§ 248a. Certificate of public good for communications facilities
(a) Certificate. Notwithstanding any other provision of law, if the applicant seeks approval for the
construction or installation of telecommunications facilities that are to be interconnected
with other telecommunications facilities proposed or already in existence, the applicant
may obtain a certificate of public good issued by the Public Utility Commission under
this section, which the Commission may grant if it finds that the facilities will
promote the general good of the State consistent with subsection 202c(b) of this title. A single application may seek approval of one or more telecommunications facilities.
An application under this section shall include a copy of each other State and local
permit, certificate, or approval that has been issued for the facility under a statute,
ordinance, or bylaw pertaining to the environment or land use.
(b) Definitions. As used in this section:
(1) “Ancillary improvements” means telecommunications equipment and site improvements
that are primarily intended to serve a telecommunications facility, including wires
or cables and associated poles to connect the facility to an electric or communications
grid; fencing; equipment cabinets or shelters; emergency backup generators; and access
roads.
(2) “De minimis modification” means the addition, modification, or replacement of telecommunications
equipment, antennas, or ancillary improvements on a telecommunications facility or
existing support structure, whether or not the structure was constructed as a telecommunications
facility, or the reconstruction of such a facility or support structure, provided:
(A) the height and width of the facility or support structure, excluding equipment, antennas,
or ancillary improvements, are not increased;
(B) the total amount of impervious surface, including access roads, surrounding the facility
or support structure is not increased by more than 300 square feet;
(C) the addition, modification, or replacement of an antenna or any other equipment on
a facility or support structure does not extend vertically more than 10 feet above
the facility or support structure and does not extend horizontally more than 10 feet
from the facility or support structure; and
(D) the additional equipment, antennas, or ancillary improvements on the support structure,
excluding cabling, does not increase the aggregate surface area of the faces of the
equipment, antennas, or ancillary improvements on the support structure by more than
75 square feet.
(3) “Good cause” means a showing of evidence that the substantial deference required under
subdivision (c)(2) of this section would create a substantial shortcoming detrimental
to the public good or the State’s interests in section 202c of this title.
(4)(A) “Limited size and scope” means:
(i) a new telecommunications facility, including any ancillary improvements, that does
not exceed 140 feet in height; or
(ii) an addition, modification, replacement, or removal of telecommunications equipment
at a lawfully constructed telecommunications facility or on an existing support structure,
and ancillary improvements, that would result in a facility of a total height of less
than 200 feet and does not increase the width of the existing support structure by
more than 20 feet.
(B) For construction described in subdivision (3)(A) of this subsection (b) to be of limited
size and scope, it shall not disturb more than 10,000 square feet of earth. As used
in this subdivision (B), “disturbed earth” means the exposure of soil to the erosive
effects of wind, rain, or runoff.
(5) “Substantial deference” means that the plans and recommendations referenced under
subdivision (c)(2) of this section are presumed correct, valid, and reasonable.
(6) “Telecommunications facility” means a communications facility that transmits and receives
signals to and from a local, State, national, or international network used primarily
for two-way communications for commercial, industrial, municipal, county, or State
purposes and any associated support structure that is proposed for construction or
installation that is primarily for communications purposes and any ancillary improvements
that are proposed for construction or installation and are primarily intended to serve
the communications facilities or support structure. An applicant may seek approval
of construction or installation of a telecommunications facility whether or not the
telecommunications facility is attached to an existing structure.
(7) “Wireless service” means any commercial mobile radio service, wireless service, common
carrier wireless exchange service, cellular service, personal communications service
(PCS), specialized mobile radio service, paging service, wireless data service, or
public or private radio dispatch service.
(c) Findings. Before the Public Utility Commission issues a certificate of public good under this
section, it shall find that:
(1) The proposed facility will not have an undue adverse effect on aesthetics, historic
sites, air and water purity, the natural environment, and the public health and safety,
and the public’s use and enjoyment of the I-89 and I-91 scenic corridors or of any
highway that has been designated as a scenic road pursuant to 19 V.S.A. § 2501 or a scenic byway pursuant to 23 U.S.C. § 162, with due consideration having been given to the relevant criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through (8) and (9)(K). However, with respect to telecommunications facilities of
limited size and scope, the Commission shall waive all criteria of this subdivision
other than 10 V.S.A. § 6086(a)(1)(D) (floodways) and (a)(8) (aesthetics, scenic beauty, historic sites, rare and irreplaceable
natural areas; endangered species; necessary wildlife habitat). Such waiver shall
be on condition that:
(A) the Commission may determine, pursuant to the procedures described in subdivision
(j)(2)(A) of this section, that a petition raises a significant issue with respect
to any criterion of this subdivision; and
(B) a telecommunications facility of limited size and scope shall comply, at a minimum,
with the requirements of the Low Risk Site Handbook for Erosion Prevention and Sediment
Control issued by the Department of Environmental Conservation, regardless of any
provisions in that handbook that limit its applicability.
(2) Unless there is good cause to find otherwise, substantial deference has been given
to the plans of the affected municipalities; to the recommendations of the municipal
legislative bodies and the municipal planning commissions regarding the municipal
plans; and to the recommendations of the regional planning commission concerning the
regional plan. Nothing in this section or other provision of law shall prevent a municipal
body from basing its recommendations to which substantial deference is required under
this subdivision (2) on an ordinance adopted under 24 V.S.A. § 2291(19) or bylaw adopted under 24 V.S.A. chapter 117 by the municipality in which the facility is located. A rebuttable presumption respecting
compliance with the applicable plan shall be created by a letter from an affected
municipal legislative body or municipal planning commission concerning compliance
with the municipal plan and by a letter from a regional planning commission concerning
compliance with the regional plan.
(3) If the proposed facility relates to the provision of wireless service, the proposed
facility reasonably cannot be colocated on or at an existing telecommunications facility,
or such colocation would cause an undue adverse effect on aesthetics.
(A) If a proposed new support structure for a new telecommunications facility that provides
wireless service will exceed 50 feet in height in a cleared area or will exceed 20
feet in height above the average treeline measured within a 100-foot radius from the
structure in a wooded area, the application shall identify all existing telecommunications
facilities within the area to be served by the proposed structure and, for each such
existing facility, shall include a projection of the coverage and an estimate of additional
capacity that would be provided if the applicant’s proposed telecommunications equipment
were located on or at the existing facility. The applicant also shall compare each
such projection and estimate to the coverage and capacity that would be provided at
the site of the proposed structure.
(B) To obtain a finding that a proposed facility cannot reasonably be colocated on or
at an existing telecommunications facility, the applicant must demonstrate that:
(i) colocating on or at an existing facility will result in a significant reduction of
the area to be served or the capacity to be provided by the proposed facility or substantially
impede coverage or capacity objectives for the proposed facility that promote the
general good of the State under subsection 202c(b) of this title;
(ii) the proposed antennas and equipment will exceed the structural or spatial capacity
of the existing or approved tower or facility, and the existing or approved tower
or facility cannot be reinforced, modified, or replaced to accommodate planned or
equivalent equipment, at a reasonable cost, to provide coverage and capacity comparable
to that of the proposed facility;
(iii) the owner of the existing facility will not provide space for the applicant’s proposed
telecommunications equipment on or at that facility on commercially reasonable terms;
or
(iv) the proposed antennas and equipment will cause radio frequency interference that will
materially impact the usefulness of other existing or permitted equipment at the existing
or approved tower or facility and such interference cannot be mitigated at a reasonable
cost.
(d) Existing permits. When issuing a certificate of public good under this section, the Commission shall
give due consideration to all conditions in an existing State or local permit and
shall harmonize the conditions in the certificate of public good with the existing
permit conditions to the extent feasible.
(e) Notice. No less than 60 days prior to filing an application for a certificate of public good
under this section, the applicant shall serve written notice of an application to
be filed with the Commission pursuant to this section to the legislative bodies and
municipal and regional planning commissions in the communities in which the applicant
proposes to construct or install facilities; the Secretary of Natural Resources; the
Secretary of Transportation; the Division for Historic Preservation; the Commissioner
of Public Service and its Director for Public Advocacy; the Land Use Review Board
if the application concerns a telecommunications facility for which a permit previously
has been issued under 10 V.S.A. chapter 151; and the landowners of record of property adjoining the project sites. In addition,
at least one copy of each application shall be filed with each of these municipal
and regional planning commissions. The notices to the legislative body and planning
commission of the municipality shall attach a statement that itemizes the rights and
opportunities available to those bodies under subdivisions (c)(2) and (e)(2) of this
section and under subsections (m), (n), and (o) of this section and informs them of
the guide published under subsection (p) of this section and how to obtain a copy
of that guide.
(1) Upon motion or otherwise, the Public Utility Commission shall direct that further
public or personal notice be provided if the Commission finds that such further notice
will not unduly delay consideration of the merits and that additional notice is necessary
for fair consideration of the application.
(2) On the request of the municipal legislative body or the planning commission, the applicant
shall attend a public meeting with the municipal legislative body or planning commission,
or both, within the 60-day notice period before filing an application for a certificate
of public good. The Department of Public Service shall attend the public meeting on
the request of the municipality. The Department shall consider the comments made and
information obtained at the meeting in making recommendations to the Commission on
the application and in determining whether to retain additional personnel under subsection
(o) of this section.
(3) With the notice required under this subsection, the applicant shall include a written
assessment of the colocation requirements of subdivision (c)(3) of this section, as
they pertain to the applicant’s proposed telecommunications facility. On the request
of the municipal legislative body or the planning commission, the Department of Public
Service, pursuant to its authority under subsection (o) of this section, shall retain
an expert to review the applicant’s colocation assessment and to conduct further independent
analysis, as necessary. Within 45 days following receiving the applicant’s notice
and colocation assessment, the Department shall report its own preliminary findings
and recommendations regarding colocation to the applicant and to all persons required
to receive notice of an application for a certificate of public good under this subsection
(e).
(f) Review period. If the Public Utility Commission determines that an application does not raise a significant
issue, the Commission shall issue a final determination on an application filed pursuant
to this section within 60 days following its filing or, if the original filing did
not substantially comply with the Public Utility Commission’s rules, within 60 days
following the date on which the Clerk of the Commission notifies the applicant that
the filing is complete. If the Commission rules that an application raises a significant
issue, it shall issue a final determination on an application filed pursuant to this
section within 180 days following its filing or, if the original filing did not substantially
comply with the Public Utility Commission’s rules, within 180 days following the date
on which the Clerk of the Commission notifies the applicant that the filing is complete.
(g) Letter of intent. Nothing in this section shall be construed to prohibit an applicant from executing
a letter of intent or entering into a contract before the issuance of a certificate
of public good under this section, provided that the obligations under that letter
of intent or contract are made subject to compliance with the requirements of this
section.
(h) Exemptions from other law.
(1) An applicant using the procedures provided in this section shall not be required to
obtain a permit or permit amendment or other approval under the provisions of 24 V.S.A. chapter 117 or 10 V.S.A. chapter 151 for the facilities subject to the application or to a certificate of public good
issued pursuant to this section. This exemption from obtaining a permit or permit
amendment under 24 V.S.A. chapter 117 shall not affect the substantial deference to be given to a plan or recommendation
based on a local land use bylaw under subdivision (c)(2) of this section.
(2) An applicant using the procedures provided in this section shall not be required to
obtain an approval from the municipality under an ordinance adopted pursuant to 24 V.S.A. § 2291(19) or a municipal charter that would otherwise apply to the construction or installation
of facilities subject to this section. This exemption from obtaining an approval under
such an ordinance shall not affect the substantial deference to be given to a plan
or recommendation based on such an ordinance under subdivision (c)(2) of this section.
(3) Disputes over jurisdiction under this section shall be resolved by the Public Utility
Commission, subject to appeal as provided by section 12 of this title. An applicant that has obtained or been denied a permit or permit amendment under
the provisions of Title 24 or 10 V.S.A. chapter 151 for the construction of a telecommunications facility may not apply for approval
from the Commission for the same or substantially the same facility, except that an
applicant may seek approval for a modification to such a facility.
(i) Sunset of Commission authority. Effective on July 1, 2026, no new applications for certificates of public good under
this section may be considered by the Commission.
(j) Telecommunications facilities of limited size and scope.
(1) The Commission may, subject to such conditions as it may otherwise lawfully impose,
issue a certificate of public good in accordance with the provisions of this subsection
and without the notice and hearings required by any provision other than subdivision
(2) of this subsection if the Commission finds that such facilities will be of limited
size and scope, and the application does not raise a significant issue with respect
to the substantive criteria of this section. The Commission may make findings based
on the application and the supporting evidence submitted by the applicant. If an applicant
requests approval of multiple telecommunications facilities in a single application
under this section, the Commission may issue a certificate of public good in accordance
with the provisions of this subsection for all or some of the telecommunications facilities
described in the application.
(2)(A) Any person seeking to proceed under the procedures authorized by this subsection (j)
shall file a proposed certificate of public good and proposed findings of fact with
its application. Within two business days following notification from the Commission
that the filing is complete, the applicant shall serve notice and a copy of the application,
proposed certificate of public good, and proposed findings of fact on the Commissioner
of Public Service and its Director for Public Advocacy, the Secretary of Natural Resources,
the Division for Historic Preservation, the Land Use Review Board if the application
concerns a telecommunications facility for which a permit previously has been issued
under 10 V.S.A. chapter 151, and each of the legislative bodies and municipal and regional planning commissions
in the communities in which the applicant proposes to construct or install facilities.
Within two business days following notification from the Commission that the filing
is complete, the applicant also shall serve written notice of the proposed certificate
on the landowners of record of property adjoining the project site or sites unless
the Commission has previously determined on request of the applicant that good cause
exists to waive or modify the notice requirement with respect to such landowners.
Such notice shall request comment to the Commission within 30 days following the date
of service on the question of whether the application raises a significant issue with
respect to the substantive criteria of this section. If the Commission finds that
an application raises a significant issue with respect to the substantive criteria
of this section, the Commission shall hear evidence on any such issue.
(B) An applicant seeking a waiver or modification of notice to adjoining landowners under
this subsection shall file a request for such a waiver or modification with the Public
Utility Commission not later than 30 days prior to serving written notice under subsection
(e) of this section, together with a description of the project and its location,
the applicant’s reasons for seeking a waiver or modification, and the applicant’s
demonstration that the standard for granting a waiver or modification is met. Any
granting of such a waiver or modification shall be based on a determination that the
landowners subject to the waiver or modification could not reasonably be affected
by one or more of the proposed facilities and that notice to such landowners would
constitute a significant administrative burden without corresponding public benefit.
The Commission shall rule on a waiver or modification request under this subsection
within 21 days following the filing of the request.
(C) If the Commission accepts a request to consider an application under the procedures
of this subsection (j), then unless the Public Utility Commission subsequently determines
that an application raises a significant issue, the Commission shall issue a final
determination on an application within 60 days following the date on which the Clerk
of the Commission notifies the applicant that the filing is complete. If, subsequent
to acceptance of an application under this subsection (j), the Commission rules that
an application raises a significant issue, it shall issue a final determination on
an application filed pursuant to this subsection (j) within 90 days following the
date on which the Clerk of the Commission notifies the applicant that the filing is
complete.
(D) If the Commission denies a request to consider an application under the procedures
of this subsection (j), a filing made under this subsection that the Commission has
found to be complete shall be deemed to satisfy notice requirements of subsection
(e) of this section, and the periods stated under subsection (f) of this section shall
run from the date of the Commission’s denial of such request.
(k) De minimis modifications. An applicant intending to make a de minimis modification of a telecommunications facility
shall provide written notice of its intent, including a description of the de minimis
modification, its plans for the de minimis modification, and its certification that
the project constitutes a de minimis modification under this section, to the following:
the landowner of record of the property on which the facility is located, the legislative
body of the municipality in which the applicant proposes to undertake such limited
modifications to the facility, and the Commissioner of Public Service and his or her
Director for Public Advocacy. Unless an objection to the classification of a proposed
project as a de minimis modification is filed with the Commission within 30 days following
this notice, a certificate of public good shall be issued. Objections may be filed
only by persons entitled to notice of this proposed project pursuant to this subsection.
If an objection of the classification of the proposed project as a de minimis modification
is timely filed with the Commission, the Commission may determine whether the intended
project meets the definition of de minimis modification established in subdivision
(b)(2) of this section.
(l) Rules. The Public Utility Commission may issue rules or orders implementing and interpreting
this section. In developing such rules and orders, the Commission shall seek to simplify
the application and review process as appropriate. Subject to the provisions of subdivision
(c)(1) of this section regarding waiver of the substantive criteria set forth in that
subdivision, the Commission may by rule or order waive the requirements of this section
that the Commission determines are not applicable to telecommunications facilities
of limited size or scope. Determination by the Commission that an application raises
a substantial issue with regard to one or more substantive criteria of this section
shall not prevent the Commission from waiving other substantive criteria that it has
determined are not applicable to such a telecommunications facility.
(m) Municipal bodies; participation. The legislative body and the planning commission for the municipality in which a telecommunications
facility is located shall have the right to appear and participate on any application
under this section seeking a certificate of public good for the facility.
(n) Municipal recommendations. The Commission shall consider the comments and recommendations submitted by the municipal
legislative body and planning commission. The Commission’s decision to issue or deny
a certificate of public good shall include a detailed written response to each recommendation
of the municipal legislative body and planning commission.
(o) Retention; experts. The Department of Public Service may retain experts and other personnel as identified
in section 20 of this title to provide information essential to a full consideration of an application for a
certificate of public good under this section. The Department may allocate the expenses
incurred in retaining these personnel to the applicant in accordance with section 21 of this title. The Department may commence retention of these personnel once the applicant has
filed the 60-day notice under subsection (e) of this section. A municipal legislative
body or planning commission may request that the Department retain these personnel.
Granting such a request shall not oblige the Department or the personnel it retains
to agree with the position of the municipality.
(p) Review process; guide. The Department of Public Service, in consultation with the Commission, shall create,
maintain, and make available to the public a guide to the process of reviewing telecommunications
facilities under this section for use by local governments and regional planning commissions
and members of the public who seek to participate in the process. On or before September
1, 2014, the Department shall complete the creation of this guide and make it publicly
available.
(q) Emergency waiver.
(1) Notwithstanding any other provisions of this section, when the Governor has declared
a state of emergency pursuant to 20 V.S.A. § 9 and for 180 days after the declared state of emergency ends, the Commission may waive,
for a specified and limited time, the prohibitions contained in this section upon
site preparation for or construction of a temporary telecommunications facility necessary
for maintaining or improving access to telecommunications services. Waivers issued
under this subsection shall be valid for a period not to exceed the duration of the
declared emergency plus 180 days.
(2) A person seeking a waiver under this subsection shall file a petition with the Commission
and shall provide copies to the Department of Public Service and the Agency of Natural
Resources. The Commission shall require that additional notice be provided to those
listed in subsection (e) of this section and any affected communications union districts.
Upon receipt of the petition, the Commission shall conduct an expedited preliminary
hearing.
(3) An order granting a waiver may include terms, conditions, and safeguards to mitigate
significant adverse impacts, including the posting of a bond or other security, as
the Commission deems proper, based on the scope and duration of the requested waiver.
(4) A waiver shall be granted only when the Commission finds that:
(A) good cause exists due to an emergency situation;
(B) the waiver is necessary to maintain or provide access to wireless telecommunications
services;
(C) procedures will be followed to minimize significant adverse impacts under the criteria
specified in subdivision (c)(1) of this section; and
(D) taking into account any terms, conditions, and safeguards that the Commission may
require, the waiver will promote the general good of the State.
(5) Upon the expiration of a waiver, if a certificate of public good has not been issued
under this section, the Commission shall require the removal, relocation, or alteration
of the facilities subject to the waiver, as it finds will best promote the general
good of the State. (Added 2007, No. 79, § 17, eff. June 9, 2007; amended 2009, No. 54, § 44, eff. June 1, 2009; 2011, No. 53, § 2, eff. May 27, 2011; 2013, No. 167 (Adj. Sess.), § 31; 2013, No. 190 (Adj. Sess.), § 17, eff. June 16, 2014; 2013, No. 199 (Adj. Sess.), § 27; 2015, No. 130 (Adj. Sess.), § 5a, eff. May 25, 2016; 2017, No. 32, § 1; 2017, No. 53, § 5; 2019, No. 125 (Adj. Sess.), § 1; 2023, No. 20, § 1, eff. May 25, 2023; 2023, No. 85 (Adj. Sess.), § 385, eff. July 1, 2024.)