Part One of this blog (see here), discussed the definitions of Cognizable Change, Substantial Change, and Material Change in Act 250. In what follows below, these terms are tied together with discussion of Significant Impact and Significant Adverse Impact. The focus of this two-part blog is how these terms impact whether an Act 250 permit or amendment is required. It is advisable to read Part One before plunging into what follows.
- Significant Impact and Significant Adverse Impact. In some places Act 250 uses the term Significant Impact in others it is Significant Adverse Impact. Neither of these terms is clearly defined in statute or the rules nor am I aware of any case law that has clarified their meanings.
Nonetheless, it is reasonably clear that when the word Adverse is absent, it doesn’t matter whether the impact is Adverse or not. Even positive or neutral impacts trigger whatever the question may be under that particular rule or criterion. For example, if stormwater treatment was an issue under an existing Act 250 permit and it is proposed to be upgraded to a better system, the applicable question is whether the change will have a “Significant Impact on any finding, conclusion, term or condition of the project’s permit” and thus, without the word “Adverse” even the improvement of the system is considered to be a “significant impact” and therefore requires a permit amendment).
Because neither term is defined, their application involves judgment on the part of the District Coordinator and District Commission. That judgement involves the facts and circumstances of each project. One must consider such things as the property, its context, applicable rules and regulations, representations made in previous permitting for the property, previous permit findings and conditions, and the degree of potential impact of any proposed change.
Sometimes the facts and circumstances are clear, and a property owner can readily show there is no potential for Significant Impact or Significant Adverse Impact, other times it’s not clear. For example, let’s say a property has an existing Act 250 permit and the owner wants to replace an existing underground utility line. Simple, right? Maybe not.
Because the property already has an Act 250 permit, the question is: will this utility replacement be a Material Change? This involves two questions:
- Does it have potential for a Significant Impact on any existing Act 250 permit findings, conclusions, or conditions?
- Does it have potential for a Significant Adverse Impact under any of the 10 Act 250 criteria?
In this example, let’s assume nothing about the replacement has any implications for any finding, conclusion, or condition of the property’s existing Act 250 permit and there are no resources protected under any of the Act 250 criteria that will be directly or indirectly impacted by the replacement. With these facts and circumstances, the replacement is not a Material Change and a permit amendment should not be required.
But let’s look at it with different facts and circumstances. Suppose the utility line to be replaced goes through an area that is archaeologically sensitive. One could reasonably argue there “may” be Significant Adverse Impact on the archaeological resources. Therefore, it constitutes a Material Change and an Act 250 permit is likely to be required in order to review the placement of the new utility line, its excavation limits, erosion control, and other measures to protect the archaeological resources.
Taking this example further, if the original utility line being replaced was subject to findings, conclusions or conditions in the existing Act 250 permit, perhaps in order to mitigate any potential impact on the archeological resources when it was originally installed, then it may have Significant Impact on those elements of the permit and that alone would constitute a Material Change.
So, as much as it would be great to have a bright line to determine what is and is not a Significant Impact (or Significant Adverse Impact), you can see that when even something as seemingly innocuous as a utility line replacement is variable, there will always be need for judgement. The facts and circumstances of each project make a difference.
When evaluating whether Act 250 jurisdiction will be triggered for a pre-existing development that is not already subject to an Act 250 permit, the question is whether any proposed changes constitute a Substantial Change. This question includes the word Adverse. Act 250 jurisdiction will be triggered if the proposed changes “may” have Significant Adverse Impact under any of the Act 250 criteria. But because of the word Adverse in the question, if the proposed changes reduce impacts (such as upgrading stormwater treatment) those changes should not trigger Act 250 jurisdiction.
This brief blog does not cover all the subtleties, of which there are, of course, many. But I hope it helps clarify terms that in everyday use sound similar, but which in Act 250 have very different and specific meanings.
Please keep in mind that White + Burke is not a law firm; we are not attorneys and we are not offering legal advice. This brief blog is based on our decades of experience with real estate development and Act 250 and on our understanding of the statute, process and rules. We recommend advice of an experienced land-use attorney be obtained when there is any question regarding the law. If you have further questions about Act 250, we’re happy to discuss them with you.
By: David G. White