Agenda - Planning Commission - 05/05/2016

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April 10, 2016 I Volume 10 I Issue 7 Zoning Bulletin ment system. The Commission declined to do so. The Association then appealed that decision of the Commission to the Environmental Divi- sion of the Superior Court. The Environmental Division dismissed the appeal. The Environmen- tal Division scolded the Association, saying it could not "use Condition 14 to privately enforce the Permit or Permit Amendment." The Environ- mental Division found that Condition 14 was outside of the authority of the Commission, and noted that ensuring compliance with the initial Act 250 Penult was under the authority of the state's Natural Resource Board. In other words, said the Environmental Division: "a district com- mission simply cannot use a permit condition to reserve the authority to reopen a final and binding Act 250 permit [on its own accord] in order to enforce the permit or impose conditions." The Association appealed. DECISION: Judgment of superior court affirmed. As a "matter of apparent first impression," the Supreme Court of Vermont held that Condition 14 of the Amended Act 250 Permit, which reserved jurisdiction over the Treetop Project's stormwater system and allowed the Commission to amend or add conditions as necessary to bring the stormwater system into compliance with Act 250, was invalid and unenforceable. The court explained that, under the statutory law Act 250 the Commission was entitled to grant conditional approval by imposing reasonable conditions on a project. The court said "[p]ermissible condi- tions" included "those with prospective application that are intended to alleviate adverse impacts that either are or would otherwise be caused or created by a project, or those necessary to ensure that the develop- ment is completed as approved." The court gave examples of permis- sible conditions, such as "those requiring permittees to take specific ac- tion when triggered by certain events, incorporating a schedule of actions necessary for continued compliance with Act 250 criteria, and requiring future compliance related filings, including affidavits of compliance with respect to certain penult conditions" such as "condi- tions limiting development to areas of land subject to Act 250 jurisdic- tion, establishing hours of operation, directing the placement of specific machinery, and requiring reclamation following completion of a project." On the other hand, said the court, the power to enforce compliance with Act 250 permits lies not with the nine District Environmental Com- missions, but with the state's Natural Resources Board ("NRB") and the Agency of Natural Resources ("ANR"). Therefore, it is the author- ity of the NRB, not the Commission, to determine whether there are violations of Act 250, or permits issued under Act 250 that require enforcement actions. 8 © 2016 Thomson Reuters