Bill Summary – FastDemocracy

BILL AS INTRODUCED                                                        S.308
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                                        S.308
 Introduced by Committee on Natural Resources and Energy
 Date:
 Subject: Conservation and development; land use; Act 250; regional planning;
          municipal planning; Designated Areas; Act 250 permit appeals;
          Natural Resources Board
 Statement of purpose of bill as introduced: This bill proposes to make multiple
 changes to the State’s land use planning processes, including Act 250 permit
 appeals, regional plan future land use maps, and the Designated Areas.
    An act relating to updates to land use planning
 It is hereby enacted by the General Assembly of the State of Vermont:
                                 * * * Act 250 * * *
 Sec. 1. 10 V.S.A. § 6000 is added to read:
 § 6000. PURPOSE; CONSTRUCTION
    The purposes of this chapter are to protect and conserve the environment of
 the State and to support the achievement of the goals of the Capability and
 Development Plan, of 24 V.S.A. § 4302(c), and of the conservation vision and
 goals for the State established in section 2802 of this title.
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     BILL AS INTRODUCED                                                           S.308
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 Sec. 2. 10 V.S.A. § 6021 is amended to read:
 § 6021. BOARD; VACANCY,; REMOVAL
    (a) A Natural Resources Board established. The Environmental Review
 Board is created to administer the Act 250 program and hear appeals.
       (1) The Board shall consist of five members appointed by the Governor,
 after review and approval by the Environmental Review Board Nominating
 Committee in accordance with subdivision (2) of this subsection and
 confirmed with the advice and consent of the Senate, so that one appointment
 expires in each year. The Chair shall be a full-time position, and the other four
 members shall be half-time positions. In making these appointments, the
 Governor and the Senate shall give consideration to candidates who have
 experience, expertise, or skills relating to the environment or land use one or
 more of the following areas: environmental science, natural resources law and
 policy, land use planning, community planning, or environmental justice.
          (A) The Governor shall appoint a chair of the Board, a position that
 shall be a full-time position. The Governor shall ensure Board membership
 reflects, to the extent possible, the racial, ethnic, gender, and geographic
 diversity of the State. The Board shall not contain two members who reside in
 the same county.
          (B) Following initial appointments, the members, except for the
 Chair, shall be appointed for terms of four five years. All terms shall begin on
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 July 1 and expire on June 30. A member may continue serving until a
 successor is appointed. The initial appointments shall be for staggered terms
 of one year, two years, three years, four years, and five years.
       (2) The Governor shall appoint up to five persons, with preference given
 to former Environmental Board, Natural Resources Board, or District
 Commission members, with the advice and consent of the Senate, to serve as
 alternates for Board members.
          (A) Alternates shall be appointed for terms of four years, with initial
 appointments being staggered The Environmental Review Board Nominating
 Committee shall advertise the position when a vacancy will occur on the
 Environmental Review Board.
          (B) The Chair of the Board may assign alternates to sit on specific
 matters before the Board in situations where fewer than five members are
 available to serve The Nominating Committee shall review the applicants to
 determine which are well qualified for appointment to the Board and shall
 recommend those candidates to the Governor. The names of candidates shall
 be confidential.
          (C) The Governor shall appoint, with the advice and consent of the
 Senate, a chair and four members of the Board from the list of well-qualified
 candidates sent to the Governor by the Committee.
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    (b) Any vacancy occurring in the membership of the Board shall be filled
 by the Governor for the unexpired portion of the term Terms; vacancy;
 succession. The term of each appointment subsequent to the initial
 appointments described in subsection (a) of this section shall be five years.
 Any appointment to fill a vacancy shall be for the unexpired portion of the
 term vacated. A member may seek reappointment by informing the Governor.
 If the Governor decides not to reappoint the member, the Nominating
 Committee shall advertise the vacancy.
    (c) Removal. Notwithstanding the provisions of 3 V.S.A. § 2004, members
 shall only be removable for cause only, except the Chair, who shall serve at the
 pleasure of the Governor by the remaining members of the Board in
 accordance with the Vermont Administrative Procedures Act. The Board shall
 adopt rules pursuant to 3 V.S.A. chapter 25 to define the basis and process for
 removal.
    (d) Disqualified members. The Chair of the Board, upon request of the
 Chair of a District Commission, may appoint and assign former Commission
 members to sit on specific Commission cases when some or all of the regular
 members and alternates of the District Commission are disqualified or
 otherwise unable to serve.
    (e) Retirement from office. When a Board member who hears all or a
 substantial part of a case retires from office before the case is completed, the VT LEG #374107 v.1
     BILL AS INTRODUCED                                                          S.308
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 member may remain a member of the Board, at the member’s discretion, for
 the purpose of concluding and deciding that case and signing the findings and
 judgments involved. A retiring chair shall also remain a member for the
 purpose of certifying questions of law if a party appeals to the Supreme Court.
 For the service, the member shall receive a reasonable compensation to be
 fixed by the remaining members of the Board and necessary expenses while on
 official business.
 Sec. 3. 10 V.S.A. § 6032 is added to read:
 § 6032. ENVIRONMENTAL REVIEW BOARD NOMINATING
          COMMITTEE
    (a) Creation. The Environmental Review Board Nominating Committee is
 created for the purpose of assessing the qualifications of applicants for
 appointment to the Environmental Review Board in accordance with section
 6021 of this title.
    (b) Members. The Committee shall consist of six members who shall be
 appointed as follows:
       (1) The Governor shall appoint two members from the Executive
 Branch, with at least one being an employee of the Department of Human
 Resources.
       (2) The Speaker of the House of Representatives shall appoint two
 members from the House of Representatives.
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       (3) The Senate Committee on Committees shall appoint two members
 from the Senate.
    (c) Terms. The members of the Committee shall serve for terms of two
 years. Members shall serve until their successors are appointed. Members
 shall serve not more than three consecutive terms. A legislative member who
 is appointed as a member of the Committee shall retain the position for the
 term appointed to the Committee even if the member is subsequently not
 reelected to the General Assembly during the member’s term on the
 Committee.
    (d) Chair. The members shall elect their own chair.
    (e) Quorum. A quorum of the Committee shall consist of four members.
    (f) Staff and services. The Committee is authorized to use the staff and
 services of appropriate State Agencies and Departments as necessary to
 conduct investigations of applicants.
    (g) Confidentiality. Except as provided in subsection (h) of this section,
 proceedings of the Committee, including the names of candidates considered
 by the Committee and information about any candidate submitted to the
 Governor, shall be confidential. The provisions of 1 V.S.A. § 317(e)
 (expiration of Public Records Act exemptions) shall not apply to the
 exemptions or confidentiality provisions in this subsection.
    (h) Public information. The following shall be public:
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     BILL AS INTRODUCED                                                         S.308
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       (1) operating procedures of the Committee;
       (2) standard application forms and any other forms used by the
 Committee, provided they do not contain personal information about a
 candidate or confidential proceedings;
       (3) all proceedings of the Committee prior to the receipt of the first
 candidate’s completed application; and
       (4) at the time the Committee sends the names of the candidates to the
 Governor, the total number of applicants for the vacancies and the total number
 of candidates sent to the Governor.
    (i) Reimbursement. Legislative members of the Committee shall be
 entitled to per diem compensation and reimbursement for expenses in
 accordance with 2 V.S.A. § 23. Compensation and reimbursement shall be
 paid from the legislative appropriation.
    (j) Duties.
       (1) When a vacancy occurs, the Committee shall review applicants to
 determine which are well qualified for the Board and submit those names to
 the Governor. The Committee shall submit to the Governor a summary of the
 qualifications and experience of each candidate whose name is submitted to the
 Governor together with any further information relevant to the matter.
       (2) An applicant for the position of member of the Environmental
 Review Board shall not be required to be an attorney. If the candidate is
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     BILL AS INTRODUCED                                                           S.308
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 admitted to practice law in Vermont or practices a profession requiring
 licensure, certification, or other professional regulation by the State, the
 Committee shall submit the candidate’s name to the Court Administrator or the
 applicable State professional regulatory entity, and that entity shall disclose to
 the Committee any professional disciplinary action taken or pending
 concerning the candidate.
       (3) Candidates shall be sought who have experience, expertise, or skills
 relating to one or more of the following areas: environmental science, natural
 resources law and policy, land use planning, community planning, or
 environmental justice.
       (4) The Committee shall ensure a candidate possesses the following
 attributes:
          (A) Integrity. A candidate shall possess a record and reputation for
 excellent character and integrity.
          (B) Impartiality. A candidate shall exhibit an ability to make judicial
 determinations in a manner free of bias.
          (C) Work ethic. A candidate shall demonstrate diligence.
          (D) Availability. A candidate shall have adequate time to dedicate to
 the position.
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 Sec. 4. 10 V.S.A. § 6025 is amended to read:
 § 6025. RULES
    (a) The Board may adopt rules of procedure for itself and the District
 Commissions. The Board shall adopt rules of procedure that govern appeals
 and other contested cases before it that are consistent with this chapter. The
 Board’s rules of procedure for approving regional plans and regional plan
 maps shall ensure that the maps are consistent with legislative intent.
                                       ***
 Sec. 5. 10 V.S.A. § 6027 is amended to read:
 § 6027. POWERS
    (a) The Board and District Commissions each shall have supervisory
 authority in environmental matters respecting projects within their jurisdiction
 and shall apply their independent judgment in determining facts and
 interpreting law. Each shall have the power, with respect to any matter within
 its jurisdiction, to:
       (1) administer oaths, take depositions, subpoena and compel the
 attendance of witnesses, and require the production of evidence;
       (2) allow parties to enter upon lands of other parties for the purposes of
 inspecting and investigating conditions related to the matter before the Board
 or Commission;
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       (3) enter upon lands for the purpose of conducting inspections,
 investigations, examinations, tests, and site evaluations as it deems necessary
 to verify information presented in any matter within its jurisdiction; and
       (4) apply for and receive grants from the federal government and from
 other sources.
    (b) The powers granted under this chapter are additional to any other
 powers which that may be granted by other legislation.
    (c) The Natural Resources Board may designate or establish such regional
 offices as it deems necessary to implement the provisions of this chapter and
 the rules adopted hereunder. The Natural Resources Board may designate or
 require a regional planning commission to receive applications, provide
 administrative assistance, perform investigations, and make recommendations.
    (d) At the request of a District Commission, if the Board Chair determines
 that the workload in the requesting district is likely to result in unreasonable
 delays or that the requesting District Commission is disqualified to hear a case,
 the Chair may authorize the District Commission of another district to sit in the
 requesting district to consider one or more applications.
    (e) The Natural Resources Board may by rule allow joint hearings to be
 conducted with specified State agencies or specified municipalities.
    (f) The Board shall publish its decisions online. The Board may publish
 online or contract to publish annotations and indices of its decisions, the VT LEG #374107 v.1
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 decisions of the Environmental Division of the Superior Court and the
 Supreme Court, and the text of those decisions. The published product shall be
 available at a reasonable rate to the general public and at a reduced rate to
 libraries and governmental bodies within the State.
    (g) The Natural Resources Board shall manage the process by which land
 use permits are issued under section 6086 of this title, may initiate enforcement
 on related matters under the provisions of chapters 201 and 211 of this title,
 and may petition the Environmental Division initiate and hear petitions for
 revocation of land use permits issued under this chapter. Grounds for
 revocation are:
       (1) noncompliance with this chapter, rules adopted under this chapter, or
 an order that is issued that relates to this chapter;
       (2) noncompliance with any permit or permit condition;
       (3) failure to disclose all relevant and material facts in the application or
 during the permitting process;
       (4) misrepresentation of any relevant and material fact at any time;
       (5) failure to pay a penalty or other sums owed pursuant to, or other
 failure to comply with, court order, stipulation agreement, schedule of
 compliance, or other order issued under Vermont statutes and related to the
 permit; or VT LEG #374107 v.1
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       (6) failure to provide certification of construction costs, as required
 under subsection 6083a(a) of this title, or failure to pay supplemental fees as
 required under that section.
    (h) The Natural Resources Board may hear appeals of fee refund requests
 under section 6083a of this title. The Board shall