Huh? What the heck does Act 250 mean by that?

Part One

There is much confusion about the meanings of “Substantial Change,” “Cognizable Change,” “Material Change,” and “Significant Impact” (or “Significant Adverse Impact”) in Act 250.  It’s easy to see why. Outside of Act 250 these terms sound similar.  But when evaluating whether an Act 250 permit or permit amendment will be required, it’s critical to understand their specific meanings. This is the first of a two-part blog aimed at clarifying these terms.

First, a note – all these terms relate to changes in existing developments or subdivisions. If you are doing a new, ground-up development on a greenfield then there is a different set of jurisdictional triggers.

This first part of this blog discusses Cognizable Change, Substantial Change, and Material Change. Let’s delve in.

  • Cognizable Change has two tests. First is “…any physical change or change in use…” That is reasonably clear. If you are changing something, whether physically (e.g. expanding the size of an existing building) or in how it is used or operated (e.g. changing the use from warehouse to a restaurant) it is “cognizable.”

    Then there is a second question. A Cognizable Change includes “…where applicable, any change that may result in a Significant Impact on any finding, conclusion, term or condition of the project’s permit” [emphasis added].  So, if you have an existing Act 250 permit and the contemplated change may affect anything under the current permit (e.g.  if there is a finding in the existing permit that the permitted building will not be visible from the road due to a copse of trees and it is proposed to cut or thin the copse) , then it is a Cognizable Change if it may have a Significant Impact (this will be discussed in Part Two).

    Bottom line: Cognizable Change is one that is identified or recognized. In and of itself, this term does not trigger Act 250 jurisdiction. It becomes meaningful in combination with either Substantial Change or Material Change.
  • Substantial Change applies only to properties that are not already subject to Act 250 and contain a development that was in existence on June 1, 1970. It is a jurisdictional question about whether a change proposed to such pre-existing development is “substantial” enough to trigger Act 250 jurisdiction for the property for the first time. If a property is already subject to Act 250, this question does not apply, and you can ignore it.

    If a property is not already subject to Act 250 and has a pre-existing development that was in existence on June 1, 1970, this is an important test. The Act 250 rules define Substantial Change as “any Cognizable Change to a pre-existing development or subdivision which may result in Significant Adverse Impact with respect to any of the criteria specified in [Act 250]” [emphasis added]. So that raises the question of what is a Significant Adverse Impact? (This, too, we’ll get to in Part Two.)
  • Material Change is defined in the rules as “…any Cognizable Change to a development or subdivision subject to a permit under Act 250…which has a Significant Impact on any finding, conclusion, term or condition of the project’s permit or which may result in a Significant Adverse Impact with respect to any of the [10 criteria]…”[emphasis added].

Note there are two parts to this definition. The first is whether the proposed change has Significant Impact on anything in the property’s existing Act 250 permit. The second is whether it may have a Significant Adverse Impact under any of the Act 250 criteria, regardless of whether it relates to anything in the current permit.

Because Material Change and Substantial Change ask about Significant Impact and/or Significant Adverse Impact, the key question is what do these terms mean? That is to be discussed in Part Two.

By: David G. White