Rule No.1 Scope and Applicability; Citation
These rules are adopted pursuant to
10 V.S.A. §
6025(b). They shall apply to
all Act 250 proceedings and shall be cited as "Act 250 Rule ___"
Rule No.2 Development;
Subdivision; Definitions
(A) . Development.
The term "development," relating to Act 250 jurisdiction, is
defined at
10 V.S.A. §§
6001(3)(A),
6001a,
6001b,
and
6001c.
Jurisdiction also attaches to any substantial change to a pre-existing
development pursuant to
10 V.S.A §
6081(b).
(B) . Counting of Lots and Cessation of a
Subdivision.
The term "subdivision," relating to Act 250 jurisdiction, is
defined at
10 V.S.A. §
6001(19). Jurisdiction also
attaches to any substantial change to a pre-existing subdivision pursuant to
10 V.S.A. §
6081(b).
(1) Counting of lots for the purpose of
resale. In order to determine the number of lots created by a person, a lot
shall be deemed to have been created for the purpose of resale with the first
of the following events:
(a) the filing of a
plot plan in the town land records depicting the subdivided lot or
lots;
(b) the issuance of any
required municipal approval for the subdivided lot or lots that becomes
final;
(c) the issuance of a waste
water system and potable water supply permit for the subdivided lot or lots by
the Agency of Natural Resources or delegated municipality;
(d) in the absence of any of the above, the
conveyance of a lot or lots created by a person.
(2) Cessation of a subdivision. A subdivision
shall cease to exist if it is found, in a final jurisdictional opinion issued
pursuant to Rule
3, to have been retracted or
revised below jurisdictional levels at any time prior to the construction of
improvements on the subdivision. A demonstration of such action shall include:
(a) the official retraction or abandonment of
all state and local permits which originally approved the subdivision;
and
(b) the filing of a revised
plot plan in town land records depicting the final retraction or revision of a
subdivision below jurisdictional levels.
(C) . Definitions.
(1) "Person" means:
(a) For the purposes of a "development,"
person means an individual, partnership, corporation, association,
unincorporated organization, trust or other legal or commercial entity,
including a joint venture or affiliated ownership; a municipality or state
agency; and, individuals and entities affiliated with each other for profit,
consideration, or any other beneficial interest derived from the "development"
of land.
(b) For the purposes of a
"subdivision," person is defined at
10 V.S.A. §
6001(14)(A).
(2) "Commencement of construction"
means the construction of the first improvement on the land or to any structure
or facility located on the land including work preparatory to construction such
as clearing, the staking out or use of a right-of-way or in any way incidental
to altering the land according to a plan or intention to improve or to divide
land by sale, lease, partition, or otherwise transfer an interest in the
land.
(3) "Construction of
improvements" means any physical change to a project site except for:
(a) any activity which is principally for
preparation of plans and specifications that may be required and necessary for
making application for a permit, such as test wells and pits (not including
exploratory oil and gas wells), percolation tests, and line-of-sight clearing
for the placement of survey markers, provided that no permanent improvements to
the land will be constructed and no significant impact under any of the
criteria of
10 V.S.A.
§
6086(a)(1) through
(10) will result; a District Commission may
approve more extensive exploratory work prior to issuance of a permit after
complying with the notice and hearing requirements of Rule 51 of these Rules
for minor applications
(b)
construction for a home occupation as defined in these Rules; or
(c) construction which the person seeking the
exemption demonstrates (i) is de minimis and (ii) will have no potential for
significant adverse impact under any of the criteria of
10 V.S.A.
§
6086(a)(1) through
(10) directly attributable to such
construction or to any activity associated with such construction.
(4) "Commercial purpose" means the
provision of facilities, goods or services by a person other than for a
municipal or state purpose to others in exchange for payment of a purchase
price, fee, contribution, donation or other object or service having
value.
(5) "Involved land"
includes:
(a) The entire tract or tracts of
land, within a radius of five miles, upon which the construction of
improvements for commercial or industrial purposes will occur, and any other
tract, within a radius of five miles, to be used as part of the project or
where there is a relationship to the tract or tracts upon which the
construction of improvements will occur such that there is a demonstrable
likelihood that the impact on the values sought to be protected by Act 250 will
be substantially affected by reason of that relationship. In the event that a
commercial or industrial project is to be completed in stages according to a
plan, or is part of a larger undertaking, all land involved in the entire
project shall be included for the purpose of determining
jurisdiction.
(b) Those portions of
any tract or tracts of land to be physically altered and upon which
construction of improvements will occur for state, county, or municipal
purposes including land which is incidental to the use such as lawns, parking
lots, driveways, leach fields, and accessory buildings, bearing some
relationship to the land which is actually used in the construction of
improvements, such that there is a demonstrable likelihood that the impact on
the values sought to be protected by Act 250 will be substantially affected by
reason of that relationship. In the case where a state, county or municipal
project is to be completed in stages according to a plan, or it is evident
under the circumstances that the project is incidental to or a part of a larger
undertaking, all land involved in the entire project shall be included for the
purposes of determining jurisdiction.
(c) With respect to "stormwater" offset
projects required in "impaired watersheds" pursuant to
10 V.S.A. §
1264a, involved land shall include only that
portion of the tract of land owned or controlled by the applicant which is
actually to be used for the offset project.
(6) "Material change" means any cognizable
change to a development or subdivision subject to a permit under Act 250 or
findings and conclusions under
10 V.S.A. §
6086b, which has a significant impact on any
finding, conclusion, term or condition of the project's permit or which may
result in a significant adverse impact with respect to any of the criteria
specified in
10 V.S.A.
§
6086(a)(1) through
(a)(10).
(7) "Substantial change" means any cognizable
change to a pre-existing development or subdivision which may result in
significant adverse impact with respect to any of the criteria specified in
10 V.S.A.
§
6086(a)(1) through
(a)(10).
(8) "Pre-existing development" mean any
development in existence on June 1, 1970 and any development which was
commenced before June 1, 1970 and completed by March 1, 1971. "Pre-existing
development" also means any telecommunications facility in existence on July 1,
1997, unless that facility is already subject to jurisdiction pursuant to
10 V.S.A. §
6001(3)(A).
(9) "Pre-existing subdivision" means any
subdivision exempt under the regulations of the department of health in effect
on January 1, 1970 or any subdivision which had a permit issued prior to June
1, 1970 under the board of health regulations, or had pending a bona fide
application for a permit under the regulations of the board of health on June
1, 1970, with respect to plans on file as of June 1, 1970 provided such permit
was granted prior to August 1, 1970.
(10) "Dwelling" means a place which is
intended for human habitation including:
(a)
any building, structure, or part thereof, which is used as a conventional
residence, including but not limited to, single family homes, duplex or
multiplex homes, and apartment buildings;
(b) any commercial residential building,
including but not limited to, a hotel, motel, rooming house, nursing home group
home, residential care facility, or dormitory which is usually occupied in
exchange for the periodic payment of a fee, contribution, donation or other
object or service having value.
(11) "Solid waste management district" means
a solid waste management district formed pursuant to § 2202a and Chapter
121 of Title 24, or by charter adopted by the general assembly.
(12) "Tract of land" means one or more
physically contiguous parcels of land owned or controlled by the same person or
persons.
(13) "Lot" means: any
undivided interest in land, whether freehold or leasehold, including but not
limited to an interests created by a trust, partnership, corporation, cotenancy
or contract.
(14) "Municipality"
means:
(a) For the purposes of
10 V.S.A.
§§
6084 and
6085,
"municipality" means any city, town or incorporated village wherein the land is
located.
(b) For the purposes of
10 V.S.A. §
6001(3), "municipal purpose"
means any project proposed by an entity enumerated in
1 V.S.A. §
126.
(15) "State, county or municipal purposes"
means the construction of improvements which are undertaken by or for the
state, county or municipality and which are to be used by the state, county,
municipality, or members of the general public.
(16) "Emergency replacement of a
communication support structure" means the emergency replacement of a
communication support structure to protect the health and safety of the public.
Persons may take whatever action, without notice, hearing or a permit,
necessary and appropriate to meet such an emergency and a permit will not be
required prior to the emergency replacement. Upon cessation of such emergency,
the work performed to meet the emergency shall be evaluated in accordance with
the provisions of this rule and, if such work requires a land use permit, the
person shall apply for such permit as soon as reasonably possible.
(17) "Home occupation" solely for purposes of
Rule 2, means the use, by a resident, of a minor portion of the residence,
including ancillary buildings, for an occupation or business:
(a) that is customary in residential areas;
and
(b) that does not have a
potential for significant impact under the criteria of
10 V.S.A.
§§
6086(a)(1) through
(10).
(18) "The farm" means, for purposes of
10 V.S.A. §
6001(22)(E), lands which are
used for any purpose stated in
10 V.S.A. §
6001(22), which are owned or
leased by a person engaged in the activities stated in
10 V.S.A. §
6001(22), if the lessee
controls the leased lands to the extent that they would be considered to be the
lessee's own farm. Indicia of such control include whether the lessee makes the
day-to-day decisions concerning the cultivation of the leased lands, subject to
incidental conditions of the lessor, and whether the lessee works the leased
lands during the lease period.
(19)
"Principally produced" means:
(a) for
purposes of
10 V.S.A. §
6001(3)(D) (vii)(II), that
more than 50% (either by volume or weight) of the ingredients or materials
contributing to the compost, which is stored, prepared or sold at the farm, is
grown or produced on the farm;
(b)
for purposes of
10 V.S.A. §
6001(22)(E), that more than
50% (either by volume or weight) of the ingredients or materials contributing
to a final agricultural product or products which results from the activities
stated in
10 V.S.A. §
6001(22)(A) - (D), and which
is stored, prepared or sold at the farm, is grown or produced on the farm;
or
(c) for purposes of
10 V.S.A. §
6001(22)(F), that more than
50% (either by volume or weight) of the ingredients of any agricultural
products or wastes that result from the activities stated in
10 V.S.A. §
6001(22)(A) - (D), used in
preparation or production of fuel or power, is grown or produced on the
farm.
(20) "Shoreline"
For purposes of
10 V.S.A.
§
6086(a)(1)(F), a
project involves the" development or subdivision of shorelines," if
(a) the project involves construction on or
the use of "the land between the mean high water mark and the mean low water
mark of such surface waters."
10 V.S.A. §
6001(17), or
(b) the project, or an element of the project
which is adjacent to the shoreline, has the potential for significant impact on
any of the subcriteria specified in
10 V.S.A.
§
6086(a)(1)(F)
(i)-(iv).
(21) "Of necessity" means, for purposes of
10 V.S.A.
§
6086(a)(1)(F), that
the project or a portion of the project must serve a water-related purpose and
that the project's location on the shoreline serves as such an integral part of
the developmental scheme that the inability to locate the project, or a portion
of the project, on the shoreline would make the project impossible
(22) [Repealed]
(23) "Unit" means an individual and discrete
residence within a dwelling, condominium or cooperative project, including but
not limited to an apartment within an apartment building, each separate
residence of a duplex or multiplex home, or a room or suite of rooms within a
hotel, motel, rooming house, nursing home, group home, residential care
facility or dormitory. With respect to single family homes within housing
projects, each home shall be counted as a unit.
In order to determine the number of units attributable to a
person under
10 V.S.A. §
6001(3)
(A)(iv), the date that a unit is deemed to be
"constructed" shall be the date of the first occurrence of any of the following
events:
(i) the issuance of a state
water supply/wastewater permit;
(ii) the issuance of a municipal zoning or
building permit; or
(iii) the
commencement of construction of improvements on the project.
(24) "Principally used" means, for
purposes of
10 V.S.A. §
6001(3)(D)(vi) (III), that
more than 50% (either by volume or weight) of the compost produced on the farm
is physically and permanently incorporated into the native soils on the farm as
a soil enhancement and is and not removed or sold at any time
thereafter.
(25) "Construction
costs" means all costs associated with the construction of the development or
subdivision, including the costs of:
(a)
materials and labor;
(b) site
work;
(c) stormwater, water and
wastewater systems;
(d)
landscaping;
(e) utilities;
and
(f) equipment that
(i) is a fixture, or integral to the building
or structure or project with which it is associated,
(ii) is so fitted and attached as to be a
part of a building or structure and kept and used as such, or
(iii) is so affixed to real property as to
have become a part thereof and therefore not severable or removable without
material injury to the real property.
Construction costs do not include the cost to acquire the
real estate for the development or subdivision or the costs of professional
services, such as architectural and engineering services. In order to provide
incentives for the use of alternative, energy-saving technologies, for a period
of five years from October 1, 2013, construction costs shall not include the
cost of solar or thermal panels, geothermal systems, heat pumps, wind turbines,
or electric vehicle charging stations.
(26) "Cognizable change" means any physical
change or change in use, including, where applicable, any change that may
result in a significant impact on any finding, conclusion, term or condition of
the project's permit.
(D) Jurisdiction by Municipal Election
A municipality that has adopted permanent zoning and
subdivision bylaws and that elects by ordinance to have 1-acre development
jurisdiction apply pursuant to
10 V.S.A. §
6001(3)(A) (iii):
(1) Shall file a copy of the ordinance, and a
certificate of adoption pursuant to
24 V.S.A. §
1975, with the district
coordinator.
(2) Shall remain a
10-lot municipality for purposes of subdivision jurisdiction.
Rule No.3
Jurisdictional Opinions
(A) Request;
Coordinator's Record. Any person seeking a ruling as to whether an activity
constitutes a development, subdivision, material change to a permitted project,
substantial change to a preexisting project, or is a downtown development
pursuant to
10 V.S.A. §
6086b, subject to the jurisdiction of 10
V.S.A. Ch. 151 (Act 250), may request a jurisdictional opinion from a district
coordinator or an assistant district coordinator (Coordinator) in the
environmental district where the potential project is located pursuant to the
provisions of 10 V. S.A. §
6007(c).
In addition, a Coordinator's determination pursuant to Rule 10 that an
application is incomplete shall constitute a jurisdictional opinion. A record
consisting of the following shall be maintained and published online
(Coordinator's Record):
i. The request for
the Jurisdictional Opinion.
ii. Any
documents or materials submitted to the Coordinator for consideration in
responding to the request for a Jurisdictional Opinion.
iii. Documentation of any other information,
not subject to the attorney-client privilege, considered or issued by the
Coordinator in responding to the request for a Jurisdictional Opinion.
iv. The Jurisdictional Opinion,
including any exhibits and the certificate of service, including proof of any
publication.
(B)
Reconsideration by the Coordinator.
i. Any
person may request that the Coordinator reconsider a jurisdictional opinion
within 30 days of the mailing of the jurisdictional opinion.
ii. Any reply to a request for
reconsideration shall be filed within 15 days of service of the request, unless
otherwise provided by the Coordinator.
iii. The Coordinator's Record, as provided in
subsection (A) of this rule, shall be supplemented with:
a. The request(s) for
reconsideration.
b. Any reply or
replies to that request.
c. Any
additional documents or materials submitted to the Coordinator for
consideration in responding to the request for reconsideration.
d. Documentation of any other information,
not confidential or privileged under law, considered or issued by the
Coordinator in responding to the request for reconsideration.
e. The Jurisdictional Opinion, including any
exhibits and certificate of service, including proof of any
publication.
Rule No.4 Subpoenas
The chair of a District Commission, or a licensed attorney
representing a party before a District Commission, may compel, by subpoena, the
attendance and testimony of witnesses and the production of books and records.
A party not represented by a licensed attorney may submit a written request for
a subpoena stating the reasons therefore and representing that reasonable
efforts have been made to obtain voluntary compliance with its requests. In
response to a request from a party not represented by an attorney the District
Commission may issue subpoenas for the attendance of witnesses or the
production of documents. Costs of service, fees, and compensation shall be paid
in advance by the party requesting the subpoena. The District Commission may
issue subpoenas for the attendance of witnesses or the production of documents
on its own motion. A petition to modify, vacate, or quash a subpoena may be
heard by the District Commission. Applicable provisions of the Vermont Rules of
Civil Procedure and the Administrative Procedures Act shall apply and are
incorporated herein.
Rule
No.6 Computation of Time
(A) In
computing any period of time prescribed or allowed by these Rules, the day of
the act or event from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be included,
unless this day is a Saturday, Sunday, state or federal legal holiday, or a day
on which the office is officially closed due to weather or other circumstances,
in which event the period runs until the end of normal office hours the next
day which is not a Saturday, Sunday, state or federal legal holiday, or other
day on which the office is officially closed. When the period of time
prescribed or allowed, not including any calendar days added in accordance with
subdivision (B) of this rule, is less than 11 days, intermediate Saturdays,
Sundays, and legal holidays shall be excluded in the computation. The day that
a decision or order is issued shall be that date on which it has been certified
that the decision or order has been placed in the U.S. Mail for delivery to
interested persons or petitioners. The term day refers to calendar
day.
(B) Whenever a person has the
right or is required to file a document within a prescribed period after the
service of a paper on the person by another party in the proceeding, and the
paper is served on the person by mail, the date of service shall be three days
after the date on which the paper was postmarked, unless the Commission or the
Board sets a specific date by which the person must file.
(C) The District Commission, the Chair, Vice
Chair or Acting Chair, for good cause upon written motion, may enlarge the time
prescribed by these Rules or by its order for doing any act, or may permit an
act to be done after the expiration of such time provided that such enlargement
will not result in undue delay or disruption of the District Commission's
docket.
Rule No.10 Permit
Applications
(A) An application shall be
signed by the applicant and any co-applicant, or an officer or duly-appointed
agent thereof. The record owner(s) of the tract(s) of involved land shall be
the applicant(s) or co-applicant(s) unless good cause is shown to support
waiver of this requirement. Good cause may include a demonstration that the
applicant effectively controls a tract or a portion of a tract, to be used in
the development or subdivision or upon which the construction of improvements
will occur, through permanent easement, right-of-way, or access agreement which
will allow the imposition of appropriate permit conditions by the District
Commission to mitigate adverse impacts under the criteria of the Act. When the
applicant is a state agency, municipality or a solid waste management district
empowered to condemn the involved land or an interest in it, then the
application need only be signed by that party. The application shall list the
name or names of all persons who have a substantial property interest, such as
through title, lease, purchase or lease option, right-of-way or easement, in
the tract or tracts of involved land by reason of ownership or control and
shall describe the extent of their interests. The District Commission may, upon
its own motion or upon the motion of a party, find that the property interest
of any such person is of such significance, therefore demonstrating a lack of
effective control by the applicant, that the application cannot be accepted or
the review cannot be completed without their participation as
co-applicants.
(B) The Board shall
from time to time issue guidelines for the information and documentation that
is necessary or desirable for thorough review and evaluation of projects under
applicable criteria. Applications shall be on forms provided by the board. The
commission may require such additional information or supplementary information
as the commission deems necessary to fairly and properly review the
application. If the applicant submits or intends to submit permits or
certifications as evidence under Rule
19, the applicant shall, upon
request of the commission or upon challenge of a party under Rule
19, submit copies of all
materials relevant to such permit or certification.
(C) In order to avoid unnecessary or
unreasonable costs for applicants and other parties, the District Commission
may authorize the sequential filing of information for review under the 10
criteria.
(D) Completeness. An
application that is incomplete in substantial respects shall not be accepted
for filing by the district coordinator, and therefore shall not initiate the
time and notice requirements of the Act and these rules. A coordinator's
decision that an application is substantially incomplete shall be treated as a
jurisdictional opinion pursuant to
10
V.S.A. §
6007(c). A
coordinator's decision that an application is complete will initiate the time
and notice requirements for processing of the application.
(E) The applicant shall file:
i. an original and three copies of the
application.
ii. an electronic copy
of the application, using media and file formats specified on the application
forms, unless the district coordinator waives this requirement because it
creates an undue burden for the applicant. All subsequent filings by the
applicant and any other party to a permit application shall also be submitted
in electronic format unless the district coordinator waives this requirement
because it creates an undue burden for the applicant or a party. The district
coordinator may provide for alternate electronic filing methods. The
coordinator or Commission may require that hard copies of specified application
materials or exhibits be filed.
iii. the fee prescribed by
10 V.S.A. §
6083a and these rules.
iv. an affidavit certifying that the
applicant has filed notice and copies of the application with the municipality,
the municipal and regional planning commissions wherein the land is located and
any adjacent Vermont municipality, municipal or regional planning commission if
the land is located on a municipal or regional boundary; the Vermont Agency of
Natural Resources; and the owner of the land if the applicant is not the owner;
and that the applicant has either posted or caused to be posted a copy of the
notice of application in the town clerk's office of the town or towns wherein
the land lies. See
10 V.S.A.
§
6084(a).
v. a list of adjoining property owners to the
tract or tracts of land proposed to be developed or subdivided unless this
requirement is waived by the district coordinator, in consultation with the
chair of the District Commission.
(F) Provision of personal notice of the
hearing or public comment period to adjoining property owners and persons not
listed in section (E) of this Rule by the District Commission shall be solely
within the discretion and responsibility of the chair of the District
Commission. The chair of the District Commission may authorize a waiver of
personal notice of the hearing or public comment period to adjoining property
owners by the District Commission. Any waiver must be based on a determination
that the adjoining property owners subject to the waiver reasonably could not
be affected by the proposed development or subdivision and that service to each
and every property owner by the District Commission would constitute a
significant administrative burden without corresponding public benefit.
However, personal notice of the hearing or public comment period shall be
provided by the District Commission to any adjoining property owner who has
requested such notice. See
10 V.S.A.
§
6084(b).
(G) The applicant shall be responsible for
the cost of publication of notice of the application in a local newspaper
generally circulated in the area where the land is located. The District
Commission shall be responsible for the publication of this notice, and
publication shall occur not more than seven days after the District Commission
has received the completed application. The notice shall contain the name of
the applicant and his or her address; the location of the proposed development
or subdivision, and if a subdivision, the number of lots proposed; the location
of the District Commission where the application was filed; and the date of
filing. The project location specified in the notice shall be sufficiently
precise so that a person generally familiar with the area can approximately
locate the tract or tracts of land on an official town highway map. The
District Commission shall provide notice of the application and the date of
hearing or public comment deadline to all those listed in
10 V.S.A.
§
6084(b), except that
provision of personal notice to adjoining property owners by the District
Commission may be waived by the chair of the District Commission as specified
in subdivision (F) of this rule.
(H) If, in the course of reviewing an
application, the District Commission determines that a project has changed from
the project that has been noticed to the extent that such change may have a
significant adverse impact under any of the criteria or may affect any person
under any of the criteria, the commission shall stay the proceedings and
provide new notice of the changed project, pursuant to this rule.
Rule No.11 Fees
(A) Fees shall be assessed pursuant to
10 V.S.A. §
6083a.
(B) All improvements constructed in a
subdivision shall be subject to fees. If an applicant proposes, as part of a
subdivision, to construct dwellings in the subdivision, the fee for such
construction shall be paid by the applicant at the time the application is
filed.
Rule No.12
Documents and Service Thereof; Page Limits; Motions and Replies
(A) All applications, notices, petitions,
entries of appearance and other documents filed with the District Commissions
shall be deemed to have been filed when the document is received by the
District Commission, except that applications which do not contain information
required by the application forms and guidelines issued by the board shall be
considered filed on the date that all required information is received, as
provided for in Rule
10 of these rules.
(B) Any document initiating a case before a
District Commission shall be signed by the petitioner or an agent thereof. The
requirements for content and service of initial documents are specified in
these rules as follows:
Applications for permits: Rule
10
Applications for permit amendments: Rule 34
Additional requirements concerning these initial documents
are specified in sections (C), (D) and (G) below.
(C) When required by these rules, the service
of an initial document by a party shall be made by personal service or by first
class mail, except in cases where a different manner of service is required by
an applicable provision of law,
(D)
Documents should comply with the following page limits:
(1) Motions: no more than five
pages.
(2) Petitions for party
status; memoranda; briefs; and other pleadings: no more than 20
pages.
(3) Reply memoranda, briefs,
or other reply pleadings: no more than 20 pages.
(4) Proposed findings of fact and conclusions
of law: no more than 40 pages.
(5)
There is no limit on prefiled direct or rebuttal testimony or on evidentiary
exhibits.
(E) All
motions should be accompanied by a supporting memorandum.
(F) Unless otherwise specified in these
rules, all memoranda in reply to a motion shall be filed within fifteen days of
service of the motion, or within the same number of days in which the movant
was required to file, whichever is shorter.
(G) All proposed findings of fact and
conclusions of law should state the location of the supporting evidence in the
record and should discuss the applicable legal provisions, showing how each
element of a claim is met or not met based on the facts of a case.
(H) Every document filed by any party
subsequent to the initial document filed in a case shall be served upon the
attorneys or other representatives of record for all other parties and upon all
parties who have appeared for themselves, and shall be accompanied by a
certificate of service certifying that the document was served in accordance
with these rules, stating the date and method of service, and listing the name
and address of each person served. Service within this subsection of the rule
shall be made upon a representative or a party by delivering a copy in person
or by mailing a copy to the last known address of the individual.
(I) The District Commission may, on its own
motion or on motion by a party, require or authorize the electronic filing and
service of any document.
Rule
No.13 Hearing Schedules
(A)
Scheduling. Hearings shall be scheduled and held in accordance with
10 V.S.A. §
6085, except that an applicant may, with the
approval of the District Commission, waive those requirements. Hearings on
requests for findings in Designated Downtowns shall be scheduled and held in
accordance with
10 V.S.A. §
6086b. Hearings may be continued until all
testimony and evidence relating to the criteria set forth in the Act have been
presented and all parties have had adequate opportunity in the judgment of the
District Commission to be heard. If additional hearings are required, their
scheduling is within the discretion of the District Commission.
(B) Recesses. Any time prior to adjournment
of a hearing by the District Commission, the District Commission may, on
petition of a party or on its own motion, recess a hearing pending the
convening of further hearings, receipt of submissions from parties, conduct of
investigations, review of evidence in the record, completion of final zoning or
subdivision review, deliberation or other similar reason. During such period,
the applicant may, with due notice to all parties to the application, move to
reopen the hearing on any of the criteria in
10 V.S.A.
§
6086(a) for the
purpose of offering further relevant evidence or testimony.
(C) Order of hearings. To the extent
reasonable, the initial hearings shall be scheduled in the order that completed
applications are filed, unless an applicant waives this priority
right.
Rule No.14 Parties
and Appearances
(A) Party status in Act 250
proceedings is established pursuant to
10 V.S.A. §
6085(c).
(B) Appearances. A party by right to a case
before the District Commission may appear by attending a pre-hearing conference
or hearing, or by filing a written notice of appearance with the commission,
and serving that notice on all other parties of record.
(C) Representatives. A party to a case before
the District Commission may appear in person, or may be represented by an
attorney or other representative of his choice. The District Commission shall
enter on its docket and certificates of service the name of any representative
who has appeared for a party or who has countersigned a party's pleadings. Any
notice given to or by a representative of record for a party shall be
considered in all respects as notice to or from the party
represented.
(D) Notice for
information only. The District Commission may provide notice for information
only to such additional persons as it deems appropriate.
(E) Preliminary determinations,
re-examinations, and final determinations of party status for adjoining
landowners and other interested persons by the District Commissions pursuant to
10 V.S.A. §
6085(c)(6).
(1) The District Commissions shall make
preliminary determinations concerning party status adjoining landowners and
other interested persons. If a prehearing conference is not held, such
determinations shall be made at the commencement of the first hearing on the
application. If a prehearing conference is held, such determinations shall be
made in writing immediately following the conference and prior to the first
hearing day on the application.
(2)
If a District Commission has made an oral preliminary determination concerning
party status, a party or petitioner for party status may request that the
District Commission issue such determination in writing. The District
Commission shall issue such written determination no later than five days
following the date on which the request for a written determination was
made.
(3) A District Commission
shall re-examine 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.
10 V.S.A. §
6085(c)(6).
Rule No.15 Joint
Hearings
In order to avoid duplication of testimony and avoid
unnecessary expense, the District Commissions may hold a hearing with another
affected governmental agency if the agency communicates its agreement to or
request for a joint hearing to a District Commission at least ten days before
the scheduled hearing date. The communication must be in writing signed by a
representative of the agency but can be sent through any party to the
proceedings or directly from the affected agency. Any party may petition, in
writing, to the District Commission to request a joint hearing with another
affected governmental agency.
Rule
No.16 Prehearing Conferences and Preliminary Rulings
(A) Prehearing Conferences. Upon request of
an applicant or upon its own motion, a District Commission, acting through a
duly authorized delegate, may conduct such prehearing conferences, upon due
notice, as the commission determines will be useful in providing full
information to all parties and in expediting its proceedings. Such prehearing
conferences may include the following:
(1)
Determine preliminary party status in accordance with Rule
14 and
10 V.S.A. §
6085(c) (6);
(2) Clarify the issues in controversy and set
a schedule for future proceedings;
(3) Identify evidence, documents, witnesses,
stipulations, and other offers of proof to be presented at a hearing by any
party;
(4) Promote expeditious,
informal and nonadversarial resolution of issues, require the timely exchange
of information concerning the application, and encourage participants to settle
differences; and
(5) Conduct such
other business that the District Commission deems necessary and
appropriate.
(B)
Preliminary rulings. The convening officer, if a member of the District
Commission, 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. Such rulings may also be made by a commission chair without
the convening of a prehearing conference. However, any such ruling may be
objected to by any interested party, in which case the ruling shall be reviewed
and the matter resolved by the District Commission.
(C) Prehearing order. The convening officer
may prepare 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 five days prior to the hearing. However, the time requirement
may be waived upon agreement of all parties to the proceeding; and the District
Commission may waive a requirement of a prehearing order upon a showing of
cause, filing a timely objection, or if fairness so requires.
(D) Informal and non-adversarial resolution
of issues. In the normal course of their duties, the District Commissions shall
promote expeditious, informal and non-adversarial resolution of issues, require
the timely exchange of information concerning an application and encourage
participants to settle differences in any Act 250 proceeding. The District
Commissions may require the timely exchange of information regardless of
whether parties are involved in informal resolution of issues. See
10 V.S.A. §
6085(e).
Rule No.17 Evidence in Contested
Case Proceedings
(A) Admissibility. The
Administrative Procedure Act,
3 V.S.A. §
810 shall govern the admissibility of
evidence..
(B) Documents submitted
for the record. Permit applications, permits, approvals, certifications, and
related documents accompanying applications submitted by a party shall be
entered into the record when they are accepted for filing.
(C) Order of evidence. The District
Commission or Board shall receive evidence and testimony on any of the criteria
or issue in the order as appears most expeditious and equitable. Upon
conclusion of an offer of proof on an issue, unless otherwise directed by the
District Commission or Board, all other parties shall at that time present
whatever evidence and testimony they intend to offer on the criterion before
proceeding to another criterion. An applicant or a party may, however, request
a partial review under the criteria in a particular sequence pursuant to Rule
21.
(D) Prefiled testimony. Any party may elect
to submit testimony in writing. Such testimony must be clearly organized with
respect to the criteria of the Act and any other issues which are addressed,
and must contain a table of contents identifying the criteria and issues
addressed.
(1) Notice and distribution. A
party intending to use prefiled testimony must notify the commission or Board
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 a
copy of the testimony to each party of record and file it with the district
coordinator or Board. These time requirements may be waived by the District
Commission or Board 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 be present 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 unless an earlier deadline for
objections has been established by the District Commission or Board. The
witness must remain available for cross-examination. If the parties have
received copies of the testimony in accordance with this Rule, the District
Commission or Board may require that cross-examination proceed
immediately.
(E)
Prehearing submissions. The District Commission or Board may direct, by way of
a prehearing conference order or otherwise, that all parties file in advance of
any scheduled hearing date, a copy of all proposed exhibits, a list of all
proposed witnesses, a summary of all proposed testimony, memoranda concerning
any issue in controversy, prefiled testimony, or such other information as the
District Commission or Board deems appropriate.
Rule No.18 Conduct of Hearings
(A) Quorum and deadlocks. A quorum of a
District Commission to conduct business, including holding a hearing, shall
consist of two members. A quorum of the Board shall consist of three members.
In the event that a tie vote results during the conduct of any business,
conduct of business will be recessed until an uneven number of members can meet
and break the tie. In the event of a hearing decision over which a deadlock
exists, a rehearing will either be held or decided on the transcript or
recording thereof; the decision to rehear will be made by a majority of those
members of the District Commission or Board who convene to break the
deadlock.
(B) Alternate members. In
the event that any member of a District Commission is unavailable to
participate in a hearing or is disqualified, the District Commission chair or
vice chair,may, if the issues so warrant it, assign an alternate from that
District Commission, or Board. At the request of the chair or vice chair of a
commission, the Board chair may assign a member or members from another
district to serve on the commission. In the event that any Board member is
unavailable to participate in a hearing or is disqualified, the Board chair or
vice chair, may, if the issues so warrant it, assign an alternate from the
Board.
(C) District Commission
Chair, Vice Chair and Acting Chair
(1) The
chair shall have the power to administer oaths to witnesses; and, unless a
party objects, rule on questions of evidence and offers of proof, order
depositions to be taken, rule on the validity of service of subpoenas and other
notices, and do whatever is necessary and proper to conduct the hearing in a
judicious, fair and expeditious manner.
(2) The Board and each District Commission
shall annually elect a vice chair from its members who shall serve until his or
her successor is elected. In the absence or recusal of the chair, the vice
chair shall perform all duties and exercise all powers of the chair.
(3) In the absence or recusal of both the
chair and the vice chair, the board or commission members present at any
commission meeting or hearing shall elect an acting chair, who shall perform
all duties and exercise all powers of the chair at that meeting or
hearing.
(D) Dismissal.
A District Commission may, on its own motion or at the request of a party,
consider the dismissal, in whole or in part, of any matter before it for
reasons provided by these rules, by statute, by law, or for failure to comply
with an order of the District Commission, or the chair of the District
Commission. At the request of a party or on its own motion, the District
Commission will entertain oral argument prior to considering any such
dismissal; such argument shall be preceded by notice to the parties unless
dismissal is considered at a regularly convened hearing on the matter. A
decision to dismiss shall include a statement of reasons for the dismissal and
shall be made within 20 days of the final hearing at which dismissal is
considered.
(E) Recording of
proceedings.
(1) An electronic sound recording
device shall be used to audio-record all hearings. Inadvertent failure to
record all or part of the hearing shall not constitute a defect in the
hearing.
(2) Any party intending to
stenographically record a hearing shall so notify the Commission and parties
not less than one working day prior to the hearing. The party requesting this
method of recording shall be responsible for arranging the appearance of, and
payment to, the stenographer.
(3) A
copy of any full or partial transcript shall be provided to the District
Commission without cost. Any such transcript copy shall be a public
record.
(F) Completion
of deliberations. A hearing shall not be closed until a District Commission has
provided an opportunity for all parties to respond to the last permit or
evidence submitted. Once a hearing has been closed, deliberations shall be
concluded as soon as is reasonably practicable. A decision of a commission
shall be issued within 20 days of the completion of deliberations.
10 V.S.A. §
6085(f).
(G) Adjacent district. When it is determined
that a development or subdivision, or its potential impacts, will extend into
an adjacent district, the chair of the Board may assign the case to the
District Commission in which district the project predominates if this
assignment will provide for greater efficiency of review. The District
Commission assigned to the case may review the entire scope of the project and
render a decision.
(H) Waiver of
requirements. The District Commission may waive any filing requirement upon a
showing of good cause, unless such waiver would unfairly prejudice the rights
of other parties.
Rule
No.19 Compliance with Other Laws - Presumptions
(A) Alternative procedures. In the event that
a subdivision or development requires one or more permits, approvals or
certifications from, another state agency, the applicant may elect to follow
any one or any combination of the following procedures:
(1) Obtain other permits, approvals or
certifications before filing the Act 250 application (See (B) below);
or
(2) File the Act 250 application
prior to, or together with other applications, but with an intention to use
other permits, approvals or certifications to establish presumptions of
compliance with substantive criteria of the Act (See (C) below); or
(3) With the approval of the District
Commission, an Act 250 application may be filed first, with an intention to
satisfy certain substantive criteria of the Act with independent evidence of
compliance (See (D) below). In addition, an applicant may file an application
for partial findings under the appropriate criteria in accordance with Rule
21.
(B) Permits accompanying application. If the
applicant obtains applicable permits, approvals or certifications listed in
section (E) of this rule prior to filing an Act 250 application, he or she
shall attach copies of such permits, approvals or certifications to the
application. Such permits, approvals and certifications, when entered in the
record pursuant to Rule
17, will create presumptions of
compliance with the applicable criteria of the Act in the manner set out in
section (F) of this rule.
(C)
Permits obtained after application. If an applicant states an intention to use
applicable permits, approvals or certifications not yet issued to raise
presumptions under this rule, the District Commission may, at its discretion,
defer issuing a land use permit until the necessary permits, approvals or
certifications are issued, and may recess the hearing until they are submitted
by the applicant. The applicant must submit copies of each permit, approval or
certification relied upon to the District Commission, and shall serve all
parties in accordance with these rules. The District Commission will, within
five days, provide each party with party status under the relevant criteria
notice of the party's right to request a reconvened hearing.
The District Commission may reconvene the hearing on its own
motion, or upon the request of a party intending to rebut the presumption or
claiming that there has been a substantial change in circumstances pertaining
to the application. Unless otherwise ordered by the District Commission, any
request by a party to reconvene must be filed within 10 days of the date of
mailing of the permit, approval or certification and notice. If no such request
is received, the hearing will be considered closed on the relevant criteria. If
a request is received and the hearing is reconvened, evidence will be taken in
the manner set out in section (F) of this rule.
(D) No reliance on permits. With District
Commission approval, an applicant may seek to satisfy the burden of proof under
applicable criteria of the Act without submitting permits, approvals or
certifications from other state agencies by offering affirmative evidence
through testimony, exhibits and other relevant material upon which the District
Commission can make findings of fact and conclusions of law. However, if any of
the permits, approvals or certifications identified in section (E) of this rule
must be obtained prior to construction or use of the project, or portion
thereof, the District Commission may, on its own motion or on motion by a
party, defer taking evidence until the necessary permits, approvals or
certifications are issued and may recess the hearing until they are submitted
by the applicant. If action is deferred, the provisions of section (C) of this
rule shall apply.
(E) Permits
creating presumptions. In the event a subdivision or development is also
subject to standards of or requires one or more permits, approvals or
certifications from another state agency, such permits, approvals or
certifications of compliance, when entered in the record pursuant to Rule
17, will create the following
presumptions:
(1) That waste materials and
wastewater can be disposed of through installation of wastewater and waste
collection, treatment and disposal systems without resulting in undue water
pollution:
(a) A wastewater system and
potable water supply permit - Agency of Natural Resources under 10 V.S.A. Ch.
64 and rules adopted thereunder. (Note: Permits, approvals, or certifications
issued by the Agency of Natural Resources for potable water supplies and
wastewater systems prior to June 14, 2002 are deemed to be permits, approvals,
or certifications issued under 10 V.S.A. Ch. 64 pursuant to § 15(c) of Act
133 of the 2002 Legislative Session.)
(b) An individual discharge permit; an
approval for coverage under a general discharge permit; or a discharge permit
for a wastewater treatment facility owned or controlled by the applicant and to
be used by the project issued by the Agency of Natural Resources, under 10
V.S.A. Chapter 47 and rules adopted thereunder.
(c) A certification of compliance that the
project's use of a sewage treatment facility not owned or controlled by the
applicant complies with the permit issued for that facility by the Agency of
Natural Resources, under 10 V.S.A. Chapter 47 and rules adopted
thereunder.
(d) A sewer lines
extension permit - Agency of Natural Resources, under 10 V.S.A. Chapter 47 and
rules adopted thereunder.
(e) An
underground injection permit for the discharge of non-sanitary waste into an
injection well - Agency of Natural Resources, under 10 V.S.A. Chapter 47 and
rules adopted thereunder.
(f) A
solid waste or hazardous waste certification - Agency of Natural Resources,
under 10 V.S.A. Chapter 159 and rules adopted thereunder.
(g) An underground storage tank permit with
regard solely to the substance to be stored in the underground storage tank -
Agency of Natural Resources under 10 V.S.A. Chapter 59 and rules adopted
thereunder.
(2) That no
undue air pollution will result:
(a) Air
Pollution Control Permit - Agency of Natural Resources, under
10
V.S.A. §
556 and rules adopted
thereunder.
(3) That a
sufficient supply of potable water is available:
(a) A wastewater system and potable water
supply permit - Agency of Natural Resources under 10 V.S.A. Ch. 64 and rules
adopted thereunder. (Note: Permits, approvals, or certifications issued by the
Agency of Natural Resources for potable water supplies and wastewater systems
prior to June 14, 2002 are deemed to be permits, approvals, or certifications
issued under 10 V.S.A. Ch. 64 pursuant to § 15(c) of Act 133 of the 2002
Legislative Session.)
(b) Public
utility permit - Public Service Board under
30 V.S.A.
§§
203 and
219.
(c) Municipal permit - Local water
authority.
(d) A public water
system construction permit - Agency of Natural Resources, under 10 V.S.A.
Chapters 48, 56, and 61;
18 V.S.A. §
1218, and rules adopted thereunder.
(e) A public water system operating permit -
Agency of Natural Resources, under 10 V.S.A. Chapters 48, 56, and 61;
18 V.S.A. §
1218, and rules adopted thereunder.
(4) That the application of
pesticides will not result in undue water or air pollution and will not cause
an unreasonable burden on an existing water supply:
(a) Permit for the application of herbicides
to maintain and clear rights-of-way - Department of Agriculture, under 6 V.S.A.
Chapter 87 and rules adopted thereunder.
(5) That the development or subdivision will
not violate the rules of the agency of natural resources relating to
significant wetlands:
(a) A conditional use
determination, permit, or approval under a general permit with respect to
activities in a Class I or Class II wetland or its associated buffer zone,
issued by the Agency of Natural Resources under 10 V.S.A. Ch. 37, and rules
adopted thereunder.
(6)
That stormwater runoff during construction will not cause unreasonable soil
erosion or reduction in the capacity of the land to hold water.
(a) An individual construction discharge
permit, or an approval for coverage by a general permit for stormwater runoff
from construction sites, issued by the Agency of Natural Resources, under 10
V.S.A. Chapter 47 and rules adopted thereunder.
(F) Effect of presumptions. A permit,
approval or certification filed under this rule shall create a rebuttable
presumption that the portion of the development or subdivision subject to the
permit, approval or certification is not detrimental to the public health and
welfare with respect to the criteria specified in these rules. However, the
District Commission may on its own motion question the applicant, the issuing
agency, or other witnesses concerning the permit, approval or certification,
and any party may challenge the presumption. If a party challenges the
presumption, it shall state the reasons therefor and offer evidence at a
hearing to support its challenge. Upon the rebuttal of the presumption, the
applicant shall have the burden of proof under the relevant criteria and the
permit, approval or certification shall serve only as evidence of compliance.
(1) In the case of permits, approvals or
certifications issued by the Agency of Natural Resources, technical
determinations of the Agency shall be accorded substantial deference by the
District Commission.
(2) In the
case of presumptions provided in Rule 19, if the District Commission concludes,
following the completion of its own inquiry or the presentation of the
challenging party's witnesses and exhibits, that undue water pollution, undue
air pollution, inadequate water supply, unreasonable burden on an existing
water supply, or violation of the rules of the agency of natural resources
relating to significant wetlands is likely to result, then the District
Commission shall rule that the presumption has been rebutted. Technical
non-compliance with the applicable health, water resources and Agency of
Natural Resources' rules shall be insufficient to rebut the presumption without
a showing that the non-compliance will likely result in, or substantially
increase the risk of, undue water pollution, undue air pollution, inadequate
water supply, unreasonable burden on an existing water supply, or violation of
the rules of the agency of natural resources relating to significant
wetlands.
(G) Changes
requiring amendment. In the event a permit or certification issued after the
filing of an Act 250 application imposes restrictions or conditions which
substantially change the character or impacts of the proposed subdivision or
development, the applicant shall amend the application to reflect such changes
with due notice to all parties. The District Commission may, on its own motion
or on motion of any party, reconvene a hearing to consider evidence which is
relevant to such changes.
(H)
Approvals. As used in this rule, the terms permit approval, and certification
shall refer to any written document issued by the appropriate state agency
attesting to a project's compliance with the regulations or statutes listed in
section (E) of this rule. With respect to approvals identified in section
(E)(1) of this rule, a commission may accept a site and foundation approval as
establishing presumption if it determines that said approval is based upon an
evaluation by the Agency of Natural Resources of site characteristics and a
specific waste disposal system plan.
(I) Municipal presumptions. The District
Commissions shall accept determinations issued by a development review board
under the provisions of section
4420
of Title 24 with respect to municipal impacts under criteria 6, educational
services; 7, municipal services; and 10, conformance with the municipal plan (
10 V.S.A.
§
6086(a)) . These
decisions must include findings of fact and conclusions of law demonstrating
compliance or non-compliance with the relevant criteria of Act 250. Such
determinations of a development review board, either positive or negative,
under the provisions of section
4420
of Title 24, shall create a rebuttable presumption only to the extent that the
impacts under the criteria are limited to the municipality issuing the
decision. A development review board decision involving local Act 250 review of
municipal impacts must include a notice that it constitutes a rebuttable
presumption under the relevant criteria and that the presumption may be
challenged in proceedings under 10 V.S.A. Chapter 151. See
10 V.S.A.
§
6086(d).
Rule No.20 Information Required
In considering any Act 250 application:
(A) Supplementary information. The District
Commission may require any applicant to submit relevant supplementary data for
use in resolving issues raised in a proceeding, and in determining whether or
not to issue a permit. When necessary to an adequate evaluation of an
application under the criteria set forth in
10 V.S.A.
§
6086(a)(1) through
(a)(10), the District Commission may require
supplementary data concerning the current or projected use of property owned by
the applicant or others adjoining the project site.
(B) Investigation.
(1) The District Commission may conduct such
investigations, examinations, tests and site evaluations as it deems necessary
to verify information contained in the application or otherwise presented in a
proceeding.
(2) The District
Commission may make reasonable inquiry as it finds necessary to make findings
and conclusions as required; in this event the District Commission may recess
the proceedings or require such investigations, tests, certifications,
witnesses, or other assistance as it deems necessary to evaluate the effects of
the project under the criteria in question or any other issues before it.
(3) Such investigations shall be
conducted in accordance with the contested case provisions of the
Administrative Procedures Act,
3 V.S.A. §§
800
-
849.
Rule No.21 Master Plan
and Partial Review
Purpose. This rule creates greater efficiency in the
application review process, avoids unnecessary and unreasonable costs, and
provides guidance and greater predictability to the applicant and all parties
by providing for master plan decisions. Master plan decisions include partial
findings of fact and conclusions of law for a phased development or subdivision
and may also include a permit for the initial construction phase.
The comprehensive planning and specificity on which a master
plan decision is based allows for greater certainty and expeditious processing
of permit amendments for subsequent phases, with as many criteria as
practicable having already been addressed by the master plan decision.
Master plan decisions expedite permitting of subsequent
phases by addressing some criteria for the fully developed project. For
example, a master plan decision for an industrial park could address the park's
general impacts and these impacts would already be addressed for a manufacturer
subsequently seeking to develop a lot in the park, thus saving time and
money.
Additionally, partial review can continue independently of
master plan review to determine whether a project complies with one or more Act
250 criteria. This allows cost-effective preliminary review that may determine
whether a project is feasible in a particular location.
I. Master Plans
(A) Applicability and effect.
1) An applicant may seek review of a phased
development or lot-by-lot build-out of a subdivision as a master plan
decision.
2) Master plan
applications shall be reviewed as a request for partial review under
subdivision II of this rule.
3) The
District Commission may require a master plan application that contains such
information as the Commission requires for review if:
a) the applicant's proposed development or
subdivision involves multiple phases; or
b) the master plan process would avoid or
limit piecemeal review of development or subdivision planned by the applicant
for the reasonably foreseeable future.
4) Scope and Duration.
a) Master plan findings and conclusions may
be sought on any issue under the criterion or criteria for which there is
sufficient, reliable information to base findings and conclusions.
b) Master plan findings and conclusions shall
be binding upon all parties pursuant to subdivision II (E) of this
rule.
c) Master plan findings of
fact and conclusions may be issued for a period of time that allows for
reasonable investment certainty for a reasonable planning period for which
potential impacts under a criterion can be ascertained. The District Commission
shall consider the following factors in determining the period of time for
which findings and conclusions shall be valid:
i. the quality and sufficiency of information
provided to the Commission under each criterion for which the applicant has
requested findings and conclusions; and
ii. the nature and context of the
project.
d) Prior to
expiration a master plan decision may be renewed and conditions updated, as
appropriate. The District Commission may require information on which a master
plan decision is based to be updated prior to granting any extension or
renewal.
(B)
Applications.
An applicant seeking a master plan decision shall, in
addition to filing an application in accordance with all other applicable
requirements, detail, to the extent known with reasonable certainty, all
project phases for which the applicant is seeking a master plan decision, the
fully completed project, and the project timeline, and the criteria under which
the applicant seeks review.
Subsequent phases or the development of individual lots of a
subdivision may be approved as amendments. The amendment process shall be
conducted in conformance with the terms of Rule 34, all statutory requirements,
and the following:
1) The District
Commission may require persons other than the applicant to be co-applicants in
pursuant to Board Rule
10; and
2) Amendments of master plan decisions shall
detail the effect on all overall limits or any impact budget set by the master
plan decision.
(C) Master
plan decisions.
1) Development or subdivision
associated with any aspect of a master plan project shall not commence until a
permit specifically authorizing the development or subdivision has
issued.
2) The District Commission
may issue a master plan decision with partial findings of fact and conclusions
addressing one or more criteria for subsequent phases of a project. Master plan
decisions shall, to the greatest extent possible:
i. establish an impact budget addressing
overall limits for the full project build-out (including but not limited to
wastewater, water supply, vehicle trips, etc.) based upon findings of fact
under the relevant criteria;
ii.
establish a procedure for evaluating subsequent phases of the project against
the impact budget;
iii. provide
guidance to the applicant and identify information that may be required by the
District Commission to issue affirmative findings and conclusions for
subsequent phases.
II. Partial Review
(A) To avoid unnecessary or unreasonable
costs, an applicant, upon notice and approval of a District Commission, may
offer evidence in support of or have the project reviewed with respect to any
issue under the criteria or sub-criteria of the Act in any sequence approved by
the District Commission. However, the District Commission shall not permit such
procedure if it works a substantial hardship or inequity upon other parties to
the proceedings, will unduly delay final action on the application, or make
comprehensive review of an application under applicable criteria impractical or
unduly difficult. An applicant seeking to use this procedure shall notify the
District Commission and all parties entitled to receive notice, of his or her
petition and the sequence and timing under which he or she intends to offer
evidence or submit the project for review with respect to any issue under
specified criteria or sub-criteria.
(B) A District Commission, on its own motion,
may consider whether to review any issue under the criteria or sub-criteria
before proceeding to the review of issues under the remaining
criteria.
(C) In any proceeding
under sections (A) or (B) of this rule, the District Commission, shall, within
20 days of the completion of deliberations, either issue its findings of fact,
conclusions of law, and decision, or proceed to a consideration of issues under
the remaining criteria. The decision to issue a decision or proceed to the
remaining criteria shall be in the sole discretion of the District Commission.
If the District Commission first issues a partial decision under this rule, the
decision must state which findings of fact support conclusions of law under the
applicable criteria, and which findings of fact are preliminary and do not
support a conclusion of law.
(D) If
the District Commission decides to issue a partial decision, the District
Commission shall make findings of fact and conclusions of law including any
conditions or terms to be imposed by the District Commission. If the District
Commission is unable to make such findings of fact supporting a conclusion of
law by reasons of inadequate evidence or information, it shall inform the
applicant and all parties. Such findings of fact, conclusions of law and any
conditions or limitations shall remain in effect, pending issuance or denial of
a permit under the Act, for a reasonable and proper term as determined by the
District Commission. Such findings of fact and conclusions of law may be
subject to timely application for extension pursuant to Rule 35.
(E) The findings of fact and conclusions of
law made under the terms of this rule shall be binding upon all parties during
the period specified by the District Commission, unless it is shown that
misrepresentation or, fraud occurred, or that the facts relevant to the matter
have changed to the extent that the findings or conclusions are no longer
valid.
(F) A permit for any phase
shall not be granted under this rule until the applicant has fully complied
with all criteria and positive findings of fact and conclusions of law for that
phase have been made by the District Commission as required by the
Act.
(G) These procedures are
intended to minimize costs and inconvenience to applicants and shall be applied
liberally by the District Commission for that purpose consistent with the right
of other parties and the requirements of law and any pertinent
regulations.
Rule
No.22 Designated Downtown Development District Findings and
Conclusions
This rule applies to the process established by
10 V.S.A. §
6086b to request findings and conclusions (
Section 6086b Application) for projects in Downtown Development Districts
designated pursuant to Chapter 76A of Title 24.
A. The Section 6086b Application process is
limited to the following Act 250 criteria (the Downtown Criteria):
1 (air pollution)
1 (water pollution)
1A (headwaters)
1B (waste disposal)
1C (water conservation)
1D (floodways)
1E (streams)
1F (shorelines)
1G (wetlands)
2 & 3 (water supply)
4 (soil erosion)
5 (transportation)
8 (aesthetics)
8 (rare & irreplaceable natural
areas)
8 (historic sites)
8A (necessary wildlife habitat)
9B (primary agricultural soils)
9C (productive forest soils)
9F (energy conservation)
9K (public facilities, services &
lands)
B. The
state agencies that comment on a Section 6086b Application (the Downtown
Agencies) are:
1. The Agency of Natural
Resources, on:
a. Criteria 1 (air), 1
(water), 1A (headwaters), 1B (waste disposal), 1C (water conservation), 1D
(floodways), 1E (streams), 1F (shorelines), 1G (wetlands).
b. Criterion 2 (sufficient water
supply).
c. Criterion 3 (burden on
existing water supply).
d.
Criterion 4 (erosion).
e. Criterion
8 (rare and irreplaceable natural areas).
f. Criterion 8A (endangered species;
necessary wildlife habitat).
g.
Criterion 9C (productive forest soils).
h. Criterion 9K (adjacent public facilities,
services and lands).
2.
The Agency of Agriculture, Food and Markets, on Criterion 9B (primary
agricultural soils).
3. The Agency
of Transportation, on:
a. Criterion 5
(transportation).
b. Criterion 9K
(adjacent public facilities, services and lands).
4. The Division for Historic Preservation, on
Criterion 8 (historic sites).
5.
The Public Service Department, on Criterion 9F (energy conservation).
6. The Department of Buildings and General
Services, under Criterion 9K (adjacent public facilities, services and
lands).
C. Applicants
are strongly encouraged to contact the District Coordinator, Agency of Natural
Resources permit specialist, and Downtown Agencies before filing a Section
6086b Application, to identify and resolve issues under the Downtown Criteria
and obtain all state permits, approvals and other materials required for a
complete application. The District Coordinator can provide contact information
for the Agency of Natural Resources permit specialist and Downtown
Agencies.
D. A Section 6086b
Application shall include:
2. All required permits from the Agency of
Natural Resources Department of Environmental Conservation, and any other
required permits and approvals relevant to the Downtown Criteria, including, as
applicable, any permit for the application of herbicides from the Agency of
Agriculture, Food and Markets under 6 V.S.A. Chapter 87, any take permit from
the Agency of Natural Resources' Department of Fish and Wildlife under 10
V.S.A. Chapter 123, and any state access permit from the Vermont Agency of
Transportation under
19
V.S.A. §
1111.
3. A draft mitigation agreement or similar
document from the Agency of Agriculture, Food and Markets if the project
impacts primary agricultural soils.
4. A recycling plan for construction and
demolition waste.
5. All
information required in the Act 250 application for the Downtown
Criteria.
6. A complete list of
adjoining property owners, and any other information and materials required by
applicable Act 250 Rules.
7. A
certification that a copy of the Section 6086b Application has been served on
each person as required by
10 V.S.A. §
6086b(2) (B, and upon the
Downtown Agencies.
F.
Within five days of the filing of a Section 6086b Application, the District
Coordinator shall determine whether the application is complete.
1. Notice of a complete Section 6086b
Application shall be provided within five days of the date the District
Coordinator determines the application to be complete.
a. The notice may include a date upon which
the District Commission could convene any required hearing, or any other
relevant information if known.
b.
The notice shall be served upon each person as required by
10 V.S.A. §
6086b(2)(B) and upon the
Downtown Agencies.
c. The notice
shall be served electronically whenever possible.
d. A copy of the notice shall be posted on
the NRB website.
2.
Notice that the District Coordinator has determined that a Section 6086b
Application is incomplete shall be provided within five days of the
determination, and shall state the basis for the determination.
a. The Notice shall be served upon each
person as required by
10 V.S.A.
§
6084(a) and upon the
Downtown Agencies.
b. The notice
shall be served electronically whenever possible.
G. Within 30 days of notice of a
complete application:
1. The Downtown
Agencies must file comment letters consistent with
10 V.S.A. §
6086b(3). The Downtown
Agencies should also address any issues arising under the Downtown Criteria,
and include any proposed conditions.
2. Any person who wishes to file comments on
whether the Project complies with any of Downtown Criteria shall do
so.
3. Any person, including the
Applicant or any Downtown Agency, who wishes to request a hearing, shall do
so.
H. All comments
shall be filed and served in accordance with the Act 250 Rules, including Rule
12.
I. Any request for a hearing shall include:
1. The requestor's name, address, telephone
number, and email address or statement that the requestor does not wish to
receive service by email.
2. A
specific statement describing a substantial issue under one or more of the
Downtown Criteria.
3. A petition
for party status compliant with
10 V.S.A. §
6085(c)(2), except that a
person entitled to party status under
10 V.S.A. §
6085(c)(1)(A) - (D) need not
include a petition for party status.
4. All reports, data and other written
information in support of any substantial issue raised in the request for
hearing.
5. A description of the
evidence to be presented at the hearing.
J. If the District Commission determines that
no substantial issue exists, it shall issue a decision without a hearing,
within 60 days of issuing notice of a complete application.
K. If the District Commission determines upon
request or on its own motion that there is a substantial issue under any of the
Downtown Criteria, the District Commission shall:
1. Convene a hearing within 20 days of the
end of the comment period.
2. Issue
notice of the hearing at least 10 days prior to the hearing.
3. Rule on all party status petitions prior
to or at the outset of the hearing, and reexamine those rulings before the
close of the hearing, in accordance with
10 V.S.A. §
6085(c)(6).
4. Limit the hearing to the substantial
issues under the Downtown Criteria identified by those afforded party status
pursuant to
10 V.S.A. §
6085(c)(1), or by the
District Commission, unless the District Commission determines before or during
the hearing that additional substantial issues under the Downtown Criteria
should be addressed.
5. Recess the
hearing as needed until the record is complete.
6. Adjourn the hearing when the record is
complete.
7. Issue a decision on
the Section 6086b application within 15 days of adjourning the
hearing.
L. The failure
of a Downtown Agency or other person to submit a comment or ask for a hearing
within the applicable time period shall not delay the District Commission's
issuance of a decision on a complete application.
M. The District Commission decision shall
include findings, conclusions and conditions under all Downtown Criteria (the
Downtown Findings).
1. The Downtown Findings
shall be posted on the NRB website and served upon:
a. The Applicant and all other parties by
right under Section 6084(a).
b. The
Downtown Agencies.
2.
The Downtown Findings shall be recorded in the land records of the City or Town
in which the project is located, at the Applicant's expense.
N. The Applicant may waive any
timeframe established in Section 6086b(7) in writing. Such a waiver shall
extend the applicable and subsequent time periods by the amount of time
waived.
O. The Act 250 Rules shall
apply to Section 6086b Applications, to the extent consistent with
10 V.S.A. §
6086b, except as modified herein.
1. Subsection (C) of Act 250 Rule
10 shall not apply.
2. Subsection (G) of Act 250 Rule
10 shall not apply. Notice shall
be provided as required by
10 V.S.A. §
6086b(2)(B).
3. Act 250 Rule
10 shall not apply.
4. Act 250 Rule
11 shall not apply.
5. Act 250 Rule
12 shall apply. Filing and
service shall be electronic whenever possible.
Rule No.30 Approval or Denial of
Applications; Stay of Permit Issuance; Successive Applications
(A) Issuance of decision The District
Commission shall, within 20 days of the completion of deliberations on an
application, issue a decision approving, conditionally approving, or denying
the application The date of completion for deliberations shall be governed by
10 V.S.A. §
6085(f) and Rule 18 The
decision on the application shall contain findings of fact and conclusions of
law specifying the reasons for the decisions reached on all issues for which
sufficient evidence was offered. If the application is approved, the decision
shall also contain a land use permit in the name of the applicant, enabling the
applicant to proceed with the development or subdivision in accordance with any
stated terms and conditions.
(B)
Stay of permit issuance due to non-compliance.
(1) Pursuant to
10 V.S.A. §
6083(g), a District
Commission, pending resolution of noncompliance, may stay the issuance of a
permit or permit amendment if it finds, by clear and convincing evidence, that
a person who is an applicant: 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
pending application; or, has one or more current violations of this chapter, or
any rules, permits, assurances of discontinuance, court orders, or
administrative orders related to Act 250.
(2) The permit or permit amendment may be
stayed for an indefinite period of time, pending resolution of noncompliance,
if the noncompliance is substantial and significantly affects the values that
are to be protected under the criteria of Act 250. Any decision to issue a stay
must follow a ten day comment period with written notice to the applicant and
all parties. The final decision to issue a stay shall be in writing and may be
subject to a motion to alter or appeal to the environmental court in accordance
with the rules of the supreme court.
(C) Successive Applications. The District
Commission shall dismiss any application that involves substantially the same
project as an earlier application that has been denied, when there has been no
significant change in other facts or law that addresses all the grounds for
denial.
Rule No.31
Reconsideration of Decisions (See also, Rule 3(B), for Reconsideration of
Jurisdictional Opinions)
(A) Motions to alter
decisions. Any party, or person denied party status, may file within 15 days
from the date of a decision of the District Commission one and only one motion
to alter with respect to the decision, or with respect to the denial of party
status. Within 15 days of the filing, parties may file a response to any motion
to alter which has been timely filed. No party, or person denied party status,
may file a motion to alter a District Commission decision concerning or
resulting from a motion to alter.
(1) All
requested alterations must be based on a proposed reconsideration of the
existing record. New arguments are not allowed, with the exception of arguments
in response to permit conditions or allegedly improper use of procedures,
provided that the party seeking the alteration reasonably could not have known
of the conditions or procedures prior to decision. New evidence may not be
submitted unless the District Commission, acting on a motion to alter,
determines that it will accept new evidence.
(2) A motion to alter should number each
requested alteration separately. The motion may be accompanied by a supporting
memorandum of law which contains numbered sections corresponding to the motion.
The supporting memorandum should state why each requested alteration is
appropriate and the location in the existing record of the supporting evidence.
Any reply memorandum of law should also contain numbered sections corresponding
to the motion. Additional requirements concerning motions and memoranda are set
out in Rule 12 of these rules.
(3)
The District Commission shall act upon motions to alter promptly. The running
of the time for filing a notice of appeal is terminated as to all parties by a
timely motion to alter. It is entirely within the discretion of the District
Commission whether or not to hold a hearing on any motion.
(4) The District Commission may on its own
motion, within 30 days from the date of a decision, issue an altered decision
or permit. Alterations by District Commission motion shall be limited to
instances of manifest error, mistakes, and typographical errors and omissions.
(B) Application for
reconsideration of permit denial.
(1)
Procedure. An applicant for a permit who has received a final denial of an Act
250 permit application from a District Commission or a court may, within six
months of the date of that decision, apply to the District Commission for
reconsideration pursuant to
10 V.S.A. §
6087(c).
(2) Scope of review.
(a) Review shall be limited to those aspects
of the project which have been physically modified to address the grounds for
denial noted in the prior permit decision. Relitigation of issues is not
permitted, nor are changes in statute or regulation or other facts grounds for
reconsideration.
(b) The District
Commission may expand its review beyond those aspects of the project which have
been physically modified to address the grounds for denial noted in the prior
permit decision where a change in circumstances that has occurred since the
date of the prior permit decision may have a significant impact on any finding,
conclusion, term or condition of the project's permit or may result in a
significant adverse impact with respect to any of the criteria specified in
10 V.S.A.
§§
6086(a)(1) through
(a)(10).
(c) The findings of the District Commission
in the original permit proceeding shall be entitled to a presumption of
validity in the reconsideration proceeding, insofar as those findings are not
affected by proposed modifications in the project or other relevant change in
circumstances.
Rule No.32 Duration and Conditions of Permits
and Downtown Findings
(A) Conditions The
District Commission may attach such conditions as are appropriate to ensure
that the development is completed as approved This may include the posting of a
bond or the establishment of an escrow account requiring the District
Commission to certify that permit conditions have been complied with prior to
release of the bond or discharge of the escrow account in part or in whole
Permittees, and their successors and assigns shall comply with all terms and
conditions stated in land use permits
All conditions shall be clearly and specifically stated in
the permit or Downtown Findings. Conditions may pertain to improvement of land
and to proper operation and maintenance of any facility during the terms of the
permit relating to a development or subdivision.
The Board or District Commission may, as it finds necessary
and appropriate, may require a permittee to file affidavits of compliance with
respect to specific conditions of a permit at reasonable intervals. Failure to
submit such affidavits shall be cause for the Board to take enforcement action
or file a petition for revocation of the permit with the. Superior Court,
Environmental Division.
When construction of a project will be pursued in stages
involving more than one construction season, a commission may require a
permittee to file an annual certificate stating what portion of an approved
project has been completed to date.
(B) Duration of permits. Permits for
extraction of mineral resources, solid waste disposal facilities, and logging
above the elevation of 2500 feet shall contain specific dates for completion of
the project, reclamation of the land, and for expiration of the land use
permit. Permits issued for all other developments and subdivisions shall
contain dates for completion of the project but shall not contain a date for
expiration of the permit. Effective June 30, 1994, permits issued for all other
developments and subdivisions shall be for an indefinite term. Expiration dates
contained in permits (involving developments and subdivisions that are not for
extraction of mineral resources, operation of solid waste disposal facilities
and logging above the elevation of 2500 feet) are extended for an indefinite
term. See
10 V.S.A.
§§
6090(b)(1) and
(2).
(1)
Project completion date. In determining the dates for phased or full completion
of construction of improvements for development or subdivision, the District
Commission shall consider the impacts of project development under the criteria
of the Act, and shall give due regard to the economic considerations attending
the proposed development or subdivision (such as the type and terms of
financing, and the cost of development or subdivision) and the period of time
over which the development or subdivision will take place. If a project, or
portion of a project, is not completed by the specified date, such project or
portion may be reviewed for continuing compliance with the criteria of
10 V.S.A.
§
6086(a). In any such
review, due consideration shall be given to fairness to the parties involved,
competing land use demands for available infrastructure, 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 shall
provide that the completion dates be extended for a reasonable period of time
during which construction can be completed.
10 V.S.A.
§
6090(b)(1).
(2) Permit expiration date. When an
expiration date is required, the duration of a permit shall be for a specified
period designated as a reasonable projection of time during which the land will
remain suitable for the use as contemplated in the application and shall at a
minimum extend through that time period over which the permit holder or
successors in interest will be responsible and accountable for compliance with
time-specific permit conditions, including proper and timely completion of the
project, and any reclamation of the project lands including post closure
monitoring of impacts under the criteria of the Act. During its term, a permit
shall run with the land.
Rule No.33 Recording of Permits
(A) Recorded permits. Permits shall be
recorded at the expense of the applicant in the land records of any
municipality in which a development or subdivision is to be located unless the
District Commission determines in specific instances that such action is not
warranted. Any official action of the District Commission modifying the terms
or conditions of a recorded permit shall also be recorded. The State of Vermont
shall be shown as grantee and the original permittee and landowner as grantor.
A commission may retain a permit after issuance in order to assure payment of
recording expenses or payment of permit application fees.
(B) Unrecorded permits. The recording of
permits is intended to assist purchasers and investors in property by providing
actual notice of the terms and conditions of existing land use and development
permits. The District Commissions will, to the extent that it is feasible,
contact holders of presently unrecorded permits and seek to have them recorded
by voluntary agreement. In addition, any unrecorded permit shall be recorded
upon issuance of any amendment, including an amendment required to renew an
expired permit or transfer an unrecorded permit to a new permit
holder.
(C) Permit transfers.
(1) A purchasing landowner will assume the
rights and obligations of a recorded permit without the necessity of an
amendment transferring the permit. The District Commission may, however, by
explicit permit condition make an exception to this rule upon a finding that
the identity of a permit holder is a critical factor in the satisfaction of the
terms and conditions of the permit.
(2) No transfer of an unrecorded development
permit shall be effective unless authorized by the District Commission through
an amendment to the permit; rights to an unrecorded subdivision permit may be
conveyed or transferred, as authorized in the permit, however, persons
acquiring such rights are required to comply with the permit.
(3) Notwithstanding the provisions of
paragraphs (C)(1) and (2), above, all permits shall run with the land, and
shall be enforceable against the permit holder and all successors in interest,
whether or not the permit has been recorded in the land records.
Rule No.34 Permit
Amendments: Substantial and Material Change
(A) Material change to a permitted
development or subdivision. A permit amendment shall be required for any
material change to a permitted development or subdivision, or administrative
change in the terms and conditions of a land use permit. Commencement of
construction on a material change to a permitted development or subdivision
without a permit amendment is prohibited. Applications for amendments shall be
on forms provided the board, and shall be filed with the District Commission
having jurisdiction over the project. Upon request, the district coordinator
will expeditiously review a proposed change and determine whether it would
constitute a material change to the project, or whether it involves
administrative changes that may be subject to simplified review procedures
pursuant to
10 V.S.A. §
6025(b)
(1). Continuing jurisdiction over all
development and subdivision permits is vested in the District
Commissions.
(B) Substantial change
to a pre-existing development or subdivision. IA substantial change to a
pre-existing development or subdivision shall be subject to a new application
process including the notice and hearing provisions of
10 V.S.A. §§
6083,
6083a,
6084
and
6085 and
the related provisions of these rules.
(C) Minor Applications. The minor application
process pursuant to Rule 51 may apply to any application to amend a permit or a
new application filed pursuant to this rule.
(D) Administrative amendments to a permit.
(1) A District Commission may authorize a
district coordinator to amend a permit without notice or hearing when an
amendment is necessary for record-keeping purposes or to provide authorization
for minor revisions to permitted projects raising no likelihood of impacts
under the criteria of the Act. Applications processed under this section shall
be exempt from the distribution, posting and publication requirements of
10 V.S.A.
§
6084 and sections (E) through (G) of
Rule 10 except that all parties of record and current adjoining landowners
shall receive a copy of any administrative amendment. The chair of the District
Commission may authorize a waiver of personal notice of the issuance of the
administrative amendment to adjoining property owners by the District
Commission provided that such waiver is based on a determination that the
adjoining property owners subject to the waiver reasonably could not be
affected by the proposed administrative amendment and that service to each and
every property owner by the District Commission would constitute a significant
administrative burden without corresponding benefit.
(2) In particular, administrative amendments
may be authorized to transfer a previously unrecorded permit to a new
landowner, to incorporate a revision in a certification of compliance, or
approve minor changes to a permitted project when such revisions will not have
any impact on the criteria of the Act or any finding, term, conclusion or
condition of prior permits. Prior to the filing of an appeal to the
environmental court pursuant to Chapter 220 of Title 10, any party, affected
adjoining landowner, or prospective party shall file a motion to alter relating
to any contested administrative amendment pursuant to Rule
31. Denial of a motion to alter
an administrative amendment may be appealed to the court pursuant to Chapter
220 of Title 10.
(E)
Balancing Flexibility and Finality of Permit Conditions: (Stowe Club Highlands
Analysis)
(1) In reviewing any amendment
application, the District Commission shall first determine whether the
applicant proposes to amend a permit condition that was included to resolve an
issue critical to the issuance of the permit. This determination shall be made
on a case-by-case basis. A permit condition is included to resolve an issue
critical to the issuance of the permit if the Project would not comply with one
or more Act 250 criteria without the permit condition.
(a) If the applicant does not propose to
amend a permit condition that was included to resolve an issue critical to the
issuance of the permit, the District Commission's inquiry under this rule shall
end, and it may consider the amendment application on its merits.
(b) An application which seeks to amend
project plans, exhibits, representations by the applicant for the applicable
permit, findings, or conclusions which have been incorporated into the permit
through a specific or general condition, shall constitute an application to
amend a permit condition.
(2) If the applicant proposes to amend a
permit condition that was included to resolve an issue critical to the issuance
of a permit, the District Commission shall apply the balancing test set forth
in subsection (3) below. If the District Commission finds that the need for
finality outweighs the need for flexibility, the District Commission shall
dismiss the permit amendment application. If the District Commission finds that
the need for flexibility outweighs the need for finality, it shall proceed to
consider the amendment application on its merits.
(3) In balancing flexibility against
finality, the District Commission shall consider the following, among other
relevant factors:
(a) changes in facts, law
or regulations beyond the permittee's control;
(b) changes in technology, construction, or
operations which necessitate the amendment;
(c) other factors including innovative or
alternative design which provide for a more efficient or effective means to
mitigate the impact addressed by the permit condition;
(d) other important policy considerations,
including the proposed amendment's furtherance of the goals and objectives of
duly adopted municipal plans;
(e)
manifest error on the part of the District Commission, the environmental board,
or the environmental court in the issuance of the permit condition;
and
(f) the degree of reliance on
prior permit conditions or material representations of the applicant in prior
proceeding(s) by any party, the District Commission, the environmental board,
the environmental court, or any other person who has a particularized interest
protected by 10 V.S.A. Ch. 151 that may be affected by the proposed
amendment.
(g) whether the
applicant is merely seeking to relitigate the permit condition or to undermine
its purpose and intent.
Rule No.35 Renewal of Permits
(A) Renewal required. For any permit, or
partial findings of fact and conclusions of law, which are scheduled to expire
under Rule
32 or Rule 21 of these rules,
renewal shall be required for any extension beyond the expiration
date.
(B) Permit renewal
applications. Applications for permit renewals shall be on forms provided by
the board, and shall be filed with the District Commission having jurisdiction
over the project. The District Commission will expeditiously review a proposed
renewal and determine whether it would involve significant impacts under the
criteria and upon the values sought to be preserved by the Act. Factors taken
into consideration will include: whether the project has been constructed,
operated, and maintained in conformance with the terms and conditions of the
permit; whether the extension also involves other amendments to the project;
whether the project involves continuing operations that are likely to have
demonstrable impacts under the criteria of the Act beyond those considered
during previous review of the project; and whether the project is one for which
a strictly limited term of operation was anticipated in the original
permit.
Rule No.37
Certification of Compliance
Any person holding a permit may at any time petition the
District Commission issuing the permit for a certification of compliance with
the terms and conditions that may be imposed by the permit. Under usual
circumstances, a person may petition for a certification upon completion of the
construction of a development or division of land that completion or division
has been accomplished in compliance with the permit. Thereafter, if the permit
establishes terms and conditions regarding operation and/or maintenance of a
development or subdivision, the person holding the permit may from time to time
petition the District Commission for certification of compliance. A
certification shall be a matter of public record and shall estop any claim that
the construction of a development or division of land or the operation and/or
maintenance thereof do not comply with the provisions of the permit unless
fraud or misrepresentation is shown. The notice and hearing requirements of the
act shall be complied with when a petition for certificate of compliance is
filed with the District Commission.
Rule
No.38 Abandonment of Permits
(A)
Involuntary. A permit shall be considered to have been abandoned, unless
construction has commenced and substantial progress toward completion has
occurred within the three year period following the date of issuance, unless
construction is delayed by litigation or proceedings to secure other permits or
to secure title through foreclosure. In the initial proceeding or in subsequent
proceedings on an application, the District Commission may provide for a period
longer than three years. See,
10 V.S.A. §
6091(b).
(B) Voluntary. A permittee may voluntarily
abandon a permit for a project at any time prior to the commencement of
construction on the project. A permit cannot be abandoned once commencement of
construction has occurred.
(C)
Initiation of proceeding. A petition to declare a permit abandoned may be filed
by the permittee, by any person who was a party to the application proceedings,
or by any person entitled to party status under
10 V.S.A. §
6085(c). The District
Commission having jurisdiction over a permit may also, on its own motion,
initiate an abandonment proceeding.
(D) Procedure. Abandonment determinations
will be made by the District Commission retaining jurisdiction over the permit.
The proceeding will be treated as a contested case. Petitions shall be heard
and disposed of promptly. The District Commission shall provide at least 20
days' notice of the proceeding to the permit holder, to all persons who were
parties to the permit proceedings, and to the governmental statutory parties
listed in Rule 14. If the permittee does not request the right to be heard, the
District Commission may declare the permit void without a hearing.
(E) Effect of abandonment. The abandonment of
a permit or permit amendment shall lift Act 250 jurisdiction that attached to
any land as a result of such permit. Act 250 jurisdiction that exists on such
land by virtue of another permit is not lifted because of such
abandonment.
(F) Recording. In the
case of an action for voluntary abandonment under subsection (B) if this rule
or an action for involuntary abandonment under subsection (C) if this rule, the
person who initiated the action shall file any decision which results in the
abandonment of a permit in the land records in accordance with Rule
33 of these Rules.
Rule No.40 Filing of Stipulations
and Court Orders
A permittee shall file with the District Commission any
stipulation, administrative decision or court order resulting from the
appellate review. The District Commission shall incorporate, through an
administrative amendment, any such court document disposing of the issues on
appeal relating to the criteria of Act 250 or the underlying District
Commission decision. There shall be no cost associated with the issuance of the
administrative amendment but the permittee shall be responsible for municipal
recording costs.
Rule No.42
Stay of Decisions
(A) Filing of Stay Petition:
District Commission. Prior to the filing of a motion to alter or an appeal of a
District Commission decision, any aggrieved party may file a petition for a
preliminary, interim or permanent stay of a District Commission decision
pursuant to
10 V.S.A.
§
6086(f). Following
any appeal of the District Commission decision, such jurisdiction for granting
or continuing a stay transfers to the environmental court. Any such petition
filed with the District Commission must be filed with the court following the
appeal. Any stay request submitted to the District Commission must include a
written motion identifying the order or portion thereof for which a stay is
sought and state in detail the grounds for the request. The chair of the
District Commission may act on behalf of the District Commission in issuing a
preliminary stay which shall be effective for a period not to exceed 30 days.
Any preliminary stay shall be reviewed by the District Commission, as
appropriate, within that 30 day period. A party may file a motion to dissolve a
preliminary stay within 10 days of its issuance.
(B) Seven (7) Day Automatic Stay of District
Commission Decision. Upon the filing of a petition for a stay with a District
Commission, along with a certificate of service certifying the date that a copy
of the stay petition was served on the permittee and a declaration of intent to
file a motion to alter with the District Commission or appeal the permit to
environmental court, the decision of the District Commission is automatically
stayed for a period of seven (7) days. The first day of the automatic seven (7)
day stay is the day of service to the permittee, that being the day the
permittee or permittee's agent receives the petition for stay. Following the
receipt of a request for stay, associated certificate of service, and
declaration of intent to file a motion to alter or appeal, the District
Commission shall send notice of such petition to all parties to the proceeding.
The automatic seven (7) day stay shall not extend beyond the 30-day appeal
period unless a valid appeal has been filed with the environmental court. The
automatic seven (7) day stay petition may only be filed once during the 30-day
appeal period. A District Commission shall not stay construction authorized by
a permit processed under the board's minor application procedures.
(C) Merit Review and Terms of interim or
Permanent Stay Petition as Determined by the District Commission. In deciding
whether to grant or deny an interim or permanent stay beyond the automatic
seven (7) day stay, the District Commission shall consider the hardship to the
parties, the impact, if any, on the values sought to be protected by Act 250,
and any effect upon public health, safety or general welfare. The District
Commission may issue an interim or permanent stay containing such terms and
conditions, including the filing of a bond or other security, as it deems just.
Rule No.51 Minor
Application Procedures
(A) Qualified
projects. Any development or subdivision subject to the permit requirements of
10 V.S.A. §
6081 and these rules may be reviewed in
accordance with this rule as a "minor application" if the District Commission
determines that there is demonstrable likelihood that the project will not
present significant adverse impact under any of the 10 criteria of
10 V.S.A.
§
6086(a). In making
this determination, the District Commission may consider:
(1) the extent to which potential parties and
the District Commission have identified issues cognizable under the 10
Criteria;
(2) whether or not other
State permits identified in Rule 19 are required and, if so, whether those
permits have been obtained or will be obtained in a reasonable period of
time;
(3) the extent to which the
project has been reviewed by a municipality pursuant to a by-law authorized by
24 V.S.A. Chapter 117;
(4) the
extent to which the District Commission is able to draft proposed permit
conditions addressing potential areas of concern; and
(5) the thoroughness with which the
application has addressed each of the 10 criteria.
(B) Preliminary procedures. The District
Commission shall review each application to determine whether the project
qualifies for treatment under this Rule. If the project is found to qualify
under section (A), the District Commission shall:
(1) prepare a proposed permit including
appropriate conditions; and
(2)
provide written notice and a copy of the proposed permit to those entitled to
written notice under
10 V.S.A.
§
6084; and
(3) provide published notice as required by
10 V.S.A.
§
6084; the notice shall state that:
(a) the District Commission intends to issue
a permit without convening a public hearing unless a request for hearing is
received by a date specified in the notice which is not less than seven days
from the date of publication; and
(b) the preparation of findings of fact and
conclusions of law by the District Commission may be waived; and
(c) any person as defined in
10 V.S.A. §
6085(c)(1) may request a
hearing; and
(d) any hearing
request shall state the criteria or subcriteria at issue, why a hearing is
required and what evidence will be presented at the hearing; and
(e) any hearing request by a person eligible
for party status pursuant to
10 V.S.A. §
6085(c) (1)(E) must include
a petition for party status under these rules.
(C) No hearing requested. If no hearing is
requested by a party by right or a person eligible for party status pursuant to
10 V.S.A. §
6085(c)(1), the proposed
permit may be issued with any necessary modifications unless the District
Commission determines to schedule a hearing, on its own motion. The District
Commission may delegate the authority to sign minor permits which have been
approved by the District Commission to the district coordinator or the
assistant district coordinator;
(D)
Hearing requested. Upon receipt of a request for a hearing, the District
Commission shall determine whether or not substantive issues have been raised
under the criteria and shall convene a hearing if it determines that
substantive issues have been raised. If the District Commission determines that
substantive issues have not been raised, the District Commission may proceed to
issue a decision without convening a hearing. If a hearing is convened, it
shall be limited to those criteria or sub-criteria identified by those afforded
party status pursuant to
10 V.S.A. §
6085(c)(1), or by the
District Commission unless the District Commission, at its discretion,
determines before or during the hearing, that additional criteria or
subcriteria should be addressed.
(E) Party status petitions. The District
Commission shall rule on all party status petitions prior to or at the outset
of the hearing.
(F) Findings of
Fact. The District Commission need only prepare findings of fact and
conclusions of law on those criteria or sub-criteria at issue during the
hearing. However, findings of fact and conclusions of law may be issued with a
decision to address issues identified and resolved during the minor application
process, even if no hearing is held.
(G) Material representations. Upon issuance
of a land use permit under minor application procedures, the permit application
and material representations relied on during the review and issuance of a
District Commission decision shall provide the basis for determining future
material changes to the approved project and for initiating enforcement
actions.
Rule No.60
Qualified Purchasers of Lots in a Subdivision Created without the Benefit of a
Land Use Permit as Required by 10 V.S.A. Chapter 151
(A) Purpose. The purpose of this rule is to
create a procedure for providing relief to the qualified purchaser of a lot or
lots within a subdivision created without a Land Use Permit required by 10
V.S.A. Chapter 151. This rule provides for a modified application and review
procedure by which a qualified purchaser, or a group of qualified purchasers,
of one or more lots in a subdivision created without the required Act 250
review may apply for and shall obtain a Land Use Permit. A lot or lots eligible
for review under this procedure must have been sold and conveyed to the
qualified purchaser or purchasers prior to January 1, 1991 without the required
Land Use Permit.
(B) Requirements.
The requirements under 10 V.S.A. Chapter 151 may be modified to the minimum
extent necessary to issue permits to qualified purchasers seeking relief. A
complete application addressing all ten criteria of
10 V.S.A.
§
6086(a) shall be
filed by the qualified purchaser or purchasers seeking relief. Affidavits may
be used to establish compliance for existing septic systems, water supplies,
and other improvements, as determined by the District Commission. As in other
Act 250 proceedings, the District Commissions may place certain conditions and
restrictions in the Land Use Permits to ensure that the values sought to be
protected under Act 250 will not be adversely affected. Permit decisions will
be based upon consideration of the requirements of the criteria of
10 V.S.A.
§
6086(a)(1) through
(10), as well as existing improvements,
facts, and circumstances of each case.
In order to provide for an efficient review process and to
reduce the expense for applicants, the District Commissions may require the
consolidation of individual applications from any given subdivision. At least
two weeks prior to the processing of an application under this rule, the
district coordinator shall send notice to all potential applicants in the
subdivision with a response period of not less than two weeks. The notice shall
include the names and addresses of all lot owners within the subdivision. The
lot owner(s) initiating the request shall provide a list of all other lot
owners in the subdivision. Lot owners who are not qualified purchasers may join
the application but they will not receive the benefit of modified standards
under the criteria and will not be entitled by right to a permit under
10 V.S.A. §
6025(c).
(C) Jurisdictional Opinion. Prior to
submission of an application, a qualified purchaser must obtain a
jurisdictional opinion from the appropriate district coordinator in order to
determine if the subdivided lot in question is subject to Act 250 jurisdiction.
The potential applicant must provide the district coordinator with all relevant
information including signed affidavits on forms prepared by the board. If the
opinion concludes that Act 250 jurisdiction does exist and one or more
qualified purchasers have been identified, pre-application assistance will then
be provided by the district coordinator.
(D) Eligibility Requirements For Applicants.
The purchaser must demonstrate eligibility for relief under
10 V.S.A. §
6025(c). A purchaser
eligible for relief under this rule must have purchased the lot or lots and the
deed or deeds must have been conveyed prior to January 1, 1991; must not have
been involved in any way with the creation of the lot or lots; must not be a
person who owned or controlled the land when it was divided or partitioned; and
did not know or could not reasonably have known at the time of purchase that
the transfer was subject to a permit requirement that had not been met. In
making the determination whether the purchaser had knowledge of the illegality
of the subdivision, the district coordinator will take into consideration any
advisory opinions, declaratory rulings, or judicial determinations which
conclude that the purchaser sold or offered for sale any interest in, or
commenced construction on, any subdivision in the state without a required Land
Use Permit. The District Commissions may decide the jurisdictional and
purchaser eligibility questions if properly raised during a public hearing on
an application under this rule.
(E)
Application Procedure.
(1) For the sake of
expedient review and an equitable sharing of costs associated with preparing
application materials, all purchasers seeking relief within a subdivision may
be required to become co-applicants by the District Commission.
(2) Pre-application assistance from the
district coordinator will be available to all purchasers prior to the filing of
an Act 250 application. The application must be submitted on forms supplied by
the board and in accordance with Board Rule 10 except as modified
herein.
(3) The district
coordinator will review the application for completeness within five working
days of receipt of the application. The applicant will be notified if there are
deficiencies that need to be corrected. Once the application has been accepted
by the district coordinator, procedural requirements for notice and hearings
will be followed as set forth in 10 V.S.A. Chapter 151 and these rules.
Rule No.70
Utility Line Jurisdiction, Installations and Applications
(A) Electrical lines, natural gas
distribution lines, communication lines, and related facilities, directly
associated and ancillary to those lines, means any wire, conduit, and physical
structure or equipment, whether above, below, or on ground, used for the
purpose of transmitting, distributing, storing, or consuming of electricity,
natural gas, or communications, but shall not include:
(1) a line or facility that requires a
certificate of public good pursuant to
30
V.S.A. §
248; or,
(2) a broadcast or communication support
structure and any improvements ancillary to the support structure subject to
the jurisdiction of Act 250 pursuant to
10
V.S.A. §
6001c or
10 V.S.A. §
6001(26).
(B) Utility Line Jurisdiction.
Utility line jurisdiction include the construction of improvements for
electrical distribution, natural gas distribution, or communication lines and
related facilities, directly associated and ancillary to those lines, that are
located on rights-of-way, or easements, of more than one acre of land owned or
controlled by a person or persons in a municipality without both permanent
zoning and subdivisions bylaws. The phrase construction of improvements@ shall
include construction, relocation, extension, and reconstruction. Reconstruction
does not mean repair or replacement of component parts, in the usual course of
business, with equivalent component parts. In a municipality with both
permanent zoning and subdivision bylaws, this jurisdiction will apply if the
rights-of-ways or easements involve more than ten acres of land. For the
construction of improvements by a municipally-owned utility, regardless of the
existence of zoning or subdivision bylaws in the area where improvements will
be constructed, this jurisdiction will apply only if the rights-of-ways or
easements involve more than ten acres of land.
(1) Acreage shall be calculated by
aggregating the total area of all sections of new corridor, including all
sections of existing corridor to be substantially changed, which area shall be
calculated by multiplying the length of each section by the width of the
associated right(s) of way in that section. For the purpose of calculating
project acreage, right-of-way width shall be: twenty (20) feet for electrical
distribution lines or projects involving both electrical and communication
lines, ten (10) feet for natural gas distribution lines, ten (10) feet for
lines to be used exclusively for communications, or the maximum width of the
area to be physically altered, whichever is greater. Jurisdiction will apply if
a project exceeds the acreage thresholds set forth above.
(a) New corridor shall include (i) a corridor
for which construction of improvements is proposed outside of any existing
corridor, and (ii) an existing corridor, if improvements to be constructed or
reconstructed will constitute a substantial change.
(b) Existing corridor shall mean a
right-of-way cleared and in use for electrical distribution, communication
lines, natural gas distribution lines and related facilities.
(c) Substantial change shall be as defined in
Rule 2 of these rules and shall include, but not be limited to, the addition
above the ground of more than ten feet in height to a pole, including the
length of any apparatus attached to the pole to the extent such apparatus
extends vertically above the pole.
(d) Lines, facilities or portions thereof to
be constructed underground shall not be used for acreage calculation, provided
that: the underground line or facility is to be reseeded or reforested; no
portion of the underground line is located above the elevation of 2,500 feet;
and no portion of the underground line or facility is located in a rare or
irreplaceable natural area, or land which is or contains a natural resource
referred to in
10 V.S.A.
§
6086(a)(1)(E)
(streams), (1)(F) (shorelines), (1)(G) (Class One or Class Two wetlands),
(8)(A) (necessary wildlife habitat or endangered species), or (9)(B) (primary
agricultural soils). In addition, a line or facility or portion thereof to be
constructed underground in a scenic area shall be used for acreage calculation
to the extent that such line or facility will be located on land not already
cleared prior to commencement of construction of the line or facility. For
purposes of this subparagraph, scenic area means an area formally designated as
scenic by the State of Vermont or the applicable regional or municipal
plan.
(e) In the event that a
project is, or is to be, completed in stages, all new corridor and all existing
corridor to be substantially changed that is involved in the entire project
shall be included for the purpose of determining jurisdiction. As used in Rule
70, the term project shall mean adjacent lines, facilities, or portions thereof
to be constructed in accordance with a plan to achieve one or more objectives
identified or reasonably identifiable by the utility at the time construction
is commenced. Other construction, not identified or reasonably identifiable at
the time the project is commenced, shall not be considered part of such
project.
(f) If acreage thresholds
are reached, jurisdiction shall apply to all sections of the new corridor or
existing corridor to be substantially changed including those sections to be
built underground, regardless of whether those underground sections were used
for acreage calculation.
(2) Exemptions from this jurisdiction shall
include the following:
(a) an electric
distribution, communication line, natural gas distribution line or related
facility within a development or subdivision having obtained a permit from a
District Environmental Commission or the former environmental board, provided
that such line or related facility was included in the application for such
permit; or,
(b) any emergency
situation requiring immediate action, in order to protect the health or safety
of the public. Utility companies may take whatever action, without notice,
hearing or a permit, necessary and appropriate to meet such an emergency on a
temporary basis. Upon cessation of such emergency, the work performed to meet
the emergency shall be evaluated in accordance with the provisions of this rule
and, if such work requires a land use permit, the utility shall apply for such
permit as soon as reasonably possible.
(3) All utilities undertaking the
construction of improvements for electrical distribution, communication lines,
natural gas distribution line or related facilities which improvements are
considered to be in an existing corridor, or to be exempt under subdivision
Rule 70, shall notify the District Environmental Commission in which district
the project predominates and provide sufficient information so that a
jurisdictional opinion may be rendered if deemed necessary by the district
coordinator. However, notification shall be required only if the construction
considered to be in an existing corridor or to be exempt under subdivision Rule
70 exceeds the applicable acreage threshold. Prior notification of projects
considered exempt under subdivision Rule 70 shall not be required; however, the
notification required by this rule shall be made upon cessation of the
emergency.
(4) Electric
distribution, communication, or natural gas distribution projects, which as of
the effective date of this rule are subject to a land use permit or have been
finally determined subject to 10 V.S.A. Chapter 151(Act 250), shall remain
subject to jurisdiction regardless of the provisions of this rule.
(C) Installations.
(1) Underground installation should be
installed whenever feasible.
(2)
All utility companies should contact each other prior to underground
installation in order to coordinate efforts.
(3) Installation shall be such as to not have
an undue adverse effect on the scenic and aesthetic qualities and character of
the area. In the District Commission's analysis of
10 V.S.A.
§
6086(a)(8)
(aesthetics), due consideration shall be given to making the line or facility
inconspicuous; screening it from view; lines of sight from public highways, and
residential and recreational areas; height, number, color, type, and material
of poles, wires, cable, and other apparatus; width and degree of clearance of
natural growth and cover; encroachment on open spaces, historic sites, rare and
irreplaceable natural areas, and conspicuous natural outcropping on hillsides
and ridgelines of exposed natural features of the countryside.
(D) Permit applications. An
application for a permit to construct, relocate, reconstruct, or extend any
electrical distribution or communication line or related facility shall contain
the following information and documents and shall be submitted to the District
Environmental Commission in which the greatest number of miles of the line or
facility are located. The utility or utilities proposing to construct or use
such line, facility or facilities shall be identified in the application.
(1) General location: approximate location on
a 20 foot contour U.S.G.S. map, or other map, drawn to scale, including or
accompanied by information (including contour data) adequately depicting the
location of the line or facility.
(2) Plan showing:
(a) pole, transformer, and substation
locations, if applicable. Proof of inability to comply shall be furnished in
the permit application and the approximate locations of poles, transformers,
and substations shall be provided in areas where property access is not
available.
(b) approximate highway
rights-of-way related to the lines or to the community the line is to
serve.
(c) all lot lines
intersecting the existing or proposed rights-of-way and names of property
owners.
(3)
Specifications:
(a) elevation drawings of any
building to be constructed as part of the electrical distribution or
communication line or related facility and its relation to existing human-made
and natural objects on the site and along the periphery of contiguous
properties within 500 feet. In urban areas with a population in excess of
2,500, a general profile of the buildings may replace the requirement for
elevation drawings.
(b) a drawing
of a typical supporting structure to be used.
(c) a list of specifications, including
voltage, pole sizes, cross-arms, wire size, guys.
(d) a list of specifications for the major,
visible components and exterior materials and color of any buildings.
(e) specifications for any ground cover to be
seeded, refoliated, planted or sown and maintained.
(4) New corridor: for projects involving the
construction in, or relocation of a line or facility to, new corridor as
defined in Rule 70, an explanation of why existing corridor cannot or should
not be used.
(5) Description: a
description of the area adjacent to the line or facility, including the type
and size of existing buildings and the height and extent of forest cover and
open space, and what measures, if any, have been or will be taken to minimize
cutting and trimming of forest canopy.
(E) Care of right-of-way. Right-of-way
improvements shall be specified in the application and shall clearly not have
an undue adverse effect on the ecology and aesthetics of the area, and should
include vegetation control techniques to avoid unreasonable soil erosion or
water pollution. All herbicide applications shall be in strict conformance with
the regulatory and licensing requirements of the commissioner of agriculture or
as provided by statute.
(F)
Involved Land. For the purposes of electrical distribution, communication
lines, or natural gas distribution lines and related facilities, only the
acreage identified and calculated as set forth in Rule 70 shall be considered
involved land.
Rule No.71
Jurisdiction over Trails
(A) When
jurisdiction over a trail has been established pursuant to
10 V.S.A. §
6001 ((3)(A), such jurisdiction shall extend
only to the trail corridor and to any area directly or indirectly impacted by
the construction, operation or maintenance of the trail corridor. The width of
the corridor shall be ten feet unless the Commission determines that
circumstances warrant a wider or narrower corridor width.
(B) Except in the case of construction on
state lands which are subject to an independent review of environmental impacts
by a state agency, or construction of a trail which is recognized as a trail
within the Vermont Trails System pursuant to 10 V.S.A. Ch. 20, when the
construction of improvements for a trail is proposed for a project on both
private and public land and for both a private and governmental purposes and
the portion of the project on private land reaches the threshold for
jurisdiction under
10 V.S.A. §
6001(3)(A)(i) or (ii), as
applicable, then the portion of the project on public land shall also be
subject to jurisdiction under 10 V.S.A. Ch. 151, even if jurisdiction would not
otherwise apply under
10 V.S.A. §
6001(3)(A)(v) or Rule 2 of
these Rules.