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1 H.331
2 Introduced by Representatives Sheldon of Middlebury and Bongartz of
3 Manchester
4 Referred to Committee on
5 Date:
6 Subject: Conservation and development; land use; natural resources; Act 250;
7 Natural Resources Board; appeals
8 Statement of purpose of bill as introduced: This bill proposes to change the
9 name of the Natural Resources Board to the Environmental Review Board and
10 give it the authority to hear appeals from the District Commissions and district
11 coordinators in addition to the Board’s current duties. The Environmental
12 Division of the Superior Court will continue to hear appeals from other
13 environmental permits, enforcement, and local zoning appeals. Members of
14 the Environmental Review Board would be appointed the same way as
15 Superior Court judges, with the Judicial Nominating Board reviewing the
16 candidates. After the members of the Board are appointed, the Board would
17 adopt rules of procedure for appeals.
18 An act relating to the structure of the Natural Resources Board
19 It is hereby enacted by the General Assembly of the State of Vermont:
20 Sec. 1. PURPOSE
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1 The purpose of this act is to strengthen the administration of the Act 250
2 program by changing the structure, function, and name of the Natural
3 Resources Board. This act requires that appeals of Act 250 permit decisions be
4 heard by a five-member board called the Environmental Review Board. The
5 Environmental Division of the Superior Court would continue to hear the other
6 types of cases within its jurisdiction. The Environmental Review Board would
7 keep the current duties of the Natural Resources Board in addition to hearing
8 appeals. This change would allow the Act 250 program to return to how it was
9 originally envisioned when enacted by being a citizen-friendly process. The
10 Board would provide oversight, management, and training to the Act 250
11 program staff and District Commissions and develop Act 250 program policy
12 through permit decisions and rulemaking.
13 Sec. 2. 10 V.S.A. § 6021 is amended to read:
14 § 6021. BOARD; VACANCY,; REMOVAL
15 (a) A Natural Resources Board established. The Environmental Review
16 Board is created to administer the Act 250 program and hear appeals.
17 (1) The Board shall consist of five members appointed by the Governor,
18 after review and approval by the Environmental Review Board Nominating
19 Committee in accordance with subdivision (2) of this section and confirmed
20 with the advice and consent of the Senate, so that one appointment expires in
21 each year. The Chair shall be a full-time position, and the other four members VT LEG #364582 v.1
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1 shall be half-time positions. In making these appointments, the Governor and
2 the Senate shall give consideration to candidates who have experience,
3 expertise, or skills relating to the environment or land use one or more of the
4 following areas: environmental science, natural resources law and policy, land
5 use planning, community planning, or environmental justice.
6 (A) The Governor shall appoint a chair of the Board, a position that
7 shall be a full-time position. The Governor shall ensure Board membership
8 shall reflect, to the extent possible, the racial, ethnic, gender, and geographic
9 diversity of the State. The Board shall not contain two members who reside in
10 the same county.
11 (B) Following initial appointments, the members, except for the
12 Chair, shall be appointed for terms of four five years. All terms shall begin on
13 July 1 and expire on June 30. A member may continue serving until a
14 successor is appointed. The initial appointments shall be for staggered terms.
15 (2) The Governor shall appoint up to five persons, with preference given
16 to former Environmental Board, Natural Resources Board, or District
17 Commission members, with the advice and consent of the Senate, to serve as
18 alternates for Board members.
19 (A) Alternates shall be appointed for terms of four years, with initial
20 appointments being staggered The Environmental Review Board Nominating VT LEG #364582 v.1
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1 Committee shall advertise the position when a vacancy will occur on the
2 Environmental Review Board.
3 (B) The Chair of the Board may assign alternates to sit on specific
4 matters before the Board in situations where fewer than five members are
5 available to serve The Nominating Committee shall review the applicants to
6 determine which are well qualified for appointment to the Board and shall
7 recommend those candidates to the Governor. The names of candidates shall
8 be confidential.
9 (C) The Governor shall appoint, with the advice and consent of the
10 Senate, a chair and four members of the Board from the list of well-qualified
11 candidates sent to the Governor by the Committee.
12 (b) Any vacancy occurring in the membership of the Board shall be filled
13 by the Governor for the unexpired portion of the term Terms; vacancy;
14 succession. The term of each appointment subsequent to the initial
15 appointments described in subsection (a) of this section shall be five years.
16 Any appointment to fill a vacancy shall be for the unexpired portion of the
17 term vacated. A member may seek reappointment by informing the Governor.
18 If the Governor decides not to reappoint the member, the Nominating
19 Committee shall advertise the vacancy.
20 (c) Removal. Notwithstanding the provisions of 3 V.S.A. § 2004, members
21 shall only be removable for cause only, except the Chair, who shall serve at the VT LEG #364582 v.1
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1 pleasure of the Governor by the remaining members of the Board in
2 accordance with the Vermont Administrative Procedures Act. The Board shall
3 adopt rules pursuant to 3 V.S.A. chapter 25 to define the basis and process for
4 removal.
5 (d) Disqualified members. The Chair of the Board, upon request of the
6 Chair of a District Commission, may appoint and assign former Commission
7 members to sit on specific Commission cases when some or all of the regular
8 members and alternates of the District Commission are disqualified or
9 otherwise unable to serve.
10 (e) Retirement from office. When a Board member who hears all or a
11 substantial part of a case retires from office before the case is completed, the
12 member may remain a member of the Board, at the member’s discretion, for
13 the purpose of concluding and deciding that case and signing the findings and
14 judgments involved. A retiring chair shall also remain a member for the
15 purpose of certifying questions of law if a party appeals to the Supreme Court.
16 For the service, the member shall receive a reasonable compensation to be
17 fixed by the remaining members of the Board and necessary expenses while on
18 official business.
19 Sec. 3. 10 V.S.A. § 6032 is added to read:
20 § 6032. ENVIRONMENTAL REVIEW BOARD NOMINATING
21 COMMITTEE
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1 (a) Creation. The Environmental Review Board Nominating Committee is
2 created for the purpose of assessing the qualifications of applicants for
3 appointment to the Environmental Review Board in accordance with section
4 6021 of this title.
5 (b) Members. The Committee shall consist of seven members who shall be
6 appointed as follows:
7 (1) The Governor shall appoint three members from the Executive
8 Branch, with at least one being an employee of the Department of Human
9 Resources.
10 (2) The Speaker of the House of Representatives shall appoint two
11 members from the House of Representatives.
12 (3) The Senate Committee on Committees shall appoint two members
13 from the Senate.
14 (c) Terms. The members of the Committee shall serve for terms of two
15 years. Members shall serve until their successors are appointed. Members
16 shall serve not more than three consecutive terms in any capacity. A
17 legislative member who is appointed as a member of the Committee shall
18 retain the position for the term appointed to the Committee even if the member
19 is subsequently not reelected to the General Assembly during the member’s
20 term on the Committee.
21 (d) Chair. The members shall elect their own chair.
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1 (e) Quorum. A quorum of the Committee shall consist of four members.
2 (f) Staff and services. The Committee is authorized to use the staff and
3 services of appropriate State agencies and departments as necessary to conduct
4 investigations of applicants.
5 (g) Confidentiality. Except as provided in subsection (h) of this section,
6 proceedings of the Committee, including the names of candidates considered
7 by the Committee and information about any candidate submitted to the
8 Governor, shall be confidential. The provisions of 1 V.S.A. § 317(e)
9 (expiration of Public Records Act exemptions) shall not apply to the
10 exemptions or confidentiality provisions in this subsection.
11 (h) Public information. The following shall be public:
12 (1) operating procedures of the Committee;
13 (2) standard application forms and any other forms used by the
14 Committee, provided they do not contain personal information about a
15 candidate or confidential proceedings;
16 (3) all proceedings of the Committee prior to the receipt of the first
17 candidate’s completed application; and
18 (4) at the time the Committee sends the names of the candidates to the
19 Governor, the total number of applicants for the vacancies and the total number
20 of candidates sent to the Governor.
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1 (i) Reimbursement. Legislative members of the Committee shall be
2 entitled to per diem compensation and reimbursement for expenses in
3 accordance with 2 V.S.A. § 23. Compensation and reimbursement shall be
4 paid from the legislative appropriation.
5 (j) Duties.
6 (1) When a vacancy occurs, the Committee shall review applicants to
7 determine which are well qualified for the Board and submit those names to
8 the Governor. The Committee shall submit to the Governor a summary of the
9 qualifications and experience of each candidate whose name is submitted to the
10 Governor together with any further information relevant to the matter.
11 (2) An applicant for the position of member of the Environmental
12 Review Board shall not be required to be an attorney. If the candidate is
13 admitted to practice law in Vermont or practices a profession requiring
14 licensure, certification, or other professional regulation by the State, the
15 Committee shall submit the candidate’s name to the Court Administrator or the
16 applicable State professional regulatory entity, and that entity shall disclose to
17 the Committee any professional disciplinary action taken or pending
18 concerning the candidate.
19 (3) Candidates shall be sought who have experience, expertise, or skills
20 relating to one or more of the following areas: environmental science, natural VT LEG #364582 v.1
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1 resources law and policy, land use planning, community planning, or
2 environmental justice.
3 (4) The Committee shall ensure a candidate possesses the following
4 attributes:
5 (A) Integrity. A candidate shall possess a record and reputation for
6 excellent character and integrity.
7 (B) Impartiality. A candidate shall exhibit an ability to make judicial
8 determinations in a manner free of bias.
9 (C) Work ethic. A candidate shall demonstrate diligence.
10 (D) Availability. A candidate shall have adequate time to dedicate to
11 the position.
12 Sec. 4. 10 V.S.A. § 6025 is amended to read:
13 § 6025. RULES
14 (a) The Board may adopt rules of procedure for itself and the District
15 Commissions. The Board shall adopt rules of procedure that govern appeals
16 and other contested cases before it that are consistent with this chapter.
17 ***
18 Sec. 5. 10 V.S.A. § 6027 is amended to read:
19 § 6027. POWERS
20 (a) The Board and District Commissions each shall have supervisory
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1 and shall apply their independent judgment in determining facts and
2 interpreting law. Each shall have the power, with respect to any matter within
3 its jurisdiction, to:
4 (1) administer oaths, take depositions, subpoena and compel the
5 attendance of witnesses, and require the production of evidence;
6 (2) allow parties to enter upon lands of other parties for the purposes of
7 inspecting and investigating conditions related to the matter before the Board
8 or Commission;
9 (3) enter upon lands for the purpose of conducting inspections,
10 investigations, examinations, tests, and site evaluations as it deems necessary
11 to verify information presented in any matter within its jurisdiction; and
12 (4) apply for and receive grants from the federal government and from
13 other sources.
14 (b) The powers granted under this chapter are additional to any other
15 powers which that may be granted by other legislation.
16 (c) The Natural Resources Board may designate or establish such regional
17 offices as it deems necessary to implement the provisions of this chapter and
18 the rules adopted hereunder. The Natural Resources Board may designate or
19 require a regional planning commission to receive applications, provide
20 administrative assistance, perform investigations, and make recommendations.
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1 (d) At the request of a District Commission, if the Board Chair determines
2 that the workload in the requesting district is likely to result in unreasonable
3 delays or that the requesting District Commission is disqualified to hear a case,
4 the Chair may authorize the District Commission of another district to sit in the
5 requesting district to consider one or more applications.
6 (e) The Natural Resources Board may by rule allow joint hearings to be
7 conducted with specified State agencies or specified municipalities.
8 (f) The Board shall publish its decisions online. The Board may publish
9 online or contract to publish annotations and indices of its decisions, the
10 decisions of the Environmental Division of the Superior Court and the
11 Supreme Court, and the text of those decisions. The published product shall be
12 available at a reasonable rate to the general public and at a reduced rate to
13 libraries and governmental bodies within the State.
14 (g) The Natural Resources Board shall manage the process by which land
15 use permits are issued under section 6086 of this title, may initiate enforcement
16 on related matters under the provisions of chapters 201 and 211 of this title,
17 and may petition the Environmental Division initiate and hear petitions for
18 revocation of land use permits issued under this chapter. Grounds for
19 revocation are:
20 (1) noncompliance with this chapter, rules adopted under this chapter, or
21 an order that is issued that relates to this chapter;
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1 (2) noncompliance with any permit or permit condition;
2 (3) failure to disclose all relevant and material facts in the application or
3 during the permitting process;