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Title 10: Conservation and Development

Chapter 220: CONSOLIDATED ENVIRONMENTAL APPEALS

  • § 8501. Purpose

    It is the purpose of this chapter to:

    (1) consolidate existing appeal routes for municipal zoning and subdivision decisions and acts or decisions of the Secretary of Natural Resources, district environmental coordinators, and District Commissions, excluding enforcement actions brought pursuant to chapters 201 and 211 of this title and the adoption of rules under 3 V.S.A. chapter 25;

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

    (3) encourage people to get involved in the Act 250 permitting process at the initial stages of review by a District Commission by requiring participation as a prerequisite for an appeal of a District Commission decision to the Environmental Division;

    (4) assure that clear appeal routes exist for acts and decisions of the Secretary of Natural Resources;

    (5) consolidate appeals of decisions related to renewable energy generation plants and telecommunications facilities with review under, respectively, 30 V.S.A. §§ 248 and 248a, with appeals and consolidation of proceedings pertaining to telecommunications facilities occurring only while 30 V.S.A. § 248a remains in effect. (Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 154 (Adj. Sess.), § 236; 2009, No. 159 (Adj. Sess.), § 16; 2011, No. 53, § 5, eff. May 27, 2011.)

  • § 8502. Definitions

    As used in this chapter:

    (1) "District Commission" means a District Environmental Commission established under chapter 151 of this title.

    (2) "District coordinator" means a district environmental coordinator attached to a District Commission established under chapter 151 of this title.

    (3) "Environmental Court" or "Environmental Division" means the Environmental Division of the Superior Court established by 4 V.S.A. § 30.

    (4) "Natural Resources Board" or "Board" means the Board established under chapter 151 of this title.

    (5) "Party by right" means the following:

    (A) the applicant;

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

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

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

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

    (F) any State agency affected by the proposed project.

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

    (7) "Person aggrieved" means a person who alleges an injury to a particularized interest protected by the provisions of law listed in section 8503 of this title, attributable to an act or decision by a district coordinator, District Commission, the Secretary, or the Environmental Division that can be redressed by the Environmental Division or the Supreme Court.

    (8) "Secretary" means the Secretary of Natural Resources or the Secretary's duly authorized representative. As used in this chapter, "Secretary" shall also mean the Commissioner of Environmental Conservation, the Commissioner of Forests, Parks and Recreation, and the Commissioner of Fish and Wildlife, with respect to those statutes that refer to the authority of that commissioner or department. (Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 154 (Adj. Sess.), §§ 53e, 236; 2013, No. 11, § 22.)

  • § 8503. Applicability

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

    (1) The following provisions of this title:

    (A) chapter 23 (air pollution control);

    (B) chapter 50 (aquatic nuisance control);

    (C) chapter 41 (regulation of stream flow);

    (D) chapter 43 (dams);

    (E) chapter 47 (water pollution control; lakes in crisis);

    (F) chapter 48 (groundwater protection);

    (G) chapter 53 (beverage containers; deposit-redemption system), except for those acts or decisions of the Commissioner of Taxes under section 1530 of this title;

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

    (I) chapter 56 (public water supply);

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

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

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

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

    (N) chapter 159 (waste management);

    (O) chapter 37 (wetlands protection and water resources management);

    (P) chapter 166 (collection and recycling of electronic waste);

    (Q) chapter 164A (collection and disposal of mercury-containing lamps);

    (R) chapter 32 (flood hazard areas);

    (S) chapter 49A (lake shoreland protection standards);

    (T) chapter 83, subchapter 8 (importation of firewood);

    (U) chapter 168 (product stewardship for primary batteries and rechargeable batteries).

    [ Subdiv. (a)(1)(V) effective January 1, 2022.]

    (V) chapter 124 (trade in covered animal parts or products).

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

    (3) 24 V.S.A. chapter 61, subchapter 10 (relating to salvage yards).

    (4) 3 V.S.A. § 2810 (interim environmental media standards).

    (b) This chapter shall govern:

    (1) all appeals from an act or decision of a District Commission under chapter 151 of this title, excluding appeals of application fee refund requests;

    (2) appeals from an act or decision of a district coordinator under subsection 6007(c) of this title;

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

    (c) This chapter shall govern all appeals arising under 24 V.S.A. chapter 117, the planning and zoning chapter.

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

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

    (f) This chapter shall govern all appeals of acts or decisions of the legislative body of a municipality arising under 24 V.S.A. chapter 61, subchapter 10, relating to the municipal certificate of approved location for salvage yards.

    (g) This chapter shall govern all appeals of an act or decision of the Secretary of Natural Resources that a solid waste implementation plan for a municipality proposed under 24 V.S.A. § 2202a conforms with the State Solid Waste Implementation Plan adopted pursuant to section 6604 of this title. (Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2005, No. 183 (Adj. Sess.), § 9; 2009, No. 31, § 9; 2009, No. 46, § 3, eff. July 1, 2010; 2009, No. 56, § 21; 2009, No. 79 (Adj. Sess.), § 6, eff. April 19, 2010; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 36, § 4, eff. May 19, 2011; 2011, No. 138 (Adj. Sess.), § 35, eff. May 14, 2012; 2011, No. 148 (Adj. Sess.), § 20; 2013, No. 11, §§ 23, 25; 2013, No. 112 (Adj. Sess.), § 3; 2013, No. 139 (Adj. Sess.), § 4, eff. May 22, 2014; 2013, No. 172 (Adj. Sess.), § 5; 2015, No. 150 (Adj. Sess.), § 35, eff. May 31, 2016; 2017, No. 168 (Adj. Sess.), § 8, eff. May 22, 2018; 2019, No. 21, § 9, eff. May 15, 2019; 2019, No. 62, § 10, eff. June 17, 2019; 2019, No. 169 (Adj. Sess.), § 4, eff. Jan. 1, 2022.)

  • § 8504. Appeals to the Environmental Division

    (a) Act 250 and Agency appeals. Within 30 days of the date of the act or decision, any person aggrieved by an act or decision of the Secretary, a District Commission, or a district coordinator under the provisions of law listed in section 8503 of this title, or any party by right, may appeal to the Environmental Division, except for an act or decision of the Secretary under subdivision 6086b(3)(E) of this title or governed by section 8506 of this title.

    (b) Planning and zoning chapter appeals.

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

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

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

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

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

    (c) Notice of the filing of an appeal.

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

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

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

    (d) Requirement to participate before the District Commission or the Secretary.

    (1) Participation before District Commission. An aggrieved person shall not appeal an act or decision that was made by a District Commission unless the person was granted party status by the District Commission pursuant to subdivision 6085(c)(1)(E) of this title, participated in the proceedings before the District Commission, and retained party status at the end of the District Commission proceedings. In addition, the person may only appeal those issues under the criteria with respect to which the person was granted party status. However, notwithstanding these limitations, an aggrieved person may appeal an act or decision of the District Commission if the Environmental judge determines that:

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

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

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

    (2) Participation before the Secretary.

    (A) An aggrieved person shall not appeal an act or decision of the Secretary unless the person submitted to the Secretary a written comment during the comment period or an oral comment at the public meeting conducted by the Secretary. In addition, the person may only appeal issues related to the person's comment to the Secretary.

    (i) To be sufficient for the purpose of appeal, a comment to the Secretary shall identify each reasonably ascertainable issue with enough particularity so that a meaningful response can be provided.

    (ii) The appellant shall identify each comment that the appellant submitted to the Secretary that identifies or relates to an issue raised in his or her appeal.

    (iii) A person moving to dismiss an appeal or an issue raised by an appeal pursuant to this subdivision (A) shall have the burden to prove that the requirements of this subdivision (A) are not satisfied.

    (B) Notwithstanding the limitations of subdivision (2)(A) of this subsection, an aggrieved person may appeal an act or decision of the Secretary if the Environmental judge determines that:

    (i) there was a procedural defect that prevented the person from commenting during the comment period or at the public meeting or otherwise participating in the proceeding;

    (ii) the Secretary did not conduct a comment period and did not hold a public meeting;

    (iii) the person demonstrates that an issue was not reasonably ascertainable during the review of an application or other request that led to the Secretary's act or decision; or

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

    (e) Act 250 jurisdictional determinations by a district coordinator.

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

    (2) Failure to appeal within the time required under subsection (a) of this section shall render the decision of the district coordinator under subsection 6007(c) of this title the final determination regarding jurisdiction under chapter 151 of this title unless the underlying jurisdictional opinion was not properly served on persons listed in subdivisions 6085(c)(1)(A) through (D) of this title and on persons on a subdivision 6085(c)(1)(E) list approved under subsection 6007(c) of this title.

    (f) Stays.

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

    (A) acts or decisions involving stream alteration permits or shoreline encroachment permits issued by the Secretary;

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

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

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

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

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

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

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

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

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

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

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

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

    (l) Representation. The Secretary may represent the Agency of Natural Resources in all appeals under this section. The Chair of the Natural Resources Board may represent the Board in any appeal under this section, unless the Board directs otherwise. If more than one State agency, other than the Board, either appeals or seeks to intervene in an appeal under this section, only the Attorney General may represent the interests of those agencies of the State in the appeal.

    (m) Precedent. Prior decisions of the Environmental Board, Water Resources Board, and Waste Facilities Panel shall be given the same weight and consideration as prior decisions of the Environmental Division.

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

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

    (2) is a party by right;

    (3) is the Natural Resources Board;

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

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

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

    (o) With respect to review of an act or decision of the Secretary pursuant to 3 V.S.A. § 2809, the Division may reverse the act or decision or amend an allocation of costs to an applicant only if the Division determines that the act, decision, or allocation was arbitrary, capricious, or an abuse of discretion. In the absence of such a determination, the Division shall require the applicant to pay the Secretary all costs assessed pursuant to 3 V.S.A. § 2809.

    (p) Administrative record. The Secretary shall certify the administrative record as defined in chapter 170 of this title and shall transfer a certified copy of that record to the Environmental Division when:

    (1) there is an appeal of an act or decision of the Secretary that is based on that record; or

    (2) there is an appeal of a decision of a District Commission, and the applicant used a decision of the Secretary based on that record to create a presumption under a criterion of subsection 6086(a) of this title that is at issue in the appeal. (Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 146 (Adj. Sess.), §§ F15, F24; 2009, No. 154 (Adj. Sess.), § 236; 2009, No. 159 (Adj. Sess.), § 17; 2013, No. 11, § 24; 2013, No. 147 (Adj. Sess.), § 8, eff. June 1, 2014; 2015, No. 150 (Adj. Sess.), § 5, eff. Jan. 1, 2018; 2015, No. 150 (Adj. Sess.), §§ 36, 37, eff. May 31, 2016.)

  • § 8505. Appeals to the Supreme Court

    (a) Any person aggrieved by a decision of the Environmental Division pursuant to this subchapter, any party by right, or the Board may appeal to the Supreme Court within 30 days of the date of the entry of the order or judgment appealed from, provided that:

    (1) the person was a party to the proceeding before the Environmental Division; or

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

    (3) the Supreme Court determines that:

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

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

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

    (c) Only the Attorney General may represent the State in all appeals under this section. (Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 154 (Adj. Sess.), § 236.)

  • § 8506. Renewable energy plant; telecommunications facility; appeals

    (a) Within 30 days of the date of the act or decision, any person aggrieved by an act or decision of the Secretary, under the provisions of law listed in section 8503 of this title, or any party by right may appeal to the Public Utility Commission if the act or decision concerns a renewable energy plant for which a certificate of public good is required under 30 V.S.A. § 248 or a telecommunications facility for which the applicant has applied or has served notice under 30 V.S.A. § 248a(e) that it will apply for approval under 30 V.S.A. § 248a. This section shall not apply to a facility that is subject to section 1004 (dams before the Federal Energy Regulatory Commission) or 1006 (certification of hydroelectric projects) or chapter 43 (dams) of this title. This section shall not apply to an appeal of an act or decision of the Secretary regarding a telecommunications facility made on or after July 1, 2017.

    (b) For the purpose of this section, "Commission," "plant," and "renewable energy" have the same meaning as under 30 V.S.A. § 8002, and "telecommunications facility" has the same meaning as under 30 V.S.A. § 248a.

    (c) The provisions of subdivisions 8504(c)(2) (notice of appeal), (d)(2) (participation before the Secretary), and (f)(1)(A) (automatic stays of certain permits), and subsections 8504(j) (appeals under a general permit), (n) (intervention), and (p) (administrative record) of this title shall apply to appeals under this section except that, with respect to subsection (p), the Secretary shall transfer a certified copy of the administrative record to the Commission.

    (d) The Public Utility Commission may consolidate or coordinate appeals under this section with each other and with proceedings under 30 V.S.A. §§ 248 and 248a, where those appeals and proceedings all relate to the same project, unless such consolidation or coordination would be clearly unreasonable. In such a consolidated proceeding, the Commission's decision may be issued as a single order that includes the necessary findings of fact and conclusions of law and, if the decision is to approve the plant or facility, any and all conditions of approval. This authority to consolidate or coordinate appeals and proceedings shall not confer authority to alter the substantive standards at issue in an appeal or proceeding.

    (e) In an appeal under this section, the Public Utility Commission, applying the substantive standards that were applicable before the Secretary, shall hold a de novo hearing on those issues that have been appealed. In such an appeal, the Commission shall give the same weight and consideration to prior decisions of the Environmental Division and of the entities described in subsection 8504(m) (precedent) of this title as the Commission gives to its prior decisions.

    (f) 30 V.S.A. §§ 9 (court of record), 10 (service of process), 11 (pleadings; rules of practice; findings of fact), and 12 (review by Supreme Court) shall apply to appeals under this section. (Added 2009, No. 159 (Adj. Sess.), § 18, eff. June 4, 2010; amended 2011, No. 53, § 6, eff. May 27, 2011; 2013, No. 190 (Adj. Sess.), § 21, eff. June 16, 2014; 2013, No. 199 (Adj. Sess.), § 31; 2015, No. 150 (Adj. Sess.), § 5a, eff. Jan. 1, 2018.)