Rule No.1 Description of the Council of
Regional Commissions
1.1 Statutory
Authorization
The Council of Regional Commissions (hereinafter referred to as
"the Council") was established by Act 200 of the adjourned session of the 1987
General Assembly of the State of Vermont.
24 V.S.A. section
4305.
1.2 Membership of the Council of Regional
Commissions
(a) Each regional planning
commission established under
24 V.S.A.
section 4341 shall appoint one representative
to the Council, or fill a vacancy, from among its members who represent
municipalities.
(b) The Council
shall further be composed of three heads of state agencies or departments
appointed by the governor.
(c) Two
additional members representing the public shall be appointed by the governor.
24 V.S.A. section
4305(a).
1.3 Administrative Support
The Council shall receive administrative support from the
Department of Housing and Community Affairs.
24 V.S.A. section
4305(g).
1.4 Responsibilities of the Council
The Council has the following responsibilities:
(a) upon request, to provide an impartial
mediator to help resolve disagreements between and among municipalities and
regional planning commissions, and between and among regional planning
commissions and affected state agencies, with respect to the compatibility of
their plans with each other, and related matters;
(b) to review and comment upon proposed
regional plans and amendments;
(c)
at the request of a municipality, to review a proposed regional plan or
amendment for compatibility with an approved municipal plan;
(d) to review and comment upon a proposed
plan or amendment, and to prepare a written evaluation of an adopted plan or
amendment, of an affected state agency;
(e) at the request of a municipality with an
approved plan, to review a proposed plan or amendment of an affected state
agency for compatibility with the approved municipal plan;
(f) at the request of a person who has
standing, to formally review the sufficiency of an adopted regional
plan;
(g) at the request of a
person who has standing, to formally review regional planning commission
decisions with respect to the confirmation of municipal planning efforts, and
the approval or disapproval of municipal plans or amendments.
24 V.S.A. sections
4305(b)-(e).
1.5 Code of Conduct
(a) A member of the Council has an
affirmative obligation to conduct the affairs of his or her office, whether as
a member of the Council or as a member of a Regional Review Panel, in such a
manner as to instill public trust and confidence. Thus, a member of the Council
shall take all reasonable steps to avoid any action or circumstance, whether or
not specifically prohibited by this rule, which might result in, or create the
appearance of:
(1) undermining his or her
independence or impartiality of action;
(2) taking official action on the basis of
unfair considerations, unrelated to the merits of the matter;
(3) giving preferential treatment to any
private interest, or interest of any affected state agency or regional planning
commission which the Council member represents, on the basis of unfair
considerations, unrelated to the merits of the matter;
(4) using the office of a member of the
Council for the advancement of personal interest or the interest of the
affected state agency or the regional planning commission which the member
represents;
(5) using the office of
member of the Council to secure special privileges or exemptions; or
(6) affecting adversely the confidence of the
public in the integrity of the Council.
(b) A member of the Council shall not take
any official action in any particular matter in which he or she has a conflict
of interest or in which there is an appearance of a conflict of interest that,
in that member's view, will undermine public confidence.
(c) A member of the Council shall not take
any official action that advances the interests of an entity with which he or
she is actively seeking employment or has a significant financial
relationship.
(d) A member of the
Council shall not disclose to any entity any confidential or privileged
information for the purpose of advancing his or her, or anyone else's,
pecuniary interest.
(e) A member of
the Council shall not solicit or receive any payment, gift, or favor based on
any understanding that it would influence any official action.
(f) A member of the Council shall not use or
permit the use of State property unless reasonably related to his or her
official responsibilities.
(g) A
Council member who is a representative of a regional planning commission is
prohibited by
24 V.S.A. section
4305(e) from participating
in certain formal reviews as a member of a Regional Review Panel. Based on the
same rationale, a Council member who is a representative of a regional planning
comission shall not review the proposed plans or amendments of the regional
planning commission which he or she represents, and a Council member who is a
state agency or department head shall not review the proposed or adopted plans
or amendments of the agency, or the agency which includes the department, which
he or she administers.
(h) Any
Council member and any participant in a mediation or party to a review or
formal review may raise with the Council the issue of whether a Council member
should be excused from participating in a matter before the Council because of
a potential violation of this Rule 1.5.
(i) The Council may by majority vote
determine that a Council member is ineligible to participate in a matter before
the Council because of a violation of this Rule 1.5.
1.6 Officers
(a) The Council shall elect annually by
majority vote a chairperson and vice-chairperson from among its members.
24 V.S.A. section
4305(a).
(b) The chairperson shall preside over all
meetings of the Council and shall be authorized to sign documents with the
approval and on behalf of the Council.
(c) The vice-chairperson shall assume the
duties and responsibilites of the chairperson in the event of the chairperson's
absence.
(d) In the event of the
absence of both the chairperson and vice-chairperson, any member may be elected
by a majority of those present to preside over that particular meeting and
shall be authorized to sign documents with the approval and on behalf of the
Council.
(e) The Council shall
elect such further officers to perform such duties as it shall decide from time
to time.
1.7 Per Diem
and Expenses
Council members who are not state officials shall receive per
diem compensation according to
32 V.S.A. section
1010, and reimbursement for necessary and
actual expenses when away from home or office upon their official duties.
24 V.S.A. section
4305(a).
1.8 Retiring Council Members
A Council member who has participated in all or a substantial
portion of a mediation, a review, or a formal review, and who completes his or
her term before the matter has been concluded, may remain a member of the
Council and Panel, if applicable, for the purpose of completing the mediation,
review or formal review.
3 V.S.A. section
849.
Rule No.2 Definitions
The following definitions shall apply throughout these rules.
Unless otherwise defined in this Rule 2, the words in these rules are to be
construed in the plain, ordinary and usual meaning which is given to them by
standard English dictionaries.
(a)
"Affected state agency" means a state agency that has programs or takes actions
affecting land use, as identified from time to time by executive order.
3 V.S.A. section
4020.
(b) "Affected state agency plan" means a plan
or amendment required to be adopted by an affected state agency.
3 V.S.A. section
4021.
(c) "Approved municipal plan" means a plan
that has been approved by the regional planning commission according to
24
V.S.A. section 4350 and adopted by the
municipality according to
24
V.S.A. section 4385.
(d) "Compatible with" another plan, as used
in 24 V.S.A. chapter 117, means that the plan in question, as implemented, will
not significantly reduce the desired effect of the implementation of the other
plan. If a plan, as implemented, will significantly reduce the desired effect
of the other plan, the plan may be considered compatible if it includes the
following:
(1) a statement that identifies
the ways that it will significantly reduce the desired effect of the other
plan;
(2) an explanation of why any
incompatible portion of the plan in question is essential to the desired effect
of the plan as a whole;
(3) an
explanation of why, with respect to any incompatible portion of the plan in
question, there is no reasonable alternative way to achieve the desired effect
of the plan; and
(4) an explanation
of how any incompatible portion of the plan in question has been structured to
mitigate its detrimental effects on the implementation of the other plan.
24 V.S.A. section
4302(d)(2).
(e) "Conflict of interest" means a
pecuniary interest of a member of the Council of Regional Commissions, or such
an interest, known to the member, of a member of his or her immediate family or
household or of a business associate, in the outcome of any particular matter
pending before the Council or a Regional Review Panel. The salary paid by the
State of Vermont to a state agency or department head who serves as a Council
member shall not constitute a pecuniary interest for purposes of Rule 1.5 of
these rules. "Conflict of interest" does not arise where the interest is no
greater than that of other persons generally affected by the outcome of the
matter.
(f) "Confirmation of a
municipality's planning efforts" means the process by which a regional planning
commission consults with its municipalities and determines whether the
municipality is engaged in a continuing planning process that, within a
reasonable time, will result in a plan which is consistent with the goals
established in
24 V.S.A. section
4302, and whether the municipality is
maintaining its efforts to provide local funds for municipal and regional
planning purposes.
24
V.S.A. section 4350.
(g) "Consistent with the goals established in
24 V.S.A. section
4302," as used in 24 V.S.A. chapter 117,
means substantial progress toward attainment of those goals. If a planning body
determines that a particular goal is not relevant or attainable the plan shall
identify the goal and describe the situation, explain why the goal is not
relevant or attainable, and indicate what measures should be taken to mitigate
any adverse effects of not making substantial progress toward that goal.
24 V.S.A. section
4302(d)(1).
(h) "Council" means the Council of Regional
Commissions.
(i) "Decision" means a
decision of a regional planning commission with respect to the confirmation of
a municipality's planning efforts, the approval or disapproval of a municipal
plan, and the sufficiency of an adopted regional plan or amendment.
24 V.S.A. sections
4305(e) and
4476.
(j) "Formal review" means the contested case
hearing process conducted by a Regional Review Panel (hereinafter referred to
as a "Panel") at the request of a person with standing to do so. During a
formal review, a Panel reviews a decision of a regional planning commission
with respect to the confirmation of a municipality's planning effort, the
approval or disapproval of a municipal plan, or the sufficiency of an adopted
regional plan.
24 V.S.A. sections
4305(e) and
4476.
(k) "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 purposes of 24
V.S.A. chapter 117, 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 24 V.S.A. chapter 117 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.
24 V.S.A. section
4303(4).
(l) "Panel" means a Regional Review
Panel.
(m) "Party" means a person
granted standing under
24 V.S.A.
section 4476(b).
(n) "Person" means an individual, a
corporation, a partnership, an association, any other incorporated or
unincorporated organization or group, a municipality, the State of Vermont or
any department, agency or subdivision of the state, or other legal entity.
1 V.S.A. section 128 and
24 V.S.A. section 4303(5).
(o)
"Public notice" means the notice required to be given prior to public hearings
under
24 V.S.A. section
4305, following procedures set forth in
24 V.S.A. section
4447 or
3 V.S.A.
sections
809 or
839.
(p) "Regional plan" means a
plan or amendment adopted by a regional planning commission under
24 V.S.A.
section 4348.
(q) "Regional planning commission" means a
planning commission for a region created under subchapter 3 of 24 V.S.A.
chapter 117, hereinafter sometimes referred to as an "RPC."
(r) "Regional Review Panel", hereinafter
sometimes referred to as a "Panel", is a Panel established for the purpose of
formally reviewing certain decisions of regional planning commissions.
24 V.S.A. section
4305(e).
(s) "Ruling" means the official written
statement of a Regional Review Panel presenting its findings of fact and
conclusions of law after conducting a formal review of a regional planning
commission decision.
Rule No.4 Mediation
4.1 Statutory Authorization
The Council is authorized by
24 V.S.A. section
4305(b) to provide, on
request, an impartial mediator to help resolve disagreements between and among
municipalities and regional planning commissions, and between and among
regional planning commissions and state agencies, with respect to the
compatibility of their plans with each other, and related matters.
4.2 Conflict Between Plans in Two
or More Regions
Before requesting review by the Council of Regional Commissions
or the services of a mediator pursuant to
24 V.S.A. section
4305, with respect to a conflict that has
arisen between adopted or proposed plans of two or more regions or two or more
municipalities located in different regions, a regional planning commission
shall first appoint a joint interregional commission, in cooperation with other
affected regional commissions, for the purpose of negotiating differences.
24 V.S.A.
section 4345a(16).
4.3 Two Options for Mediation
There shall be two options for mediation.
(a) Under the first option, a municipal
planning commission, a regional planning commission, or an affected state
agency may request the appointment of one or more Council members to serve as
mediator if all other participants agree to engage in the first option
mediation process. The participants may request that one or more specific
Council members serve or not serve. If the Council agrees to provide the
mediation, it shall name the mediator or mediators.
(b) Under the second option, a municipal
planning commission, a regional planning commission or an affected state agency
may request the appointment of a mediator other than any Council member if all
other participants agree to engage in the second option mediation process. The
participants shall agree on the selection of a mediator either from a list
maintained by the Council of persons and organizations trained or experienced
in mediation, or another person or organization upon whose selection all
participants and the Council shall agree.
4.4 Costs of Mediation
(a) There shall be no cost to the
participants for first option mediation.
(b) The Council shall evaluate the costs of
second option mediation and apportion them among the participants in the
mediation and the Council on a case by case basis.
4.5 Procedure
The procedure for both options for mediation shall be informal,
as the mediator or mediators and the participants shall deem appropriate for
the particular circumstances of the case.
4.6 Participation in Both Options for
Mediation
If the participants agree to do so, and with the approval of
the Council, they may participate first in one and then in the other option for
mediation.
Rule
No.5 Review and Comment on Proposed Plans and Amendments of
Affected State Agencies; Written Evaluation of Adopted Plans and Amendments
5.1 Statutory Authorization
The Council is authorized by
24 V.S.A. section
4305(d) to review and
comment on proposed plans and amendments, and to make a written evaluation of
adopted plans and amendments, of affected state agencies.
5.2 Entire Proposed Plan of Affected State
Agencies
An affected state agency identified by executive order as
having programs or taking actions affecting land use must submit a proposed
plan to the Council in its entirety.
5.3 Proposed Amendment to Existing Plan
A proposed amendment to an existing, properly adopted plan of
an affected state agency may be submitted without the entire plan unless the
Council requests the submission of the plan to which the proposed amendment is
to be made.
5.4 Affected
State Agency Public Hearings; Council Attendance Permitted
At least 30 days prior to the first of at least two public
hearings which an affected state agency must hold prior to adopting a plan or
amendment, the affected state agency must give the Council notice of the date,
time and place of the public hearing. The Council may appear and be heard at
all meetings held by an affected state agency with respect to a proposed plan
or amendment.
3 V.S.A. section
4020.
5.5 Initiation of Review
An affected state agency may initiate the review by the Council
of a proposed plan or amendment with a letter to the Council requesting
review.
5.6 Certain Council
Members Excluded from Review
A Council member who is a state agency or department head shall
not participate as a Council member in the review of the proposed or adopted
plans or amendments of the agency or department which he or she
administers.
5.7 Scheduling
of Council's Public Hearing
The Council shall schedule its public hearing so as to allow
public notice as required by
3 V.S.A. section
839.
24 V.S.A. section
4305(d)(1).
5.8 Notice of Public Hearing
With respect to a review of a proposed plan or amendment, and a
review of an adopted plan or amendment, of an affected state agency, the
Council shall give notice of a public hearing in accordance with the
requirements of
3 V.S.A. section
839.
24 V.S.A. section
4305(d)(1).
5.9 Criteria for Review
With respect to an affected state agency plan or amendment, the
Council shall determine whether it is:
(a) compatible with the plans of other
affected state agencies;
(b)
consistent with the goals established in
24 V.S.A. section
4302;
(c) compatible with regional plans;
and
(d) compatible with the
approved municipal plans of any municipalities that have requested review by
the Council.
24 V.S.A. section
4305(d)(1).
5.10 Testimony by Persons
The Council may hear statements, and accept any exhibits
presented by persons who wish to speak at the public hearing to the extent that
the Council deems them to be relevant. Persons are encouraged, but are not
required, to notify the Council of their desire to speak at least 24 hours in
advance of the hearing.
5.11 Written Comments of Persons
In addition, the Council may consider written comments by
persons about or objections to the plan or amendment. Persons are encouraged,
but are not required, to submit nineteen copies, and to do so before the public
hearing.
5.12 Council's
Comments and Recommendations
Upon completion of the review, one or more members of the
Council shall appear before the affected state agency and present the Council's
comments and recommendations.
24 V.S.A. section
4305(d)(2).
5.13 Submission of Adopted Plan of
Affected State Agency to the Council
Within 15 days after an affected state agency has adopted a
plan or amendment, the agency shall submit it to the Council.
5.14 Council's Public Hearing Regarding
Adopted Plans and Amendments of an Affected State Agency
After giving public notice as required under
3 V.S.A. section
839, the Council shall hold another public
hearing on the adopted plan or amendment of an affected state agency.
24 V.S.A. section
4305(d)(3).
5.15 Council's Written Evaluation
of Adopted Plan or Amendment of an Affected State Agency
Thereafter, the Council shall prepare a written evaluation of
the plan or amendment's compliance with the criteria established in
24 V.S.A. section
4305(d). Copies shall be
sent to the Governor, the Speaker of the House, the President of the Senate,
each regional planning commission and all persons who request a copy in
writing.
24 V.S.A. section
4305(d)(3).
5.16 Municipality's Request for
Review
A municipality with an approved municipal plan may request that
the Council review a proposed plan or amendment of an affected state agency for
compatibility with that municipality's plan by following the procedures set
forth in this Rule 5.
24 V.S.A. section
4305(d)(1)(D).
Rule No.6 Review and
Comment on Proposed Plan or Amendment of a Regional Planning Commission
6.1 Statutory Authorization
The Council is authorized by
24 V.S.A. section
4305(c) to review and
comment on proposed regional plans and amendments.
6.2 Submission of a Proposed Plan or
Amendment to the Council
A regional planning commission shall submit a proposed plan or
amendment to the Council.
6.3 Regional Planning Commission Public
Hearings; Council Attendance Permitted
At least 30 days prior to the first of at least two public
hearings which a regional planning commission must hold prior to adopting a
plan or amendment, the regional planning commission must give the Council
notice of the date, time and place of the public hearing. The Council may
appear and be heard at all meetings held by a regional planning commission with
respect to a proposed plan or amendment.
24 V.S.A.
section 4348(c).
6.4 Initiation of Review
A regional planning commission may initiate review by the
Council of a proposed plan or amendment with a letter to the Council requesting
review.
6.5 Certain Council
Members Excluded from Review
A Council member who is a representative of a regional planning
commission shall not participate as a Council member in the review of the
proposed plans or amendments of the regional planning commission which he or
she represents.
6.6 Notice
of the Council's Public Hearing
(a) The
Council shall give notice of its public hearing as required by
24 V.S.A. section
4447.
(b) No defect in the form or substance of any
public hearing notice under this chapter shall invalidate the adoption,
amendment or repeal of any plan or amendment. However, the action shall be
invalidated if the notice is materially misleading in content or fails to
include one of the elements required by
24 V.S.A. section
4447(b)(1), or if the defect
is the result of a deliberate or intentional act.
24
V.S.A. sections 4345(c)(1)
and
4447(b)(1).
6.7 Criteria for Review
With respect to a regional plan, the Council shall
determine:
(a) whether the plan, as
amended, contains the elements required by
24 V.S.A. section
4348a;
(b) whether the plan is compatible with the
plans of adjoining regions; and
(c)
whether the plan, as amended, is consistent with the goals established in
24 V.S.A. section
4302.
24 V.S.A. section
4305(c)(1).
6.8 Testimony by Persons
The Council may hear statements, and accept any exhibits
presented by persons who wish to speak at the public hearing to the extent that
the Council deems them to be relevant. Persons are encouraged, but are not
required, to notify the Council of their desire to speak at least 24 hours in
advance of the hearing.
6.9
Written Comments of Persons
In addition, the Council may consider written comments by
persons regarding the plan or amendment. Persons are encouraged, but are not
required, to submit nineteen copies, and to do so before the public
hearing.
6.10 Council's
Comments and Recommendations
Upon completion of the review, one or more members of the
Council shall appear before the regional planning commission and present the
Council's comments and recommendations.
24 V.S.A section
4305(C)(c)(3).
6.11 Municipality's Request for
Review
Any municipality may request that the Council review a proposed
regional plan or amendment for compatibility with an approved municipal plan by
following the procedures set forth in this Rule 6.
24 V.S.A. section
4305(c)(2).
6.12 Time for Submission to
Council
By December 31, 1992 and at least every five years thereafter,
all regional planning commissions shall submit regional plans adopted under
24 V.S.A.
section 4348 to the Council for review. The
Council shall make recommendations to the regional planning commissions with
respect to appropriate amendments for consideration by the commissions.
24 V.S.A.
section 4348(i).
Rule No.7 Formal Review
Procedures
7.1 Statutory Authorization
The Council is authorized by
24 V.S.A. section
4305(e) to establish from
among its members a three person Regional Review Panel to conduct formal review
of certain decisions of regional planning commissions upon request of a person
with standing as defined in
24 V.S.A.
section 4476(b) and Rule 7.5
of these rules. The prodedure for establishing a Panel is set forth in Rule 3
of these rules.
7.2 Council
Policy Regarding Negotiation and Mediation
The Council has established the policy of encouraging all
participants in the planning process to resolve issues through negotiation and
mediation whenever possible, and to proceed with formal review only as a last
resort.
7.3 Regional
Planning Commission Decisions Which May be Formally Reviewed
The Panel may formally review decisions by regional planning
commissions with respect to:
(a) the
confirmation of a municipal planning effort;
(b) the approval or disapproval of a
municipal plan; and
(c) the
sufficiency of an adopted regional plan.
24 V.S.A. sections
4305(e) and
4476(a).
7.4 Issues on Formal Review
To the extent raised by the parties or found necessary by the
Panel, the following shall be the issues on formal review:
(a) With respect to formal review of the
sufficiency of an adopted or amended regional plan, the Panel shall determine:
(1) whether the plan contains the elements
required by law:
(2) whether the
plan is compatible with the plans of adjoining regions; and
(3) whether the plan is consistent with the
goals established in
24 V.S.A. section
4302.
(b) With respect to formal review of a
regional planning commission decision on the confirmation of a municipal
planning effort, the Panel shall determine:
(1) whether the municipality is engaged in a
continuing planning process that, within a reasonable time, will result in a
plan which is consistent with the goals contained in
24 V.S.A. section
4302; and
(2) whether the municipality is maintaining
its efforts to provide local funds for municipal and regional planning
purposes.
(c) With
respect to formal review of a regional planning commission decision on the
approval or disapproval of a municipal plan, the Panel shall determine:
(1) whether the plan is consistent with the
goals established in
24 V.S.A. section
4302;
(2) whether the plan is compatible with its
regional plan; and
(3) whether the
plan is compatible with approved plans of other municipalities in the region.
24 V.S.A.
section 4476(d).
7.5 Standing
(a) The following have standing to request
formal review of a decision of a regional planning commission or to become
parties to any formal review:
(1) a person
owning title to property affected by a decision of the regional planning
commission who alleges that that decision imposes on that property unreasonable
or inappropriate restrictions that significantly impair present or potential
use under the particular circumstances of the case;
(2) A municipality whose planning effort is
the subject of a decision by the regional planning commission, any other
municipality within the region, any municipality which adjoins the region, or a
regional planning commission which adjoins the region;
(3) any agency, department, or other
governmental subdivision of the state owning property or an interest therein
within a municipality listed in subdivision (2) of this subsection, and the
Agency of Development and Community Affairs;
(4) any 20 persons who, by signed petition
allege that the decision, if confirmed, will not be in accord with the
requirements of 24 V.S.A. chapter 117, and who own or occupy real property
within any combination of the following:
(A)
any municipality whose planning effort is the subject of or subject to a
decision by the regional planning commission; or
(B) any municipality which adjoins a
municipality whose planning effort is subject of or subject to a decision by
the regional planning commission.
24 V.S.A.
section 4476(b);
(b) The regional
planning commission whose decision is under formal review shall be entitled to
participate in the proceedings, including calling and cross-examining
witnesses.
7.6 Time for
Requesting Formal Review
A request for formal review must be made to the Council of
Regional Commissions within 21 days after the issuance of the decision or the
adoption of the plan or amendment by the regional planning commission.
24 V.S.A.
section 4476(a).
7.7 Time for Requesting Party
Status
A request for party status must be made to the Regional Review
Panel no later than at commencement of the prehearing conference, or if there
is no prehearing conference, no later than at commencement of the first
hearing.
7.8 Initiation of
Formal Review
(a) Any person claiming standing
under Rule 7.5 of these rules may initiate formal review of a regional planning
commission decision by conveying in writing clearly and concisely the following
information to the Council:
(1) the reason the
person claims to have standing, under
24 V.S.A.
section 4476 and subsection 7.5 of these
rules;
(2) all reasons why the
person claims the plan or decision is in error;
(3) all issues which the person claims to be
relevant;
(4) the name and address
of the person requesting formal review or the individual representing that
person for the purpose of this formal review who shall receive correspondence
and documents from the Panel and from other participants with respect to these
proceedings.
24 V.S.A.
section 4476(c).
(b) Any person requesting formal
review shall submit 7 copies of the information required by subsection (a) of
this Rule 7.7.
(c) Unless the
Panel determines that fairness so requires, the Panel shall consider only those
issues raised in the information which initiated the formal review.
7.9 Service
(a) The person requesting formal review shall
be responsible for serving upon the regional planning commission whose decision
or plan is being reviewed a copy of the documents initiating formal
review.
(b) Service may be made by
delivering copies of the documents to the regional planning commission office
and obtaining the signature of an agent of the commission acknowledging receipt
of the documents delivered, or by certified mail, return receipt
requested.
(c) The person
requesting formal review shall provide the Panel with a certificate of
service.
7.10 Notice of
Formal Review
(a) Within 30 days after the
Council has received the information which initiates the formal review, it
shall set the date, time and place for a public hearing on the formal
review.
(b) The notice of formal
review shall constitute the public hearing notice as required by
3 V.S.A. section
809, as follows:
(1) In accordance with
24 V.S.A.
section 4476, the Council shall send by mail
a notice of formal review, and a statement prepared by each person requesting
review, of all reasons why the plan or decision is thought to be in error, and
all issues which the person claims to be relevant, to:
(A) the municipalities within the
region;
(B) the regional planning
commission; and
(C) the Agency of
Development and Community Affairs.
(2) In addition, the Council shall send
written notice of the date, time and place of the hearing, and of the place
where further information may be obtained, to all individuals and organizations
that had requested notice from the regional planning commission under
24 V.S.A.
section 4348 relating to the adoption of a
regional plan.
(3) The notice shall
be given in accordance with
3 V.S.A. section
809.
(c) The person requesting formal review shall
furnish to the Panel the names and addresses of all persons entitled to notice
under
24 V.S.A.
section 4476, along with sufficient copies of
the information required to be supplied to them.
(d) The person requesting formal review shall
be responsible for the costs of publishing and posting all public notices with
respect to the formal review. If there is more than one such person the costs
shall be shared pro rata.
24 V.S.A.
section 4476(c).
(e) No defect in the form or substance of any
public hearing notice under 24 V.S.A. chapter 117 shall invalidate the Panel's
ruling.
24 V.S.A. section
4447(c).
7.11 Timing of Public Hearing
The hearing shall be held within 45 days of the Council's
receipt of the information which initiated the formal review.
24 V.S.A.
section 4476(c).
7.12 Prehearing Conferences
A designated member of the Panel may conduct prehearing
conferences, upon due notice to all parties and no later than 7 days before the
scheduled public hearing, to help expedite the Panel's proceedings by
clarifying the issues in controversy; identifying documents, witnesses and
other offers of proof to be presented at a hearing; and obtaining such
stipulations of parties as to issues, offers of proof and other matters as may
be appropriate. The Panel member who conducts the prehearing conference shall
encourage the parties to resolve issues through negotiation or mediation
whenever possible, pursuant to Council policy set forth in Rule 7.2 of these
rules.
7.13 Preliminary
Rulings
The Panel member who conducts the prehearing conference may
make such preliminary rulings as to matters of notice, scheduling, party
status, and other procedural matters, including interpretation of these rules,
as are necessary to expedite and facilitate the hearing process. Any
preliminary ruling may be appealed to the Panel.
7.14 Prehearing Orders
The Panel member who conducts the prehearing conference may
issue a prehearing order stating the results of the prehearing conference. Any
such order shall be binding upon all parties to the proceeding who have
received notice of the prehearing conference if it is forwarded to the parties
at least 5 days prior to the hearing. However, the time requirement may be
waived upon agreement of all parties to the proceeding; and the Panel may waive
a requirement of a prehearing order upon a showing of cause, filing a timely
objection, or if fairness so requires.
7.15 Conduct of Hearings
(a) The Panel shall conduct formal review
proceedings according to the provisions for contested cases in 3 V.S.A.
sections 809-813.
24 V.S.A.
section 4476(c).
(b) A majority of the Panel is a quorum. A
majority of the Panel must agree on any decision.
1 V.S.A. section
172.
(c) The designated chairperson of the Panel
shall preside over all Panel hearings; and, after consultation with the other
Panel members and unless a party objects, rule on questions of evidence and
offers of proof, and do whatever is necessary and proper to conduct a hearing
in a judicious, fair and expeditious manner.
7.16 Evidence at Hearings
(a) Admissibility of evidence in all cases of
formal review before the Panel shall be determined under the criteria set forth
in
3 V.S.A. section
810.
(b) Documents submitted for the record shall
be subject to evidentiary objections by parties to the proceeding.
(c) The Panel shall receive evidence and
testimony on the issues under review, including issues of standing under
24 V.S.A.
section 4476 and Rule 7.5 of these rules, in
whatever order appears to the Panel to be most expeditious and equitable. Upon
conclusion of an offer of proof regarding an issue, unless otherwise directed
by the Panel, all other parties shall at that time present whatever evidence
and testimony they intend to offer on the issue before proceeding to another
issue.
(d) The Panel may upon its
own motion or on the request of any party require prefiled testimony in writing
by any party. Such testimony must be clearly organized with respect to the
issues that are addressed.
(1) Notice and
distribution. A party utilizing prefiled testimony must notify the Panel and
all other parties of the issues to be addressed and the witnesses to be used at
least 14 days prior to the hearing at which this testimony will be offered. At
least 7 days prior to the hearing, the offering party must submit one copy of
the testimony to each party and 7 copies to the Panel. These time requirements
may be waived by the Panel upon a showing of good cause.
(2) Hearing procedure. Prefiled testimony is
intended only to facilitate presentation of a witness's direct testimony. The
witness must appear at the hearing to present his direct testimony in writing
and to affirm its truthfulness. Objections to the admissibility of the
testimony will be heard when it is offered. The witness must remain available
for cross-examination. If the parties have received copies of the testimony in
accordance with this rule, the Panel may require that cross-examination proceed
immediately.
(e)
Prehearing submissions. The Panel may direct, by way of a prehearing conference
order or otherwise, that all parties to a contested case submit to the Panel in
advance of any scheduled hearing date, 7 copies of all proposed exhibits, of
lists of all proposed witnesses, of summaries of all proposed testimony, or of
such other information as the Panel deems appropriate.
(f) The Panel may compel, by subpoena, the
attendance and testimony of witnesses and the production of documents in
accordance with
3 V.S.A. section
809(h) upon a written
request of a party stating the reasons therefor and representing that
reasonable efforts have been made to obtain voluntary compliance with its
requests. Costs of service, fees and compensation shall be paid in advance by
the party requesting the subpoena. The Panel may also issue subpoenas for the
attendance of witnesses or the production of documents on its own
motion.
7.17 Dismissal
The Panel may, on its own motion or at the request of a party,
consider the dismissal, in whole or in part, of any matter before the Panel for
reasons provided by these rules, by statute, or by law. At the request of a
party or on its own motion the Panel shall entertain oral argument prior to
considering any such dismissal; such argument shall be preceded by a notice to
the parties and to the municipalities within the region, the regional planning
commission and the Agency of Development and Community Affairs unless dismissal
is considered at a regularly convened hearing on the matter.
7.18 Recesses
A party may petition for a recess at any time prior to the
adjournment of a hearing. A recess may be called by the Panel pending the
convening of further hearings, receipt of submissions from parties, gathering
of further information, review of evidence in the record, deliberation or any
other reason the Panel may deem fit. During such period, any party may, with
due notice to all parties, move to re-open the hearing on any issues for the
purpose of offering further testimony and evidence.
7.19 Record
All formal review proceedings shall be recorded by either a
qualified stenographer or an electronic sound recording device. The record
shall include:
(a) all pleadings,
motions, intermediate rulings;
(b)
all evidence received or considered;
(c) a statement of matters officially
noticed;
(d) questions, offers of
proof, objections, and rulings thereon;
(e) proposed findings and exceptions;
and
(f) any report, ruling or
order.
7.20 Informal
Disposition
Informal disposition may be made of any contested case by
stipulation, agreed settlement, consent order or default.
7.21 Ruling
(a) A written ruling shall be issued by the
Panel within 20 days of adjournment of the final hearing, following completion
of the record, receipt of proposed findings of fact and conclusions of law,
review of the record, deliberations, and preparation of a decision. The ruling
shall approve, conditionally approve, or disapprove the regional or municipal
plan or amendment, or confirm or deny confirmation of the municipality's
planning efforts.
(b) The ruling
shall contain findings of fact (based exclusively on the evidence and on
matters officially noticed), conclusions of law and an order.
(c) Within 15 days of the date of a final
Panel ruling, a party may file a motion to correct manifest error in the
findings of fact or conclusions of law. The Panel shall act upon such motions
promptly. The running of the time in which to appeal to the Supreme Court shall
be stayed by timely motion filed under this rule. The full time for appeal
shall commence to run and is to be computed from issuance of a ruling on said
motion. It is entirely within the discretion of the Panel whether to hold a
hearing on a motion for a corrected ruling. The Panel may, on its own motion,
within 15 days from the date of a final Panel ruling, issue a corrected ruling.
Corrections shall be limited to instances of manifest error, mistakes, and
typographical errors and omissions.
7.22 Stay
The filing of a notice of formal review shall not stay the
effect of the plan or decision of the regional planning commission unless so
ordered by the Panel. However, any party aggrieved by a regional planning
commission decision may request a stay by written notice filed with the Panel,
stating in detail the grounds for the request. In deciding whether to grant or
deny a stay, the Panel may consider the hardship to parties, the impact, if
any, on the goals and provisions of Act 200 and any effect upon public health,
safety, or general welfare. The Panel may issue a stay containing such terms
and conditions as it deems just.
7.23 Appeal to Supreme Court Before Ruling of
Regional Review Panel is Issued
(a) Upon
approval of the Panel, any party may appeal to the Supreme Court from any
interlocutory (preliminary) ruling or order of the Panel if the ruling or order
involves a controlling question of law as to which there is substantial ground
for difference of opinion and an immediate appeal may materially advance the
formal review process.
(b) The
motion for permission to appeal a preliminary ruling or order shall be filed
with the Panel within 10 days of the issuance of the ruling or order.
(c) Concurrently with filing, a copy of the
motion shall be mailed to all parties.
(d) Within 5 days of receipt of a copy of
such a motion, any other party may file a response to the motion with the
Panel, concurrently mailing a copy to all other parties.
(e) The motion shall include a statement of
the question of law asserted to be controlling, the facts necessary to an
understanding of the question, and the reasons why an interlocutory appeal
should be permitted. V.R.A.P. 5(b).
(f) The matter shall be determined upon the
motion and any response without hearing unless the Panel otherwise
orders.
(g) If permission to appeal
is denied by the Panel, any party may ask the Supreme Court to hear the
interlocutory appeal.
