Telecom infrastructure developers in Vermont must comply with Act 250, Vermont’s environmental conservation and development law. However, in some very specific situations, developers can avoid complying with Act 250’s requirements through careful siting of a project on preexisting structures. In In re Vermont RSA Ltd. Partnership, 181 Vt. 589, 925 A.2d 1006 (Vt. 2007), Verizon Wireless used the preexisting structure loophole to avoid complying with Act 250.
In Re Vermont RSA Ltd. Partnership involved a challenge by neighbors in Newport, Vermont to the construction of a wireless communication tower, including three cellular-panel antennas and three personal-communication-services antennas on and within St. Mary’s Star of the Sea Church. The church was in favor of the project and planned to rent space on the telecommunications tower to cell phone providers.
In 2002, Verizon Wireless sought a jurisdictional opinion from the District 7 Environmental Commission detailing whether installing the telecommunications panels within the church’s existing bell towers was subject to an Act 250, thereby requiring a land-use permit. The Assistant Coordinator determined that an Act 250 permit was not required for the project because installing the telecommunications equipment was not a “substantial change” to the church as a preexisting structure, and therefore exempted from Act 250 under 10 V.S.A. section 6081(b). The relevant part of the exemption provision of Act 250 that provides:
“Subsection (a) of this section shall not apply to development which is not also a subdivision, which has been commenced prior to June 1, 1970, if the construction will be completed by March 1, 1971 . . . Subsection (a) of this section shall apply to any substantial change in such excepted subdivision or development.” (emphasis added).
The neighbors sought party status to challenge the telecommunications tower based on Act 250 criteria in section 6086(a) for: (1) noise pollution, (5) traffic congestion and safety, (8) impacts to aesthetics, (9)(k) public investment, and (10) local and regional planning. The District 7 Environmental Commission denied the neighbors party status to challenge the telecommunications tower based on criteria (1), (5), and (9)(k) and the neighbors appealed the denial of party status under criteria (5) and (9)(k). The neighbors argued that the Board incorrectly decided that the telecommunications addition did not constitute a “substantial change” to the church. If the addition did qualify as a “substantial change” the project would be subject to Act 250 review.
The Vermont Supreme Court rejected the neighbors challenge to their party status under criteria (5) and (9)(k) and reviewed their challenge solely under Act 250 criteria (8) impact to aesthetics and (10) local and regional planning. The court also agreed with the Board that the development on the church did not amount to a “substantial change.” The Vermont Supreme Court analyzes Act 250 with its own judicial interpretation, often referred to as a judicial gloss, developed in Vermont over the years. The court explained that once a Board determines that a project does not fall within Act 250 jurisdiction, the burden is on the party acting as a proponent of jurisdiction to demonstrate jurisdiction, i.e. that the project represents a “substantial change.” Therefore the neighbors in this case would have to show that the telecommunications facilities was “any change in development . . . which may result in significant impact with respect to any of the [Act 250] criteria. The Vermont Supreme Court evaluates such challenges using the “two-pronged substantial-change test.” Under this test, the court considers whether a development to a preexisting structure is a substantial change based on “ . . . whether a cognizable change to the preexisting development will result from the project, and, if so, whether it has the potential for significant impact under one or more of the Act 250 criteria enumerated in 10 V.S.A. § 6086(a).” (emphasis added).
The court then applied this test to the neighbors’ surviving claims that the telecommunications facility violated 10 V.S.A. sections 6086(a)(8) and (10). The court first examined the aesthetic injury claim under 10 V.S.A. section 6086(a)(8). Although the court recognized that the Board found the installation of antennas would be a cognizable change to the church under prong one of the two-part test, the court found that the proposed mitigation measures to the aesthetic effects of the antennas (i.e. mesh screens that would not hinder views through the towers) would not significantly impact the aesthetic beauty of the church under prong two of the test.
The court next applied the test to the local and regional planning criterion under 10 V.S.A. section 6086(a)(10). The court rejected the challenge to an Act 250 jurisdiction determination under criterion (10) local and regional planning, based on a 2005 decision by the Environmental Division of the Vermont Superior Court in In re Curtis. In in re Curtis, the environmental court held that “any claims neighbors might raise as to the city plan relevant to criterion 10 were not likely to rise to the level necessary to find jurisdiction under the Board’s substantial change test.” The Vermont Supreme Court subsequently upheld the environmental court’s decision in In re Curtis, 2006 VT 9, 179 Vt. 620, 896 A.2d 742 (Vt. 2006). Therefore the court rejected the claim that Act 250 jurisdiction could arise from noncompliance with local zoning laws by an infrastructure development. The court did not undertake any independent analysis on this point.
Pursuant to the Vermont Supreme Court’s decision, the telecommunications facility was not subject to Act 250 jurisdiction. Since the court’s “substantial change” two-prong test does not provide a bright line for when additions to preexisting structures trigger Act 250, infrastructure developers could use this loophole in the future to avoid complying with the statute. Interestingly, early in the process the Board told Verizon Wireless that moving the equipment shelter from the church “to a spot adjacent to the rectory” would fall within Act 250’s jurisdiction. Thus the lesson learned from this case seems to be that the loophole only exists if infrastructure is sited literally on a preexisting structure, rather than adjacent or near such a structure.