Friday, April 15, 2011

Act 250 Criteria: Not Applicable? Not Your Decision

In re Jurisdictional Opinion # 6-007:
Wright Parcel Act 250 Subdivision
McBride Parcel Act 250 Subdivision

Docket Nos. 55-4-10 Vtec & 56-4-10 Vtec

Judge Wright

This case involved an appeal by Act 250 applicants regarding whether their Act 250 subdivision applications were complete. Although the appeal has no bearing on any of the substantive Act 250 criteria, the decision is useful to any Act 250 applicant in that it spells out some of the basic requirements for ensuring that an application is complete when filed with the District Commission. The issue in this case was whether the District #6 District Coordinator erred in rejecting the Act 250 applications as incomplete where the applicants had stated, under several criteria, that the criteria were "not applicable" because the subdivision would not affect the resources or characteristics protected by the criteria. The Environmental Court ruled that it is the District Commission's role to determine which criteria are applicable to any given permit application, and it is the applicant's responsibility to provide the commissioners with sufficient information for them to make the determination. Thus, the District Coordinator correctly rejected the applications as incomplete.

In this case, the applicants were proposing to subdivide two parcels of land into three lots per parcel. The District Coordinator ruled that the applications were incomplete because under Criterion 9(B) (the primary agricultural soils criterion), the applications stated, "Criterion 9(B) does not apply to this application as no impact to any soils, primary agricultural or not, will occur due to the subdivision or sale by auction as no earth disturbance or construction of any kind is proposed as part of this application." After submitting these applications, the applicants later provided additional information about the agricultural soils on the parcels, including maps and a letter from the Department of Agriculture. Additionally, the applicants also obtained state wastewater and potable water supply permits for each of the proposed subdivisions. These permits were sent to the District Coordinator, and after receiving them, the District Coordinator believed that the Act 250 applications were intended to request approval for construction of houses, not simply for subdivision of the parcels. The District Coordinator then requested additional information from the applicants. The applicants met with the District Coordinator to discuss some of these issues and explain that they were seeking permits solely for subdivision, and that they were not planning to construct any houses themselves. They also discussed the possibility of the District Coordinator reconsidering the decision that the applications were incomplete and the request for additional information; however, instead of formally requesting that the District Coordinator reconsider, the applicants appealed the deicisons to the Environmental Court.

In its decision, the standard that the Environmental Court used was whether the applications provided "enough information about the property and its resources and characteristics to allow the District Commission to determine whether resources on the land must be assessed or analyzed under the Act 250 criteria for the project property as a whole, before the boundary lines are approved for the subdivision." The Court stated that to decide the case, it was "necessary to determine which Act 250 criteria could potentially be affected by the proposed drawing of lot lines and sale of the lots separate from one another, without regard to what those lots might be used for by their purchasers." Because the Environmental Court has de novo authority in Act 250 appeals, it looked not only at the information provided to the District Coordinator at the time it decided that the applications were incomplete, but also at the information provided to the Court during the appeal.

Based on the information provided, the Court evaluated the Act 250 applications and determined that the applications were deficient under multiple criteria, including stormwater, floodways, wildlife and endangered species, primary agricultural soils, and earth resources. Thus, the applicants were required to provide the additional information before their Act 250 applications would be reviewed by the District Commission. The take-home message from this case for Act 250 applicants is to provide all of the information requested in the Act 250 application, and leave it to the District Commission to determine whether the criteria apply to the project or not.