The Vermont Legislature is once again taking up a major overhaul of Act 250 (10 V.S.A. Chapter 151), Vermont’s five decades-old land use law, in an effort to modernize the law and bring it up to contemporary land use standards.  The proposed revisions set forth in H. 926 reorganize Act 250’s regulatory bodies, revamp the permitting process, expand and exempt certain land use activities from Act 250 jurisdiction, increase certain environment protections, and incorporate climate change measures. The bill also proposes raising Act 250 permit fees.

Last Friday, H. 926 was voted out of the House Committee on Natural Resources, Fish and Wildlife with amendments, and was heard by the House Committee on Judiciary yesterday, February 19th.  The House Committee on Appropriations is also expected to review the bill before it is voted on by the full House and then taken up by the Vermont Senate.

This is the first in a series of regular blog posts that will follow H. 926 through the Legislature, keeping track of where it is in the legislative process and tracking substantive changes.  While the bill seeks to revise many aspects of Act 250, these blog posts will focus on the following issues:

• Procedural changes in the Act 250 permitting process, its regulatory bodies, and appellate review;
• How the changes to Act 250 could affect development projects in designated downtowns and other areas designated as preferred growth zones;
• Substantive amendments to the Act 250 criteria, including the use of other state permits and municipal entity determinations to demonstrate compliance with certain Act 250 criteria; and
• For properties already subject to an Act 250 permit, a process for releasing the property from continuing Act 250 jurisdiction.

Below is a short summary of key provisions of H. 926 as of February 14th when it was voted out of the Natural Resources Committee:

Permitting and Appeal Processes and Oversight Bodies

Construction of the Board and the Commission

The proposed amendments would make several structural and jurisdictional changes to the Natural Resources Board (which presently oversees administration of the law) and the District Environmental Commissions (who presently issue or deny permits). The Board’s composition would be revised from five part-time members to three full-time members. Instead of Board alternates, District Commissioners may sit on matters when needed.  The District Commissions will continue to consist of three members but with all members serving a four-year term and a maximum of two Commission alternates may be appointed by the Governor.

Board and Commission Jurisdiction

The bill transfers more authority to the Board from the District Commissions.  Under the bill, the Board’s authority would control:

• Petitions for revocation of land use permits;
• Ability to stay the issuance of a permit or amendment where the applicant is not in compliance or has one or more violations;
• Determining party status at a hearing;
• Powers of a court of record for matters within its jurisdiction including rendering judgments; using declaratory rulings; enforcement powers; and hearing appeals from District Commission decisions.

Appeals from Board decisions will go to the Supreme Court of Vermont rather than the Environmental Division, and all findings of fact made by the Board will be accepted by the Court unless clearly erroneous.

Procedures for Permitting

For projects that follow the normal and not simplified Act 250 procedures, the bill creates a new pre-application process similar to that of projects before the Public Utility Commission: project plans must be submitted to the applicable District Commission and municipal and regional planning commissions, adjoining land owners, and affected State agencies 30 days prior to filing the permit application.  Submission of project plans would start the clock for comments to the applicant either by a public meeting, if the District Commission holds one, or written recommendations to the applicant by the planning commissions.  The application would then need to address the substantive written and oral comments and recommendations related to the substantive Act 250 criteria.

After submission of the application, the District Commission would review it for completeness and determine whether to process the application as a major application or a minor application.  Minor applications would be heard and determined by the District Commissions.  Major applications would be heard and determined by the Board.

The Board would convene hearings for major applications in the municipality where the project was to be located, and would make all reasonable efforts to ensure that the public may attend any hearings.  The Board and two members of the affected District Commission would conduct the hearing and issue a permit decision (including findings of fact and conclusions of law). Act 250 permit decisions would be appealable to the Vermont Supreme Court in lieu of the Environmental Court, with all findings of fact accepted unless “clearly erroneous.” 

Designated Downtowns and other areas Designated for Growth

Under the amended bill, no Act 250 permit or permit amendment would be required for any subdivision, development, or change to a project located entirely within a designated downtown development district (24 V.S.A. § 2793) or a designated neighborhood development area (24 V.S.A. § 2793e).  Additionally, previously issued Act 250 permits for a development or subdivision located in a downtown development area or a new neighborhood area would be extinguished upon receiving notice and a copy of the zoning permit issued by the appropriate municipal panel pursuant to 24 V.S.A. § 4460(f).

The Substantive Act 250 Criteria

The bill seeks to increase environmental protections and address climate change by:

• further defining the air pollution criteria and linking it to the Federal Clean Air Act;
• shifting the burden to the applicant with respect to the necessary wildlife habitat and endangered species criteria;
• adding new criteria concerning forest blocks, connecting habitat and rare and irreplaceable natural areas;
• including energy efficiency in addition to energy conservation criteria;
• adding statutorily-conserved lands and protected facilities and lands to the public investment criteria;
• adding new criteria for climate adaptation and environmental justice;
• requiring conformance with future land use maps in local and regional plans unless such plans are ambiguous.

Use of Other Collateral Permits

Under the existing law, District Commissions have the discretion to allow an applicant to rely on permits or approvals from other State or municipal entities to create a presumption that certain Act 250 criteria have been met.  Under the bill, such permits or approvals must be accepted by the Commission and create a rebuttable presumption.

Release from Act 250 Jurisdiction

The bill would allow the Natural Resources Board to release land that is subject to a previous Act 250 permit from continuing Act 250 jurisdiction, where:

• The use of the land is not the same as that which triggered the original Act 250 jurisdiction, or the municipality where the land is located has adopted permanent zoning and subdivision bylaws that were not in existence at the time the permit was issued;
• The use of the land does not constitute “development” or “subdivision” under Act 250 and an Act 250 permit/permit amendment would only have been required because the land is already subject to a permit; and
• The permittee(s) are in compliance with the existing permit.

A granted release would not make the property immune from Act 250 jurisdiction for later development that would fall under the statute.

If you have questions about the proposed amendments to Act 250 or you are working on a project that may be subject to Act 250, please contact any of the attorneys in our Environmental Practice, including Zoë Sajor, Vic Westgate, Brian Dunkiel, Andy Raubvogel, and Geoff Hand.