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Title

10

:
Conservation and Development






Chapter

220

:
CONSOLIDATED ENVIRONMENTAL APPEALS











 

§

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, the Natural Resources Board,

or a District Commission 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 which 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 which 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 which 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 which 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

that aggrieved Act 250 parties participate before the District Commission.

(1) No aggrieved

person may 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.

(2)

Notwithstanding subdivision (d)(1) of this section, 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 which 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 which would result in manifest injustice if the person's right

to appeal was disallowed.

(e) Act 250

jurisdictional determinations by the Natural Resources Board.

(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

and to each person on an approved subdivision 6085(c)(1)(E) list.

(2) Failure to

appeal within the time required under subsection (a) of this section shall

render the decision of the Board under subsection 6007(d) of this title the

final determination regarding jurisdiction under chapter 151 of this title

unless the underlying jurisdictional opinion issued by the district coordinator

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 which 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. (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.)