Changes to Act 250, Vermont’s historic state-wide land use law, are before the House Committee on Natural Resources, Fish, and Wildlife. In addition to updated and amended Criteria, the Committee is considering altering the appeal of permits issued by regional District Commissions. Presently, appeals from District Commission decisions are heard by the Vermont Superior Court, Environmental Division. Over the past year, the Committee has considered several possible amendments to the appeals structure, including direct appeals to the Vermont Supreme Court and the creation of a new quasi-judicial body for Act 250 appeals.
Most recently, the Committee is considering making appeals to the Environmental Division “on-the-record.” This would be a dramatic change to how applicants and neighbors have Act 250 Projects reviewed in Vermont. As it stands today, Act 250 projects undergo a semi-informal hearing before a District Commission. If any party who participated in that hearing is unhappy with the result, that party can appeal the decision to the Vermont Superior Court, Environmental Division. The Environmental Division proceedings are “de-novo” which means the slate is wiped clean on appeal. Each party must prove their case anew. As considered by the Commission, the new appeal structure would be “on-the-record.” This means that the facts and evidence from the District Commission hearing would be the facts and evidence that the Court on appeal would consider. There would be now additional presentation of evidence – by either party – and the Court would be limited to approving, or disapproving the Commission decision.
The goal of on the record review is to simplify and streamline the appeal process. However, MSK sees substantial challenges and issues with the “on-the-record” review as currently proposed. First, because the “record” would be created at the District Commission level, the District Commission hearings would have to become more structured to create a fair and reliable record. The Rules of Evidence would have to be more closely followed. Second, neighbors concerned about a project would have to invest substantially more resources early to ensure that all their concerns, and evidence supporting those concerns, were raised at the District Commission hearing and “in the record.” Third, the “on-the-record” structure doesn’t allow for projects to be changed, amended or improved, on appeal. Quite often we see parties resolving their differences over a project during the appeal process. This results in amendments to the scope, design or use of a project. As proposed, an “on-the-record” review would not allow the Environmental Division to approve those changes. Fourth, the “on-the-record” review process should allow for the parties to request that the Court “open” the record to allow for the introduction of new relevant and compelling evidence, and/or explain technically complex or detailed evidence. Regularly Act 250 projects involve complex issues such as stormwater runoff modeling, air pollution and noise or sound level modeling. These scientifically complex issues are hard to review “on-the-record” and so any changes should allow for the parties to open the record to explain or supplement on these or other such issues.
Regardless of what the final changes are, it is fairly evident that Act 250 law will be changing in the near future. Thus, before any person engages with Act 250, it is incumbent that they confer with a lawyer experienced in Act 250.