ 5.12. Property sales and leases

(a) The city council may authorize the sale of real or personal estate belonging to the city when the same shall not exceed in value ten thousand dollars, or may lease the same for a term not exceeding one year and all conveyances, grants and leases of any such real estate shall be executed by the mayor and sealed with the city seal. The voters, at a duly warned annual or special city meeting, may authorize the sale of real or personal property belonging to the city when the value exceeds ten thousand dollars except for those sales provided for in subsection (c) of this section.

(b) The city shall have the authority to purchase real estate for the purpose of development. The purchase of such property must be approved by resolution of the city council.

(c) The city council may authorize the sale of real estate, belonging to the city, that exceeds ten thousand dollars in value, provided that such property was acquired for development purposes and that such transfer is made to the Winooski Community Development Corporation. Such transfers shall be executed by the mayor and sealed with the city seal.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committee on Local Government agreed to and third reading ordered.

Bill Amended; Third Reading Ordered

H. 783

Rep. Dean of Westminster, for the committee on Local Government, to which had been referred House bill, entitled

An act relating to the Brattleboro town charter;

Reported in favor of its passage when amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. CHARTER AMENDMENT

The Charter of the Town of Brattleboro is amended as it appears in this act. The voters approved the amendments on March 2, 2004.

Sec. 2. 24 App. V.S.A. chapter 107 § 4.6(28) is amended to read:

(28) To adopt ordinances, including emergency ordinances effective for no more than 30 days, rules, regulations, plans, and directives, or to promulgate maps or by-laws in furtherance of the powers of the town, whether under the authority of this charter or of other general or special enactments, all of which shall be published in accordance with law. All ordinances, regulations, plans or bylaws of the town, except emergency ordinances, whether enacted under authority of general or special law, shall be published in a newspaper to be designated by the selectboard and circulated in the town at least 20 days before the effective date thereof. ~~A single publication of the full text of the ordinances, regulations, plan or bylaw shall be sufficient, any statute to the contrary notwithstanding~~ Publication of the ordinances, regulations, plans, or bylaws shall meet the requirements of section 1972 of Title 24. All such ordinances, regulations, plans, or bylaws shall thereupon be recorded at length by the town clerk in a book kept for that ~~purposes~~ purpose.

Sec. 3. 24 App. V.S.A chapter 107 § 9.7 is amended to read:

§ 9.7 ARTICLES IN WARNING; ACTION ON

The articles in the warning for every town meeting so far as they relate to the election of officers and to referenda and all matters to be acted upon by Australian ballot shall be so acted upon by the voters of the town. All other articles in the warning for any town meeting shall be acted upon exclusively by town meeting members, including questions on municipal bonding issues. The polls at any annual or special representative town meeting shall be opened not later than 10 o’clock in the forenoon and shall be closed 30 minutes following the recess of the representative town meeting.

Sec. 4. 24 App. V.S.A. chapter 107 § 9.8 is amended to read:

§ 9.8. REFERENDUM

No article in the warning shall at any representative town meeting be finally disposed of by a vote to pass over, to lay upon the table, to postpone indefinitely or take no action thereon. No vote passed at any representative town meeting under any article in the warning, except a vote to adjourn, or a vote for the temporary borrowing of money in anticipation of taxes, shall be operative until the expiration of five days, exclusive of Sundays and holidays, from the adjournment of the meeting. If within said five days a petition, signed by not fewer than 250 voters of the town, including at least 50 from each district, containing their names and addresses as they appear on the check list, or signed by not fewer than 50 town meeting members, be filed with the selectboard requesting that the question or questions involved in such vote be submitted to the voters of the town at large, then the selectboard within 14 days after the filing of the petition, shall call a special town meeting, which shall be held within ten days after the issuing of the call for the sole purpose of presenting to the voters at large the question or questions so involved. The polls shall be opened not later than ten o’clock in the forenoon and shall be closed ~~not earlier than six o’clock in the evening~~ 30 minutes following the recess of the representative town meeting, and all votes upon any questions so submitted shall be taken by ballot, and the check list shall be used in the several district meetings in the same manner as in the election of town officers. The questions so submitted shall be determined by vote of the same proportion of voters at large voting thereon as would have been required by law of the town meeting members had the question been finally determined at a representative town meeting. The question so submitted shall be stated upon the ballot in the same language and form in which it was stated when presented to said representative town meeting by the moderator as appears from the records of the said meeting. If such petition be not filed within the said period of five days, the vote of the representative town meeting shall become operative upon the expiration of the said period.

Sec. 5. Addendum C of the Brattleboro Town Charter is amended to read:

ADDENDUM C

DESCRIPTION OF OFFICERS, OFFICIALS,

BOARDS, COMMISSIONS AND COMMITTEES

The officers, officials, boards, commissions and committees described in this addendum are those which were in existence when this Charter was written. These descriptions are included for purposes of information. Because the various positions and bodies described here may change from time to time, the reader is advised to seek current information from the town manager’s office.

Unless otherwise stated, all appointments are made by the selectboard and are for terms commencing July 1 and terminating June 30.

* * *

Bus Service Advisory Committee. ~~“Ten”~~ “Five” unlimited terms. The committee oversees the operation of the town-subsidized bus service and makes recommendations to the selectboard regarding town bus service. It meets monthly.

* * *

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committee on Local Government agreed to and third reading ordered.

Favorable Report; Third Reading Ordered

J.R.H. 46

Rep. Milkey of Brattleboro, for the committee on Commerce, to which had been referred Joint resolution, entitled

Joint resolution strongly urging the Comptroller of the Currency to withdraw the newly adopted preemption rules restricting the states’ regulatory authority over national banks and their operating subsidiaries;

Reported in favor of its passage. The resolution, having appeared on the Calendar one day for notice, was taken up, read the second time and third reading ordered.

Action Postponed

H. 737

The Senate proposes to the House to amend House bill, entitled

An act relating to long-term care insurance;

by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. REPEAL

8 V.S.A. chapter 153, §§ 8051-8062, is repealed.

Sec. 2. 8 V.S.A. chapter 154 is added to read:

Chapter 154. LONG‑TERM CARE INSURANCE

§ 8081. PURPOSE

The purpose of this chapter is to promote the public interest, to promote the availability of long-term care insurance policies, to protect applicants for long-term care insurance from unfair or deceptive sales or enrollment practices, to establish standards for long-term care insurance, to facilitate public understanding and comparison of long-term care insurance policies, and to facilitate flexibility and innovation in the development of long-term care insurance coverage.

§ 8082. DEFINITIONS

As used in this chapter:

(1) “Applicant” means:

(A) In the case of an individual long-term care insurance policy, the individual who seeks to contract for benefits.

(B) In the case of a group long-term care insurance policy, the proposed certificate holder.

(2) “Certificate” means, for the purposes of this chapter, any certificate issued under a group long-term care insurance policy, which policy has been delivered or issued for delivery in this state.

(3) “Commissioner” means the commissioner of banking, insurance, securities, and health care administration.

(4) “Group long-term care insurance” means a long-term care insurance policy that is delivered or issued for delivery in this state and issued to:

(A) One or more employers or labor organizations or to a trust or to the trustees of a fund established by one or more employers or labor organizations, or a combination thereof, for employees or former employees or a combination thereof, or for members or former members or a combination thereof, of the labor organizations;

(B) Any professional, trade, or occupational association for its members or former or retired members, or combination thereof, if the association:

(i) is composed of individuals all of whom are or were actively engaged in the same profession, trade, or occupation; and

(ii) has been maintained in good faith for purposes other than obtaining insurance; or

(C)(i) An association or a trust or the trustees of a fund established, created, or maintained for the benefit of members of one or more associations. Prior to advertising, marketing, or offering the policy within this state, the association or associations or the insurer of the association or associations shall file evidence with the commissioner that the association or associations have at the outset a minimum of 100 persons and have been organized and maintained in good faith for purposes other than that of obtaining insurance; have been in active existence for at least one year; and have a constitution and bylaws that provide that:

(I) The association or associations hold regular meetings not less than annually to further purposes of the members;

(II) Except for credit unions, the association or associations collect dues or solicit contributions from members; and

(III) The members have voting privileges and representation on the governing board and committees.

(ii) Forty-five days after the filing, the association or associations will be deemed to satisfy the organizational requirements, unless the commissioner makes a finding that the association or associations do not satisfy those organizational requirements.

(D) A group other than as described in subdivisions (A), (B), and (C) of this subdivision (4), subject to a finding by the commissioner that:

(i) The issuance of the group policy is not contrary to the best interest of the public;

(ii) The issuance of the group policy would result in economies of acquisition or administration; and

(iii) The benefits are reasonable in relation to the premiums charged.

(5) “Long-term care insurance” means any insurance policy or rider advertised, marketed, offered or designed to provide coverage for not less than 12 consecutive months for each covered person on an expense incurred, indemnity, prepaid, or other basis, for one or more necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative, maintenance, or personal care services provided in a setting other than an acute care unit of a hospital. The term includes group and individual annuities and life insurance policies or riders that provide directly or supplement long-term care insurance. The term also includes a policy or rider that provides for payment of benefits based upon cognitive impairment or the loss of functional capacity. The term also includes qualified long-term care insurance contracts. Long-term care insurance may be issued by insurers, fraternal benefit societies, nonprofit health, hospital, and medical service corporations, prepaid health plans, health maintenance organizations, or any similar organization to the extent it is otherwise authorized to issue life or health insurance. Long-term care insurance shall not include any insurance policy that is offered primarily to provide basic Medicare supplement coverage, basic hospital expense coverage, basic medical-surgical expense coverage, hospital confinement indemnity coverage, major medical expense coverage, disability income or related asset‑protection coverage, accident only coverage, specified disease or specified accident coverage, or limited benefit health coverage. With regard to life insurance, this term does not include life insurance policies that accelerate the death benefit specifically for one or more of the qualifying events of terminal illness, medical conditions requiring extraordinary medical intervention or permanent institutional confinement, and that provide the option of a lump‑sum payment for those benefits where neither the benefits nor the eligibility for the benefits is conditioned upon the receipt of long-term care. Notwithstanding any other provision of this chapter, any product advertised, marketed, or offered as long-term care insurance shall be subject to the provisions of this chapter.

(6) “Policy” means, for the purposes of this chapter, any policy, contract, subscriber agreement, rider, or endorsement delivered or issued for delivery in this state by an insurer, fraternal benefit society, nonprofit health, hospital, or medical service corporation, prepaid health plan, health maintenance organization, or any similar organization.

(7)(A) “Qualified long-term care insurance contract” or “federally tax-qualified long-term care insurance contract” means an individual or group insurance contract that meets the requirements of Section 7702B(b) of the Internal Revenue Code of 1986, as amended, as follows:

(i) The only insurance protection provided under the contract is coverage of qualified long-term care services. A contract shall not fail to satisfy the requirements of this subdivision by reason of payments being made on a per diem or other periodic basis without regard to the expenses incurred during the period to which the payments relate.

(ii) The contract does not pay or reimburse expenses incurred for services or items to the extent that the expenses are reimbursable under Title XVIII of the Social Security Act, as amended, or would be so reimbursable but for the application of a deductible or coinsurance amount. The requirements of this subdivision do not apply to expenses that are reimbursable under Title XVIII of the Social Security Act only as a secondary payer. A contract shall not fail to satisfy the requirements of this subdivision by reason of payments being made on a per diem or other periodic basis without regard to the expenses incurred during the period to which the payments relate.

(iii) The contract is guaranteed renewable, within the meaning of Section 7702B(b)(1)(C) of the Internal Revenue Code of 1986, as amended.

(iv) The contract does not provide for a cash surrender value or other money that can be paid, assigned, pledged as collateral for a loan, or borrowed except as provided in subdivision (v) of this subdivision (7)(A);

(v) All refunds of premiums and all policyholder dividends or similar amounts under the contract are to be applied as a reduction in future premiums or to increase future benefits, except that a refund on the event of the death of the insured or a complete surrender or cancellation of the contract cannot exceed the aggregate premiums paid under the contract; and

(vi) The contract meets the consumer protection provisions set forth in Section 7702B(g) of the Internal Revenue Code of 1986, as amended.

(B) “Qualified long-term care insurance contract” or “federally tax-qualified long-term care insurance contract” also means the portion of a life insurance contract that provides long-term care insurance coverage by rider or as part of the contract and that satisfies the requirements of Section 7702B(b) and (e) of the Internal Revenue Code of 1986, as amended.

§ 8083. EXTRATERRITORIAL JURISDICTION

No group long-term care insurance coverage may be offered to a resident of this state under a group policy issued in another state to a group described in section 8082(4)(D) of this title, unless this state or another state having statutory and regulatory long-term care insurance requirements substantially similar to those adopted in this state has made a determination that such requirements have been met. All other jurisdiction shall be pursuant to section 4062 of this title.

§ 8084. DISCLOSURE STANDARDS

(a) The commissioner shall adopt rules establishing standards for full and fair disclosure of the terms of a long-term care insurance policy.

(b) The disclosure standards established under subsection (a) of this section shall include provisions setting forth the manner, content, and required disclosures for the sale of long-term care insurance policies, terms of renewability, initial and subsequent conditions of eligibility, nonduplication of coverage provisions, coverage of dependents, preexisting conditions, termination of insurance, continuation, conversion, probationary periods, limitations, exceptions, reductions, elimination periods, requirements for replacement, recurrent conditions, and definitions of terms.

§ 8085. MINIMUM BENEFITS AND COVERAGE; GENERAL

(a) The commissioner shall adopt rules establishing standards for minimum benefits and coverage that must be provided by a long-term care insurance policy to carry out the purposes of subsection (b) of this section.

(b) No long-term care insurance policy may:

(1) be cancelled, nonrenewed, or otherwise terminated on grounds other than by cancellation by the insured individual or certificate holder; nonpayment of premiums by the insured individual or certificate holder; all amounts potentially payable under the terms of the policy having been fully paid out; or except as provided for in section 8094 of this title;

(2) contain a provision establishing a new waiting period in the event existing coverage is converted to or replaced by a new or other form within the same company, except with respect to an increase in benefits voluntarily selected by the insured individual or group policyholder;

(3) provide coverage for skilled nursing care only or provide significantly more coverage for skilled care in a facility than coverage for lower levels of care;

(4) exclude persons afflicted with Alzheimer’s disease and related disorders from benefits or coverage or deny benefits or coverage on the basis that the need for services arises from a mental health condition;

(5) be issued without including a provision covering home health care benefits that complies with the standards for minimum benefits and coverage established by rule under subsection (a) of this section;

(6) fail to offer adult day care benefits, either in the policy or as an optional rider, that comply with the standards for minimum benefits and coverage established by rule under subsection (a) of this section;

(7) be offered without including an option for inflation adjustment protection that complies with the standards for minimum benefits and coverage established by rule under subsection (a) of this section;

(8) include a deductible or elimination period in excess of 100 days, computed in a manner prescribed by the commissioner by rule, for any covered benefit;

(9) require payment of premiums more frequently than monthly; or

(10) be represented as having a premium described as level, fixed, or by similar words, if the premium is not, in fact, fixed and may be increased.

§ 8086. PREEXISTING CONDITIONS

(a) No long-term care insurance policy or certificate shall use a definition of “preexisting condition” which is more restrictive than the following: “Preexisting condition” means a condition for which medical advice or treatment was recommended by or received from a provider of health care services within six months preceding the effective date of coverage of an insured person.

(b) No long-term care insurance policy or certificate may exclude coverage for a loss or confinement which is the result of a preexisting condition, unless such loss or confinement begins within six months following the effective date of coverage of an insured person.

(c) The commissioner may by rule extend the limitation periods established in subsections (a) and (b) of this section as to specific age group categories in specific policy forms upon findings that the extension is in the best interest of the public.

(d) The definition of “preexisting condition” does not prohibit an insurer from using an application form designed to elicit the complete health history of an applicant and, on the basis of the answers on that application, from underwriting in accordance with that insurer’s established underwriting standards. Unless otherwise provided in the policy or certificate, a preexisting condition, regardless of whether it is disclosed on the application, need not be covered until the waiting period described in subsection (b) of this section expires. No long-term care insurance policy or certificate may exclude or use waivers or riders of any kind to exclude, limit, or reduce coverage or benefits for specifically named or described preexisting diseases or physical conditions beyond the waiting period described in subsection (b) of this section.

§ 8087. PRIOR INSTITUTIONALIZATION

No long-term care insurance policy shall condition benefits upon a period of prior hospitalization or upon admission to a facility for the same or related condition that led to hospitalization or admission to the facility.

§ 8088. LOSS RATIO STANDARDS

The commissioner may adopt rules establishing loss ratio standards for long-term care insurance policies, provided that a specific reference to long-term care insurance policies is contained in the rule.

§ 8089. RIGHT TO RETURN; FREE LOOK

(a) Individual long-term care insurance policyholders shall have the right to return the policy within 30 days of its delivery and to have the premium refunded if, after examination of the policy, the policyholder is not satisfied for any reason. Individual long-term care insurance policies shall have a notice prominently printed on the first page of the policy stating in substance that the policyholder shall have the right to return the policy within 30 days of its delivery and to have the premium refunded if, after examination of the policy, the policyholder is not satisfied for any reason.

(b) A person insured under a long-term care insurance policy issued pursuant to a direct response solicitation shall have the right to return the policy within 30 days of its delivery and to have the premium refunded if after examination the insured person is not satisfied for any reason. Long-term care insurance policies issued pursuant to a direct response solicitation shall have a notice prominently printed on the first page stating in substance that the insured person shall have the right to return the policy within 30 days of its delivery and to have the premium refunded if after examination the insured person is not satisfied for any reason.

§ 8090. OUTLINE OF COVERAGE FOR APPLICANT; CERTIFICATE

(a) An outline of coverage shall be delivered to a prospective applicant for long-term care insurance at the time of initial solicitation through means that prominently direct the attention of the recipient to the document and its purpose. The commissioner shall prescribe a standard format, including style, arrangement, overall appearance, and the content of an outline of coverage.

(b) In the case of agent solicitations, an agent shall deliver the outline of coverage prior to the presentation of an application or enrollment form.

(c) In the case of direct response solicitations, the outline of coverage shall be presented in conjunction with any application or enrollment form.

(d) In the case of a policy issued to a group defined in subdivision 8082(4)(A) of this chapter, an outline of coverage shall not be required to be delivered, provided that the information described in subsection (e) of this section is contained in other materials relating to enrollment. Upon request, these other materials shall be made available to the commissioner.

(e) The outline of coverage shall include:

(1) A description of the principal benefits and coverage provided in the policy;

(2) A statement of the principal exclusions, reductions, and limitations contained in the policy;

(3) A statement of the terms under which the policy or certificate, or both, may be continued in force or discontinued, including any reservation in the policy of a right to change premium. Continuation or conversion provisions of group coverage shall be specifically described;

(4) A statement that the outline of coverage is a summary only, not a contract of insurance, and that the policy or group master policy contains governing contractual provisions;

(5) A description of the terms under which the policy or certificate may be returned and the premium refunded;

(6) A brief description of the relationship of cost of care and benefits; and

(7) A statement that discloses to the policyholder or certificate holder whether the policy is intended to be a federally tax-qualified long-term care insurance contract under Section 7702B(b) of the Internal Revenue Code of 1986, as amended.

(f) A certificate issued pursuant to a group long-term care insurance policy delivered or issued for delivery in this state shall include:

(1) A description of the principal benefits and coverage provided in the policy;

(2) A statement of the principal exclusions, reductions, and limitations contained in the policy; and

(3) A statement that the group master policy determines governing contractual provisions.

(g) If an application for a long-term care insurance contract or certificate is approved, the issuer shall deliver the contract or certificate of insurance to the applicant no later than 30 days after the date of approval.

§ 8091. POLICY SUMMARY FOR LIFE INSURANCE POLICY PROVIDING LONG-TERM CARE BENEFITS

(a) If an individual life insurance policy provides long-term care benefits within the policy or by rider, a policy summary shall be delivered at the time of policy delivery. In the case of direct response solicitations, the insurer shall deliver the policy summary upon the applicant’s request, but regardless of request shall make delivery no later than at the time of policy delivery. In addition to complying with all applicable requirements, the summary shall also include:

(1) An explanation of how the long-term care benefit interacts with other components of the policy, including deductions from death benefits;

(2) An illustration of the amount of benefits, the length of benefits, and the guaranteed lifetime benefits if any, for each covered person;

(3) Any exclusions, reductions, and limitations on benefits of long-term care;

(4) A statement that any long-term care inflation protection option required by subdivision 8085(b)(6) of this title is not available under this policy;

(5) If applicable to the policy type, the summary shall also include:

(A) A disclosure of the effects of exercising other rights under the policy;

(B) A disclosure of guarantees related to long-term care costs of insurance charges; and

(b) The provisions of the policy summary listed in this section may be incorporated into a basic illustration required to be delivered or into the life insurance policy summary which is required to be delivered in accordance with the department’s rules.

§ 8092. ACCELERATION OF LIFE INSURANCE DEATH BENEFIT; MONTHLY REPORT

Anytime a long-term care benefit, funded through a life insurance vehicle by the acceleration of the death benefit, is in benefit payment status, a monthly report shall be provided to the policyholder. The report shall include:

(1) any long-term care benefits paid out during the month;

(2) an explanation of any changes in the policy, such as death benefits or cash values, due to long-term care benefits being paid out; and

(3) the amount of long-term care benefits existing or remaining.

§ 8093. DENIAL OF CLAIMS; WRITTEN EXPLANATION

If a claim under a long-term care insurance contract is denied, the issuer shall, within 60 days of the date of a written request by the policyholder or certificate holder, or a representative thereof:

(1) Provide a written explanation of the reasons for the denial; and

(2) Make available all information directly related to the denial.

§ 8094. INCONTESTABILITY PERIOD

(a) For a policy or certificate that has been in force for less than six months, an insurer may rescind a long-term care insurance policy or certificate or deny an otherwise valid long-term care insurance claim upon a showing of misrepresentation that is material to the acceptance for coverage.

(b) For a policy or certificate that has been in force for at least six months but less than two years, an insurer may rescind a long-term care insurance policy or certificate or deny an otherwise valid long-term care insurance claim upon a showing of misrepresentation that is both material to the acceptance for coverage and which pertains to the condition for which benefits are sought.

(c) After a policy or certificate has been in force for two years, it is not contestable upon the grounds of misrepresentation alone, but may be contested only upon a showing that the insured knowingly and intentionally misrepresented relevant facts relating to the insured’s health.

(d) If an insurer has paid benefits under the long-term care insurance policy or certificate, the benefit payments may not be recovered by the insurer in the event that the policy or certificate is rescinded.

(e) In the event of the death of the insured, this section shall not apply to the remaining death benefit of a life insurance policy that accelerates benefits for long-term care. In this situation, the remaining death benefits under these policies shall be governed by sections 3731 and 4065 of this title. In all other situations, this section shall apply to life insurance policies that accelerate benefits for long-term care.

§ 8095. NONFORFEITURE BENEFITS

(a) Except as provided in subsection (b) of this section, a long-term care insurance policy may not be delivered or issued for delivery in this state unless the policyholder or certificate holder has been offered the option of purchasing a policy or certificate that includes a nonforfeiture benefit. The offer of a nonforfeiture benefit may be in the form of a rider that is attached to the policy. In the event the policyholder or certificate holder declines the nonforfeiture benefit, the insurer shall provide a contingent benefit upon lapse of the policy that shall be available for a specified period of time following a substantial increase in premium rates.

(b) When a group long-term care insurance policy is issued, the offer required in subsection (a) of this section shall be made to the group policyholder. However, if the policy is issued as group long-term care insurance as defined in subdivision 8082(4)(D) of this title, other than to a continuing care retirement community or other similar entity, the offering shall be made to each proposed certificate holder.

(c) The commissioner shall adopt rules specifying the type or types of nonforfeiture benefits to be offered as part of long-term care insurance policies and certificates, the standards for nonforfeiture benefits, and the rules regarding contingent benefit upon lapse of the policy, including a determination of the specified period of time during which a contingent benefit upon lapse will be available and the substantial premium rate increase that triggers a contingent benefit upon lapse as described in subsection (a) of this section.

§ 8096. SECONDARY NOTICE OF CANCELLATION

The commissioner shall adopt the National Association of Insurance Commissioners’ model rule regarding secondary notice of cancellation of long-term care policies.

§ 8097. AUTHORITY TO ADOPT RULES

The commissioner shall issue reasonable rules to promote premium adequacy and to protect the policyholder in the event of substantial rate increases, and to establish minimum standards for marketing practices, agent compensation, field issuance, agent testing, penalties, and reporting practices for long-term care insurance.

§ 8098. BUYER’S GUIDE

The commissioner shall require that a person offering long-term care insurance distribute to applicants a buyer’s guide in a form prescribed by the commissioner.

§ 8099. ENFORCEMENT

(a) No policy may be advertised, marketed, or offered as long-term care insurance unless it complies with the provisions of this chapter and rules adopted under this chapter.

(b) In addition to any other remedy or sanction provided by law, after notice and opportunity for hearing, the commissioner may assess an administrative penalty in an amount not to exceed $10,000.00 or up to three times the amount of any commissions paid, whichever is greater, for each violation against any person who violates any provision of this chapter.

(c) A person who violates a provision of this chapter shall be fined not more than $10,000.00 or imprisoned for not more than six months, or both.

(d) The department or the attorney general at the request of the department may bring an action to enforce the provisions of this chapter in Washington superior court.

Sec. 3. REPORT ON STANDARDIZED LONG-TERM CARE POLICIES

On or before January 1, 2005, the commissioner of banking, insurance, securities, and health care administration shall report to the house and senate committees on health and welfare, the house committee on commerce, and the senate committee on finance on the advisability of establishing one or more standardized long-term care policies to be offered by insurers selling long-term care policies in this state.

Sec. 4. RECODIFICATION

8 V.S.A. § 8079e (chemotherapy treatment) is recodified as 8 V.S.A. § 4088c.

Sec. 5. 33 V.S.A. § 1908a is added to read:

§ 1908a. VERMONT PARTNERSHIP FOR LONG-TERM CARE

(a) The commissioner, in consultation with the commissioner of banking, insurance, securities, and health care administration, shall establish by rule the Vermont partnership for long-term care program.

(b) The program shall provide Medicaid extended coverage to an individual receiving long-term care services if there is federal participation for such coverage, and if the individual:

(1) is or was covered by a long-term care insurance policy under chapter 154 of Title 8 that provides coverage for three years of long-term care services in an amount which, in combination with other resources available to the individual, is sufficient to permit the individual to pay for the individual’s own care while the policy remains in force and that is precertified by the department of banking, insurance, securities, and health care administration pursuant to subsection (c) of this section;

(2) meets any other requirements for approval of participation under the program; and

(3) has exhausted coverage and benefits under the long‑term care insurance policy as required by the program.

(c)(1) The department of banking, insurance, securities, and health care administration shall adopt rules for precertification of long-term care partnership policies and for the information needed to evaluate the program. The department of banking, insurance, securities, and health care administration shall consider whether all precertified policies should require:

(A) protection against loss of benefits due to inflation;

(B) coverage of individual assessment and case management;

(C) a minimum level of covered benefits, including coverage of long-term care services as defined in subsection (g) of this section;

(D) the option of a nonforfeiture benefit;

(E) a level premium;

(F) information to the purchaser about available consumer information and public education provided by the department of banking, insurance, securities, and health care administration and the department of prevention, assistance, transition, and health access; and

(G) program information, using the uniform data set developed by other states with long-term care partnership programs, and reports necessary to document the extent of the Medicaid resource protection offered and to evaluate the partnership for long-term care.

(2) The department of banking, insurance, securities, and health care administration shall not require all long-term care partnership insurance policies to be federally tax-qualified long-term care insurance policies.

(d) The commissioner is authorized to enter into reciprocal agreements with other states to extend the benefits of the Vermont partnership for long-term care program to Vermont residents who had purchased qualified long-term care policies in other states.

(e) The departments of prevention, assistance, transition, and health access and banking, insurance, securities, and health care administration shall make available consumer information regarding the long-term care partnership program. The commissioners may allocate responsibilities for providing consumer information between the departments.

(f) As used in this section:

(1) “Long-term care services” includes care, treatment, maintenance, and services:

(A) provided in a nursing facility;

(B) provided in a residential care home or assisted living residence;

(D) provided by an adult day care program;

(E) provided by a personal care provider licensed or regulated by any other state or local agency; and

(F) such other long-term care services as determined by the commissioner for which medical assistance is otherwise available under the Medicaid program.

(2) “Medicaid extended coverage” means eligibility for medical assistance without regard to the resource requirements of the Medicaid program up to $300,000.00 in countable resources per individual and without regard to the recovery of medical assistance from the estates of individuals and the imposition of liens pursuant to the requirements of the Medicaid program; provided, however, that nothing in this section shall prevent the imposition of a lien or recovery against property of an individual on account of medical assistance incorrectly paid. Nothing in this section shall modify what medical assistance is covered by Medicaid.

Sec. 6. LONG-TERM CARE PARTNERSHIP REPORT

Annually from 2006 through 2011, the departments of prevention, assistance, transition and health access and banking, insurance, securities, and health care administration shall jointly make a report by January 15 to the general assembly evaluating the long-term care partnership program, including information on the number of precertified long-term care partnership policies applied for, denied, and sold; the number of individuals seeking consumer information from the departments; the extent and type of benefits paid under long-term care policies; estimates of the impact on present and future Medicaid spending; the cost-effectiveness of the program; and a determination on the advisability of continuing the program.

Sec. 7. SCOPE; APPLICABILITY; TRANSITIONAL PROVISIONS

Where any provision of a statute repealed by this act is substantially reenacted in this act, the law shall be deemed to have continued in force from the first enactment as if no enactment and repeal had taken place. The provisions of this act, so far as they are the same as those of existing laws, shall be construed as a continuation of those laws and not as a new enactment. The repeal in this act of any provisions of law shall not revive any law repealed or superseded before this act takes effect; nor shall the repeal affect any act done, liability incurred, or any right accrued or vested, or affect, abate, or prevent any suit or prosecution pending or to be instituted to enforce any right or penalty or punish any offense under the authority of the repealed laws. Any and all rules adopted under any provision of a statute repealed by this act shall remain in force from the date of adoption and apply until superseded as if no statutory repeal had taken place. The requirements of this act other than substantial reenactments shall apply to policies delivered or issued for delivery in this state on or after the effective date of this act. This act is not intended to supersede the obligations of entities subject to this act to comply with the substance of other applicable insurance laws insofar as they do not conflict with this act.

Sec. 8. Effective Date

Sec. 2 of this act shall take effect on January 1, 2005, except that the commissioner’s authority to adopt rules shall be effective upon passage.

Pending the question, Shall the House concur in the Senate proposal of amendment? on motion of Rep. Sunderland of Rutland Town, action on the bill was postponed until the next legislative day.

Recess

At twelve o’clock and fifteen minutes in the afternoon, the Speaker declared a recess until one o’clock and thirty minutes in the afternoon.

At one o’clock and thirty minutes in the afternoon, the Speaker called the House to order.

Rep. Koch of Barre Town in Chair.

Message from Governor

A message was received from His Excellency, the Governor, by Mr. Neale Lunderville, Secretary of Civil and Military Affairs, as follows:

Mr. Speaker:

I am directed by the Governor to inform the House that on the twenty-seventh day of April, 2004, he approved and signed bills originating in the House of the following title:

H. 526 An act relating to bear damaging property

H. 750 An act relating to public service billback authority and the regulation of telecommunications companies

Consideration Interrupted by Recess

175

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill, entitled

An act relating to consolidated environmental appeals and revisions of land and development law;

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposals of amendment and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

* * * Vermont Employees Retirement System * * *

Sec. 1. 3 V.S.A. § 455(a)(11)(D) is amended to read:

(D) "Group D members" shall mean justices of the supreme court, superior judges, district judges, environmental judges, and probate judges.

Sec. 2. 3 V.S.A. § 459(b)(3) is amended to read:

(3) Group D members who are justices of the supreme court, superior judges, environmental judges, and district judges; additional retirement allowance. Justices of the supreme court, superior judges, environmental judges, and district judges, upon retirement under this section, shall receive an additional retirement allowance according to years of service as a supreme court justice, a superior judge, an environmental judge, or a district judge or any combination thereof as follows:

* * *

* * * Agency of Natural Resources; 3 V.S.A. chapter 51 * * *

Sec. 3. 3 V.S.A. § 2802(b) is amended to read:

(b) The ~~environmental~~ natural resources board ~~and the water resources board are~~ is attached to the agency for the purpose of receiving administrative support.

Sec. 4. 3 V.S.A. § 2803(b) is amended to read:

(b) Notwithstanding subsection (a) of this section or any other provision of this chapter the fish and wildlife board, and the ~~environmental~~ natural resources board ~~and the water resources board~~ shall retain and exercise all powers and functions given to them by law which are of regulatory or quasi-judicial nature, including the power to adopt, amend and repeal rules and regulations, to conduct hearings, to adjudicate controversies and to issue and enforce orders, in the manner and to the extent to which those powers are given to those respective boards by law.

Sec. 5. 3 V.S.A. § 2826(a) is amended to read:

(a) The secretary shall establish procedures for the publication of an environmental notice bulletin, in order to provide for the timely public notification of permit applications, notices, comment periods, hearings, and permitting decisions. The secretary shall begin publication of the bulletin by no later than July 1, 1995 on the agency’s website. At a minimum, the bulletin shall contain the following information:

(1) Notice of administratively complete permit applications submitted to the department of environmental conservation.

(2) Notice of the comment period on the application and draft permit, if any, for those applications which were noticed.

(3) Notice of the issuance of a draft permit, if required by law, for those applications that were noticed.

(4) Information on how to request a public hearing or meeting.

(5) Notice of the name of the staff person to contact for information regarding public hearings or meetings with respect to a particular application.

(6) Notice of the issuance or denial of a permit for those applications that were noticed.

Sec. 6. 3 V.S.A. § 2828 is added to read:

§ 2828. PROJECT SCOPING PROCESS

(a) Applicability. This section shall govern all applications for permits, certifications, or other authorizations, except for professional licenses, issued by the department of environmental conservation or under chapter 151 of this title.

(b) Determining project scope. An applicant for any permit, certification, or other authorization, except for a professional license, issued by the department of environmental conservation or a district environmental commission may request to engage in a project scoping process. If a project scoping request is made, the department of environmental conservation and, if appropriate, the district coordinator shall prepare a project review sheet based on information submitted by the applicant. The project review sheet shall indicate:

(1) a brief description of the project and all permits necessary for the project;

(2) whether a land use permit is required by chapter 151 of this title; and

(3) a project identification number assigned by the secretary, for use on all applications, notices, permits, and decisions issued by the secretary.

(c) Project review sheet. The project review sheet shall be prepared based on the information submitted by the project applicant. If, based on supplemental information, or for other good cause, the secretary determines that a project will require other permits or the district coordinator determines that a land use permit under chapter 151 of this title is required, notwithstanding the fact that the permit requirement did not appear on the initial project review sheet, the project review sheet shall be amended. Any failure by the applicant, secretary, or a district coordinator to identify on the project review sheet a required permit or authorization issued by the secretary, or a land use permit issued under chapter 151 of this title, shall not constitute a waiver of jurisdiction.

(d) Project scoping meeting. If the applicant elects to initiate a project scoping process upon completion of the project review sheet or submittal of the first permit application at either the local or state level, the applicant shall schedule a project scoping meeting.

(e) Notice of project scoping meeting. The applicant shall notice the proposed project scoping meeting, at least 30 days prior to the date of the meeting, by sending a copy of the project review sheet by first class mail, postage prepaid, to each of the following: the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for any municipality in which the project is located; if the project site is located on a boundary, any Vermont municipality adjacent to that boundary and the municipal and regional planning commissions for that municipality; any state agency identified on the project scoping sheet as being affected by the project; and all adjoining landowners and residents. In addition, the applicant shall assure that this notice is published in a newspaper of general circulation in the area of the proposed project. The applicant shall furnish by affidavit to the secretary the names of those furnished notice.

(f) Project scoping meeting. The applicant or a representative of the applicant shall be present at the meeting. The following persons should be present at the scoping meeting: the secretary or the secretary’s designee; the district coordinator, if the proposed project will require a land use permit under chapter 151 of this title; and a representative of a local permitting authority or a member of the selectboard of the town in which the project is located, if no local permitting authority exists. No person who is to participate as a decision maker on a municipal panel that will consider an application related to the project that is subject of the scoping meeting may act as a municipal representative under this subsection. At the meeting, the applicant or a representative of the applicant shall present a description of the proposed project and be available for questions from the public concerning the proposed project. The purpose of the meeting shall be to provide public information and increase notice about the project, allow discussion of the proposed project, and identify potential issues at the beginning of the project review process. The applicant shall provide copies of the project review sheet to persons attending the meeting.

* * * Expanded Environmental Court * * *

Sec. 7. 4 V.S.A. § 21a is amended to read:

§ 21a. DUTIES OF THE ADMINISTRATIVE JUDGE

(a) The administrative judge shall assign and specially assign superior and district judges, including himself or herself, and ~~the~~ environmental ~~judge~~ judges to the superior, environmental, district, and family courts. If the administrative judge determines that additional judicial time is needed to address cases filed in environmental court, the judge may assign or specially assign up to four judges on a part-time basis to the environmental court. When assigning or specially assigning judges to the environmental court, the administrative judge shall give consideration to experience and expertise in environmental and zoning law, and shall assign or specially assign judges in a manner to provide appropriate attention to all geographic areas of the state. All judges shall be subject to the requirements of rotation as ordered by the Supreme Court

(b) In making any assignment under this section, the administrative judge shall give consideration to the experience, temperament, and training of a judge and the needs of the court. In making an assignment to the environmental court, the administrative judge shall give consideration to experience and expertise in environmental and land use law.

(c) In making any assignments to the environmental court under this section, the administrative judge shall regularly assign both environmental judges through August, 2008 and a minimum of two judges thereafter, at least one of whom shall be an environmental judge. An environmental judge may be assigned to another court only with the judge’s consent and for a period of time not exceeding two years.

Sec. 8. 4 V.S.A. § 22 is amended to read:

§ 22. DESIGNATION AND SPECIAL ASSIGNMENT OF JUDICIAL OFFICERS AND RETIRED JUDICIAL OFFICERS

(a) The chief justice may appoint and assign a retired justice or judge with his or her consent or a superior judge or district judge to a special assignment on the Supreme Court. The chief justice may appoint and the administrative judge shall assign an active or retired justice or a retired judge, with his or her consent, to any special assignment in the district, family, environmental, or superior courts. The administrative judge shall assign a judge to any special assignment in the district, family, environmental or superior court. Preference shall be given to superior judges to sit in superior courts. Preference shall be given to district judges to sit in district courts.

(b) The administrative judge may appoint and assign a member of the Vermont bar residing within the state of Vermont to serve temporarily as:

(1) an acting judge in a district, family, environmental, or superior court;

(2) an acting magistrate; or

(3) an acting hearing officer to hear cases in the judicial bureau.

* * *

Sec. 9. 4 V.S.A. § 1001 is amended to read:

§ 1001. ENVIRONMENTAL COURT

(a) An environmental court having statewide jurisdiction is created as a court of record subject to the authority granted to the supreme court. The environmental court shall consist of ~~the presiding judge sitting alone~~ two judges, each sitting alone.

(b) ~~One~~ Two environmental ~~judge~~ judges shall be appointed within the judicial branch who shall hear matters arising under chapters ~~23 and~~ 201 and 220 of Title 10 and matters arising under 24 V.S.A. chapter 117 and chapter 61, subchapter 12 ~~in environmental court. The environmental judge shall sit in environmental court at least two‑thirds of his or her time~~. In addition, the judges shall have original jurisdiction to revoke permits under 10 V.S.A. chapter 151.

(c) An environmental judge shall be an attorney admitted to practice before the Vermont supreme court. An environmental judge shall be nominated, appointed, confirmed, paid, and retained, and shall receive all benefits in the manner of a superior court judge.

(d) An environmental judge shall be appointed on April 1, for a term of six years or the unexpired portion thereof.

(e) Evidentiary proceedings in the environmental court shall be held in the county in which all or a portion of the land which is the subject of the appeal is located or where the violation is alleged to have occurred, unless the parties agree to another location; provided, however, that the environmental judge shall offer expeditious evidentiary hearings so that no such proceedings are moved to another county to obtain an earlier hearing. Unless otherwise ordered by the court, all nonevidentiary hearings may be conducted by telephone using an audio or video ~~tape~~ record. If a party objects to a telephone hearing, the court may require a personal appearance for good cause.

(f) The environmental court shall be provided with a dedicated minimum of one court manager, two law clerks, one case manager, and two docket clerk-courtroom operators. These positions shall not be subject to any rotation with other courts. The environmental court shall receive the same funding and provisions for security as provided to county courthouses.

(g) The supreme court may enact rules and develop procedures consistent with this chapter to govern the operation of the environmental court and proceedings in the court. In adopting these rules, the supreme court shall ensure that the rules provide for:

(1) expeditious proceedings that give due consideration to the needs of pro se litigants;

(2) the ability of the judge to hold pretrial conferences by telephone;

(3) the use of scheduling orders under the Vermont Rules of Civil Procedure in order to limit discovery to that which is necessary for a full and fair determination of the proceeding; and

(4) the appropriate use of site visits by the presiding judge to assist the court in rendering a decision.

Sec. 10. 4 V.S.A. § 1004(b) is amended to read:

(b) No other discovery or depositions, written interrogatories or requests to admit shall be permitted except ~~in extraordinary circumstances~~ that which is necessary for a full and fair determination of the proceeding.

* * * Air Quality; chapter 23 * * *

Sec. 11. 10 V.S.A. § 552 is amended to read:

§ 552. DEFINITIONS

As used in this chapter:

* * *

(4) ~~“Board” means the solid waste and air quality variance board.~~

* * *

(7) “Secretary” means the secretary of the agency of natural resources or ~~such person as the secretary may designate~~ the secretary’s duly authorized representative.

* * *

Sec. 12. 10 V.S.A. § 553 is amended to read:

§ 553. AGENCY ~~AND BOARD~~

(a) The agency is designated as the air pollution control agency for the state. The secretary or ~~his~~ the secretary’s duly ~~designated~~ authorized representative, within the agency, shall perform the functions vested in the agency, as specified in the following sections of this chapter.

(b) A solid waste and air quality variance board shall be appointed by the governor, with the advice and consent of the senate. The board shall consist of five members, none of whom is otherwise employed by the state. The board shall consist of a lawyer, a manufacturer, a professional engineer, a businessman and a member representing the public at large. The governor shall designate the chairman. The terms of office shall be five years except that the initial members shall be appointed so that the term of one member shall expire in each of the succeeding five years.

Sec. 13. 10 V.S.A. § 561 is amended to read:

§ 561. VARIANCES

(a) A person who owns or is in control of any plant, building, structure, process, or equipment may apply to the ~~board~~ secretary for a variance from the rules ~~of the secretary~~ adopted under this chapter. If a request for a variance is related to an application for a permit under this chapter, the applicant may file that request only after the secretary has issued a declaratory ruling that makes it clear that the applicant would not be eligible for the permit or after the secretary has granted or denied the permit, according to the provisions of subsection 562(e) of this title. The ~~board~~ secretary may grant a variance if it the secretary finds that:

(1) The emissions occurring or proposed to occur do not endanger or tend to endanger human health or safety; and

(2) Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.

(b) No variance shall be granted pursuant to this section except after public ~~hearing on due~~ notice and an opportunity for a public meeting and until the ~~board~~ secretary has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public.

(c) Any variance or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions consistent with the reasons therefore, and within the following limitations:

(1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement, or control of the air pollution involved, it shall be only until the necessary practicable means for prevention, abatement, or control become known and available, and subject to the taking of any substitute or alternate measures that the ~~board~~ secretary may prescribe.

(2) If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the ~~board~~ secretary is requisite for the taking of the necessary measures. A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.

(d) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods, which would be appropriate on initial granting of a variance. If complaint is made to the ~~board~~ secretary on account of the variance, no renewal thereof shall be granted, unless following public ~~hearing on the complaint on due~~ notice and an opportunity for a public meeting on the complaint, the ~~board~~ secretary finds that renewal is justified. No renewal shall be granted except on application therefore. The application shall be made at least ~~sixty~~ 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the ~~board~~ secretary shall give public notice of the application ~~in accordance with rules of the board~~.

(e) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the ~~board~~ secretary. However, any person adversely affected by a variance or renewal granted or denied by the board may obtain judicial review thereof by appealing that decision within 30 days to the environmental court established under 4 V.S.A. chapter 27, according to the provisions of section 562 of this title.

(f) Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of section 560 of this chapter to any person or ~~his~~ the person’s property.

(g) On application from a person who is subject to an increased air emission fee caused by amendments to the provisions of 3 V.S.A. § 2822(j), (k), and (l), the ~~board~~ secretary may grant an amendment in fee amount. A fee amendment under this subsection may be granted only if the applicant establishes that payment of fees would produce serious hardship. Fee amendments granted under this subsection shall not be subject to the findings required for the issuance of a variance under subsection (a) of this section, but fee amendments shall otherwise be subject to the provisions of this chapter regarding variances.

Sec. 14. 10 V.S.A. § 562 is amended to read:

§ 562. HEARINGS AND JUDICIAL REVIEW APPEALS

(a) No rule or regulation and no amendment or repeal thereof shall take effect except after public hearing. The secretary shall appoint a time and place for the hearing and shall order the publication of the substance thereof and of the time and place of hearing two weeks successively in the daily newspapers of the state, the last publication to be at least seven days before the day appointed for the hearing.

(b) ~~Nothing in this section shall be construed to require a hearing before issuance of an emergency order pursuant to section 560 of this chapter.~~ Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

(d) Any person aggrieved by the issuance, denial, suspension, termination, revocation, annulment, withdrawal or renewal of an individual or general permit pursuant to this chapter may appeal that decision within 30 days to the environmental court established under 4 V.S.A. chapter 27, except as otherwise provided in section 6104 of this title. The environmental court shall hold a de novo hearing and shall issue an order affirming, revising or reversing the decision of the secretary. An appeal filed pursuant to this section shall not stay the decision of the secretary. For the purposes of an appeal pursuant to this subsection, the environmental court shall have and may exercise all powers and authorities of the superior court in a proceeding under Rule 75 of the Vermont Rules of Civil Procedure. V.R.C.P. 76 shall not apply to appeals filed pursuant to this section. A person appealing an issue under this subsection may not request a variance on that same issue under subsection (e) of this section. A person requesting a variance under subsection (e) of this section may not appeal the same issue under this subsection.

(e) As a mutually exclusive alternative to appealing an issue as provided in subsection (d) of this section, a person aggrieved by the issuance, denial, suspension, termination, revocation, annulment, withdrawal or renewal of an individual or general permit may request a variance under section 561 of this title, if the action in question involved a rule adopted under this chapter, and if the person is entitled to request a variance under the terms of section 561. A request for a variance shall be filed within 30 days. If an action on a permit results in an appeal on one issue under subsection (d) and a request for a variance under this subsection with respect to a different issue, the court shall stay the appeal until the board has granted or denied the variance.

(f) With respect to appeals from variance decisions under subsection (e) of this section, the environmental court shall hold a hearing based on the record developed before the variance board, and shall issue an order affirming, revising or reversing the decision of the board. An appeal filed pursuant to this subsection shall not stay the decision of the secretary. For the purposes of an appeal pursuant to this subsection, the environmental court shall have and may exercise all powers and authorities of the superior court in a proceeding under V.R.C.P. 74.

* * *

* * * Flood Hazard Areas; chapter 32 * * *

Sec. 15. 10 V.S.A. § 752(9) is amended to read:

(9) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative.

* * * Water Resource Management; chapter 37 * * *

Sec. 16. 10 V.S.A. § 902 is amended to read:

§ 902. DEFINITIONS

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1) “Board” means the ~~Vermont~~ water resources panel of the natural resources board;

* * *

Sec. 17. 10 V.S.A. § 905b is amended to read:

§ 905b. DUTIES; POWERS

The department shall protect and manage the water resources of the state in accordance with the provisions of this subchapter and shall:

* * *

(18) study and investigate the wetlands of the state and cooperate with other agencies and the board in collecting and compiling data relating to wetlands, propose to the board specific wetlands to be designated as significant wetlands, and implement through existing programs the rules adopted by the board governing significant wetlands, including the issuance or denial of conditional use determinations pursuant to section 1272 of this title;

(19) cooperate with the agencies of the federal government and of the province of Quebec, adjoining states, and states through which water from Vermont streams flow in all matters relating to interstate streams;

(20) cooperate with the state board of health in matters of stream pollution where public health is involved;

(21) act as the Vermont water resources board mentioned in the act of Congress, entitled “An act authorizing the construction of certain public works on rivers and harbors for flood control and for other purposes,” approved December 22, 1944. In this connection, the department shall carry out the policy of the state as defined by section 1100 of this title.

* * * Regulation of Stream Flow; chapter 41 * * *

Sec. 18. 10 V.S.A. § 1002 is amended to read:

§ 1002. DEFINITIONS

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

* * *

(4) “Board” means the ~~Vermont~~ ~~water~~ natural resources board;

* * *

(9) “Person” ~~applies to an individual, partnership, corporation, municipality, state agency or other legal entity~~ means any individual; partnership; company; corporation; association; unincorporated association; joint venture; trust; municipality; the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 19. 10 V.S.A. § 1004 is amended to read:

§ 1004. STATE’S AGENT

The secretary shall be the agent to coordinate the state interest before the Federal Energy Regulatory Commission in all matters involving water quality and regulation or control of natural stream flow through the use of dams situated on streams within the boundaries of the state, and it shall advise the Federal Energy Regulatory Commission of the amount of flow considered necessary in each stream under consideration. The agency of natural resources shall be the certifying agency of the state for purposes of section 401 of the federal Clean Water Act and the secretary’s determinations on these certifications shall be final action by the secretary appealable to the ~~water resources board~~ environmental court. The secretary shall be the agent of the state and shall represent the state’s interest under the provisions of the Federal Power Act, including those that protect state-designated outstanding resource waters. However, the secretary’s authority shall not infringe upon the powers and duties of the public service board or the relations of that board to the Federal Energy Regulatory Commission as set forth in the Federal Power Act respecting water used for the development of hydro-electric power or projects incident to the generation of electric energy for public use as part of a public utility system.

Sec. 20. 10 V.S.A. § 1024 is amended to read:

§ 1024. Appeals

(a) Any person aggrieved by the decision of the secretary under section 1023 or section 1004 of this title may file an appeal with the board within fifteen days of issuance of notice of the secretary’s action. The filing of an appeal shall stay the action of the secretary. Within five days of receipt of an appeal, the board shall schedule a hearing giving notice to all persons required to receive notice under section 1023. The hearing before the board shall be de novo and shall be conducted as a contested case.

(b) Any party aggrieved by a final order of the board, pursuant to subsection (a) of this section, may appeal from a final order of the board to the Supreme Court within 30 days of the date of the order. An appeal filed pursuant to this section shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders.

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 21. 10 V.S.A. § 1032 is amended to read:

§ 1032. RULEMAKING ON SNOWMAKING WITHDRAWALS

The secretary shall adopt rules to determine conservation flow standards for snowmaking, to be used in relevant agency of natural resources regulatory processes governing water withdrawals, diversions, impoundments, and the construction of appurtenant facilities, and to be used in developing positions to be asserted by the agency in other state regulatory processes governing conservation flows for snowmaking. These rules shall not supersede water quality standards adopted by the ~~water resources~~ board pursuant to chapter 47 of this title. These rules shall achieve the purposes of this subchapter, and shall provide for the periodic review of any decision issued under the rules. All existing water withdrawals, diversions, and impoundments for snowmaking which are permitted at instream flows below the standards shall be reviewed by July 1, 2000.

* * * Dams; chapter 43 * * *

Sec. 22. 10 V.S.A. § 1080 is amended to read:

§ 1080. DEFINITIONS

As used in this chapter:

* * *

(2) “Person” means ~~an individual, firm, partnership, cooperative electric association, governmental body, state agency or domestic or foreign corporation~~ any individual; partnership; company; corporation; association; joint venture; trust; municipality; the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 23. 10 V.S.A. § 1099 is amended to read:

§ 1099. ~~APPEAL~~ APPEALS

(a) A person aggrieved by a decision of the department under this chapter may appeal that decision to the water resources board within 30 days from its date. The water resources board shall hold a de novo hearing at which all persons and parties in interest may appear and be heard, and shall issue an order affirming, reversing or modifying the act or decision of the department within 10 days following the conclusion of the hearing. The order shall be binding upon the department. Filing an appeal shall not automatically stay the effectiveness of any act or decision of the department pending determination by the water resources board. Any party aggrieved by a final order of the water resources board pursuant to this subsection may appeal to the supreme court within 30 days of the date of the order. An appeal filed pursuant to this subsection shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders Appeals of any act or decision of the department under this chapter shall be made in accordance with chapter 220 of this title.

* * *

* * * Water Pollution; chapter 47 * * *

Sec. 24. 10 V.S.A. § 1251 is amended to read:

§ 1251. DEFINITIONS

Whenever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1) “Board” means the ~~Vermont~~ ~~water~~ natural resources board;

* * *

(8) “Person” means an individual, partnership, public or private corporation, municipality, institution or agency of the state or federal government and includes any officer or governing or managing body of a partnership, association, firm or corporation any individual; partnership; company; corporation; association; joint venture; trust; municipality; the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 25. 10 V.S.A. § 1251a(b) is amended to read:

(b) The secretary shall establish by rule requirements for the issuance of permits under subsection 1259(e) of this title, including in-stream water quality parameters necessary to establish permit conditions and performance monitoring; however, these in-stream water quality parameters shall not supersede water quality standards adopted by the ~~water resources~~ board.

Sec. 26. 10 V.S.A. § 1253(c) is amended to read:

(c) The board may on its own motion, and it shall upon petition by a state agency, a municipality or by thirty or more persons in interest alleging that it or they suffer injustice or inequity as a result of the classification of any waters, On its own motion, or on receipt of a written request that the board adopt, amend, or repeal a reclassification rule, the board shall comply with 3 V.S.A. § 806 and may initiate a rulemaking proceeding to reclassify all or any portion of the affected waters in the public interest. In the course of this proceeding, the board shall comply with the provisions of 3 V.S.A. chapter 25, and may hold a public hearing convenient to the waters in question. If the board finds that the established classification is contrary to the public interest and that reclassification is in the public interest, it shall file a final proposal of reclassification in accordance with 3 V.S.A. § 841. If the board finds that it is in the public interest to change the classification of any pond, lake or reservoir designated as Class A waters by subsection (a) of this section, it shall so advise and consult with the department of health and shall provide in its reclassification rule a reasonable period of time before the rule becomes effective. During that time, any municipalities or persons whose water supply is affected shall construct filtration and disinfection facilities or convert to a new source of water supply.

Sec. 27. 10 V.S.A. § 1263(b) is amended to read:

(b) Except for applications for permission to discharge under the terms of a previously issued general permit, the secretary shall provide for notice of each application to the public and any appropriate officials of another state and the federal government including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing or both on the application before making a final ruling on the application. Prior to issuing a general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing or both as provided in this subsection. For applications for permission to discharge under the terms of a previously issued general permit, the applicant shall provide notice, on a form provided by the secretary, to the municipal clerk of the municipality in which the discharge is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment, regarding whether the application complies with the terms and conditions of the general permit, for ten days following receipt of the application. The secretary may require any applicant to submit any additional information, which the secretary considers necessary and may refuse to grant a permit, or permission to discharge under the terms of a general permit, until the information is furnished and evaluated. Any person or party in interest aggrieved by a final ruling of the secretary on an application for permission to discharge under the terms of a previously issued general permit may appeal to the board pursuant to section 1269 of this title, provided, however, that this appeal shall be limited in scope to whether the discharge complies with the terms and conditions of the general permit.

Sec. 28. 10 V.S.A. § 1264 is amended to read:

§ 1264. STORMWATER MANAGEMENT

* * *

(b) The secretary shall prepare a plan for the management of collected stormwater runoff found by the ~~department~~ secretary to be deleterious to receiving waters. The plan shall recognize that the runoff of stormwater is different from the discharge of sanitary and industrial wastes because of the influence of natural events of stormwater runoff, the variations in characteristics of those runoffs, and the increased stream flows and natural degradation of the receiving water quality at the time of discharge. The plan shall be cost effective and designed to minimize any adverse impact of stormwater runoff to waters of the state. By no later than February 1, 2001, the secretary shall prepare an enhanced stormwater management program and report on the content of that program to the house committees on fish, wildlife and water resources and on natural resources and energy and to the senate committee on natural resources and energy. In developing the program, the secretary shall consult with the ~~water resources~~ board, affected municipalities, regional entities, other state and federal agencies, and members of the public. The secretary shall be responsible for implementation of the program. The secretary’s stormwater management program shall include, at a minimum, provisions that:

* * *

(g)(1) The secretary may issue a permit consistent with the requirements of subsection (f) of this section, even where a Total Maximum Daily Load (TMDL) or wasteload allocation has not been prepared for the receiving water. In any appeal ~~to the board pursuant to section 1269 of this title:~~ under this chapter,

~~(A)~~ an individual permit meeting the requirements of subsection (f) of this section shall have a rebuttable presumption in favor of the permittee that the discharge does not cause or contribute to a violation of the Vermont water quality standards for the receiving waters with respect to the discharge of collected stormwater runoff. This rebuttable presumption shall only apply to permitted discharges into receiving waters on the Section 303(d) list that are principally impaired by sources other than collected stormwater runoff~~; and~~

(B) the review of an individual discharge seeking coverage under a general permit issued pursuant to the requirements of subsection (f) of this section shall be limited in scope as specified in subsection 1263(b) of this chapter.

(2) This subsection shall apply to stormwater permits issued under the federally delegated NPDES program only to the extent allowed under federal law.

* * *

Sec. 29. 10 V.S.A. § 1269 is amended to read:

§ 1269. APPEALS ~~TO BOARD~~

Any person or party in interest aggrieved by an act or decision of the secretary pursuant to this subchapter may appeal to the board within thirty days. The board shall hold a de novo hearing at which all persons and parties in interest as determined by board rule may appear and be heard and shall issue an order affirming, reversing or modifying the act or decision of the secretary within 10 days following the conclusion of the hearing. The order shall be binding upon the department. An appeal filed pursuant to this section shall not stay the effectiveness of any act or decision of the department pending determination by the board Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 30. 10 V.S.A. § 1272 is amended to read:

§ 1272. REGULATION OF ACTIVITIES CAUSING DISCHARGE OR AFFECTING SIGNIFICANT WETLANDS

If the secretary finds that any person’s action, or an activity, results in the construction, installation, operation, or maintenance of any facility or condition which reasonably can be expected to create or cause a discharge to waters in violation of this subchapter, or to violate the board’s rules under section ~~905(9)~~ 6025 of this title relating to significant wetlands, the secretary may issue an order establishing reasonable and proper methods and procedures for the control of that activity and the management of substances used therein which cause discharges or violations of board rules with respect to significant wetlands in order to reduce or eliminate those discharges and rule violations with respect to significant wetlands. ~~Any person who receives an order pursuant to this section may appeal to the board as provided in section 1269 of this title.~~

Sec. 31. 10 V.S.A. § 1381 is amended to read:

§ 1381. DEFINITIONS AS USED IN THIS SUBCHAPTER

* * *

(5) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative;

(6) “Person” means any proprietor of a commercial establishment, corporation, municipality, the state of Vermont or any department, agency or subdivision of the state, and any partnership, unincorporated association or other legal entity any individual; partnership; company; corporation; association; joint venture; trust; municipality; the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity.

* * * Groundwater Protection; Well Drillers; chapter 48 * * *

Sec. 32. 10 V.S.A. § 1392(d) is amended to read:

(d) The groundwater management strategy, including groundwater classification and associated technical criteria and standards, shall be adopted as a rule in accordance with the provisions of 3 V.S.A., chapter 25. The secretary shall file any final proposed rules regarding the groundwater management strategy, with the ~~water~~ natural resources board not less than 30 days prior to filing with the legislative committee on administrative rules. The board shall review the final proposed rules and comment regarding their compatibility with the Vermont water quality standards and the objectives of the Vermont Water Pollution Control Act. The secretary shall include the ~~water~~ natural resources board’s comments in filing the final proposed rules with the legislative committee on administrative rules.

Sec. 33. 10 V.S.A. § 1400 is amended to read:

§ 1400. APPEALS

~~(a) A person aggrieved by a decision of the commissioner under section 1402 of this title may appeal the decision to the water resources board and from there to~~ ~~Washington~~ ~~superior court or the superior court of the county in which the person’s principal place of business is located.~~

(b) A person aggrieved by a decision or order of the commissioner under section 1403 of this title may appeal the decision or order to the water resources board and from there to the superior court for the county in which he or she resides or the well is located.

Appeals of any act or decision of the commissioner or secretary under this chapter shall be made in accordance with chapter 220 of this title.

* * * Navigable Waters; chapter 49 * * *

Sec. 34. 10 V.S.A. § 1422 is amended to read:

§ 1422. DEFINITIONS

In this chapter, unless context clearly requires otherwise:

* * *

(2) “Board” means ~~water resources~~ the water resources panel of the natural resources board;

* * *

(7) “Secretary” means the secretary of natural resources or the secretary’s duly authorized representative;

* * *

Sec. 35. 10 V.S.A. § 1423(a)(1) is amended to read:

(1) On the basis of these studies and plans, make recommendations to the natural resources board and existing state agencies relative to their water resources activities;

Sec. 36. 10 V.S.A. § 1424(e) is amended to read:

(e) On ~~a petition~~ receipt of a written request that the board adopt, amend, or repeal a rule with respect to the use of public waters signed by not less than ~~ten freemen or the legislative body of a municipality~~ one person the board shall ~~hold a hearing and~~ consider the adoption of rules authorized ~~or promulgated~~ under this section and take appropriate action as required under 3 V.S.A. § 806.

Sec. 37. 10 V.S.A. § 1424(f) is amended to read:

(f) By rule, the board may delegate authority under this section for the regulation of public waters where:

(1) the delegation is to a municipality which is adjacent to or which contains the water; and

(2) the municipality accepts the delegation by creating or amending a bylaw or ordinance for regulation of the water. Appeals from a final act of the municipality under the bylaw or ordinance shall be taken to the ~~board~~ environmental court. The board may terminate a delegation for cause or without cause upon six months’ notice to the municipality.

Sec. 38. 10 V.S.A. § 1424a is amended to read:

§ 1424a. OUTSTANDING RESOURCE WATERS

(a) The board, on its own motion, ~~or upon petition by a state agency, a municipality, or 30 or more persons who can demonstrate an interest under subsection (c) of this section, shall~~ may hold a public hearing~~, in a timely manner,~~ on the question of whether particular waters should be designated as outstanding resource waters, or whether an existing designation should be amended or repealed. On receipt of a signed written request, the board shall consider the adoption, amendment, or repeal of rules regarding outstanding resource water designation and shall take appropriate action as required under 3 V.S.A. § 806. ~~The~~ Any hearing shall be held convenient to the waters in question, or in a county where the waters are located.

(b) Notice and a copy of the petition or board motion shall be provided to the municipality, the municipal and regional planning commissions where the waters are located, and the secretary of the agency of natural resources. The board shall request the clerk of the town or towns where the waters are located to post a copy of the notice. The board may forward the notice and a copy of the petition or motion to any state agency, municipality, organization, or person the board deems appropriate. Notice shall also be published in a newspaper generally circulating in the area where the waters are located not less than 21 days before the date of the hearing. ~~The~~ Any hearing shall be conducted as ~~a contested case~~ part of the rulemaking process established under 3 V.S.A. chapter 25.

~~(1) those required to receive notice;~~

~~(2) those owning property adjoining the waters who, within 21 days of the publication of notice, request to be heard;~~

~~(3) those organizations or groups which, within 21 days of the publication of notice, request to be heard and which can establish:~~

~~(i) that their members have used or enjoyed the waters in question,~~

~~(ii) that designation clearly is of interest to their membership, or~~

~~(iii) that they may be affected by a decision on designation.~~

(d) In making its rulemaking decision, the board may consider, but shall not be limited to considering, the following:

(1) existing water quality and current water quality classification,

(2) the presence of aquifer protection areas,

(3) the waters' value in providing temporary water storage for flood water and storm runoff,

(4) the waters' value as fish habitat,

(5) the waters' value in providing or maintaining habitat for threatened or endangered plants or animals,

(6) the waters' value in providing habitat for wildlife, including stopover habitat for migratory birds,

(7) the presence of gorges, rapids, waterfalls, or other significant geologic features,

(8) the presence of scenic areas and sites,

(9) the presence of rare and irreplaceable natural areas,

(10) the presence of known archeological sites,

(11) the presence of historic resources, including those designated as historic districts or structures,

(12) existing usage and accessibility of the waters for recreational, educational, and research purposes and for other public uses,

(13) studies, inventories and plans prepared by local, regional, statewide, national, or international groups or agencies, that indicate the waters in question merit protection as outstanding resource waters,

(14) existing alterations, diversions or impoundments by permit holders under state or federal law.

(e) ~~Upon consideration of the evidence~~ After consideration of all relevant information, the board shall adopt rules ~~designate~~ designating the waters as outstanding resource waters if it finds that they have exceptional natural, recreational, cultural or scenic values. Designation as outstanding resource waters shall not invalidate the terms of existing permits issued by the state or federal government.

* * * Aid to Municipalities; chapter 55 * * *

Sec. 39. 10 V.S.A. § 1571 is amended to read:

§ 1571. DEFINITIONS

As used in this chapter:

* * *

(2) “Board” means the ~~water~~ natural resources board.

* * *

(8) “Secretary” means the secretary of natural resources or the secretary’s duly authorized representative.

* * *

Sec. 40. 10 V.S.A. § 1629 is amended to read:

§ 1629. ~~APPEAL~~ APPEALS

Any municipality aggrieved by an act or decision of the department in establishing the priority system and the priority of awards to projects under this chapter may appeal to the board within 30 days. The board shall hold a hearing at which all persons and parties in interest may appear and be heard to determine whether the decision of the department complies with the priority system adopted pursuant to section 1628 of this title. The board shall issue an order affirming, reversing or modifying the decision of the department. The order shall be binding upon the department. An appeal filed pursuant to this section shall not stay the effectiveness of any decision of the department pending determination by the board. Appeals from the decisions of the board shall be taken de novo to the superior court Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

* * * Public Water Supply; chapter 56 * * *

Sec. 41. 10 V.S.A. § 1680 is amended to read:

§ 1680. APPEALS

Any person or party in interest who is aggrieved by the secretary’s decision to issue, renew, deny, suspend or revoke a permit or certification pursuant to this chapter may appeal such decision, pursuant to Rule 74 of the Vermont Rules of Civil Procedure, within 30 days of the date thereof to the superior court of the county in which the public water supply is located or the county where the certificate holder’s principal place of business is located. An appeal shall not stay the effectiveness of the secretary’s decision unless the court so orders Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 42. 10 V.S.A. § 1683 is amended to read:

§ 1683. FILTRATION REQUIREMENTS

* * *

(b) The department of environmental conservation shall grant waivers to requirements for water filtration and exemptions to public and private water systems as provided under the federal Safe Drinking Water Act, surface water rule, when a water system owner demonstrates that the water system has a proven record of delivering adequate quantities of clean and safe drinking water and that adequate protection of the surface water source is or may be assured. In the event that the department denies an application for a waiver, the water system owner may appeal the decision to the water resources board within 30 days of such decision. The water system owner may appeal a decision of the water resources board to the superior court within 30 days of the board’s decision, following the same procedure provided by section 1680 of this title for an appeal from a decision by the secretary.

* * * Underground and Aboveground Liquid Storage Tanks; chapter 59 * * *

Sec. 43. 10 V.S.A. § 1933 is amended to read:

§ 1933. APPEALS

Any person or party in interest aggrieved by an act or decision of the secretary pursuant to this chapter may appeal within 30 days to the superior court of the county where the tanks are located. The court shall hold a de novo hearing at which all persons and parties in interest as determined by court rule may appear and be heard and shall issue an order affirming, reversing or modifying the act or decision of the secretary. The order shall be binding on the secretary. An appeal filed pursuant to this section shall not stay the effectiveness of any act or decision of the department, unless the court specifically grants that stay upon petition or its own motion Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

* * * Water Supply and Wastewater Permits; chapter 64 * * *

Sec. 44. 10 V.S.A. § 1977 is amended to read:

§ 1977. APPEALS~~; STAYS~~

(a) A person aggrieved by an act or decision, other than an enforcement decision, of the secretary under this chapter, may appeal to the water resources board within 30 days of the date of the act or decision. The filing of an appeal shall not stay the effectiveness of an act or decision of the secretary, unless the board so orders in accordance with board rule. The board shall hold a de novo hearing at which all parties, as determined by board rule, may appear and be heard, and shall issue an order that shall be binding on the secretary and all parties.

(b) Any party aggrieved by a final order of the water resources board pursuant to this section may appeal to the Supreme Court within 30 days of the date of the order. An appeal filed pursuant to this section shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders.

Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

* * * Heavy Cutting Permits; chapter 83 * * *

Sec. 45. 10 V.S.A. § 2625 is amended to read:

§ 2625. REGULATION OF HEAVY CUTTING

* * *

(c) Exemptions. Upon the filing of a notice of intent to cut, a department field forester shall determine that the cut is exempt, and that no further review is necessary, if one of the following apply:

* * *

(3) The landowner certifies that the proposed heavy cut is intended to carry out a conversion that is subject to regulation by a district environmental commission ~~and the environmental board~~ under ~~10 V.S.A.~~ chapter 151 of this title or by the public service board under Title 30.

* * *

(f) Appeals. If the exemption is denied or if authorization to proceed is denied, the landowner shall have 30 days in which to file an appeal with the commissioner.

(1) Upon the filing of an appeal, the commissioner may appoint a review team of natural resources professionals to visit the site, gather information about the proposed heavy cut, and make recommendations to the commissioner. The commissioner may also appoint a hearing officer to take sworn statements of the landowner, the review team, and other witnesses called by the landowner or the hearing officer, and make recommendations to the commissioner.

(2) The commissioner shall issue a decision in writing within 30 days of the receipt of an appeal.

(3) The landowner may appeal the commissioner’s decision within 30 days to the environmental court. The court shall review the case on the record, and affirm the decision, unless it finds that the commissioner did not have reasonable grounds on which to base the decision Appeals of the commissioner’s decision shall be made in accordance with chapter 220 of this title.

* * *

* * * Act 250 * * *

Sec. 46. 10 V.S.A. § 6001 is amended to read:

§ 6001. DEFINITIONS

When used in this chapter:

(1) “Board” means the ~~environmental~~ natural resources board.

* * *

Sec. 47. 10 V.S.A. § 6007(c) is amended to read:

(c) With respect to the partition or division of land, or with respect to an activity which might or might not constitute development, any person may submit to the district coordinator an "Act 250 Disclosure Statement" and other information required by the rules of the board, and may request a jurisdictional opinion from the district coordinator concerning the applicability of this chapter. If a requestor wishes a final determination to be rendered on the question, the district coordinator, at the expense of the requestor and in accordance with rules of the board shall publish notice of the issuance of the opinion in a local newspaper generally circulating in the area where the land which is the subject of the opinion is located, and shall serve the opinion ~~on individuals or entities who may be affected by the outcome of the opinion, and~~ on ~~parties~~ all persons ~~that would be entitled to notice~~ ~~under section 6084~~ listed in subdivision 6085(c)(1)(A)through(D) of this title ~~, if~~ ~~jurisdiction were determined to exist~~. In addition, the requestor who is seeking a final determination shall consult with the district coordinator and obtain approval of a subdivision 6085(c)(1)(E) list of persons who shall be notified by the district coordinator because they are adjoining property owners or other persons who would be likely to be able to demonstrate a particularized interest protected by this chapter that may be affected by an act or decision by a district commission. A jurisdictional opinion of a district coordinator shall be subject to a request for reconsideration in accordance with rules of the board and may be appealed to the ~~board~~ environmental court pursuant to chapter 220 of this title. by the applicant, by individuals or entities who may be affected by the outcome of the opinion, or by parties that would be entitled to notice under section 6084, if jurisdiction were determined to exist. An appeal from a jurisdictional opinion must be filed within 30 days of the mailing of the opinion to the person appealing. Failure to appeal within the prescribed period shall render the jurisdictional opinion the final determination with respect to jurisdiction under this chapter unless the opinion has not been properly served on parties that would be entitled to notice under section 6084, if jurisdiction were determined to exist, and on persons and entities which may be affected by the outcome of the decision, according to rules of the board. Any appeal shall be by means of a petition for declaratory ruling, and must be accompanied by a fee authorized by section 6083a of this title. Such petitions will be considered and disposed of promptly. A petition shall be treated as a contested case. The chair may issue preliminary rulings subject to timely objection of any party in interest, in which event the matter shall be considered by the board. The board shall provide due notice of the filing of a petition for declaratory ruling to each party entitled to service pursuant to section 6084 of this title.

(c) With respect to the partition or division of land, or with respect to an activity which might or might not constitute development, any person may submit to the district coordinator an “Act 250 Disclosure Statement” and other information required by the rules of the board, and may request a jurisdictional opinion from the district coordinator concerning the applicability of this chapter. If a requestor wishes a final determination to be rendered on the question, the district coordinator, at the expense of the requestor and in accordance with rules of the board shall serve the opinion on individuals or entities who may be affected by the outcome of the opinion, and on parties that would be entitled to notice under section 6084 of this title, if jurisdiction were determined to exist. A jurisdictional opinion of a district coordinator shall be subject to a request for reconsideration and may be appealed to the board by the applicant, by individuals or entities who may be affected by the outcome of the opinion, or by parties that would be entitled to notice under section 6084, if jurisdiction were determined to exist. An appeal from a jurisdictional opinion must be filed within 30 days of the mailing of the opinion to the person appealing. Failure to appeal within the prescribed period shall render the jurisdictional opinion the final determination with respect to jurisdiction under this chapter unless the opinion has not been properly served on parties that would be entitled to notice under section 6084, if jurisdiction were determined to exist, and on persons and entities which may be affected by the outcome of the decision, according to rules of the board. Any appeal shall be by means of a petition for declaratory ruling, and must be accompanied by a fee authorized by section 6083a of this title. Such petitions will be considered and disposed of promptly. A petition shall be treated as a contested case. The chair may issue preliminary rulings subject to timely objection of any party in interest, in which event the matter shall be considered by the board. The board shall provide due notice of the filing of a petition for declaratory ruling to each party entitled to service pursuant to section 6084 of this title environmental court pursuant to chapter 220 of this title.

Sec. 48. 10 V.S.A. § 6021 is amended to read:

§ 6021. BOARD; VACANCY, REMOVAL

(a) ~~An environmental~~ A natural resources board is created with a land use panel and a water resources panel. The board shall consist of nine members appointed ~~in the month of February~~ by the governor, with the advice and consent of the senate, so that ~~five appointments expire~~ one appointment on each panel expires in each odd numbered year. In making appointments, the governor and the senate shall give consideration to experience, expertise, or skills relating to the environment or land use. The governor shall appoint a chair of the board, a position that shall be a full‑time position. The other eight members shall be appointed by the governor, four to the water resources panel of the board and four others to the land use panel of the board. The chair shall serve as chair on each panel of the board. Following initial appointments, the members, except for the chair, shall be appointed for terms of four years. The governor shall appoint up to five persons, ~~who shall be~~ with preference given to former environmental board, water resources board, natural resources board or district commission members, with the advice and consent of the senate, to serve as alternates for board members. Alternates shall be appointed for terms of four years, with initial appointments being staggered. The board chair may assign alternates to sit on specific ~~cases~~ matters before the panels of the board, in situations where fewer than ~~nine board~~ five panel members are available to serve. No person who receives or, during the previous two years, has received a significant portion of the person’s income directly or indirectly from permit holders or applicants for one or more permits under chapter 47 of this title may be a member of the water resources panel.

(b) Any vacancy occurring in the membership of the board shall be filled by the governor for the unexpired portion of the term.

(c) Notwithstanding the provisions of 3 V.S.A. § 2004, members shall be removable for cause only, except the chair, who shall serve at the pleasure of the governor.

(d) The ~~board~~ chair, upon request of the chair of a district commission, may appoint and assign former commission members to sit on specific commission cases when some or all of the regular members and alternates are disqualified or otherwise unable to serve.

Sec. 49. 10 V.S.A. § 6025 is amended to read:

§ 6025. RULES

(a) The board shall adopt rules under and only to the extent of the authority granted to agencies by 3 V.S.A., chapter 25, the Vermont Administrative Procedure Act, to interpret and carry out the provisions of this chapter; however, the board may not adopt emergency rules. The board may adopt rules of procedure for the panels, the district commissions, and the board itself.

(b) The land use panel may adopt substantive rules, in accordance with the provisions of chapter 25 of Title 3, that interpret and carry out the provisions of this chapter that pertain to land use regulated under section 6086 of this title. These rules ~~may~~ shall include provisions that establish criteria under which applications for permits under this chapter may be classified in terms of complexity and significance of impact under the standards of ~~section~~ subsection 6086(a) of this chapter. In accordance with that classification the rules may:

(1) provide for simplified or less stringent procedures than are otherwise required under sections 6083, 6084 and 6085 of this chapter; and

(2) provide for the filing of notices instead of applications for the permits that would otherwise be required under section 6081 of this chapter; and

(3) provide a procedure by which a district commission may authorize a district coordinator to issue a permit that the district commission has determined under ~~board~~ land use panel rules is a minor application with no undue adverse impact.

(c)(1) This subsection shall apply to lots within a subdivision:

(A) that were created as part of a subdivision owned or controlled by a person who may have been required to obtain a permit under this chapter,; and

(B) with respect to which a determination has been made that a permit was needed under this chapter,; and

(2) The rules shall provide for a modified process by which the sole purchaser, or the group of purchasers, of one or more lots to which this subsection applies may apply for and obtain a permit under this chapter that shall be issued in light of the existing improvements, facts, and circumstances that pertain to the lots; provided, however, that the requirements of this chapter shall be modified only to the extent needed to issue those permits. For purposes of these rules, a purchaser eligible for relief under this subsection must not have been involved in creating the lots, must not be a person who owned or controlled the land when it was divided or partitioned, as a person is defined in this chapter, and must not have known at the time of purchase that the transfer was subject to a permit requirement that had not been met.

(3) Notwithstanding the provisions of subsection (a) of this section, the board may adopt emergency rules under this subsection. Notwithstanding the provisions of 3 V.S.A. chapter 25, these emergency rules may remain in effect for 180 days, before they must be replaced by permanent rules.

(d) The water resources panel may adopt rules, in accordance with the provisions of chapter 25 of Title 3, in the following areas:

(1) Rules governing surface levels of lakes, ponds, and reservoirs that are public waters of Vermont.

(2) Rules regarding classification of the waters of the state, in accordance with chapter 47 of this title.

(3) Rules regarding the establishment of water quality standards, in accordance with chapter 47 of this title.

(4) Rules regulating the surface use of public waters, and rules pertaining to the designation of outstanding resource waters, in accordance with chapter 49 of this title.

(5) Rules regarding the identification of wetlands which are so significant that they merit protection. Any determination that a particular wetland is significant will result from an evaluation of at least the following functions which a wetland serves:

(A) provides temporary water storage for flood water and storm runoff;

(B) contributes to the quality of surface and groundwater through chemical action;

(D) contributes to the viability of fisheries by providing spawning, feeding, and general habitat for freshwater fish;

(E) provides habitat for breeding, feeding, resting, and shelter to both game and nongame species of wildlife;

(F) provides stopover habitat for migratory birds;

(G) provides for hydrophytic vegetation habitat;

(H) provides for threatened and endangered species habitat;

(I) provides valuable resources for education and research in natural sciences;

(J) provides direct and indirect recreational value and substantial economic benefits; and

(K) contributes to the open-space character and overall beauty of the landscape.

(6) Rules regarding the ability to reclassify wetlands, in general, or on a case‑by‑case basis

(7) Rules protecting wetlands that have been determined under subdivision (5) or (6) of this subsection to be significant, including rules that provide for the issuance or denial of conditional use determinations by the department of environmental conservation; provided, however, that the rules may only protect the values and functions sought to be preserved by the designation. The panel shall not adopt rules that restrain agricultural activities without the consent of the secretary of the agency of agriculture, food and markets and shall not adopt rules that restrain silvicultural activities without the consent of the commissioner of the department of forests, parks and recreation.

(8) Rules implementing 29 V.S.A. chapter 11, relating to management of lakes and ponds.

(e) Except for subsection (a) of this section, references to rules adopted by the board shall be construed to mean rules adopted by the appropriate panel of the board, as established by this section.

Sec. 50 10 V.S.A. § 6027 is amended to read:

§ 6027. POWERS

(a) The panels of the board and district commissions each shall have the power, with respect to any matter within its jurisdiction, to:

(1) Administer oaths, take depositions, subpoena and compel the attendance of witnesses, and require the production of evidence.

(2) Allow parties to enter upon lands of other parties for the purposes of inspecting and investigating conditions related to the matter before the panel or commission.

(3) Enter upon lands for the purpose of conducting inspections, investigations, examinations, tests, and site evaluations as it deems necessary to verify information presented in any matter within its jurisdiction.

(4) Apply for and receive grants from the federal government and from other sources.

(b) The powers granted ~~to the board~~ under this chapter are additional to any other powers which may be granted ~~to it~~ by other legislation.

(c) The ~~board~~ land use panel may designate or establish such regional offices as it deems necessary to implement the provisions of this chapter and the rules adopted hereunder. The ~~board~~ land use panel may designate or require a regional planning commission to receive applications, provide administrative assistance, perform investigations, and make recommendations.

(d) The board, when it determines the workload in any district is such that unreasonable delays will result, may at the request of an overloaded district authorize the district commission of another district to sit in that district to consider applications. At the request of a district commission, if the board chair determines that the workload in the requesting district is likely to result in unreasonable delays or that the requesting district commission is disqualified to hear a case, the chair may authorize the district commission of another district to sit in the requesting district to consider one or more applications.

(e) The ~~board~~ land use panel may by rule allow joint hearings to be conducted with specified state agencies or specified municipalities.

(f) The board may publish or contract to publish annotations and indices of ~~its~~ the decisions of the environmental court, and the text of ~~its~~ those decisions. The published product shall be available at a reasonable rate to the general public and at a reduced rate to libraries and governmental bodies within the state.

(g) Unless the board, acting on motion of a party or on its own motion, directs the chair otherwise with respect to a particular appeal or petition, the chair may appoint a hearing officer or a subcommittee of the board to hear any appeal or petition before the board. Board members may be appointed as hearing officers, as may alternates. Any hearing officer or subcommittee shall report findings of fact and conclusions of law in writing to the board. A copy of the proposed decision shall be served on the parties pursuant to 3 V.S.A. § 811, but shall be subject to a final decision by the board. The parties shall have 15 days to request oral argument before the board. The land use panel shall manage the process by which land use permits are issued under section 6086 of this title, may initiate enforcement on related matters, under the provisions of chapter 201 and 211 of this title, and may petition the environmental court for revocation of land use permits issued under this chapter. Grounds for revocation are:

(1) noncompliance with this chapter, rules adopted under this chapter, or an order that is issued that relates to this chapter;

(2) noncompliance with any permit or permit condition;

(3) failure to disclose all relevant and material facts in the application or during the permitting process;

(4) misrepresentation of any relevant and material fact at any time;

(5) failure to pay a penalty or other sums owed pursuant to, or other failure to comply with, court order, stipulation agreement, schedule of compliance, or other order issued under Vermont statutes and related to the permit; or

(6) failure to provide certification of construction costs, as required under subsection 6083a(a) of this title, or failure to pay supplemental fees as required under that section.

(h) The land use panel may hear appeals of fee refund requests under section 6083a of this title.

(i) The chair, subject to the direction of the board, shall have general charge of the offices and employees of the board and the offices and employees of the district commissions.

(j) The land use panel may participate as a party in all matters before the environmental court that relate to land use permits issued under this chapter.

(k) The water resources panel may participate as a party in all matters before the environmental court that relate to rules adopted by the panel under the authority of section 6025 of this title.

Sec. 51. 10 V.S.A. § 6029 is amended to read:

§ 6029. ACT 250 PERMIT FUND

There is hereby established a special fund to be known as the Act 250 permit fund for the purposes of implementing the provisions of this chapter. Revenues to the fund shall be those fees collected in accordance with ~~rules adopted under 10 V.S.A. §§ 6025(a), 6083(a)(3) and 6089(a)~~ section 6083a of this title, gifts, appropriations, and copying and distribution fees. The ~~environmental~~ board shall be responsible for the fund and shall account for revenues and expenditures of the ~~environmental~~ board. At the commissioner’s discretion, the commissioner of finance and management may anticipate amounts to be collected and may issue warrants based thereon for the purposes of this section. Disbursements from the fund shall be made through the annual appropriations process to the ~~environmental~~ board, and to the agency of natural resources to support those programs within the agency that directly or indirectly assist in the review of Act 250 applications. This fund shall be administered as provided in subchapter 5 of chapter 7 of Title 32, as a special program fund.

Sec. 52. 10 V.S.A. § 6083 is amended to read:

§ 6083. APPLICATIONS

(a) An application for a permit shall be filed with the district commissioner as prescribed by the rules of the board and shall contain at least the following documents and information:

(1) The applicant’s name, address, and the address of each of the applicant’s offices in this state, and, where the applicant is not an individual, municipality or state agency, the form, date and place of formation of the applicant.

(2) Five copies of a plan of the proposed development or subdivision showing the intended use of the land, the proposed improvements, the details of the project, and any other information required by this chapter, or the rules ~~promulgated thereunder~~ adopted under this chapter.

(3) The fee prescribed by section 6083a of this title.

(4) Certification of filing of notice as set forth in 6084 of this title.

(b) ~~The board and district commission may conduct such investigations, examinations, tests and site evaluations as they deem necessary to verify information contained in the application.~~ An applicant or petitioner shall grant the appropriate panel of the board or district commission, or their agents, permission to enter upon ~~his~~ the applicant’s or petitioner’s land for these purposes.

* * *

(d) The panels of the board and commissions shall make all practical efforts to process matters before the board and permits in a prompt manner. The ~~board~~ land use panel shall establish time limits for ~~permit processing~~ the processing of land use permits issued under section 6086 of this title as well as procedures and time periods within which to notify applicants whether an application is complete. The ~~board~~ land use panel 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; and 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)(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~~ review by the environmental court, as provided by rule of the supreme court.

(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. 53. 10 V.S.A. § 6083a is amended to read:

§ 6083a. ACT 250 FEES

(a) All applicants for a land use permit under section 6086 of this title shall be directly responsible for the costs involved in the publication of notice in a newspaper of general circulation in the area of the proposed development or subdivision and the costs incurred in recording any permit or permit amendment in the land records. In addition, applicants shall be subject to the following fees for the purpose of compensating the state of Vermont for the direct and indirect costs incurred with respect to the administration of the Act 250 program:

* * *

(3) For projects involving exploration for or removal of oil, gas and fissionable source materials, a fee as determined under subdivision (1) of this subsection or $1,000.00 for each day of commission ~~and board~~ hearings required for such projects, whichever is greater.

* * *

(d) ~~All persons filing an appeal, cross appeal or petition from a district environmental commission decision or jurisdictional determination shall pay a fee of $100.00, plus publication costs.~~

(e) A written request for an application fee refund shall be submitted to the district commission to which the fee was paid within 90 days of the withdrawal of the application.

* * *

(4) District commission decisions regarding application fee refunds may be appealed to the ~~board~~ land use panel in accordance with board rules.

(5) For the purposes of this section, a “hearing” is a duly warned meeting concerning an application convened by a quorum of the ~~board or~~ district commission, ~~or a hearing officer or panel of the board,~~ at which parties may be present. However, a hearing does not include a prehearing conference.

* * *

(g) A commission or the ~~board~~ land use panel may require any permittee to file a certification of actual construction costs and may direct the payment of a supplemental fee in the event that an application understated a project’s construction costs. Failure to file a certification or to pay a supplemental fee shall be grounds for permit revocation.

* * *

Sec. 54. 10 V.S.A. § 6084 is amended to read:

§ 6084. NOTICE OF APPLICATION; HEARINGS, COMMENCEMENT OF REVIEW

(a) On or before the date of filing of an application with the district commission, the applicant shall send notice and a copy of the initial application to the owner of the land if the applicant is not the owner; the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located; any adjacent Vermont municipality and municipal and regional planning commission if the land is located on a municipal or regional boundary. The applicant shall furnish to the district commission the names of those furnished notice by affidavit, and shall post a copy of the notice in the town clerk’s office of the town or towns wherein the project ~~land~~ lies. The applicant shall also provide a list of adjoining landowners to the district commission. Upon request and for good cause, the district commission may authorize the applicant to provide a partial list of adjoining landowners in accordance with board rules.

(b) ~~The~~ Upon an application being ruled complete, the district commission shall determine whether to process the application as a major application with a required public hearing or process the application as a minor application with the potential for a public hearing in accordance with board rules.

(1) For major applications, the district commission shall provide notice not less then ten days prior to any scheduled hearing or prehearing conference to: the applicant; the owner of the land if the applicant is not the owner; the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located; any adjacent Vermont municipality and municipal and regional planning commission if the land is located on a municipal or regional boundary, adjoining landowners as deemed appropriate by the district commission pursuant to the rules of the board, and any other person the district commission deems appropriate.

(2) For minor applications, t he district commission shall provide notice of the commencement of application review to the persons listed in subdivision (b)(1) of this section.

(3) For both major and minor applications, the district commission shall also ~~forward~~ provide such notice and a copy of the application to: the board and any affected state agency ~~directly affected,~~ ; the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title, ; and any other municipality, state agency, or person the district commission ~~or board~~ deems appropriate. ~~Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 days after receipt of the application.~~

(c) Anyone required to receive notice of commencement of minor application review pursuant to subsection 6084(b) of this title may request a hearing by filing a request within the public comment period specified in the notice pursuant to board rules. The district commission, on its own motion, may order a hearing within 20 days of notice of commencement of minor application review.

(d) Any hearing or prehearing conference for a major application shall be held within 40 days of receipt of a complete application; or within 20 days of the end of the public comment period specified in the notice of minor application review if the district commission determines that it is appropriate to hold a hearing for a minor application.

(e) Any notice for a major or minor application, as required by this section, shall also be published by the district commission in a local newspaper generally circulating in the area where the development or subdivision is located not more than ten days after receipt of a complete application.

(1) Notice of any hearing for a major application shall be published, as required by this section, not less than ten days before the hearing or prehearing conference.

(2) If the district commission determines that it is appropriate to hold a hearing for an application that was originally noticed as a minor application, then the application shall be renoticed as a major application in accordance with the requirements of this section and board rules, except that there shall be no requirement to publish the second notice in a local newspaper. Direct notice of the hearing to all persons listed in subdivisions (b)(1) and (b)(3) of this section shall be deemed sufficient.

Sec. 55. 10 V.S.A. § 6085 is amended to read:

§ 6085. HEARINGS; PARTY STATUS

(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. 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.

(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, 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. Party status. In proceedings before the district commissions, the following persons shall be entitled to party status:

(A) The applicant;

(B) The landowner, if the applicant is not the landowner;

(C) The municipality in which the project site is located, and the municipal and regional planning commissions for that municipality; if the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality; and the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title;

(D) Any state agency affected by the proposed project;

(E) Any adjoining property owner or other person who has a particularized interest protected by this chapter that may be affected by an act or decision by a district commission.

(2) Content of Petitions. All persons seeking to participate in proceedings before the district commission as parties pursuant to subdivision (c)(1)(E) of this section must petition for party status. Any petition for party status may be made orally or in writing to the district commission. All petitions must include:

(A) A detailed statement of the petitioner’s interest under the relevant criteria of the proceeding, including, if known, whether the petitioner’s position is in support of or in opposition to the relief sought by the permit applicant, or petitioner.

(B) In the case of an organization, a description of the organization, its purposes, and the nature of its membership.

(C) A statement of the reasons the petitioner believes the district commission should allow the petitioner party status in the pending proceeding.

(D) In the case of a person seeking party status under subdivision (c)(1)(E) of this section:

(i) If applicable, a description of the location of the petitioner’s property in relation to the proposed project, including a map, if available;

(ii) A description of the potential effect of the proposed project upon the petitioner’s interest with respect to each of the relevant criteria or subcriteria under which party status is being requested.

(3) Timeliness. A petition for party status pursuant to subdivision (c)(1)(E) of this section must be made at or prior to an initial prehearing conference held pursuant to board rule or at the commencement of the hearing, whichever shall occur first, unless the district commission directs otherwise. The district commission may grant an untimely petition if it finds that the petitioner has demonstrated good cause for failure to request party status in a timely fashion, and that the late appearance will not unfairly delay the proceedings or place an unfair burden on the parties.

(4) Conditions. Where a person has been granted party status pursuant to subdivision (c)(1)(E) of this section, the district commission shall restrict the person’s participation to only those issues in which the person has demonstrated an interest, and may encourage the person to join with other persons with respect to representation, presentation of evidence, or other matters in the interest of promoting judicial efficiency.

(5) Friends of the commission. The district commission, on its own motion or by petition, may allow nonparties to participate in any of its proceedings, without being accorded party status. Participation may be limited to the filing of memoranda, proposed findings of fact and conclusions of law, and argument on legal issues. However, if approved by the district commission, participation may be expanded to include the provision of testimony, the filing of evidence, or the cross examination of witnesses. A petition for leave to participate as a friend of the commission shall identify the interest of the petitioner and the desired scope of participation and shall state the reasons why the participation of the petitioner will be beneficial to the district commission. Except where all parties consent or as otherwise ordered by the district commission or by the chair of the district commission, all friends of the commission shall file their memoranda, testimony, or evidence within the times allowed the parties.

~~(2)~~(6) Re-examination of party status. A district commission~~, according to the procedures established in the rules of the board, shall determine party status with respect to individuals and organizations at the commencement of the hearing process and~~ shall re‑examine ~~those~~ party status determinations before the close of hearings and state the results of that re-examination in the district commission decision. In the re-examination of party status coming before the close of district commission hearings, persons having attained party status up to that point in the proceedings shall be presumed to retain party status. However, on motion of a party, or on its own motion, a commission shall consider the extent to which parties continue to qualify for party status. Determinations made before the close of district commission hearings shall supersede any preliminary determinations of party status.

* * *

(e) The ~~board~~ land use panel and any district commission, acting through one or more duly authorized representatives at any prehearing conference or at any other times deemed appropriate by the ~~board~~ land use panel or by the district commission, shall promote expeditious, informal, and nonadversarial resolution of issues, require the timely exchange of information concerning the application, and encourage participants to settle differences. No ~~board member or~~ district commissioner who is participating as a decision maker in a particular case may act as a duly authorized representative for the purposes of this subsection. These efforts at dispute resolution shall not affect the burden of proof on issues before a commission or the ~~board~~ environmental court, nor shall they affect the requirement that a permit may be issued only after the issuance of affirmative findings under the criteria established in section 6086 of this title.

(f) A hearing shall not be closed until a commission ~~or the board~~ provides an opportunity to all parties to respond to the last permit or evidence submitted. Once a hearing has been closed, a commission ~~or the board~~ shall conclude deliberations as soon as is reasonably practicable. A decision of a commission ~~or the board~~ shall be issued within 20 days of the completion of deliberations.

Sec. 56. 10 V.S.A. § 6086 is amended to read:

§ 6086. ISSUANCE OF PERMIT; CONDITIONS AND CRITERIA

(a) Before granting a permit, the ~~board or~~ district commission shall find that the subdivision or development;

(1) Will not result in undue water or air pollution. In making this determination it shall at least consider: the elevation of land above sea level; and in relation to the flood plains, the nature of soils and subsoils and their ability to adequately support waste disposal; the slope of the land and its effect on effluents; the availability of streams for disposal of effluents; and the applicable health and environmental conservation department regulations.

(A) Headwaters. A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision will meet any applicable health and environmental conservation department regulation regarding reduction of the quality of the ground or surface waters flowing through or upon lands which are not devoted to intensive development, and which lands are:

(i) headwaters of watersheds characterized by steep slopes and shallow soils; or

(ii) drainage areas of 20 square miles or less; or

(iii) above 1,500 feet elevation; or

(iv) watersheds of public water supplies designated by the ~~Vermont~~ ~~department of health~~ agency of natural resources; or

(v) areas supplying significant amounts of recharge waters to aquifers.

* * *

(G) Wetlands. A permit will be granted whenever it is demonstrated by the applicant, in addition to other criteria, that the development or subdivision will not violate the rules of the ~~water resources~~ board, as adopted under ~~section 905(9) of this title~~ this chapter, relating to significant wetlands.

* * *

(9) Is in conformance with a duly adopted capability and development plan, and land use plan when adopted. However, the legislative findings of sections 7(a)(1) through 7(a)(19) of this act shall not be used as criteria in the consideration of applications by a district commission ~~or the environmental board~~.

(A) Impact of growth. In considering an application, the district commission ~~or the board~~ shall take into consideration the growth in population experienced by the town and region in question and whether or not the proposed development would significantly affect their existing and potential financial capacity to reasonably accommodate both the total growth and the rate of growth otherwise expected for the town and region and the total growth and rate of growth which would result from the development if approved. After considering anticipated costs for education, highway access and maintenance, sewage disposal, water supply, police and fire services and other factors relating to the public health, safety and welfare, the district commission ~~or the~~ ~~board~~ shall impose conditions which prevent undue burden upon the town and region in accommodating growth caused by the proposed development or subdivision. Notwithstanding section 6088 of this title the burden of proof that proposed development will significantly affect existing or potential financial capacity of the town and region to accommodate such growth is upon any party opposing an application, excepting however, where the town has a duly adopted capital improvement program the burden shall be on the applicant.

* * *

(E) Extraction of earth resources. A permit will be granted for the extraction or processing of mineral and earth resources, including fissionable source material:

(i) when it is demonstrated by the applicant that, in addition to all other applicable criteria, the extraction or processing operation and the disposal of waste will not have an unduly harmful impact upon the environment or surrounding land uses and development; and

(ii) upon approval by the district commission ~~or the board~~ of a site rehabilitation plan which insures that upon completion of the extracting or processing operation the site will be left by the applicant in a condition suited for an approved alternative use or development. A permit will not be granted for the recovery or extraction of mineral or earth resources from beneath natural water bodies or impoundments within the state, except that gravel, silt and sediment may be removed pursuant to the ~~regulations~~ rules of the ~~water resources board~~ agency of natural resources, and natural gas and oil may be removed pursuant to the rules of the natural gas and oil resources board.

* * *

(H) Costs of scattered development. The district commission ~~or board~~ will grant a permit for a development or subdivision which is not physically contiguous to an existing settlement whenever it is demonstrated that, in addition to all other applicable criteria, the additional costs of public services and facilities caused directly or indirectly by the proposed development or subdivision do not outweigh the tax revenue and other public benefits of the development or subdivision such as increased employment opportunities or the provision of needed and balanced housing accessible to existing or planned employment centers.

* * *

(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.

(b) At the request of an applicant, or upon its own motion, the district commission ~~or the board~~ shall consider whether to review any criterion or group of criteria of subsection (a) of this section before proceeding to or continuing to review other criteria. This request or motion may be made at any time prior to or during the proceedings. The district commission ~~or the~~ ~~board~~, in its sole discretion, shall, within 20 days of the completion of deliberations on the criteria that are the subject of the request or motion, either issue its findings and decision thereon, or proceed to a consideration of the remaining criteria. If the district commission or the board first issues a partial decision under this subsection, the applicant or a party may appeal that decision within 30 days under section 6089 of this title, or may appeal it after the final decision on the complete application. If the applicant or party has not taken a prior appeal of a partial decision under this subsection with respect to particular criteria, then any findings on the complete application, relating to those criteria, may be appealed under section 6089 of this title.

(c) A permit may contain such requirements and conditions as are allowable proper exercise of the police power and which are appropriate within the respect to (1) through (10) of subsection (a), including but not limited to those set forth in sections ~~4407(4)~~ 4414(4), ~~(8) and (9)~~ 4424(2), ~~4411(a)(2)~~ 4414(1)(D)(i), ~~4415, 4416~~ 4463(b), and ~~4417~~ 4464 of Title 24, the dedication of lands for public use, and the filing of bonds to insure compliance. The requirements and conditions incorporated from Title 24 may be applied whether or not a local plan has been adopted. General requirements and conditions may be established by rule of the land use panel.

(d) The ~~board~~ land use panel 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~~ A district commission, in accordance with rules adopted by the land use panel, shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § ~~4449~~ 4420, 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~~ 4420, 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~~ 4420 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~~ rules adopted by the land use panel 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.

* * *

(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~~ environmental court. 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~~ environmental court pursuant to ~~board rules~~ the provisions of chapter 220 of this title. A district commission shall not stay construction authorized by a permit processed under the ~~board’s~~ land use panel’s minor application procedures.

Sec. 57. 10 V.S.A. § 6087(a) is amended to read:

(a) No application shall be denied by the ~~board or~~ district commission unless it finds the proposed subdivision or development detrimental to the public health, safety or general welfare.

Sec. 58. 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) 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.~~

(4) Notice of appeal shall be filed with the board within 30 days. The board shall notify the parties set forth in section 6085(c) of this title of the filing of any appeal. The board shall proceed as in section 6085(b) and (c) of this title and treat the applicant pursuant to section 814 of Title 3.

~~(b) An appeal from a decision of the board under subsection (a) of this section shall be to the supreme court by a party as set forth in section 6085(c) of this title.~~

(c) No objection that has not been urged before the board may be considered by the supreme court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the board with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive.

(d) An appeal from the board will be allowed for all usual reasons, including the unreasonableness or insufficiency of the conditions attached to a permit. An appeal from the district commission will be allowed for any reason except no appeal shall be allowed when an application has been granted and no preliminary hearing requested.

Appeals of any act or decision of a district coordinator or a district commission under this chapter shall be made to the environmental court in accordance with chapter 220 of this title.

Sec. 59. 10 V.S.A. § 6091(b) and (d) are amended to read:

(b) Nonuse of permit. Nonuse of a permit for a period of three years following the date of issuance shall constitute an abandonment of the development or subdivision and the permit shall be considered expired. For purposes of this section, for a permit to be considered “used,” construction must have commenced and substantial progress toward completion must have occurred within the three-year period, unless construction is delayed by litigation or proceedings to secure other permits or to secure title through foreclosure, or unless, at the time the permit is issued or in a subsequent proceeding, the district commission ~~or board~~ provides that substantial construction may be commenced more than three years from the date the permit is issued.

(d) Completion dates for developments and subdivisions. Permits shall include dates by which there shall be full or phased completion. The ~~board~~ land use panel, by rule, shall establish requirements for review of those portions of developments and subdivisions that fail to meet their completion dates, giving due consideration to fairness to the parties involved, competing land use demands, and cumulative impacts on the resources involved. If completion has been delayed by litigation, proceedings to secure other permits, proceedings to secure title through foreclosure, or because of market conditions, the district commission ~~or board~~ shall provide that the completion dates be extended for a reasonable period of time.

* * * Solid and Hazardous Waste Management; chapter 159 * * *

Sec. 60. 10 V.S.A. § 6602 is amended to read:

§ 6602. DEFINITIONS

For the purposes of this chapter:

* * *

(15) ~~“Board” means the solid waste and air quality variance board established by section 553 of this title.~~

* * *

(22) ~~“Panel” means the waste facility panel established by section 6101 of this title.~~

* * *

Sec. 61. 10 V.S.A. § 6606a(f) is amended to read:

(f) ~~Appeals from a determination of the secretary regarding a certificate of need shall be to the waste facility panel under 10 V.S.A. chapter 151, subchapter 5.~~

Sec. 62. 10 V.S.A. § 6606b is amended to read:

§ 6606b. PERMITS ISSUED BY THE SECRETARY RELATED TO HAZARDOUS WASTE FACILITIES~~, APPEALS~~

* * *

(b) Review of a permit, certification, classification action, or endangered species variance issued by the secretary for the construction, operation, maintenance, closure and post-closure of a hazardous waste management facility shall be governed by subchapter 5 of chapter 151 of this title. A request for review shall be filed with the waste facility panel within 30 days of the secretary’s determination.

Sec. 63. 10 V.S.A. § 6613 is amended to read:

§ 6613. VARIANCES

(1) The variance proposed does not endanger or tend to endanger human health or safety~~; and~~.

(2) Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.

(3) The variance granted does not enable the applicant to generate, transport, treat, store, or dispose of hazardous waste in a manner which is less stringent than that required by the provisions of Subtitle C of the Resource Conservation and Recovery Act of 1976, and amendments thereto, codified in 42 U.S.C. Chapter 82, subchapter 3, and regulations promulgated under such subtitle.

(b) No variance shall be granted pursuant to this section except after public ~~hearing on due notice~~ notice and an opportunity for a public meeting and until the ~~board~~ secretary has considered the relative interests of the applicant, other owners of property likely to be affected, and the general public.

(1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement, or control of the air and water pollution involved, it shall be only until the necessary practicable means for prevention, abatement, or control become known and available, and subject to the taking of any substitute or alternate measures that the ~~board~~ secretary may prescribe.

(2) If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the ~~board~~ secretary, is requisite for the taking of the necessary measures. A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.

(3) If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivisions (1) and (2) of this subsection, it shall be for not more than one year, except that in the case of a variance from the siting requirements for a ~~sanitary landfill~~ solid waste management facility, the variance may be for as long as the ~~board~~ secretary determines necessary, including a permanent variance.

(d) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods, which would be appropriate on initial granting of a variance. If complaint is made to the ~~board~~ secretary on account of the variance, no renewal thereof shall be granted, unless following public ~~hearing on the complaint on due~~ notice and an opportunity for a public meeting on the complaint, the ~~board~~ secretary finds that renewal is justified. No renewal shall be granted except on application therefore. The application shall be made at least 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the ~~board~~ secretary shall give public notice of the application ~~in accordance with rules of the board~~.

(e) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the ~~board. However, any person adversely affected by a variance or renewal granted or denied by the board may obtain judicial review thereof in the Supreme Court~~ secretary.

* * *

Sec. 64. 10 V.S.A. § 6620(b) is amended to read:

(b) Review of a permit, certification, provisional certification, classification action, or endangered species variance issued by the secretary for the construction, operation, maintenance, closure and post-closure of a waste management facility shall be governed by subchapter 5 of chapter 151 of this title. A request for review shall be filed with the waste facility panel within 30 days of the secretary’s determination.

Sec. 65. 10 V.S.A. § 6622b is added to read:

§ 6622b. APPEALS

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

* * * Disposal of Low-Level Radioactive Waste; chapter 161 * * *

Sec. 66. 10 V.S.A. § 7024(b) is amended to read:

(b) The agency shall adopt rules establishing procedures for its review of a draft license application which shall, at a minimum, include:

* * *

(5) a procedure for complying with conditions or changes, to the licensing application, required by the NRC or the district environmental ~~board~~ commission.

* * * Uniform Environmental Law Enforcement; chapter 201 * * *

Sec. 67. 10 V.S.A. § 8001 is amended to read:

§ 8001. LEGISLATIVE FINDINGS

The general assembly finds it necessary to standardize and enhance the enforcement powers of the secretary of the agency of natural resources, and the enforcement powers of the ~~environmental~~ land use panel of the natural resources board, in order to:

* * *

Sec. 68. 10 V.S.A. § 8002 is amended to read:

§ 8002. DEFINITIONS

As used in this chapter:

(1) “Board” means the ~~environmental~~ natural resources board ~~established~~ defined by subdivision 6001(1) of this title.

* * *

(10) “Land use panel” means the land use panel of the board, as established under chapter 151 of this title.

Sec. 69. 10 V.S.A. § 8004 is amended to read:

§ 8004. ENFORCEMENT OF ACT 250

In addition to the enforcement of chapter 151 of this title on the secretary’s initiative, the secretary shall institute enforcement proceedings under chapter 151 when requested by the ~~board~~ land use panel. The secretary and the ~~board~~ land use panel shall develop procedures for the cooperative enforcement of chapter 151 of this title.

Sec. 70. 10 V.S.A. § 8005(b) is amended to read:

(b) Access orders.

(1) A district or superior court judge shall issue an access order when access has been refused and the investigator, by affidavit, describes the property to be examined and identifies:

(A) a provision of a permit that authorizes the inspection; or

(B) the property as being scheduled for inspection in accordance with a neutral inspection program adopted by the secretary or the ~~board~~ land use panel; or

* * *

Sec. 71. 10 V.S.A. § 8007 is amended to read:

§ 8007. ASSURANCES OF DISCONTINUANCE

(a) As an alternative to administrative or judicial proceedings, the secretary, or the ~~board~~ land use panel, may accept from a respondent an assurance of discontinuance of a violation. An assurance of discontinuance shall include:

(1) a statement of the facts which provide the basis for claiming the violation exists and a description of the alleged violation determined by the secretary or the ~~board~~ land use panel; and

* * *

(b) An assurance of discontinuance may include:

(1) prevention, abatement, alleviation, or restoration schedules;

(2) contribution toward other projects related to the violation, which the respondent and the secretary or the ~~board~~ land use panel agree will enhance the natural resources of the area affected by the violation, or their use and enjoyment; and

(3) payment of monetary penalties, including stipulated penalties for violation of the assurance.

* * *

Sec. 72. 10 V.S.A. § 8016 is amended to read:

§ 8016. RULEMAKING

The secretary, in consultation with the ~~board~~ land use panel, shall adopt rules defining classes of violations and an appropriate range of administrative penalties to be assessed for each class of violation. The classes of violation and range of penalties shall take into account the degree of potential impact on public health, safety, and welfare and the environment resulting from the violation. No administrative penalty may be assessed as part of an administrative order pursuant to this chapter until applicable rules and procedures have been adopted.

Sec. 73. 10 V.S.A. § 8221(a) is amended to read:

(a) The secretary, or the land use panel of the natural resources board with respect to matters relating to land use permits under chapter 151 of this title only, may bring an action in superior court to enforce the provisions of law specified in subsection 8003(a) of this title, to ensure compliance, and to obtain penalties in the amounts described in subsection (b) of this section. The action shall be brought by the attorney general in the name of the state.

* * * Consolidated Environmental Appeals * * *

Sec. 74. 10 V.S.A. chapter 220 is added to read:

Chapter 220. Consolidated Environmental Appeals

§ 8501. PURPOSE

It is the purpose of this chapter to:

(1) Consolidate existing appeal routes for municipal zoning and subdivision decisions and acts or decisions of the secretary of natural resources, district environmental coordinators, and district commissions, excluding enforcement actions brought pursuant to chapters 201 and 211 of this title and the adoption of rules under 3 V.S.A. chapter 25.

(2) Standardize the appeal periods, the parties who may appeal these acts or decisions, and the ability to stay any act or decision upon appeal, taking into account the nature of the different programs affected.

(3) Encourage people to get involved in the Act 250 permitting process at the initial stages of review by a district commission by requiring participation as a prerequisite for an appeal of a district commission decision to the environmental court.

(4) Assure that clear appeal routes exist for acts and decisions of the secretary of natural resources.

§ 8502. DEFINITIONS

As used in this chapter:

(1) “District commission” means a district environmental commission established under chapter 151 of this title.

(2) “District coordinator” means a district environmental coordinator attached to a district commission established under chapter 151 of this title.

(3) “Environmental court” means the environmental court established under 4 V.S.A. chapter 27.

(4) “Natural resources board” means the board established under chapter 151 of this title.

(5) “Party by right” means the following:

(A) The applicant.

(B) The landowner, if the applicant is not the landowner.

(C) The municipality in which the project site is located, and the municipal and regional planning commissions for that municipality.

(D) If the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality.

(E) The solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to section 6602(10) of this title.

(F) Any state agency affected by the proposed project.

(6) “Person” means any individual; partnership; company; corporation; association; joint venture; trust; municipality; the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity.

(7) “Person aggrieved” means a person who alleges an injury to a particularized interest protected by the provisions of law listed in section 8503 of this title, attributable to an act or decision by a district coordinator, district commission, the secretary, or the environmental court that can be redressed by the environmental court or the supreme court.

(8) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative. For the purposes of this chapter, “secretary” shall also mean the commissioner of the department of environmental conservation, the commissioner of the department of forests, parks and recreation, and the commissioner of the department of fish and wildlife, with respect to those statutes that refer to the authority of that commissioner or department.

§ 8503. APPLICABILITY

(a) This chapter shall govern all appeals of an act or decision of the secretary, excluding enforcement actions under chapters 201 and 211 of this title and rulemaking, under the following authorities and under the rules adopted under those authorities:

(1) The following provisions of this title:

(A) chapter 23 (air pollution control).

(B) section 922 (aquatic nuisance control grants-in-aid).

(D) chapter 43 (dams).

(E) chapter 47 (water pollution control).

(F) chapter 48 (groundwater protection).

(G) chapter 53 (beverage containers; deposit-redemption system).

(H) chapter 55 (aid to municipalities for water supply, pollution abatement and sewer separation).

(I) chapter 56 (public water supply).

(J) chapter 59 (underground and aboveground liquid storage tanks).

(K) chapter 64 (potable water supply and wastewater system permit).

(L) section 2625 (regulation of heavy cutting).

(M) chapter 123 (protection of endangered species).

(N) chapter 159 (waste management).

(2) 29 V.S.A. chapter 11 (management of lakes and ponds).

(b) This chapter shall govern:

(1) All appeals from an act or decision of a district commission under chapter 151 of this title, excluding appeals of application fee refund requests.

(2) Appeals from district coordinator jurisdictional opinions under chapter 151 of this title.

(d) This chapter shall govern all appeals from an act or decision of the environmental court under this chapter.

(e) This chapter shall not govern appeals from rulemaking decisions by the natural resources board under chapter 151 of this title or enforcement actions under chapters 201 and 211 of this title.

§ 8504. APPEALS TO THE ENVIRONMENTAL COURT

(a) Act 250 and agency appeals. Within 30 days of the date of the act or decision, any person aggrieved by an act or decision of the secretary, a district coordinator, or a district commission under the provisions of law listed in section 8503 of this title, or any party by right, may appeal to the environmental court.

(b) Planning and zoning chapter appeals.

(1) Within 30 days of the date of the act or decision, an interested person, as defined in 24 V.S.A.§ 4465, who has participated as defined in 24 V.S.A. §4471 in the municipal regulatory proceeding under that chapter may appeal to the environmental court an act or decision made under that chapter by a board of adjustment, a planning commission, or a development review board; provided, however, that decisions of a development review board under 24 V.S.A. § 4420 with respect to local Act 250 review of municipal impacts, are not subject to appeal but shall serve as presumptions under chapter 151 of this title.

(2) Notwithstanding subdivision (b)(1) of this section, an interested person may appeal an act or decision under 24 V.S.A. chapter 117 if the environmental judge determines that:

(A) there was a procedural defect which prevented the person from obtaining interested person status or participating in the proceeding;

(B) the decision being appealed is the grant or denial of interested person status; or

(1) Upon filing an appeal from an act or decision of the district commission, the appellant shall notify all parties who had party status as of the end of the district commission proceeding, all friends of the commission, and the natural resources board that an appeal is being filed. In addition, the appellant shall publish notice not more than 10 days after providing notice as required under this subsection, at the appellant’s expense, in a newspaper of general circulation in the area of the project which is the subject of the decision.

(2) Upon the filing of an appeal from the act or decision of the secretary under the provisions of law listed in section 8503 of this title, the appellant shall provide notice of the filing of an appeal to the following persons: the applicant before the agency of natural resources, if other than the appellant; the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for the municipality in which the project is located; if the project site is located on a boundary, any adjacent Vermont municipality and the municipal and regional planning commissions for that municipality; any state agency affected; the solid waste management district in which the project is located, if the project constitutes a facility pursuant to subdivision 6602(10) of this title; all persons required to receive notice of receipt of an application or notice of the issuance of a draft permit; and all persons on any mailing list for the decision involved. In addition, the appellant shall publish notice not more than 10 days after providing notice as required under this subsection, at the appellant’s expense, in a newspaper of general circulation in the area of the project which is the subject of the decision.

(3) In the case of appeals under 24 V.S.A. chapter 117, notice shall be as required under 24 V.S.A. § 4471.

(d) Requirement that aggrieved Act 250 parties participate before the district commission.

(1) No aggrieved person may appeal an act or decision that was made by a district commission unless the person was granted party status by the district commission pursuant to subdivision 6085(c)(1)(E) of this title, participated in the proceedings before the district commission, and retained party status at the end of the district commission proceedings. In addition, the person may only appeal those issues under the criteria with respect to which the person was granted party status.

(2) Notwithstanding subdivision (d)(1) of this section, an aggrieved person may appeal an act or decision of the district commission if the environmental judge determines that:

(A) there was a procedural defect which prevented the person from obtaining party status or participating in the proceeding;

(B) the decision being appealed is the grant or denial of party status; or

(e) Act 250 jurisdictional opinions.

(1) The appellant shall provide notice of the filing of an appeal to each person entitled to notice under subdivision 6085(c)(1)(A) through (D) of this title and to each person on an approved 6085(c)(1)(E) list.

(2) Failure to appeal within the time required under subsection (a) of this section shall render the jurisdictional opinion the final determination regarding jurisdiction under chapter 151 of this title unless the opinion was not properly served on persons listed in subdivision 6085(c)(1)(A) through (D) of this title and on persons on a 6085(c)(1)(E) list approved under subsection 6007(c) of this title. Any person listed in subdivision 6085(c)(1)(A) through (D) of this title or on an approved 6085(c)(1)(E) list, who is not initially served as required, may appeal the jurisdictional opinion at any time if the person is never served, or within 30 days from the date the person has been served.

(f) Stays.

(1) The filing of an appeal shall automatically stay the act or decision in the following situations:

(A) Acts or decisions involving stream alteration permits or shoreline encroachment permits issued by the secretary.

(B) The denial of interested person status by a board of adjustment, planning commission, or development review board.

(2) Upon petition by a party or upon its own motion for a stay of an act or decision, the environmental court shall perform the initial review of the request and may grant a stay. Any decision under this subsection to issue a stay shall be subject to appeal to the supreme court according to the Rules of Appellate Procedure.

(g) Consolidated appeals. The environmental court may consolidate or coordinate different appeals where those appeals all relate to the same project.

(h) De novo hearing. The environmental court, applying the substantive standards that were applicable before the tribunal appealed from, shall hold a de novo hearing on those issues which have been appealed, except in the case of:

(1) a decision being appealed on the record pursuant to 24 V.S.A. chapter 117;

(2) a decision of the commissioner of forests, parks and recreation under section 2625 of this title being appealed on the record, in which case the court shall affirm the decision, unless it finds that the commissioner did not have reasonable grounds on which to base the decision.

(i) Deference to agency technical determinations. In the adjudication of appeals relating to land use permits under chapter 151 of this title, technical determinations of the secretary shall be accorded the same deference as they are accorded by a district commission under subsection 6086(d) of this title.

(j) Appeals to discharge under a general permit. Any appeal of an authorization to discharge under the terms of a general permit shall be limited in scope to whether the permitted activity complies with the terms and conditions of the general permit.

(k) Limitations on appeals. Notwithstanding any other provision of this section:

(1) there shall be no appeal from a district commission decision when the commission has issued a permit and no hearing was requested or held, or no motion to alter was filed following the issuance of an administrative amendment;

(2) a municipal decision regarding whether a particular application qualifies for a recorded hearing under 24 V.S.A. § 4471(b) shall not be subject to appeal;

(3) if a district commission issues a partial decision under subsection 6086(b) of this title, any appeal of that decision must be taken within 30 days of the date of that decision.

(l) Representation. The secretary may represent the agency of natural resources in all appeals under this section. The chair of the natural resources board, on behalf of the board or either panel, may represent the board or either panel of the natural resources board in any appeal under this section, unless the board or the relevant panel directs otherwise. If more than one state agency, other than the board or a panel of the natural resources board, either appeals or seeks to intervene in an appeal under this section, only the attorney general may represent the interests of those agencies of the state in the appeal.

(m) Precedent. Prior decisions of the environmental board, water resources board, and waste facilities panel shall be given the same weight and consideration as prior decisions of the environmental court.

(n) Intervention. Any person may intervene in a pending appeal if that person:

(1) appeared as a party in the action appealed from and retained party status;

(2) is a party by right;

(3) is the natural resources board, or either panel of the board;

(4) is a person aggrieved, as defined in this chapter;

(5) qualifies as an “interested person,” as established in 24 V.S.A. § 4465, with respect to appeals under 24 V.S.A. chapter 117; or

(6) meets the standard for intervention established in the Vermont Rules of Civil Procedure.

§ 8505. APPEALS TO THE SUPREME COURT

(a) Any person aggrieved by a decision of the environmental court pursuant to this subchapter, any party by right, or the board or either panel of the board may appeal to the supreme court within 30 days of the date of the entry of the order or judgment appealed from, provided that:

(1) the person was a party to the proceeding before the environmental court; or

(2) the decision being appealed is the denial of party status; or

(3) the supreme court determines that:

(A) there was a procedural defect which prevented the person from participating in the proceeding; or

(B) some other condition exists which would result in manifest injustice if the person’s right to appeal were disallowed.

(b) An objection that has not been raised before the environmental court may not be considered by the supreme court, unless the failure or neglect to raise that objection is excused by the supreme court because of extraordinary circumstances.

* * * Registration of Snowmobiles; 23 V.S.A. chapter 29 * * *

Sec. 75. 23 V.S.A. § 3202(i) is amended to read:

(i) Authority of ~~water~~ natural resources board. Nothing in the section relating to operation on frozen bodies of water shall be construed to affect the authority of the ~~water~~ natural resources board to regulate uses of public bodies of water.

* * * Municipal Administrative Procedure Act; 24 V.S.A. chapter 36 * * *

Sec. 76. 24 V.S.A. § 1201 is amended to read:

§ 1201. DEFINITIONS

As used in this chapter:

(1) “Contested hearing” means one of the following:

(A) A case in which an applicant for a land use permit under 10 V.S.A. chapter 151 is required to obtain local Act 250 review of municipal impacts by a municipality that has taken steps required under section ~~4449~~ 4420 of this title to allow it to conduct that local review.

* * *

(4) “Party,” for purposes of proceedings under chapter 117 of this title, other than those related to local Act 250 review of municipal impacts, means “interested person,” as defined by subsection ~~4464(b)~~ 4465(b) of this title. “Party,” for purposes of local Act 250 review of municipal impacts, means a person whose interests, under relevant provisions of 10 V.S.A. § 6086(a) being reviewed at the municipal level, may be affected by a proposed development or subdivision, as those terms are defined in 10 V.S.A. chapter 151. “Party” for purposes of other proceedings under this chapter, shall have the meaning established under statutes controlling those proceedings.

* * * Ordinances and Rules; 24 V.S.A. chapter 59 * * *

Sec. 77. 24 V.S.A. § 1974a(b) is amended to read:

(b) All civil ordinance violations, except municipal parking violations, and all continuing civil ordinance violations, where the penalty is $500.00 or less, shall be brought before the judicial bureau pursuant to Title 4 and this chapter. If the penalty for all continuing civil ordinance violations is greater than $500.00, or injunctive relief, other than as provided in subsection (c) of this section, is sought, the action shall be brought in superior court, unless the matter relates to enforcement under chapter 117 of this title, in which instance the action shall be brought in environmental court.

* * * Historic Downtown Development; 24 V.S.A. chapter 76A * * *

Sec. 78. 24 V.S.A. § 2791(2) and (6) are amended to read:

(2) “Design ~~control~~ review district” means a district created pursuant to subdivision ~~4407(6)~~ 4414(1)(E) of this title.

(6) “Historic district” means a district created pursuant to subdivision ~~4407(15)~~ 4414(1)(F) of this title.

Sec. 79. 24 V.S.A. § 2793 is amended to read:

§ 2793. DESIGNATION OF DOWNTOWN DEVELOPMENT DISTRICTS

(a) A municipality, by its legislative body, may apply to the state board for designation of a downtown area within that municipality as a downtown development district. An application by a municipality shall contain a map that accurately delineates the district. The application shall also include evidence that the regional planning commission and the regional development corporation have been notified of the municipality's intent to apply, evidence that the municipality has published notice of its application in a local newspaper of general circulation within the municipality, and information showing that the district meets the standards for designation established in subsection (b) of this section. Upon receipt of an application, the state board shall provide written notice of the application to the ~~environmental~~ natural resources board. The ~~environmental~~ natural resources board and interested persons shall have 15 days after notice to submit written comments regarding the application before the state board issues a written decision that demonstrates the applicant's compliance with the requirements of this chapter.

(b) Within 45 days of receipt of a completed application, the state board shall designate a downtown development district if the state board finds, in its written decision, that the municipality has:

(1) demonstrated a planning commitment through the adoption of a design ~~control~~ review district, an historic district, or through the creation of a development review board authorized to undertake local Act 250 reviews pursuant to section ~~4449~~ 4420 of this title;

* * *

Sec. 80. 24 V.S.A. § 2793b(b) is amended to read:

(b) Within 45 days of receipt of a completed application, the state board shall designate a new town center development district if the state board finds, with respect to that district, the municipality has:

(1) a confirmed planning process under section 4350 of this title, and developed a municipal center plan and regulations to implement the plan, including an official map, and a design ~~control~~ review district created under this title; and

* * *

* * * Sewage Disposal System; 24 V.S.A. chapter 101 * * *

Sec. 81. 24 V.S.A. § 3616 is amended to read:

§ 3616. DUTIES; USE OF PROCEEDS

Such sewage disposal commissioners shall have the supervision of such municipal sewage disposal department, and shall make and establish all needful rates for charges, rules, and regulations for its control and operation including the right to require any individual, person, or corporation to connect to such municipal system for the purposes of abating pollution of the waters of the state ~~when the Vermont water resources board under chapter 47 of Title 10 has issued its report and findings fixing the classification of the waters and requiring municipal collection and treatment of waste~~. Such commissioners may appoint or remove a superintendent at their pleasure. The charges and receipts of such department shall only be used and applied to pay the interest and principal of the sewage disposal bonds of such municipal corporation as well as the expense of maintenance and operation of the sewage disposal department or other expenses of the sewage system. These charges and receipts also may be used to develop a dedicated fund which may be created by the commissioners to finance major rehabilitation, major maintenance, and upgrade costs for the sewer system. This fund may be established by an annual set-aside of up to 15 percent of the normal operations, maintenance and bond payment costs, except that with respect to sub-surface leachfield systems, the annual set-aside may equal up to 100 percent of these costs. The fund shall not exceed the estimated future major rehabilitation, major maintenance or upgrade costs for the sewer system. Any dedicated fund shall be insured at least to the level provided by FDIC and withdrawals shall be made only for the purposes for which the fund was established. Any such dedicated fund may be established and controlled in accord with 24 V.S.A. § 2804 or may be established by act of the legislative body of the municipality. Funds so established meet the requirements of 24 V.S.A. § 4756(a)(4). Where the municipal legislative body establishes such a fund, it shall first adopt a municipal ordinance authorizing and controlling such funds. Such ordinance and any local policies governing the funds must conform to the requirements of this section.

* * * 24 V.S.A. chapter 117 – Planning and Zoning * * *

Sec. 82. 24 V.S.A. § 4302(a) is amended to read:

(a) General purposes. It is the intent and purpose of this chapter to encourage the appropriate development of all lands in this state by the action of its constituent municipalities and regions, with the aid and assistance of the state, in a manner which will promote the public health, safety against fire, floods, explosions and other dangers; to promote prosperity, comfort, access to adequate light and air, convenience, efficiency, economy and general welfare; to enable the mitigation of the burden of property taxes on agricultural, forest and other open lands; to encourage appropriate architectural design; to encourage the development of renewable resources; to protect residential, agricultural and other areas from undue concentrations of population and overcrowding of land and buildings, from traffic congestion, from inadequate parking and the invasion of through traffic, and from the loss of peace, quiet and privacy; to facilitate the growth of villages, towns and cities and of their communities and neighborhoods so as to create an optimum environment, with good civic design; to encourage development of a rich cultural environment and to foster the arts; and to provide means and methods for the municipalities and regions of this state to plan for the prevention, minimization and future elimination of such land development problems as may presently exist or which may be foreseen and to implement those plans when and where appropriate. In implementing any regulatory power under this chapter, municipalities shall take care to protect the constitutional right of the people to acquire, possess, and protect property.

Sec. 83. 24 V.S.A. § 4303 is amended to read:

§ 4303. DEFINITIONS

The following definitions shall apply throughout this chapter unless the context otherwise requires:

(1) ~~“Plan” means a plan adopted under section 4385 of this title.~~ “Affordable housing” means either of the following:

(A) Housing that is owned by its inhabitants whose gross annual household income does not exceed 80 percent of the county median income, or 80 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including principal, interest, taxes, insurance, and condominium association fees is not more than 30 percent of the household’s gross annual income.

(B) Housing that is rented by its inhabitants whose gross annual household income does not exceed 80 percent of the county median income, or 80 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including rent, utilities, and condominium association fees, is not more than 30 percent of the household’s gross annual income.

(2) “Affordable housing development” means a housing development of which at least 20 percent of the units or a minimum of five units, whichever is greater, are affordable housing units. Affordable units shall be subject to covenants or restrictions that preserve their affordability for a minimum of 15 years or longer as provided in municipal bylaws.

(3) “Appropriate municipal panel” means a planning commission performing development review, a board of adjustment, a development review board, or a legislative body performing development review.

(4) “Bylaws” means municipal regulations applicable to land development adopted under the authority of this chapter.

(5) “Capacity study” means an inventory of available natural and human-made resources, based on detailed data collection, that identifies the capacities and limits of those resources to absorb land development. Data gathered, relevant to the geographic information system, shall be compatible with, useful to, and shared with the geographic information system established under 3 V.S.A. § 20.

(6) “Conformance with the plan” means a proposed implementation tool, including a bylaw or bylaw amendment that is in accord with the municipal plan in effect at the time of adoption, when the bylaw or bylaw amendment includes all the following:

(A) Makes progress toward attaining, or at least does not interfere with, the goals and policies contained in the municipal plan.

(B) Provides for proposed future land uses, densities, and intensities of development contained in the municipal plan.

(C) Carries out, as applicable, any specific proposals for community facilities, or other proposed actions contained in the municipal plan.

(7) “Element” means a component of a plan.

(8) “Flood hazard area” for purposes of section 4424 of this title means the land subject to flooding from the base flood. “Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year. Further, with respect to flood and other hazard area regulation pursuant to this chapter, the following terms shall have the following meanings:

(A) “Floodproofing” means any combination of structural and nonstructural additions, changes, or adjustments to properties and structures that substantially reduce or eliminate flood damage to any combination of real estate, improved real property, water or sanitary facilities, structures, and the contents of structures.

(B) “Floodway” means the channel of a river or other watercourse and the adjacent land area that must be reserved in order to discharge the base flood without accumulatively increasing the water surface elevation more than one foot.

(C) “Hazard area” means land subject to landslides, soil erosion, earthquakes, water supply contamination, or other natural or human‑made hazards as identified within a “local mitigation plan” in conformance with and approved pursuant to the provisions of 44 C.F.R. section 201.6.

(D) “New construction” means construction of structures or filling commenced on or after the effective date of the adoption of a community’s flood hazard bylaws.

(E) “Substantial improvement” means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either before the improvement or repair is started or, if the structure has been damaged and is being restored, before the damage occurred. However, the term does not include either of the following:

(i) Any project or improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications that are solely necessary to assure safe living conditions.

(ii) Any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places.

~~(2)~~(9) “Legislative body” means the ~~selectmen~~ selectboard in the case of a town, the trustees in the case of an incorporated village, and the mayor ~~and~~ ~~aldermen~~, alderpersons, and city council members in the case of a city, and the supervisor in the case of an unorganized town or gore.

~~(3)~~(10) “Land development” means the division of a parcel into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure, or of any mining, excavation, or landfill, and any change in the use of any building or other structure, or land, or extension of use of land.

(11) “Municipal land use permit” means any of the following whenever issued:

(A) A zoning, subdivision, site plan, or building permit or approval, any of which relate to “land development” as defined in this section, that has received final approval from the applicable board, commission, or officer of the municipality.

(B) A wastewater system permit issued under any municipal ordinance adopted pursuant to chapter 102 of this title.

(C) Final official minutes of a meeting that relate to a permit or approval described in subdivision (11)(A) or (B) of this section that serve as the sole evidence of that permit or approval.

(D) A certificate of occupancy, certificate of compliance, or similar certificate that relates to the permits or approvals described in subdivision (11)(A) or (B) of this section, if the bylaws so require.

(E) An amendment of any of the documents listed in subdivisions (11)(A) through (D) of this section.

~~(4)~~(12) “Municipality” means a town, a city, or an incorporated village or an unorganized town or gore. An incorporated village shall be deemed to be within the jurisdiction of a town for the purposes of this chapter, except to the extent that a village adopts its own plan and one or more bylaws either before, concurrently with, or subsequent to such action by the town, in which case the village shall have all authority granted a municipality under this chapter and the plans and bylaws of the town shall not apply during such period of time that said village plan and bylaws are in effect.

(13) “Nonconforming lots or parcels” means lots or parcels that do not conform to the present bylaws covering dimensional requirements but were in conformance with all applicable laws, ordinances, and regulations prior to the enactment of the present bylaws, including a lot or parcel improperly authorized as a result of error by the administrative officer.

(14) “Nonconforming structure” means a structure or part of a structure that does not conform to the present bylaws but was in conformance with all applicable laws, ordinances, and regulations prior to the enactment of the present bylaws, including a structure improperly authorized as a result of error by the administrative officer.

(15) “Nonconforming use” means use of land that does not conform to the present bylaws but did conform to all applicable laws, ordinances, and regulations prior to the enactment of the present bylaws, including a use improperly authorized as a result of error by the administrative officer.

(16) “Nonconformity” means a nonconforming use, structure, lot, or parcel.

~~(5)~~(17) “Person” means an individual, a corporation, a partnership, an association, and any other incorporated or unincorporated organization or group.

(18) “Plan” means a municipal plan adopted under section 4385 of this title.

(19) “Planned unit development” means one or more lots, tracts, or parcels of land to be developed as a single entity, the plan for which may propose any authorized combination of density or intensity transfers or increases, as well as the mixing of land uses. This plan, as authorized, may deviate from bylaw requirements that are otherwise applicable to the area in which it is located with respect to lot size, bulk, or type of dwelling or building, use, density, intensity, lot coverage, parking, required common open space, or other standards.

~~(6)~~(20) “Planning commission” means a planning commission for a municipality created under subchapter 2 of this chapter.

~~(7)~~(21) “Public notice” means the form of notice prescribed by ~~section 4447~~ sections 4444, 4449, or 4464 of this title, as the context requires.

~~(8)~~(22) “Regional plan” means a plan adopted under section 4348 of this title.

~~(9)~~(23) “Regional planning commission” means a planning commission for a region created under subchapter 3 of this chapter.

(24) “Renewable energy resources” means energy available for collection or conversion from direct sunlight, wind, running water, organically derived fuels, including wood and agricultural sources, waste heat, and geothermal sources.

~~(10)~~(25) “Rural town” means a town having, as at the date of the most recent United States census, a population of less than ~~2500~~ 2,500 persons, as evidenced by that census, or a town having ~~2500~~ 2,500 or more but less than ~~5000~~ 5,000 persons ~~which~~ that has voted by Australian ballot to be considered a rural town.

(26) “Should” means that an activity is encouraged but not mandated.

~~(11)~~(27) “Structure” means an assembly of materials for occupancy or use, including~~, but not limited to,~~ a building, mobile home or trailer, ~~billboard,~~ sign, wall, or fence~~, except a wall~~ ~~or fence on an operating farm~~.

(28) “Technical deficiency” means a defect in a proposed plan or bylaw, or an amendment or repeal thereof, correction of which does not involve substantive change to the proposal, including corrections to grammar, spelling, and punctuation, as well as the numbering of sections.

(29) “Telecommunications facility” means a tower or other support structure, including antennae, that will extend 20 or more feet vertically, and related equipment, and base structures to be used primarily for communication or broadcast purposes to transmit or receive communication or broadcast signals.

(30) “Transit pass” means any pass, token, fare card, voucher, or similar item entitling a person to transportation to and from work on mass transit facilities and provided by an employer consistent with Internal Revenue Code Section 132(f).

~~(12)~~(31) “Urban municipality” means a city, an incorporated village, or any town ~~which~~ that is not a rural town.

~~(13) “Bylaws” means zoning regulations, subdivision regulations, or the official map adopted under the authority of this chapter.~~

(14) “Planned unit development” means an area of land, controlled by a landowner, to be developed as a single entity for a number of dwelling units, and commercial and industrial uses, if any; the plan for which does not correspond in lot size, bulk or type of dwelling, commercial or industrial use, density, lot coverage and required open space to the regulations established in any one or more districts created, from time to time, under the provisions of a municipal zoning ordinance adopted under the authority of this chapter.

(15) “Renewable energy resources” means energy available for collection or conversion from direct sunlight, wind, running water, organically derived fuels including wood, agricultural sources, waste materials, waste heat, and geothermal sources.

~~(16) “Element” means a component of a plan.~~

~~(17) “Should” means that a requirement is encouraged but not mandated.~~

(18) “Technical deficiency” means a defect in a proposed plan or bylaw, or an amendment or repeal thereof which does not involve substantive change to the proposal, including but not limited to corrections to grammar, spelling and punctuation, as well as the numbering of sections.

~~(19)~~(32) “Wetlands” means those areas of the state that are inundated by surface or groundwater with a frequency sufficient to support vegetation or aquatic life that depend on saturated or seasonally saturated soil conditions for growth and reproduction. Such areas include ~~but are not limited to~~ marshes, swamps, sloughs, potholes, fens, river and lake overflows, mud flats, bogs, and ponds, but excluding such areas as grow food or crops in connection with farming activities.

(20) “Capacity study” means an inventory of available natural and human-made resources, based on detailed data collection, which identifies the capacities and limits of those resources to absorb land development. Data gathered, relevant to the geographic information system, shall be compatible with, useful to, and shared with the geographic information system established under 3 V.S.A. § 20.

~~(21) “Approved plan,” prior to~~ ~~January 1, 1996, includes a plan that is conditionally approved under the provisions of this chapter, unless specifically provided otherwise.~~

(22) “Transit pass” means any pass, token, farecard, voucher or similar item entitling a person to transportation to and from work on mass transit facilities and provided by an employer consistent with Internal Revenue Code (IRC) § 132(f).

(23) “Telecommunications facility” means a support structure which is primarily for communication or broadcast purposes and which will extend vertically 20 feet, or more, in order to transmit or receive communication signals for commercial, industrial, municipal, county or state purposes.

~~(24) “Municipal land use permit” means any of the following whenever issued:~~

(A) a zoning, subdivision, site plan, or building permit or approval, any of which relate to “land development” as defined in this section, which has received final approval from the applicable board, commission or officer of the municipality; or

~~(B) a septic or sewage system permit issued under any municipal ordinance adopted pursuant to chapter 102 of this title; or~~

(C) final official minutes of meetings which relate to the permits or approvals described in subdivision (24)(A) or (B) of this section which serve as the sole evidence of such permit or approval; or

~~(D) a certificate of occupancy, certificate of compliance or similar certificate which relates to the permits or approvals described in subdivision (24)(A) or (B) of this section; or~~

~~(E) an amendment of any of the documents listed in subdivisions (24)(A) through (D) of this section.~~

~~(25) “Affordable housing” means either of the following:~~

(A) Housing that is owned by its inhabitants, whose gross annual household income does not exceed 80 percent of the state median income, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including principal, interest, taxes and insurance, is not more than 30 percent of the household’s gross annual income.

(B) Housing that is rented by its inhabitants whose gross annual household income does not exceed 65 percent of the state median income, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including rent, utilities, and condominium association fees, is not more than 30 percent of the household’s gross annual income.

~~(26) “Affordable housing development” means a housing development of which at least 50 percent of the units are affordable housing units.~~

Sec. 84. 24 V.S.A. § 4306(b)(2) is amended to read:

(2) carrying out the provisions of subchapters 5 through 7 10 of ~~24 V.S.A.~~ chapter 117 of this title; and

Sec. 85. 24 V.S.A. § 4325 is amended to read:

§ 4325. POWERS AND DUTIES OF PLANNING COMMISSIONS

Any planning commission created under this chapter may:

* * *

(3) Administer bylaws adopted under ~~subchapter 6 of~~ this chapter, except to the extent that those functions are performed by a development review board;

* * *

(6) Prepare and present a recommended capital budget and program for a period of five years, as set forth in section ~~4426~~ 4440 of this title, for action by the legislative body, as set forth under section ~~4404a~~ 4443 of this title;

* * *

Sec. 86. 24 V.S.A. § 4305(d) is amended to read:

(d)(1) The council shall review state agency plans or amendments proposed under 3 V.S.A. chapter 67, after providing public notice as required under 3 V.S.A. § 839 with respect to administrative rules notwithstanding the notice requirements established in ~~section 4447 of this title~~ this chapter, and determine the following:

* * *

(3) After the agency has adopted a plan or amendment, the council, after providing public notice as required under 3 V.S.A. § 839 with respect to administrative rules notwithstanding the notice requirements established in ~~section 4447 of this title~~ this chapter, shall review the plan, as amended or adopted, and shall prepare a written evaluation of the plan’s compliance with the criteria established in subdivision (1) of this subsection. The written evaluation shall be sent to all persons who request a copy in writing, to the governor, to the speaker of the house and president of the senate, who shall forward them to appropriate legislative committees. If the council determines that the plan or amendment as adopted is not compatible with a regional plan or is not compatible with the approved municipal plan of a municipality that has requested review by the council, the evaluation shall be sent also:

* * *

Sec. 87. 24 V.S.A. § 4350(b) is amended to read:

(b) As part of the consultation process, the commission shall consider whether a municipality has adopted a plan. In order to obtain or retain confirmation of the planning process after January 1, 1996, a municipality must have an approved plan. A regional planning commission shall review and approve plans of its member municipalities, when approval is requested and warranted. Each review shall include a public hearing which is noticed ~~as provided in section 4447 of this title which notice shall also include~~ at least 15 days in advance by posting in the office of the municipal clerk and at least one public place within the municipality and by publication in a newspaper or newspapers of general publication in the region affected. The commission shall approve a plan if it finds that the plan:

* * *

Sec. 88. 24 V.S.A. § 4351(b) is amended to read:

(b) On a periodic basis, commencing in 1996, the commissioner of the department of housing and community affairs, or a designee, shall review the planning process of municipalities that do not have approved plans, for compliance with the affordable housing criteria established under this section and shall issue a report to the municipality and to the regional planning commission. Each review shall include a public hearing which is noticed ~~as provided in section 4447 of this title which notice shall also include~~ at least 15 days in advance by posting in the office of the municipal clerk and at least one public place within the municipality and by publication in a newspaper or newspapers of general publication in the region affected.

Sec. 89. 24 V.S.A. § 4382(a)(10) is amended to read:

(10) A housing element that shall include a recommended program for addressing low and moderate income persons’ housing needs as identified by the regional planning commission pursuant to ~~section~~ subdivision 4348a(a)(9) of this title. The program ~~may include provisions for conditionally~~ should account for permitted accessory ~~apartments within or attached to single family residences~~ dwelling units, as defined in subdivision 4412(1)(E) of this title, which provide affordable housing ~~in close proximity to cost-effective care and supervision for relatives or disabled or elderly persons~~.

Sec. 90. 24 V.S.A. chapter 117, subchapter 6 is redesignated to read:

Subchapter 6. ~~Bylaws~~ Implementation of Plan

Sec. 91. 24 V.S.A. § 4401 is amended to read:

§ 4401. ~~AUTHORIZATION~~ PURPOSE AND AUTHORITY

~~(a)(1)~~ Any municipality ~~which~~ that has adopted and has in effect a plan and has created a planning commission under this chapter may implement the plan by adopting, amending and enforcing any or all of the ~~bylaws or the capital budget and program~~ regulatory and nonregulatory tools provided for in this chapter. All such ~~bylaws and the capital budget and program~~ regulatory and nonregulatory tools shall ~~have the purpose of implementing~~ be in conformance with the plan, shall be adopted for the purposes set forth in section 4302 of this title, and shall be in accord with the policies set forth therein.

(2) If a municipality establishes a development review board, and appoints members to that board, under the provisions of section 4461 of this title, the development review board in that municipality, until its existence is terminated by act of the legislative body, shall exercise all of the functions otherwise exercised, under this chapter, by the board of adjustment. It also shall exercise the specified development review functions otherwise exercised, under this chapter, by the planning commission. In municipalities that have created development review boards, the planning commission shall continue to exercise its planning and bylaw development functions and other duties established under this chapter. In situations where this chapter refers to functions that may be performed by a development review board or a planning commission, or functions that may be performed by a development review board or a board of adjustment, it is intended that the function in question shall be performed by the development review board if one exists, and by the other specified body, if a development review board does not exist.

~~(b) The bylaws provided by this chapter are authorized as follows:~~

(1) Zoning Regulations. Within the jurisdiction of a municipality, except as specifically limited herein, the municipality may adopt zoning regulations to permit, prohibit, restrict, regulate, and determine land development, including specifically, without limitation, the following:

~~(A) Specific uses of land, water courses and other bodies of water;~~

~~(B) Dimensions, location, erection, construction, repair, maintenance, alteration, razing, removal and use of structures;~~

(C) Areas and dimensions of land and bodies of water to be occupied by uses and structures, as well as areas, courts, yards and other open spaces and distances to be left unoccupied by uses and structures;

~~(D) Density of population and intensity of use.~~

(2) Subdivision Regulations. A municipality may authorize its planning commission or its development review board to approve, modify or disapprove all plats of land as prescribed below, and approve the development of such plats previously filed in the office of the clerk of such municipality if such plats are entirely or partially undeveloped, under the subdivision regulations of such municipality. Within the jurisdiction of such municipality, except as specifically limited herein, such municipality may adopt subdivision regulations setting forth the procedures, requirements and specifications for the submission, processing and design of plats. Such subdivision regulations must be adopted prior to the exercise of any authority by a planning commission or a development review board under this subdivision (b)(2).

(3) Official Map. Except as limited by this chapter, a municipality may adopt and amend an official map showing the location and widths of the existing and proposed rights-of-way of all streets or drainageways and the location of all existing and proposed parks, schools, and other public facilities. Except as set forth herein, no building or improvement may be constructed within the lines of any existing and proposed rights-of-way of all streets or drainageways, parks, schools, and other public facilities shown or laid out on such official map.

~~(4) Shoreland bylaws. A municipality may adopt shoreland bylaws under section 4411 of this title.~~

~~(5) Flood Hazard Area Bylaws. A municipality may adopt flood hazard area bylaws under section 4412 of this title.~~

(c) Within the jurisdiction of a municipality, except as specifically limited herein, a municipality may adopt and amend an annual capital budget and a capital program for a period of not less than five years.

(d) As part of zoning or subdivision regulations enacted pursuant to subsection (b) of this section, or pursuant to action by the voters of the municipality at a duly warned meeting, a municipality that has a duly adopted plan, subdivision bylaws, zoning bylaws, and a development review board may authorize its development review board to undertake local Act 250 review of municipal impacts caused by a development or subdivision, or both (as those terms are defined in 10 V.S.A. chapter 151), according to the process specified in section 4449 of this title.

Sec. 92. 24 V.S.A. § 4402 is added to read:

§ 4402. BYLAWS AND REGULATORY IMPLEMENTATION TOOLS AUTHORIZED

A municipality may adopt regulatory tools, including the following specific regulatory tools which are more fully described in subchapter 7 of this chapter:

(1) Zoning bylaws.

(2) Site plan bylaws.

(3) Subdivision bylaws.

(4) Unified development bylaws.

(5) Official map.

(6) Impact fees.

(7) Phasing.

(8) Transfer of development rights.

(9) Special or freestanding bylaws.

Sec. 93. 24 V.S.A. § 4403 is added to read:

§ 4403. NONREGULATORY IMPLEMENTATION TOOLS

A municipality may utilize the following tools, and other tools not specifically listed, in conformance with the municipal plan and for the purposes established in section 4302 of this title, alone or in conjunction with regulatory tools described in section 4402 of this title.

(1) Capital budget and program. A municipality may adopt a capital budget and five-year program, pursuant to section 4430 of this title.

(2) Tax increment financing. Pursuant to chapter 53 of this title, a municipality may create within its jurisdiction one or more tax increment financing districts.

(3) Tax stabilization contracts. Pursuant to sections 4969 and 4985 of Title 32, a municipality may enter into tax stabilization contracts.

(4) Purchase or acceptance of development rights. A municipality may purchase or accept development rights as a method to implement its plan, pursuant to chapter 155 of Title 10.

(5) Plans supporting the municipal plan. A municipality may develop supporting plans and may incorporate these plans into the municipal plan pursuant to the process described in section 4385 of this title.

(6) Advisory commissions. For the purposes of this chapter, the term “advisory commissions” includes advisory committees. A municipality may form commissions that are composed of persons with particular expertise or interest to assist with implementation of the plan in areas such as design review, historic preservation, housing, and conservation.

Sec. 94. 24 V.S.A. chapter 117, subchapter 7 designation is added, immediately preceding section 4410, to read:

Subchapter 7. Bylaws

Sec. 95. 24 V.S.A. §§ 4410 through 4424 are added to read:

§ 4410. REGULATORY IMPLEMENTATION OF THE MUNICIPAL PLAN

A municipality that has adopted a plan through its bylaws may define and regulate land development in any manner that the municipality establishes in its bylaws, provided those bylaws are in conformance with the plan and are adopted for the purposes set forth in section 4302 of this title. In its bylaws, a municipality may utilize any or all of the tools provided in this subchapter and any other regulatory tools or methods not specifically listed. However, no bylaws shall directly conflict with sections 4412 and 4413 of this title and subchapters 9, 10, and 11 of this title.

§ 4411. ZONING BYLAWS

(a) A municipality may regulate land development in conformance with its adopted municipal plan and for the purposes set forth in section 4302 of this title to govern the use of land and the placement, spacing, and size of structures and other factors specified in the bylaws related to public health, safety, or welfare. Zoning bylaws may permit, prohibit, restrict, regulate, and determine land development, including the following:

(1) Specific uses of land and shoreland facilities;

(2) Dimensions, location, erection, construction, repair, maintenance, alteration, razing, removal, and use of structures;

(3) Areas and dimensions of land to be occupied by uses and structures, as well as areas, courts, yards, and other open spaces and distances to be left unoccupied by uses and structures;

(4) Timing or sequence of growth, density of population, and intensity of use.

(b) All zoning bylaws shall apply to all lands within the municipality other than as specifically limited or exempted in accordance with specific standards included within those bylaws and in accordance with the provisions of this chapter. The provisions of those bylaws may be classified so that different provisions may be applied to different classes of situations, uses, and structures and to different and separate districts of the municipality as may be described by a zoning map made part of the bylaws. The land use map required pursuant to subdivision 4382(a)(2) of this title of any municipality may be designated as the zoning map except in cases in which districts are not deemed by the planning commission to be described in sufficient accuracy or detail by the municipal plan land use map. All provisions shall be uniform for each class of use or structure within each district, except that additional classifications may be made within any district for any or all of the following:

(1) To make transitional provisions at and near the boundaries of districts.

(2) To regulate the expansion, reduction, or elimination of certain nonconforming uses, structures, lots or parcels.

(3) To regulate, restrict, or prohibit uses or structures at or near any of the following:

(A) Major thoroughfares, their intersections and interchanges, and transportation arteries.

(B) Natural or artificial bodies of water.

(D) Public buildings and public grounds.

(E) Aircraft and helicopter facilities.

(F) Places having unique patriotic, ecological, historical, archaeological, or community interest or value, or located within scenic or design control districts.

(G) Flood or other hazard areas and other places having a special character or use affecting or affected by their surroundings.

(4) To regulate, restrict, or prohibit uses or structures in overlay districts, as set forth in subdivision 4414(2) of this title.

§ 4412. REQUIRED PROVISIONS AND PROHIBITED EFFECTS

Notwithstanding any existing bylaw, the following land development provisions shall apply in every municipality:

(1) Equal treatment of housing and required provisions for affordable housing.

(A) No bylaw shall have the effect of excluding housing that meets the needs of the population as determined in the housing element of its municipal plan as required under subdivision 4382(a)(10) of this title.

(B) Except as provided in subdivisions 4414(1)(E) and (F) of this title, no bylaw shall have the effect of excluding mobile homes, modular housing, or prefabricated housing from the municipality, except upon the same terms and conditions as conventional housing is excluded. A municipality may establish specific site standards in the bylaws to regulate individual sites within preexisting mobile home parks with regard to distances between structures and other standards as necessary to ensure public health, safety, and welfare, provided the standards do not have the effect of prohibiting the replacement of mobile homes on existing lots.

(C) No bylaw shall have the effect of excluding mobile home parks, as defined in 10 V.S.A. chapter 153, from the municipality.

(D) Bylaws shall designate appropriate districts and reasonable regulations for multiunit or multifamily dwellings. No bylaw shall have the effect of excluding these multiunit or multifamily dwellings from the municipality.

(E) No bylaw shall have the effect of excluding as a permitted use one accessory dwelling unit that is located within or appurtenant to an owner‑occupied single‑family dwelling. An accessory dwelling unit means an efficiency or one‑bedroom apartment that is clearly subordinate to a single‑family dwelling, and has facilities and provisions for independent living, including sleeping, food preparation, and sanitation, provided there is compliance with all the following:

(i) The property has sufficient wastewater capacity.

(ii) The unit does not exceed 30 percent of the total habitable floor area of the single‑family dwelling.

(iii) Applicable setback, coverage, and parking requirements specified in the bylaws are met.

(F) Nothing in subdivision (1)(E) of this section shall be construed to prohibit:

(i) a bylaw that is less restrictive of accessory dwelling units;

(ii) a bylaw that requires conditional use review for one or more of the following that is involved in creation of an accessory dwelling unit:

(I) an accessory structure,

(II) an increase in the height or floor area of the existing dwelling, or

(III) an increase in the dimensions of the parking areas.

(G) A residential care home or group home to be operated under state licensing or registration, serving not more than eight persons who have a handicap or disability as defined in 9 V.S.A. § 4501, shall be considered by right to constitute a permitted single‑family residential use of property, except that no such home shall be so considered if it is located within 1,000 feet of another existing or permitted such home.

(2) Existing small lots. Any lot that is legally subdivided, is in individual and separate and nonaffiliated ownership from surrounding properties, and is in existence on the date of enactment of any bylaw, including an interim bylaw, may be developed for the purposes permitted in the district in which it is located, even though the small lot no longer conforms to minimum lot size requirements of the new bylaw or interim bylaw.

(A) A municipality may prohibit development of a lot if either of the following applies:

(i) the lot is less than one-eighth acre in area; or

(ii) the lot has a width or depth dimension of less than 40 feet.

(B) The bylaw may provide that if an existing small lot subsequently comes under common ownership with one or more contiguous lots, the nonconforming lot shall be deemed merged with the contiguous lot. However, a nonconforming lot shall not be deemed merged and may be separately conveyed if all the following apply:

(i) The lots are conveyed in their preexisting, nonconforming configuration.

(ii) On the effective date of any bylaw, each lot was developed with a water supply and wastewater disposal system.

(iii) At the time of transfer, each water supply and wastewater system is functioning in an acceptable manner.

(iv) The deeds of conveyance create appropriate easements on both lots for replacement of one or more wastewater systems, potable water systems, or both, in case there is a failed system or failed supply as defined in 10 V.S.A. chapter 64.

(C) Nothing in this subdivision (2) shall be construed to prohibit a bylaw that is less restrictive of development of existing small lots.

(3) Required frontage on, or access to, public roads or public waters. Land development may be permitted on lots that do not have frontage either on a public road or public waters, provided that access through a permanent easement or right-of-way has been approved in accordance with standards and process specified in the bylaws. This approval shall be pursuant to subdivision bylaws adopted in accordance with section 4418 of this title, or where subdivision bylaws have not been adopted or do not apply, through a process and pursuant to standards defined in bylaws adopted for the purpose of assuring safe and adequate access. Any permanent easement or right-of-way providing access to such a road or waters shall be at least 20 feet in width.

(4) Protection of home occupations. No bylaw may infringe upon the right of any resident to use a minor portion of a dwelling unit for an occupation that is customary in residential areas and that does not have an undue adverse effect upon the character of the residential area in which the dwelling is located.

(5) Child care.

A “family child care home or facility” as used in this subdivision means a home or facility where the owner or operator is to be licensed or registered by the state for child care. A family child care home serving six or fewer children shall be considered to constitute a permitted single‑family residential use of property. A family child care home serving no more than six full-time children and four part-time children, as defined in subdivision 33 V.S.A. § 4902(3)(A), shall be considered to constitute a permitted use of property but may require site plan approval based on local zoning requirements. A family child care facility serving more than six full-time and four part‑time children may, at the discretion of the municipality, be subject to all applicable municipal bylaws.

(6) Heights of certain structures. The height of antenna structures, wind turbines with blades less than 20 feet in diameter, or rooftop solar collectors less than 10 feet high, any of which are mounted on complying structures, shall not be regulated unless the bylaws provide specific standards for regulation.

(7) Nonconformities. All bylaws shall define how nonconformities will be addressed, including standards for nonconforming uses, nonconforming structures, and nonconforming lots.

(A) To achieve the purposes of this chapter set forth in section 4302 of this title, municipalities may regulate and prohibit expansion and undue perpetuation of nonconformities. Specifically, a municipality, in its bylaws, may:

(i) Specify a time period that shall constitute abandonment or discontinuance of that nonconforming use, provided the time period is not less than six months.

(ii) Specify the extent to which, and circumstances under which, a nonconformity may be maintained or repaired.

(iii) Specify the extent to which, and circumstances under which, a nonconformity may change or expand.

(iv) Regulate relocation or enlargement of a structure containing a nonconforming use.

(v) Specify the circumstances in which a nonconformity that is destroyed may be rebuilt.

(vi) Specify other appropriate circumstances in which a nonconformity must comply with the bylaws.

(B) If a mobile home park, as defined in 10 V.S.A. chapter 153, is a nonconformity pursuant to a municipality’s bylaws, the entire mobile home park shall be treated as a nonconformity under those bylaws, and individual lots within the mobile home park shall in no event be considered nonconformities. Unless the bylaws provide specific standards as described in subdivision (1)(B) of this section, where a mobile home park is a nonconformity under bylaws, its status regarding conformance or nonconformance shall apply to the parcel as a whole, and not to any individual mobile home lot within the park. An individual mobile home lot that is vacated shall not be considered a discontinuance or abandonment of a nonconformity.

(C) Nothing in this section shall be construed to restrict the authority of a municipality to abate public nuisances or to abate or remove public health risks or hazards.

§ 4413. LIMITATIONS ON MUNICIPAL BYLAWS

(a) The following uses may be regulated only with respect to location, size, height, building bulk, yards, courts, setbacks, density of buildings, off-street parking, loading facilities, traffic, noise, lighting, landscaping, and screening requirements, and only to the extent that regulations do not have the effect of interfering with the intended functional use:

(1) State- or community‑owned and operated institutions and facilities.

(2) Public and private schools and other educational institutions certified by the state department of education.

(3) Churches and other places of worship, convents, and parish houses.

(4) Public and private hospitals.

(5) Regional solid waste management facilities certified under 10 V.S.A. chapter 159.

(6) Hazardous waste management facilities for which a notice of intent to construct has been received under 10 V.S.A. § 6606a.

(b) A bylaw under this chapter shall not regulate public utility power generating plants and transmission facilities regulated under 30 V.S.A. § 248.

(c) Except as otherwise provided by this section and by 10 V.S.A. § 1976, if, any bylaw is enacted with respect to any land development that is subject to regulation under state statutes, the more stringent or restrictive regulation applicable shall apply.

(d) A bylaw under this chapter shall not regulate accepted agricultural and silvicultural practices, including the construction of farm structures, as those practices are defined by the secretary of agriculture, food and markets or the commissioner of forests, parks and recreation, respectively, under subsections 1021(f) and 1259(f) of Title 10 and section 4810 of Title 6.

(1) For purposes of this section, “farm structure” means a building, enclosure, or fence for housing livestock, raising horticultural or agronomic plants, or carrying out other practices associated with accepted agricultural or farming practices, including a silo, as “farming” is defined in subdivision 6001(22) of Title 10, but excludes a dwelling for human habitation.

(2) A person shall notify a municipality of the intent to build a farm structure and shall abide by setbacks approved by the secretary of agriculture, food and markets. No municipal permit for a farm structure shall be required.

(3) A municipality may enact a bylaw that imposes forest management practices resulting in a change in a forest management plan for land enrolled in the use value appraisal program pursuant to 32 V.S.A. chapter 124 only to the extent that those changes are silviculturally sound, as determined by the commissioner of forests, parks and recreation, and protect specific natural, conservation, aesthetic, or wildlife features in properly designated zoning districts. These changes also must be compatible with 32 V.S.A. § 3755.

(e) A bylaw enacted under this chapter shall be subject to the restrictions created under section 2295 of this title, with respect to the limits on municipal power to regulate hunting, fishing, trapping, and other activities specified under that section.

(f) This section shall apply in every municipality, notwithstanding any existing bylaw to the contrary.

§ 4414. ZONING; PERMISSIBLE TYPES OF REGULATIONS

Any of the following types of regulations may be adopted by a municipality in its bylaws in conformance with the plan and for the purposes established in section 4302 of this title.

(1) Zoning districts. A municipality may define different and separate zoning districts, and identify within these districts which land uses are permitted as of right, and which are conditional uses requiring review and approval, including the districts set forth in this subdivision (1).

(A) Downtown, village center, and new town center districts. The definition or purpose stated for local downtown, village center, or new town center zoning districts should conform with the applicable definitions in section 2791 of this title. Municipalities may adopt downtown, village center, or new town center districts without seeking state designation under section 2793 of this title. A municipality may adopt a manual of graphic or written design guidelines to assist applicants in the preparation of development applications. The following objectives should guide the establishment of boundaries, requirements, and review standards for these districts:

(i) To create a compact settlement oriented toward pedestrian activity and including an identifiable neighborhood center, with consistently higher densities than those found in surrounding districts.

(ii) To provide for a variety of housing types, jobs, shopping, services, and public facilities with residences, shops, workplaces, and public buildings interwoven within the district, all within close proximity.

(iii) To create a pattern of interconnecting streets and blocks, consistent with historic settlement patterns, that encourages multiple routes from origins to destinations.

(iv) To provide for a coordinated transportation system with a hierarchy of appropriately designed facilities for pedestrians, bicycles, public transit, and automotive vehicles.

(v) To provide for natural features and undisturbed areas that are incorporated into the open space of the neighborhood as well as historically compatible squares, greens, landscaped streets, and parks woven into the pattern of the neighborhood.

(vi) To provide for public buildings, open spaces, and other visual features that act as landmarks, symbols, and focal points for community identity.

(vii) To ensure compatibility of buildings and other improvements as determined by their arrangement, building bulk, form, design, character, and landscaping to establish a livable, harmonious, and diverse environment.

(viii) To provide for public and private buildings that form a consistent, distinct edge, are oriented toward streets, and define the border between the public street space and the private block interior.

(B) Agricultural, rural residential, forest, and recreational districts. Where, for the purposes set forth in section 4302 of this title, it is deemed necessary to safeguard certain areas from urban or suburban development and to encourage that development in other areas of the municipality or region, the following districts may be created:

(i) Agricultural or rural residential districts, permitting all types of agricultural uses and prohibiting all other land development except low density residential development.

(ii) Forest districts, permitting commercial forestry and related uses and prohibiting all other land development.

(iii) Recreational districts, permitting camps, ski areas, and related recreational facilities, including lodging for transients and seasonal residents, and prohibiting all other land development except construction of residences for occupancy by caretakers and their families.

(C) Airport hazard area. In accordance with 5 V.S.A. chapter 17, any municipality may adopt special bylaws governing the use of land, location, and size of buildings and density of population within a distance of two miles from the boundaries of an airport under an approach zone and for a distance of one mile from the boundaries of the airport elsewhere. The designation of that area and the bylaws applying within that area shall be in accord with applicable airport zoning guidelines, if any, adopted by the Vermont transportation board.

(D) Shorelands.

(i) A municipality may adopt bylaws to regulate shorelands as defined in section 1422 of Title 10 to prevent and control water pollution; preserve and protect wetlands and other terrestrial and aquatic wildlife habitat; conserve the scenic beauty of shorelands; minimize shoreline erosion; reserve public access to public waters; and achieve other municipal, regional, or state shoreland conservation and development objectives.

(ii) Shoreland bylaws may regulate the design and maintenance of sanitary facilities; regulate filling of and other adverse alterations to wetlands and other wildlife habitat areas; control building location; require the provision and maintenance of vegetation; require provisions for access to public waters for all residents and owners of the development; and impose other requirements authorized by this chapter.

(E) Design review districts. Bylaws may contain provisions for the establishment of design review districts. Prior to the establishment of such a district, the planning commission shall prepare a report describing the particular planning and design problems of the proposed district and setting forth a design plan for the areas which shall include recommended planning and design criteria to guide future development. The planning commission shall hold a public hearing, after public notice, on that report. After this hearing, the planning commission may recommend to the legislative body a design review district as a bylaw amendment. A design review district may be created for any area containing structures of historical, architectural, or cultural merit, and other areas in which there is a concentration of community interest and participation such as a central business district, civic center, or a similar grouping or focus of activities. These areas may include townscape areas that resemble in important aspects the earliest permanent settlements, including a concentrated urban settlement with striking vistas, views extending across open fields and up to the forest edge, a central focal point and town green, and buildings of high architectural quality, including styles of the early 19th century. Within such a designated design review district, no structure may be erected, reconstructed, substantially altered, restored, moved, demolished, or changed in use or type of occupancy without approval of the plans by the appropriate municipal panel. A design review board may be appointed by the legislative body of the municipality, in accordance with section 4433 of this title, to advise any appropriate municipal panel.

(F) Local historic districts and landmarks.

(i) Bylaws may contain provisions for the establishment of historic districts and the designation of historic landmarks. Historic districts shall include structures and areas of historic or architectural significance and may include distinctive design or landscape characteristics, areas, and structures with a particular relationship to the historic and cultural values of the surrounding area, and structures whose exterior architectural features bear a significant relationship to the remainder of the structures or to the surrounding area. Bylaws may reference national and state registers of historic places, properties, and districts. A report prepared under section 4441 of this title with respect to the establishment of a local historic district or designation of an historic landmark shall contain a map that clearly delineates the boundaries of the local historic district or landmark, justification for the boundary, a description of the elements of the resources that are integral to its historical, architectural, and cultural significance, and a statement of the significance of the local historic district or landmark.

(ii) With respect to external appearances and other than normal maintenance, no structure within a designated historic district may be rehabilitated, substantially altered, restored, moved, demolished, or changed, and no new structure within an historic district may be erected without approval of the plans therefor by the appropriate municipal panel. The panel shall consider the following in its review of plans submitted:

(I) The historic or architectural significance of the structure, its distinctive characteristics, and its relationship to the historic significance of the surrounding area.

(II) The relationship of the proposed changes in the exterior architectural features of the structure to the remainder of the structure and to the surrounding area.

(III) The general compatibility of the proposed exterior design, arrangement, texture, and materials proposed to be used.

(IV) Any other factors, including the environmental setting and aesthetic factors that the panel deems to be pertinent.

(iii) When an appropriate municipal panel is reviewing an application relating to an historic district, the panel:

(I) Shall be strict in its judgment of plans for those structures deemed to be valuable under subdivision (1)(F)(i) of this section, but is not required to limit new construction, alteration, or repairs to the architectural style of any one period, but may encourage compatible new design.

(II) If an application is submitted for the alteration of the exterior appearance of a structure or for the moving or demolition of a structure deemed to be significant under subdivision (1)(F)(i) of this section, shall meet with the owner of the structure to devise an economically feasible plan for the preservation of the structure.

(III) Shall approve an application only when the panel is satisfied that the proposed plan will not materially impair the historic or architectural significance of the structure or surrounding area.

(IV) In the case of a structure deemed to be significant under subdivision (1)(F)(i) of this section, may approve the proposed alteration despite subdivision (1)(F)(ii)(III) of this section if the panel finds either or both of the following:

(aa) The structure is a deterrent to a major improvement program that will be of clear and substantial benefit to the municipality.

(bb) Retention of the structure would cause undue financial hardship to the owner.

(iv) This subdivision (1)(F), and bylaws issued pursuant to it, shall apply to designation of individual landmarks as well as to designation of local historic districts. A landmark is any individual building, structure, or site that by itself has a special historic, architectural, or cultural value.

(v) The provisions of this subdivision (1)(F) shall not in any way apply to or affect buildings, structures, or land within the “Capitol complex,” as defined in 29 V.S.A. chapter 6.

(2) Overlay districts. Special districts may be created to supplement or modify the zoning requirements otherwise applicable in underlying districts in order to provide supplementary provisions for areas such as shorelands and floodplains, aquifer and source protection areas, ridgelines and scenic features, highway intersection, bypass, and interchange areas, or other features described in section 4411 of this title.

(3) Conditional uses.

(A) In any district, certain uses may be allowed only by approval of the appropriate municipal panel, if general and specific standards to which each allowed use must conform are prescribed in the appropriate bylaws and if the appropriate municipal panel, under the procedures in subchapter 10 of this chapter, determines that the proposed use will conform to those standards. These general standards shall require that the proposed conditional use shall not result in an undue adverse effect on any of the following:

(i) The capacity of existing or planned community facilities.

(ii) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan.

(iii) Traffic on roads and highways in the vicinity.

(iv) Bylaws and ordinances then in effect.

(v) Utilization of renewable energy resources.

(B) The general standards set forth in subdivision (3)(A) of this section may be supplemented by more specific criteria, including requirements with respect to any of the following:

(i) Minimum lot size.

(ii) Distance from adjacent or nearby uses.

(iii) Performance standards, as under subdivision (6) of this section.

(iv) Criteria adopted relating to site plan review pursuant to section 4416 of this title.

(v) Any other standards and factors that the bylaws may include.

(C) One or more of the review criteria found in 10 V.S.A. § 6086 may be adopted as standards for use in conditional use review.

(4) Parking and loading facilities. A municipality may adopt provisions setting forth standards for permitted and required facilities for off-street parking and loading which may vary by district and by uses within each district. These bylaws may also include provisions covering the location, size, design, access, landscaping, and screening of those facilities. In determining the number and size of parking spaces required under these regulations, the appropriate municipal panel may take into account the existence or availability of employer “transit pass” and rideshare programs, public transit routes, and public parking spaces in the vicinity of the development.

(5) Performance standards. As an alternative or supplement to the listing of specific uses permitted in districts, including those in manufacturing or industrial districts, bylaws may specify acceptable standards or levels of performance that will be required in connection with any use. These bylaws shall specifically describe the levels of operation that are acceptable and not likely to affect adversely the use of the surrounding area by the emission of such dangerous or objectionable elements as noise, vibration, smoke, dust, odor, or other form of air pollution, heat, cold, dampness, electromagnetic, or other disturbance, glare, liquid, or solid refuse or wastes; or create any dangerous, injurious, noxious, fire, explosive, or other hazard. The land planning policies and development bylaws manual prepared pursuant to section 4304 of this title shall contain recommended forms of alternative performance standards, and the assistance of the agency of commerce and community development shall be available to any municipality that requests aid in the application or enforcement of these bylaws.

(6) Access to renewable energy resources. Any municipality may adopt zoning and subdivision bylaws to encourage energy conservation and to protect and provide access to, among others, the collection or conversion of direct sunlight, wind, running water, organically derived fuels, including wood and agricultural sources, waste heat, and geothermal sources, including those recommendations contained in the adopted municipal plan, regional plan, or both. The bylaw shall establish a standard of review in conformance with the municipal plan provisions required pursuant to subdivision 4382(a)(9) of this title.

(7) Inclusionary zoning. In order to provide for affordable housing, bylaws may require that a certain percentage of housing units in a proposed subdivision or planned unit development meets defined affordability standards, which may include lower income limits than contained in the definition of “affordable housing” in subdivision 4303(1) of this title and may contain different affordability percentages than contained in the definition of “affordable housing development” in subdivision 4303(2) of this title. These provisions, at a minimum, shall comply with all the following:

(A) Be in conformance with specific policies of the housing element of the municipal plan.

(B) Be determined from an analysis of the need for affordable rental and sale housing units in the community.

(C) Include development incentives that contribute to the economic feasibility of providing affordable housing units, such as density bonuses, reductions or waivers of minimum lot, dimensional or parking requirements, reductions or waivers of applicable fees, or reductions or waivers of required public or nonpublic improvements.

(D) Require, through conditions of approval, that once affordable housing is built, its availability will be maintained through measures that establish income qualifications for renters or purchasers, promote affirmative marketing, and regulate the price, rent, and resale price of affordable units for a time period specified in the bylaws.

(8) Waivers.

(A) A bylaw may allow a municipality to grant waivers to reduce dimensional requirements, in accordance with specific standards that shall be in conformance with the plan and the goals set forth in section 4302 of this title. These standards may:

(i) Allow mitigation through design, screening, or other remedy;

(ii) Allow waivers for structures providing for disability accessibility, fire safety, and other requirements of law; and

(iii) Provide for energy conservation and renewable energy structures.

(B) If waivers from dimensional requirements are provided, the bylaws shall specify the process by which these waivers may be granted and appealed.

(9) Stormwater management and control. Any municipality may adopt bylaws to implement stormwater management and control consistent with the program developed by the secretary of natural resources pursuant to 10 V.S.A. § 1264.

(10) Time-share projects. The bylaws may require that time-share projects consisting of five or more time-share estates or licenses be subject to development review.

(11) Archaeological resources. A municipality may adopt bylaws for the purpose of regulating archaeological sites and areas that may contain significant archaeological sites to make progress toward attaining the goals in the municipal plan concerning the protection of archaeological sites.

(12) Wireless telecommunications facilities and ancillary improvements. A municipality may adopt bylaws to regulate wireless telecommunications facilities and ancillary improvements in a manner consistent with federal law. These bylaws may include requiring the decommissioning or dismantling of wireless telecommunications facilities and ancillary improvements, and may establish requirements that a bond be posted, or other security acceptable to the legislative body, in order to finance facility decommissioning or dismantling activities.

§ 4415. INTERIM BYLAWS

(a) If a municipality is conducting or has taken action to conduct studies, or has held or is holding a hearing for the purpose of considering a bylaw, a comprehensive plan, or an amendment, extension, or addition to a bylaw or plan, the legislative body may adopt interim bylaws regulating land development in all or a part of the municipality in order to protect the public health, safety, and general welfare and provide for orderly physical and economic growth. These interim bylaws shall be adopted, reenacted, extended, or amended by the legislative body of the municipality after public hearing upon public notice as an emergency measure. They shall be limited in duration to two years from the date they become effective and may be extended or reenacted only in accordance with subsections (f) and (g) of this section. An interim bylaw adopted under this section may be repealed after public hearing, upon public notice by the legislative body. The legislative body, upon petition of five percent of the legal voters filed with the clerk of the municipality, shall hold a public hearing for consideration of amendment or repeal of the interim bylaws.

(b) An interim bylaw adopted, extended, or reenacted under this section may contain any provision authorized under this chapter.

(c) Interim bylaws shall be administered and enforced in accordance with the provisions of this title applicable to the administration and enforcement of permanent bylaws, except that uses other than those permitted by an interim bylaw may be authorized as provided for in subsection (d) of this section.

(d) Under interim bylaws, the legislative body may, upon application, authorize the issuance of permits for any type of land development as a conditional use not otherwise permitted by the bylaw after public hearing preceded by notice in accordance with section 4464 of this title. The authorization by the legislative body shall be granted only upon a finding by the body that the proposed use is consistent with the health, safety, and welfare of the municipality and the standards contained in subsection (e) of this section. The applicant and all abutting property owners shall be notified in writing of the date of the hearing and of the legislative body’s final determination.

(e) In making a determination, the legislative body shall consider the proposed use with respect to all the following:

(1) The capacity of existing or planned community facilities, services, or lands.

(2) The existing patterns and uses of development in the area.

(3) Environmental limitations of the site or area and significant natural resource areas and sites.

(4) Municipal plans and other municipal bylaws, ordinances, or regulations in effect.

(f) The legislative body of the municipality may extend or reenact interim bylaws for a one-year period beyond the initial two-year period authorized by subsection (a) of this section in accordance with the procedures for adoption in that subsection.

(g) A copy of the adopted, amended, reenacted, or extended interim bylaw shall be sent to adjoining towns, to the regional planning commission of the region in which the municipality is located, and to the agency of commerce and community development.

§ 4416. SITE PLAN REVIEW

As prerequisite to the approval of any use other than one- and two-family dwellings, the approval of site plans by the appropriate municipal panel may be required, under procedures set forth in subchapter 10 of this chapter. In reviewing site plans, the appropriate municipal panel may impose, in accordance with the bylaws, appropriate conditions and safeguards with respect to: the adequacy of parking, traffic access, and circulation for pedestrians and vehicles; landscaping and screening; the protection of the utilization of renewable energy resources; exterior lighting; the size, location, and design of signs; and other matters specified in the bylaws. The bylaws shall specify the maps, data, and other information to be presented with applications for site plan approval and a review process pursuant to section 4464 of this title.

§ 4417. PLANNED UNIT DEVELOPMENT

(a) Any municipality adopting a bylaw should provide for planned unit developments to permit flexibility in the application of land development regulations for the purposes of section 4302 of this title and in conformance with the municipal plan. The following may be purposes for planned unit development bylaws:

(1) To encourage compact, pedestrian-oriented development and redevelopment, and to promote a mix of residential uses, or nonresidential uses, or both, especially in downtowns, village centers, new town centers, and associated neighborhoods.

(2) To implement the policies of the municipal plan, such as the provision of affordable housing.

(3) To encourage any development in the countryside to be compatible with the use and character of surrounding rural lands.

(4) To provide for flexibility in site and lot layout, building design, placement and clustering of buildings, use of open areas, provision of circulation facilities, including pedestrian facilities and parking, and related site and design considerations that will best achieve the goals for the area as articulated in the municipal plan and bylaws within the particular character of the site and its surroundings.

(5) To provide for the conservation of open space features recognized as worthy of conservation in the municipal plan and bylaws, such as the preservation of agricultural land, forest land, trails, and other recreational resources, critical and sensitive natural areas, scenic resources, and protection from natural hazards.

(6) To provide for efficient use of public facilities and infrastructure.

(7) To encourage and preserve opportunities for energy-efficient development and redevelopment.

(b) The application of planned unit development bylaws to a proposed development may:

(1) Involve single or multiple properties and one owner or multiple owners. Procedures for application and review of multiple owners or properties under a common application, if allowed, shall be specified in the bylaws.

(2) Be limited to parcels that have a minimum area specified in the bylaws or a minimum size or number of units.

(3) Be mandatory for land located in specified zoning districts or for projects of a specified type or magnitude as provided in the bylaws.

(c) Planned unit development bylaws adopted pursuant to this section at a minimum shall include the following provisions:

(1) A statement of purpose in conformance with the purposes of the municipal plan and bylaws.

(2) The development review process to be used for review of planned unit developments to include conditional use or subdivision review procedures, or both, as specified in the bylaws.

(3) Specifications, or reference to specifications, for all application documents and plan drawings.

(4) Standards for the review of proposed planned unit developments, which may vary the density or intensity of land use otherwise applicable under the provisions of the bylaws in consideration of and with respect to any of the following:

(A) The location and physical characteristics of the proposed planned unit development.

(B) The location, design, type, and use of the lots and structures proposed.

(5) Standards requiring related public improvements or nonpublic improvements, or both; and the payment of impact fees, incorporating by reference any development impact fee ordinance adopted pursuant to chapter 131 of this title.

(6) Provisions for the proposed planned unit development to be completed in reasonable phases, in accordance with the municipal plan and any capital budget and program.

(7) Provisions for coordinating the planned unit development review with other applicable zoning or subdivision review processes, specifying the sequence in which the various review standards will be considered.

(8) Reviews that are conducted in accordance with the procedures in subchapter 10 of this chapter.

(d) Planned unit development bylaws may provide for, as part of the standards described in subdivision (c)(3) of this section, the authorization of uses, densities, and intensities that do not correspond with or are not otherwise expressly permitted by the bylaws for the area in which a planned unit development is located, provided that the municipal plan contains a policy that encourages mixed use development, development at higher overall densities or intensities, or both.

(e) Standards for the reservation or dedication of common land or other open space for the use or benefit of the residents of the proposed planned unit development shall include provisions for determining the amount and location of that common land or open space, and for ensuring its improvement and maintenance.

(1) The bylaws may provide that the municipality may, at any time, accept the dedication of land or any interest in land for public use and maintenance.

(2) The bylaws may require that the applicant or landowner provide for and establish an organization or trust for the ownership and maintenance of any common facilities or open space, and that this organization or trust shall not be dissolved or revoked nor shall it dispose of any common open space, by sale or otherwise, except to an organization or trust conceived and established to own and maintain the common open space, without first offering to dedicate the same to the municipality or other governmental agency to maintain those common facilities or that open space.

(f) The approval of a proposed planned unit development shall be based on findings by the appropriate municipal panel that the proposed planned unit development is in conformance with the municipal plan and satisfies other requirements of the bylaws.

(g) The appropriate municipal panel may prescribe, from time to time, rules and regulations to supplement the standards and conditions set forth in the zoning bylaws, provided the rules and regulations are not inconsistent with any municipal bylaw. The panel shall hold a public hearing after public notice, as required by section 4464 of this title, prior to the enactment of any supplementary rules and regulations.

§ 4418. SUBDIVISION BYLAWS

In order to guide community settlement patterns and to ensure the efficient extension of services, utilities, and facilities as land is developed, a municipality may regulate the division of a lot or parcel of land into two or more lots or other division of land for sale, development, or lease. Subdivision bylaws shall establish standards and procedures for approval, modification, or disapproval of plats of land and approval or modification of plats previously filed in the office of the municipal clerk or land records.

(1) Subdivision bylaws shall be administered in accordance with the requirements of subchapter 10 of this chapter, and shall contain:

(A) Procedures and requirements for the design, submission, and processing of plats, any drawing and plans, and any other documentation required for review of subdivisions.

(B) Standards for the design and layout of streets, sidewalks, curbs, gutters, streetlights, fire hydrants, landscaping, water, sewage and stormwater management facilities, public and private utilities, and other necessary improvements as may be specified in a municipal plan. Standards in accordance with subdivision 4412(3) of this title shall be required for lots without frontage on or access to public roads or public waters.

(C) Standards for the design and configuration of parcel boundaries and location of associated improvements necessary to implement the municipal plan and achieve the desired settlement pattern for the neighborhood, area, or district in which the subdivision is located.

(D) Standards for the protection of natural resources and cultural features and the preservation of open space, as appropriate in the municipality.

(2) Subdivision bylaws may include:

(A) Provisions allowing the appropriate municipal panel to waive or modify, subject to appropriate conditions, the provision of any or all improvements and requirements as in its judgment of the special circumstances of a particular plat or plats are not requisite in the interest of the public health, safety, and general welfare, or are inappropriate because of inadequacy or lack of connecting facilities adjacent or in proximity to the subdivision.

(B) Procedures for conceptual, preliminary, partial, and other reviews preceding submission of a subdivision plat, including any administrative reviews.

(C) Specific development standards to promote the conservation of energy or to permit the utilization of renewable energy resources, or both.

(D) State standards and criteria under 10 V.S.A. § 6086(a).

§ 4419. UNIFIED DEVELOPMENT BYLAWS

(a) Any bylaws authorized under this chapter may be integrated into a unified land development bylaw that combines the separate requirements into a consolidated review and permitting process. At a minimum, unified development bylaws shall consolidate zoning and subdivision bylaws. Unified development bylaws should incorporate other bylaws in conformance with this chapter and should cross reference all ordinances adopted by a municipality pursuant to authority outside this chapter that affect land development. Unified development bylaws shall provide for an orderly permitting process for all applicable regulations, in accordance with subchapters 10 and 11 of this chapter.

(b) Any municipality that has adopted unified development bylaws in conformance with the requirements of sections 4410, 4411, 4412, 4413, and 4417 of this title shall be deemed to have adopted permanent zoning and subdivision regulations in accordance with 10 V.S.A. § 6001(3).

§ 4420. LOCAL ACT 250 REVIEW OF MUNICIPAL IMPACTS

(a) This section shall apply to any municipality in which all of the following have taken place, either at the direction of the legislative body or pursuant to a vote of the municipality’s voters at a duly warned municipal meeting considering the question:

(1) The criteria specified in this section have been adopted in the appropriate bylaws authorized under this chapter.

(2) The municipality’s plan has been duly adopted under the provisions of this chapter.

(3) The municipality has adopted zoning bylaws and subdivision bylaws, either separately or incorporated into one unified development bylaw.

(4) The municipality has adopted, for purposes of this section, the municipal administrative procedure act established in chapter 36 of this title.

(5) A development review board has been created and has been authorized to undertake local Act 250 review of municipal impacts caused by a development or subdivision, or both, as the terms “development” and “subdivision” are defined in 10 V.S.A. chapter 151.

(b)(1) With respect to developments or subdivisions to which this section applies, the development review board, pursuant to the procedures established in chapter 36 of this title, shall hear such applications as meet the criteria set forth in the bylaws with respect to size or impact, or both, for local Act 250 review of municipal impacts. Once a municipality has determined to conduct reviews under this section, all applicants meeting such criteria for Act 250 permits for developments or subdivisions located within the municipality shall go through this process, unless all the following apply:

(A) The applicant can establish to the satisfaction of the development review board that the applicant relied on a determination by the natural resource board’s local district coordinator that Act 250 jurisdiction did not apply to the development or subdivision in question, and based upon that reliance, the applicant obtained local permits without complying with this section.

(B) The natural resource board’s local district coordinator’s jurisdictional ruling was later reconsidered or overturned on appeal, with the result that Act 250 jurisdiction does apply to the development or subdivision in question.

(C) The development review board waives its jurisdiction under this section in the interest of fairness to the applicant.

(2) Determinations by the development review board regarding whether to waive jurisdiction under this subsection shall not be subject to review.

(1) Will not cause an unreasonable burden on the ability of the municipality to provide educational services.

(2) Will not cause an unreasonable burden on the ability of the municipality to provide municipal or governmental services.

(3) Is in conformance with the plan of the municipality adopted in accordance with this chapter.

(d) A violation of the provisions of this section shall be subject to enforcement as a violation of this chapter.

§ 4421. OFFICIAL MAP

A municipality may adopt an official map that identifies future municipal utility and facility improvements, such as road or recreational path rights-of-way, parkland, utility rights-of-way, and other public improvements, in order to provide the opportunity for the community to acquire land identified for public improvements prior to development for other use and to identify the locations of required public facilities for new subdivisions and other development under review by the municipality.

(1) Preparation of an official map. For the purposes of this chapter, the official map shall be based upon the most accurate data available as to the location and width of existing and proposed streets and drainageways and the location of all existing and proposed parks, schools, and other public facilities. Where questions arise in the administration of this section that require more precise determinations of the location of any street right-of-way line on all drainageways or the location of any park, school, or any other public facility, the legislative body shall have a survey prepared of the street or section, park, school, or other public facility in question, that may by resolution of the legislative body become a part of the official map.

(2) Changes to the official map. After adoption of the official map, the recordation of plats that have been approved as provided by this chapter, or the adoption of any urban renewal plan under chapter 85 of this title, shall, without further action, modify the official map accordingly. Minor changes in the location of proposed public facilities may also be made to particular sections of the official map if the change is recommended by a majority of the planning commission and approved by resolution of the legislative body. This process may take place concurrently with review of development or subdivision of a parcel that is proposed to be subject to a map change.

(3) Status of mapped public facilities. The adoption, as part of an official map, of any existing or proposed street or street line or drainageway, or any proposed park, school, or other public facility, shall not constitute a taking or acceptance of land by the municipality, nor shall the adoption of any street in an official map constitute the opening or establishment of the street for public use or obligate the municipality in any way for the maintenance of the street.

(4) Building on properties with mapped public facilities. No zoning permit may be issued for any land development within the lines of any street, drainageway, park, school, or other public facility shown on the official map, except as specifically provided in this section. No person shall recover any damages for the taking for public use of any land development constructed within the lines of any proposed street, drainageway, park, school, or other public facility after it has been included in the official map, and any such land development shall be removed at the expense of the owner.

(A) If a permit for any land development within the lines of any proposed street, drainageway, park, school, or other public facility shown on an official map is denied pursuant to subdivision (5) of this section, the legislative body shall have 120 days from the date of the denial of the permit to institute proceedings to acquire that land or interest in that land, and if no such proceedings are started within that time, the administrative officer shall issue the permit if the application otherwise conforms to all the applicable bylaws.

(B) A municipality may specify in its bylaws that conditional use review is required for any structure within the line of any public facility shown on the official map or within a specified area adjacent to the lines on the map. If conditional use review is required for these structures, the purpose of the review shall be to ensure that the structure is compatible with the location and function of existing and planned public facilities. If the conditional use is denied, the procedure provided in subdivision (4)(A) of this section shall be instituted.

(5) Development review for properties with mapped public facilities. Any application for subdivision or other development review that involves property on which the official map shows a public facility shall demonstrate that the mapped public facility will be accommodated by the proposed subdivision or development in accordance with the municipality’s bylaws. Failure to accommodate the mapped public facility or obtain a minor change in the official map shall result in the denial of the development or subdivision. The legislative body shall have 120 days from the date of the denial of the permit to institute proceedings to acquire that land or interest in land, and if these proceedings are not started within that time, the appropriate municipal panel shall review the application without regard to the proposed public facilities.

§ 4422. ADEQUATE PUBLIC FACILITIES; PHASING

Development may be phased or limited under a bylaw to avoid or mitigate any undue adverse impact on existing or planned community facilities or services. Where a capital budget and program has been adopted, the bylaw may limit or phase development based on the timing of construction or implementation of related necessary public facilities and services, in conformance with an adopted capital budget and program. A municipality also may levy impact fees in accordance with chapter 131 of this title.

§ 4423. TRANSFER OF DEVELOPMENT RIGHTS

(a) In order to accomplish the purposes of 10 V.S.A. § 6301, bylaws may contain provisions for the transfer of development rights. The bylaws shall do all the following:

(1) Specify one or more sending areas for which development rights may be acquired.

(2) Specify one or more receiving areas in which those development rights may be used.

(3) Define the amount of the density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases.

(4) Define “density increase” in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or any combination.

(5) Define “development rights,” which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending area solely to specified purposes, but including, at a minimum, agriculture and forestry.

(b) Upon approval by the appropriate municipal panel, a zoning permit may be granted for land development based in part upon a density increase, provided there is compliance with all the following:

(1) The area subject to the application is a receiving area, and the density increase is allowed by the provisions relating to transfer of development rights.

(2) The applicant has obtained development rights from a sending area that are sufficient under the regulations for the density increase sought.

(3) The development rights are evidenced by a deed that recites that it is a conveyance under this subdivision and recites the number of acres affected in the sending area.

(4) The sending area from which development rights have been severed has been surveyed and suitably monumented.

(c) The municipality shall maintain a map of areas from which development rights have been severed. Following issuance of a zoning permit under this section, the municipality shall effect all the following:

(1) Ensure that the instruments transferring the conservation easements and the development rights are recorded.

(2) Mark the development rights map showing the area from which development rights have been severed and indicating the book and page in the land records where the easement is recorded.

(d) Failure to record an instrument or mark a map does not invalidate a transfer of development rights. Development rights transferred under this section shall be valid notwithstanding any subsequent failure to file a notice of claim under the marketable record title act.

§ 4424. SHORELANDS; FLOOD OR HAZARD AREA; SPECIAL OR FREESTANDING BYLAWS

Any municipality may adopt freestanding bylaws under this chapter to address particular areas in conformance with the plan, including the following, which may also be part of zoning or unified development bylaws:

(1) Bylaws to regulate development and use along shorelands.

(2) Bylaws to regulate development and use in flood or other hazard areas. The following shall apply if flood or other hazard area bylaws are enacted:

(A) Purposes.

(i) To minimize and prevent the loss of life and property, the disruption of commerce, the impairment of the tax base, and the extraordinary public expenditures and demands on public service that result from flooding, landslides, erosion hazards, earthquakes, and other natural or human‑made hazards.

(ii) To ensure that the design and construction of development in flood and other hazard areas are accomplished in a manner that minimizes or eliminates the potential for flood and loss or damage to life and property.

(iii) To manage all flood hazard areas designated pursuant to 10 V.S.A. § 753.

(iv) To make the state and municipalities eligible for federal flood insurance and other federal disaster recovery and hazard mitigation funds as may be available.

(B) Contents of bylaws. Flood and other hazard area bylaws may:

(i) Contain standards and criteria that prohibit the placement of damaging obstructions or structures, the use and storage of hazardous or radioactive materials, and practices that are known to further exacerbate hazardous or unstable natural conditions.

(ii) Require flood and hazard protection through elevation, floodproofing, disaster preparedness, hazard mitigation, relocation, or other techniques.

(iii) Require adequate provisions for flood drainage and other emergency measures.

(iv) Require provision of adequate and disaster‑resistant water and wastewater facilities.

(v) Establish other restrictions to promote the sound management and use of designated flood and other hazard areas.

(C) Effect on zoning bylaws. Flood or other hazard area bylaws may alter the uses otherwise permitted, prohibited, or conditional in a flood or other hazard area under a bylaw, as well as the applicability of other provisions of that bylaw. Where a flood hazard bylaw, a hazard area bylaw, or both apply along with any other bylaw, compliance with the flood or other hazard area bylaw shall be prerequisite to the granting of a zoning permit. Where a flood hazard area bylaw or a hazard area bylaw but not a zoning bylaw applies, the flood hazard and other hazard area bylaw shall be administered in the same manner as are zoning bylaws, and a flood hazard area or hazard area permit shall be required for land development covered under the bylaw.

(D) Mandatory provisions. All flood and other hazard area bylaws shall provide that no permit for new construction or substantial improvement shall be granted for a flood or other hazard area until after both the following:

(i) A copy of the application is mailed or delivered by the administrative officer or by the appropriate municipal panel to the agency of natural resources.

(ii) Either 30 days have elapsed following the mailing or the agency delivers comments on the application.

(E) Special exceptions. The appropriate municipal panel, after public hearing, may approve the repair, relocation, replacement, or enlargement of a nonconforming structure within a regulated flood or other hazard area, subject to compliance with applicable federal and state laws and regulations, and provided that the following criteria are met:

(i) The appropriate municipal panel finds that the repair, relocation, or enlargement of the nonconforming structure is required for the continued economically feasible operation of a nonresidential enterprise.

(ii) The appropriate municipal panel finds that the repair, relocation, or enlargement of the nonconforming structure will not increase flood levels in the regulatory floodway, increase the risk of other hazard in the area, or threaten the health, safety, and welfare of the public or other property owners.

(iii) The permit so granted states that the repaired, relocated, or enlarged nonconforming structure is located in a regulated flood or other hazard area, does not conform to the bylaws pertaining to that area, and will be maintained at the risk of the owner.

Sec. 96. 24 V.S.A. chapter 117, subchapter 8 designation is added, immediately preceding section 4430, to read:

Subchapter 8. Nonregulatory Implementation of the Municipal Plan

Sec. 97. 24 V.S.A. §§ 4430 through 4433 are added to read:

§ 4430. CAPITAL BUDGET AND PROGRAM

(a) A capital budget shall list and describe the capital projects to be undertaken during the coming fiscal year, the estimated cost of those projects, and the proposed method of financing. A capital program is a plan of capital projects proposed to be undertaken during each of the following five years, the estimated cost of those projects, and the proposed method of financing. A capital project is any one or more of the following:

(1) Any physical betterment or improvement, including furnishings, machinery, apparatus, or equipment for that physical betterment or improvement when first constructed or acquired.

(2) Any preliminary studies and surveys relating to any physical betterment or improvement.

(3) Land or rights in land.

(4) Any combination of subdivisions (1), (2), and (3) of this subsection.

(b) The capital budget and program shall be arranged to indicate the order of priority of each capital project and to state for each project all the following:

(1) A description of the proposed project and the estimated total cost of the project.

(2) The proposed method of financing, indicating the amount proposed to be financed by direct budgetary appropriation or duly established reserve funds; the amount, if any, estimated to be received from the federal or state governments; the amount, if any, to be financed by impact fees; and the amount to be financed by the issuance of obligations, showing the proposed type or types of obligations, together with the period of probable usefulness for which they are proposed to be issued.

(3) An estimate of the effect, if any, upon operating costs of the municipality.

(c) The planning commission may submit recommendations annually to the legislative body for the capital budget and program, that shall be in conformance with the municipal plan.

§ 4431. PURCHASE OR ACCEPTANCE OF DEVELOPMENT RIGHTS

A municipality may develop a program for purchase or acceptance of development rights and stewardship of those rights for the purposes set forth in section 4302 of this title and in conformance with the plan.

§ 4432. SUPPORTING PLANS

A municipality may adopt a plan or plans that support the municipal plan and may incorporate such supporting plan or plans into the municipal plan in the same manner as adoption of the municipal plan set forth in section 4385 of this title. In this event, the supporting plan shall become a part of the municipal plan. Supporting plans may include:

(1) Access management plan. A municipality may adopt an access management plan to manage traffic and access onto public roads from adjacent property in a manner that complies with 19 V.S.A. § 1111.

(2) Downtown, village center, or new town center plan. A municipality may adopt a plan for the development and revitalization of its downtown, villages, or a new town center, consistent with the purposes set forth in section 2790 of this title.

(3) Open space plan. A municipality may adopt a plan to guide public and private conservation strategies.

§ 4433. ADVISORY COMMISSIONS AND COMMITTEES

Municipalities may at any time create one or more advisory commissions, which for the purposes of this chapter include committees, or a combination of advisory commissions to assist the legislative body or the planning commission in preparing, adopting, and implementing the municipal plan. Advisory commissions authorized under this section and under chapter 118 of this title may advise appropriate municipal panels, applicants, and interested parties in accordance with the procedures established under section 4464 of this title.

(1) Creation of an advisory commission. Advisory commissions not authorized in chapter 118 of this title shall be created as follows:

(A) An advisory commission may be created at any time when a municipality votes to create one, or through adoption of bylaws, or if the charter of a municipality permits it, when the legislative body of the municipality votes to create one.

(B) An advisory commission shall have not less than three members. All members should be residents of the municipality, except that historic preservation, design advisory, or conservation commissions may be composed of professional and lay members, a majority of whom shall reside within the municipality creating the commission.

(C) Members of the advisory commission shall be appointed, and any vacancy filled, by the legislative body of the municipality. The term of each member shall be as established by the legislative body, except for those first appointed, whose terms shall be varied in length so that in the future the number whose terms expire in each successive year shall be minimized. Any appointment to fill a vacancy shall be for the unexpired term.

(D) Any member of an advisory commission may be removed at any time for just cause by vote of the legislative body, for reasons given to the member in writing, and after a public hearing on the issue if the member so requests.

(2) Procedures for advisory commissions. Advisory commissions not authorized in chapter 118 of this title shall establish the following procedures:

(A) At its organizational meeting, an advisory commission shall adopt by majority vote of those present and voting such rules as it deems necessary and appropriate for the performance of its functions. It shall annually elect a chairperson, a treasurer, and a clerk.

(B) Times and places of meetings of an advisory commission shall be publicly posted in the municipality, and its meetings shall be open to the public in accordance with the terms of the open meeting law, subchapter 2 of chapter 5 of Title 1.