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BILL AS INTRODUCED 2007-2008

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H.364

Introduced by Representative Nuovo of Middlebury

Referred to Committee on

Date:

Subject:  Conservation and development; state land use; appeals; environmental court

Statement of purpose:  This bill proposes to remove certain restrictions on the ability of the administrative judge to assign the environmental judges.  It also proposes to redirect appeals of the district environmental commissions’ decisions to the land use panel of the natural resources board.

AN ACT RELATING TO REQUIRING THAT ACT 250 APPEALS FROM THE DISTRICT ENVIRONMENTAL COMMISSIONS BE HEARD BEFORE THE LAND USE PANEL

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

Sec. 1.  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 environmental 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. 2.  10 V.S.A. § 6001 is amended to read:

§ 6001.  Definitions

When used in this chapter:

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(31)  “Land use panel” means the land use panel of the natural resources board established pursuant to section 6021 of this title.

Sec. 3.  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 all persons listed in subdivisions 6085(c)(1)(A) through (D) of this title.  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 environmental court land use panel pursuant to chapter 220 section 6089 of this title.

Sec. 4.  10 V.S.A. § 6027(h) is amended to read:

(h)  The land use panel may hear appeals:

(1)  of fee refund requests under section 6083a of this title; or

(2)  from the district commissions or district coordinators under section 6089 of this title.

Sec. 5.  10 V.S.A. § 6083(g)(2) is amended to read:

(2)  Any decision under this subsection to issue a stay may be subject to review by the environmental court land use panel, as provided by rule of the supreme court board.

Sec. 6.  10 V.S.A. § 6083a(d) is amended to read:

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

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

(f)  Prior to any appeal of a permit issued by a district commission, any aggrieved party may file a request for a stay of construction with the district commission together with a declaration of intent to appeal the permit.  The stay request shall be automatically granted for seven days upon receipt and notice to all parties and pending a ruling on the merits of the stay request pursuant to board rules.  The automatic stay shall not extend beyond the 30-day appeal period unless a valid appeal has been filed with the environmental court land use panel.  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 environmental court pursuant to the provisions of chapter 220 of this title land use panel pursuant to section 6089 of this title.  A district commission shall not stay construction authorized by a permit processed under the land use panel's minor application procedures.

Sec. 8.  10 V.S.A. § 6089 is amended to read:

§ 6089.  APPEALS

(a)  Land use panel.

(1)  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 land use panel within 30 days of the date of the act or decision.

(2)  The panel shall hold a de novo hearing on all findings requested by any party that files an appeal or cross appeal according to the rules of the board.

(b)  Fee.  An appeal shall be accompanied by a fee prescribed under section 6083a of this title.

(c)  Notice of the filing of an appeal.

(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 and all friends of the commission 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)  An appellant to the panel shall file with the notice to 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.

(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 only may appeal those issues under the criteria with respect to which the person was granted party status.

(2)  Notwithstanding subdivision (1) of this subsection, an aggrieved person may appeal an act or decision of the district commission if the land use panel 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

(C)  some other condition exists which would result in manifest injustice if the person's right to appeal was disallowed.

(e)  Act 250 jurisdictional opinions.

(1)  The appellant shall provide notice of the filing of an appeal to each person entitled to notice under subdivisions 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 subdivisions 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 subdivisions 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 of a district commission or of a district coordinator.

(2)  Upon petition by a party or upon its own motion for a stay of an act or decision, the land use panel 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 land use panel may consolidate or coordinate different appeals where those appeals all relate to the same project.

(h)  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)  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.

(i)  Representation.  The secretary may represent the agency of natural resources in all appeals under this section.  If more than one state agency 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.

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

(k)  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 established under subdivision 6085(c)(1) of this title;

(3)  is a person who alleges an injury to a particularized interest protected by the provisions of this chapter, attributable to an act or decision by a district coordinator or district commission that can be redressed by the land use panel; or

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

(l)  Appeals from decisions by the land use panel.

(1)  An appeal of a decision of the land use panel shall be to the supreme court by a party as set forth in subsection 6085(c) of this title.

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

(3)  An appeal from the land use panel shall be allowed for all usual reasons, including the unreasonableness or insufficiency of the conditions attached to a permit.

(m)  Friends of the land use panel.  The land use panel, 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 land use panel, 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 land use panel 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 land use panel.  Except where all parties consent or as otherwise ordered by the land use panel or by the chair of the land use panel, all friends of the land use panel shall file their memoranda, testimony, or evidence within the times allowed the parties.

Sec. 9.  10 V.S.A. § 8501 is amended to read:

§ 8501.  PURPOSE

It is the purpose of this chapter to:

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(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 land use panel.

Sec. 10.  10 V.S.A. § 8503 is amended to read:

§ 8503.  APPLICABILITY

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(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.

(3)  Appeals from findings of fact and conclusions of law issued by the land use panel in its review of a designated growth center for conformance with the criteria of subsection 6086(a) of this title, pursuant to authority granted at 24 V.S.A. § 2793c(f).

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Sec. 11.  10 V.S.A. § 8504 is amended to read:

§ 8504.  APPEALS TO THE ENVIRONMENTAL COURT

(a)  Act 250 and agency 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.

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(c)  Notice of the filing of an appeal.

(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

(C)  some other condition exists which would result in manifest injustice if the person's right to appeal was disallowed.

(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.

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(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 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.

Sec. 12.  24 V.S.A. § 2793c(f)(3) is amended to read:

(3)  The panel shall review the request in accordance with and shall issue findings of fact and conclusions of law under the applicable criteria of

10 V.S.A. § 6086(a) which are deemed to have been satisfied by the applicant's submissions during the formal designation process, any additional submissions, as well as associated municipal plan policies, programs, and bylaws.  Findings and conclusions of law shall be effective for a period of five years, unless otherwise provided.  The panel, before issuing its findings and conclusions, may require specific changes in the proposal, or regulatory changes by the municipality, as a condition for certain findings and conclusions.  These findings and conclusions shall be subject to appeal to the environmental court pursuant to 10 V.S.A. chapter 220 within 30 days of issuance supreme court according to the Rules of Appellate Procedure.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us