Vermont Legislature SmartTranscripts:

[Kathleen James]: We're live. Alright. Welcome back to everybody to, House Energy and Digital Infrastructure. It is Wednesday, January 21, and we are continuing our conversation about h five twenty seven, an act relating to extending the sunset of 30 VSA section 248A. We are here today with Chair Janet Hurley of the Land Use Review Board and two of her associates. And we are going to be talking a little bit about Act two fifty, the criteria and the public engagement process without going too deep into the weeds of Act two fifty, which is could take weeks. So we're gonna try to stay focused on understanding sort of in my mind a little side by side. Right? The Act two fifty public engagement process, Act two forty eight a. We do have Greg Faber here from the PUC who agreed to join us. He already walked us through the two forty eight A process and gave us a similar presentation last week, I think it was. And we do have posted on the committee page today a much more detailed document that walks that can give us more information on 248A. But Greg said he'd be more than happy to be here to answer questions. Timing wise, just so you folks know, we are a question asking kind of committee. We have tentatively scheduled at eleven a committee discussion of this bill, but that's not a hard stop. Just, you know, by lunch, we need to move on. So, anyway, we'll go around the room and introduce ourselves, and we'll have our guests introduce themselves, and then we'll turn it over to you to introduce yourself for the record. So I'm representative Kathleen James from Manchester.

[R. Scott Campbell]: Scott Campbell from St. Johnsbury. Richard Bailey from Memorial too. Chris Morrow, Windham, Windsor, Bennington. Michael Southworth, Caledonia too.

[Christopher Howland]: Christopher Howland, Rutland four. Dara Torre, Washington two. Bram Kleppner, Chittenden 13, Berlin. Laura Sibilia. In

[Janet Hurley]: the room.

[John Brabant]: Oh, good morning. John Graybamp, regulatory affairs director of modern shift in environment.

[Janet Hurley]: Allison S. Scott Campbell, Vermont Berkeley Environment.

[Unknown (committee member)]: Dana Lee Perry, New Crassie Group.

[Janet Hurley]: Serena Bennington, Vermont Natural Resources Wisconsin.

[John Brabant]: Chris Ration. I'm director of operation. Greg Favre with the ABC. Alright.

[Janet Hurley]: And I'm Janet Hurley, the chair of the Land Use Review Board. I live very close to rep James right across the line in Windham from Manchester. So not not too far from Rev Morrow either. And I'm here with Brooke Finkelveen, a board member, and Pete Gill, our executive director. So, Pete, why don't you introduce yourself and then we'll have Brooke introduce herself. Great.

[Pete Gill]: Great. Yeah, Pete Gill, I'm the Executive Director. I've been for about three years. Prior to that I was over at Norwich University doing compliance and regulatory work, and prior to that, I was, for about eight years, Associate General Counsel for the Natural Resources Board, which was the predecessor to the

[Christopher Howland]: Land Use Refugee Board. Great.

[Brooke Dingledine]: My name is Brooke Dingleyne. I am an environmental and litigation attorney with worked with Boston Giacomo, Detroit, and Queston, a Central Vermont law firm, for thirty years. I had the benefit of practicing before the Environmental Board, Environmental Court, and then when it was expanded to the Environmental Division. And then, also have practiced for about the last ten years of my practice, which just ended when I took this position, but before the the Public Utility Commission. So, I do have the the experience of, representing municipalities, individuals, small and large developers in both venues, both arenas. So you're welcome to pick my brain in terms of differences in challenge of being able to represent folks at either of these places. I have also previously testified on the reauthorization of two forty eight a, as well as the effort to eliminate aesthetics, but standing for individuals, neighbors on the issue of aesthetics, which was a hot topic some time ago and I think may also be circulating at this point. When I was asked by senator Cummings to come and testify because she was aware of my experience, I also asked her to invite Will Dodge because he was, he and I were in the middle of a case actually with Rutland Faber, on a telecom tower. And we were both concerned about the amount of time, the shot clock, that issue of speed for the developer, as well as for the neighbors and municipalities because it is such a such a, dominant process. It it takes so much effort and resources that the neighbors don't wanna prolong either nor do the municipalities. So I thought it would be beneficial to get, Will and I were on the same page in terms of our goals. And so I thought that that was a very important aspect because we all had very shared concerns about the public participating and the speed at which permits were being delivered to developers. So anything that I can help in terms of my experience and perspective on that,

[Pete Gill]: I'd happy to answer any questions.

[Janet Hurley]: Great. So we're gonna give you an overview of the process for Act two fifty. Go ahead in the next slide. And I guess I should just add that I come from a municipal planning background and regional planning background. We have five board members that are all full time professionals. First slide, Rick, why don't you since you've been part of both of those processes before, can you see that? Yes. Okay.

[Brooke Dingledine]: Is, so active 50 jurisdiction is triggered within our definition of development within the statute and that's section six zero zero one. And, one of the triggers is, telecom towers or vertically, protruding structures more than 20 feet above the highest point of an existing structure, or 50 feet above, or more above the ground level. So active 50 jurisdiction already exists, always has, for telecom towers. And I litigated them in front of the environmental board, the Mount Irish Towers that you see at Exit 6 in Berlin. Those went through Act two fifty. I was representing Karl Rinker, and then AT and T came in from 2nd Tower and assisted as an amicus. I also permitted the Hardwick Tower that is on Bridgeman Hill Road. That was essential to put there instead of putting it on the on more prominent health sides that were protected in that town plan. So, the process exists. It's a normal Act two fifty process. The normal criteria are looked at. The difference with the PUC, it's an optional, and I heard some of the testimony I was able to listen to over the weekend, and I would agree. Other than amendment permits to existing towers, I don't know of any significant towers that have been put through Act two fifty, you know, some years after this 248A process came into being. So, it's an existing jurisdiction. It's not like you would be transferring jurisdiction to us, but most people most of the developers choose to go through 248A. 248A has most of the Act two fifty criteria transferred into it. Criterion one through eight no, nine ks, I think. Greg, maybe you can help help me on that for PUC criterion one through nine k. Yeah. Are already imported in, that's part of the analysis and the review of the PUC. And the Criterion 10, which is Town and Regional Plan, is also looked at. It's just not specifically talked about as Criterion 10, but it's a very similar analysis. And there is extra substantial difference given to a town for telecom, either what their opinion or their interpretation, as well as the language in their town plan, or even if they have a standalone ordinance for telecom or they have a provision in their zoning ordinance that pertains to telecom towers. And instead of them going through that process of permitting at the local level, it can be used to inform, you know, we don't want towers in that area. We want them over there. Might be in the

[Laura Sibilia]: tele you know, it might

[Brooke Dingledine]: be these are the districts in which telecom is a permitted use or a conditional use. So there is that notion of local zoning being able to plan to put these large, huge industrial facilities in the places within a town that are appropriate. Those provisions, those regulations cannot have the effect of prohibiting. Okay. Well, we're gonna tell you that you can only have it in this one place, and it really wouldn't work, you know, that way. So that's the federal preemption part from the FCC, that this is federal law, telecom tariffs, but you are able to, as a community, decide where best to place these kinds of industrial facilities.

[Pete Gill]: Yeah. Just to highlight on this on this slide, you can see, as Brooke was pointing out, you've got, the first language there is how act two fifty would, what its jurisdictional thresholds would be for these projects.

[Kathleen James]: If a developer chose that.

[Pete Gill]: If they if they chose that, and what gives them that choice really is that second that second area provision that's highlighted in green there saying that, well, if you've got your certificate of public good, which they can choose to obtain, then it is not development, meaning it is not in the act two fifty bucket. So just to summarize that.

[Brooke Dingledine]: And I did did not specifically mention, but act two fifty has jurisdiction as we just saw. But municipal zoning may have jurisdiction, probably does have jurisdiction if zoning exists. Some of our towns do not have zoning at all. Many of them do not. But if you have to go if you're going to act two fifty, you also have to apply to municipal zoning if it exists. And so there is I've heard there is concern about that duplicative process. We struggled with that in terms of that's what we studied over the past summer since we were installed in our positions. We did an appellate study to try to figure out how to speed up, you know, to 50 appellate process. And it's important to understand that I may be getting ahead of myself, and then jumping ahead. Let me have Jenna go over Act two fifty eight.

[Janet Hurley]: We'll describe our presence statewide. So, the five appointed members of the new Land Use Review Board oversee the program statewide. However, we have five district offices around the state that serve nine districts and each of those districts is shown in a different color on that map there. Each of those districts is staffed and there is a commission of citizen commissioners, three citizen commissioners that the governor appoints. Those are the commissioners are the ones that make the permit decisions. They are staffed by district those districts are staffed by district coordinators, an individual who assists all parties through the permit process and assists the district commission and drafting and developing their decisions, their permits, and the hearing procedure if that's called for. So, are going to quickly describe the process that Act two fifty permit review

[Pete Gill]: In looks the next couple of slides we'll go through the three different processes for this. As you can see here, you know, it's a citizen based review, as Janet was talking about, where citizens are brought into the process through these district commission proceedings.

[Janet Hurley]: It's As well as the commissioners being citizens of those regions. Mhmm. So

[Kathleen James]: Sorry. You said the commissioners were Elected, appointed They're appoint staff.

[Janet Hurley]: I can't remember. Sorry. Professionals. No. They're volunteer citizen volunteers that the governor appoints for each of those nine districts. And so, have three regular commission members in each district with alternates that serve when one of the members can't, for some reason, serve on a particular permit review. Okay.

[Pete Gill]: And that's yep. And then staffers, district commissions, and technicians that help facilitate their decision, the commission's decision making on those permits.

[Janet Hurley]: Okay.

[Pete Gill]: So in that process, when the district commissions, they've they receive a permit application from an applicant, they would review that under the 10 criteria for Act two fifty. And those are listed here. We're just gonna jump to the next slide really quickly because those 10 criteria, as you can see, are repeated here, but there's sub criteria within each of those, which comes out to about 32. So as you can see, it's a very comprehensive review, many different, factors that are, evaluated when the district commissions are determining whether a permit should be granted or not. I'll just say really quickly here that we have, about point 2% of our applications that are denied. So, in essence, the commissions are generally finding the applications are leading to issuance of a permit. Here's the beginning portion of the Act two fifty review process. I'll just note behind me, I've got a large poster. I'll leave that in the room maybe for the day if that's okay with you all if you'd like, and I can pick it up later. But just gives kind of the steps in a lot more detail than what we're providing here. So if you're a detailed person and wanna get into that, we'll leave that there. This is kind of the initial part, and what I'll say here is even before this any of this happens, before somebody comes in the door and says, here's my application, we encourage strongly encourage folks to come into our district offices, meet with the district coordinator, and say, hey, let's sit down and and have a pre application meeting. Let's talk about the different criteria, how those might impact, what my project is, and how I wanna accomplish that, so that they can hopefully get to that endpoint of a permit, being issued at at the end of the process. So after that kind of pre application, you get to that first orange box there, that's that's where the the application is coming in and we look at that and say, okay, is this gonna be enough information for the district commission? Remember, are appointed laypersons. Is this gonna be enough for them to assess each of those criteria for compliance? And if it's complete, then it moves on. Our staff is required to review that in ten days and give a completeness determination at that point. Sometimes they will find that, oh, you're missing this or that, we need a site plan, we need something, they get that, they obtain that, that's back in the applicant's court at that point. Once they get that back to us, then we'll review, that again, making sure that it's complete for that, citizen based commission to be able to review it. Once that happens, it comes back to, well, at this point we have, the the district commission looking at it and saying, okay, which of these three boxes on the bottom of that slide are we gonna slot this into? Is this something that an administrative amendment, record keeping type application? And we'll get to that at the very end of this presentation. Or is this something that is a minor review process? Or is this something that's a major review, meaning that we're gonna have a hearing? So kind of two, and those are the two main application types that we're gonna be talking about today, that minor process and then the major process.

[Kathleen James]: How and where are notices published?

[Pete Gill]: Yeah, so that middle long line there, blue, that talks about that first notice period. So when we receive an application, it's received in, we will make sure that that goes out to the landowner. If the landowner is not the applicant, we'll make sure that goes out to the regional planning commissions so that they can review it. We make sure that goes to the agency of natural resources. Other agencies are often put on that as well. Let's see, yeah. So those are the main folks that get that first initial, hey, we got an application in, here it is, lets people know.

[Kathleen James]: So there's not a broader public notice at that time?

[Pete Gill]: There there will be. There will be,

[Unknown (committee member)]: yeah. But So not

[Pete Gill]: this is just the first determination. Is this even a complete application? It should have been received, so it may have three items in it, they didn't realize how to upload things correctly, and they need to go back to the drawing board on that. So it's not more broadly, noticed at that point, but we will get to that.

[R. Scott Campbell]: Okay. Yeah. Right. And zoning, where does that come in? Is that come in? Like It

[Janet Hurley]: doesn't that's up to the developer. Okay. And so you don't you don't have any court We don't have no.

[R. Scott Campbell]: No court You don't notify the municipality or anything like that.

[Janet Hurley]: So the municipality municipality is one

[Pete Gill]: of list. I don't

[Laura Sibilia]: if I missed them on

[Janet Hurley]: this that and he missed the joiners.

[Pete Gill]: So joiners come in later. They come in later in the process.

[Janet Hurley]: Oh, they don't get this for They

[Pete Gill]: don't get that first So what happens is the applicant will Mhmm. That initial application, and with that, they will provide a list of different adjoiners that they have, for that, so that we can, then get that in a notice process, later down the road here. So let's go into the, minor review process, kind of that second or middle box there. So this is where the commission has reviewed and decided that given the application materials that are there, there's not gonna be a significant adverse impact to any of those Act two fifty criteria. They've really they've reviewed it and said, nope. This can go down the the minor application process. There isn't concerns coming from citizen groups saying that this needs to go in a different direction at that point. And once they've done that and the completeness review is set, will publish in the newspaper, as you can see there in that circle on the far side. They will make sure that there's notice to all the parties that I provide that I mentioned before, or individuals mentioned before, plus they will make sure that all those abutters or joiners are covered, and then anyone else that has asked for to be noticed or that the commission feels needs to be noticed in that particular application so that district commissions do have discretion to provide additional notes to other people. Okay.

[R. Scott Campbell]: What dictates the notice period? Because it has that range from seven to twenty days.

[Pete Gill]: That's within the statute as the notice period.

[Janet Hurley]: So you're asking whether the commission says it's gonna be seven days

[R. Scott Campbell]: What dictates it? How do you choose that time? Right.

[Pete Gill]: So there is different provisions that provide to seven to twenty days, think, in terms of, how we've looked at it on a practical level, making sure that there is enough time. This is what we would call the the comment period. So it's been published in the newspaper. It's gone out to all the, different potential parties, people that might be interested. It provides them an opportunity to comment and say, Do I have an issue with this particular permit? Is there something that I need to, one, request a hearing for? Is there something that needs to be addressed in this process? And that's that comment period. And so we found that that range is a good time period in terms of getting collecting that information, but that is

[Kathleen James]: think what

[Janet Hurley]: he's asking, Pete, is who makes the decision as to

[R. Scott Campbell]: Whether something they

[Janet Hurley]: for a common period.

[Pete Gill]: I believe that's commission. Commissions can set that.

[Janet Hurley]: And do you that describe their situation. What average are commissions?

[Pete Gill]: Typically, it's twenty

[Janet Hurley]: twenty days. Okay.

[Pete Gill]: Yeah. Thank you. Yeah. Sorry. Long way of getting on getting there. Thanks, Janet. So

[Janet Hurley]: so then the the commission issues a draft permit and that's what that's what people are responding to in that comment period.

[Pete Gill]: Yeah, so in the minor process one of the things that they can look at is do they have enough information to draft the permit and have conditions that would meet all the different criteria. If And they do, they can go down this minor process. And as Janet said, once they've got that draft permit, they put it up for, this notice period comment.

[Kathleen James]: So it's during that comment period that any designated agency, a butter, somebody who has standing can request a hearing or somebody else could come in and say, I'd like status. That's when that all happens.

[Pete Gill]: Yes. You can put your comments in during that period.

[Janet Hurley]: Right, so if somebody wants there to be a hearing, they would say that.

[Kathleen James]: That's their window.

[Janet Hurley]: That's their window. And then if a hearing is requested, the commission may agree and put it through the major review process, which requires a hearing.

[Brooke Dingledine]: And the fact that they have drafted the permit gives the neighbors and the municipality the opportunity to see what the conditions are and how they're drafted. And that way they can determine, oh, okay. I don't have an issue because this satisfies the concern that I have.

[Kathleen James]: And the commission, I'm sure, can deny somebody's request for status. Can they deny a request for a hearing?

[Pete Gill]: Yeah.

[Brooke Dingledine]: Yeah. If under what circumstances? There hasn't been a requisite showing that there is a substantial issue or a substantial impact or a potential add undue adverse impact.

[Kathleen James]: Okay. Seem to meet in the in the commission's judgment some sort of threshold.

[Janet Hurley]: Mhmm. Yeah.

[Brooke Dingledine]: Okay. And and I I don't think it's wrong to say that on party status determinations, I think that historically, the district commissions have been fairly liberal in acceptance of information and allegations to get preliminary status because we also have a mechanism at the end of the hearing process to revisit the party status, determination that came in the beginning. Because in the beginning, you're just, oh, this is what you're going to prove to us at the hearing. Then you have if there is a hearing, you have that. And then at the end, in the decision, those party status determinations are revisited and confirmed, or if they didn't show up or didn't bring requisite evidence, then they might

[Janet Hurley]: And we'll recheck that in the

[Pete Gill]: Yeah, future the next slide. So, yeah, just to reorient you there, I mean, you go down the minor process and go to issuance or you get comments in and request for a hearing then it goes back to the major process, but it can also start with the major process and that's what we'll talk about on this slide here. So very similar in terms of the start of this, process. It is, you know, published, a notice is published in newspaper. It's sent to the adjoining adjoiners. It's sent to the parties that are designated within the statute that I listed previously, so similar persons in that case. And then there is a pre hearing conference that is held by the commission, which, the public is invited to and may attend. At that time, people can, and we often the commissions will go through, what the process is and and remind people about how party status, which we will get to in a moment, but that's, those peak persons that, have a certain status to be able to participate in the proceedings, and they can they can request that party status at that pre hearing or hearing conference, that's being that's being held. And we have forms that kind of outline how that, what they need to state in the record before provide to the district commission, for that determination. There's often a recess order after, the first hearing with information that the commission, is requiring or the applicant maybe makes a few changes during the course and needs to provide that additional information to the district commission. They will review that. Once they review that, then they deliberate and decide the decision that they're making on that particular permit application. And it will be issued within twenty days of that last item being received, or it's denied, and again, those are very small, percentage of, matters.

[Janet Hurley]: So do have question?

[Brooke Dingledine]: Yes. I'm

[Kathleen James]: wait until it's formulated. Either one? No. Mean, I

[Laura Sibilia]: have I have. Oh, okay. I guess it's more of a a just a a comment on this. I'm I'm really interested in making sure we understand the public process with all of this. So, this is very helpful in that regard. I do have to, to the surprise of none of you sitting there probably, note that I would I've had a very different experience in Windham County and District 2, particularly around permitting for critical infrastructure, which I'm hopeful, you all are going to, over time, help with processes that things like that don't happen again. So just the period of time and the ease of all of this is not something that I would concur with in my region.

[Janet Hurley]: So Right. So what this doesn't show is that there can be multiple recess orders, and that does extend that timeframe. So, these numbers here are fourteen days, twenty days, ten days. That's not necessarily what you're going to see in the end, depending on the application, what information the commission deems is necessary. Or, yes, if if an applicant decides to modify a a proposal and need to submit new plans or whatever,

[Laura Sibilia]: I really I wanted to touch on that because I know there's a great desire by some Vermonters to improve the public Mhmm. Process related to cell towers, and I understand that there is a different public process that happens over at February. So this is helpful in that regard. Mhmm. I just wanted to Yeah. Note. Yeah. I don't concur with some of the notions of timelines and heaps. Yeah.

[Pete Gill]: Yeah. Certainly in terms of the timelines, we we strive to meet those timelines, but, you know, as Janet said, you know, when you have those, you have a hearing, and there's an opportunity for the applicant to address some of those concerns, then, you know, the clock sort of stops on the Act two fifty side and is back onto the applicant side, to provide that additional information or work with a neighbor party to try to come up with a resolution, and the district commissions oftentimes are very flexible in terms of providing that opportunity for the parties to work that out. Could be said that sometimes that's there's too much flexibility there, but that that does occur and that does change kind of the overall timelines. This might be a good point just to interject in terms of kind of our processing times for these, matters. So I don't have the current data for this last this last year, but previously we had about a six month to one year process for major applications. That's the ones we're talking about now with hearings. Certainly outliers in all in all of that one way or the other. And then in terms of the minors, it's usually about three to four months, that those, are processed from when we do it complete to when you have a permit, in PM. And then the administrative amendments, which we haven't gotten to yet, those are just usually a matter of days on average. So, could

[Kathleen James]: you go back? Yes. So, yeah, you can tell what we're interested in is public So I I'm trying to imagine how this how this plays out, you know, like, for just your average me, So, for say there's a Act two fifty process unfolding in my community, and I might not be a party, but I I would find it a great interest. So I'm I'm obviously not gonna see it on the Act two fifty database unless I get up every morning and Check it. Check it. I buy a subscription to the local paper where presumably it would be behind the paywall.

[Pete Gill]: It's usually in the legal notices, so sales and things like that, but you'll see usually in bold, it'll say act two fifty permit, and then it'll give the number which you can look up that, yeah, in that way. And then one thing I forgot to mention here too is that with that, at that same time, the applicant is required to post a sign on the property. So if you were somebody in the area that was interested, you would be able to get the pertinent information from that sign. We have a standardized template for that for folks

[Janet Hurley]: to post on their property so you could see it from that and then learn more about the process. Okay. The other place that it shows up is the town clerk's office. So it's posted in the municipal clerk's office as well.

[Kathleen James]: I would think in today's modern world that the way most people hear is that a a worried neighbor puts it all over Facebook. Is that how it usually happens?

[Brooke Dingledine]: Often, it can happen that way. Sure.

[Kathleen James]: So I mean, you know what I mean? I'm just curious about how these actually reach, you know, everybody. And it's just it's an it's it's of interest to me because it's like, how do we get the, you know, how do we get the word out broadly so that folks don't have to go looking for it or digging for it? Yeah. Did you have a follow-up?

[Laura Sibilia]: I did not, madam chair. Okay,

[Kathleen James]: on we go.

[Pete Gill]: Yeah, and then just to kind of jump off of your line of questioning there too, we have another, well, actually we're gonna get that into that on party status, I will save my thought there. Okay. So this gives this slide maybe more for reference for you all, but this this kinda talks a little bit about what typically happens at a at a hearing. We have very adept chairs that we'll go through. We have a hearing system

[Janet Hurley]: Yeah, me say that. So, the hearing is typically held in the municipality in which the development is proposed. Oh, that's good. So, the commissions travel for their hearings and they often are held in a municipal town hall or So, they're warned. So, there's, you know, some word-of-mouth may come out just because it's happening at town hall. You know? So, sorry, Pete.

[Pete Gill]: Yeah. They're they're warned and they are now hybrid. So, people can enjoy them from their living rooms if they would like.

[R. Scott Campbell]: So so the commissioners conduct a hearing? Yes. And they and the coordinator the coordinator, I guess, is the title Yep. Would would be there. Staffing.

[Pete Gill]: To provide yeah. Yeah. Assisting the the commission. Yeah.

[Janet Hurley]: Staffing the technology. Yeah. Making sure the commission has everything that it needs to pull that hearing back. Yeah.

[Brooke Dingledine]: And just so you know, it's a real hearing where the neighbors can come and speak if they have an issue. They can come and speak and talk. They don't have to file pre filed testimony and go find a lawyer to help them figure out how to communicate.

[R. Scott Campbell]: So, it's more like a public hearing than a than a formal process?

[Janet Hurley]: It it is. Pretty formal, but it's but it but you don't you don't have to have representation. You can just come and the commission will hear what you have to say. Okay. If you're a party. Can you can't come and speak. You can Whether you are a party or not. Oh. That it doesn't mean doesn't mean that the commission will grant party status to everybody Right. In the room, but yeah. And there

[Brooke Dingledine]: before that you get to the hearing, there's usually a, pre hearing conference, and that typically is when people come and if they don't know already, they're given materials so that they understand what the criteria are and how to ask for party status and what kind of showing you need to make. So so it's a nice handout so that it's it makes it more accessible and people understand. And I'm public also. Right. And and that's a a public it's like a pre meeting ahead of time.

[Janet Hurley]: Yeah. And often, there would be a site visit for a major application. If if there were a new tower going up, would imagine that there would be a site visit, that the commission will hold the site visit. And often that is right prior to the hearing being.

[Brooke Dingledine]: And the balloon tests and all of that were very typical when the district commissions were promoting those kinds of projects. It was much more the the it happened a lot more easily. I think the PUC doesn't do site visits and balloon tests necessarily. So I think that was a very important part of the process because it allowed people to see where is this terror going to be, how can can I see it from various vantage points, and it helped really to facilitate information to the community. And it it was a very important aspect.

[Pete Gill]: I think in our trainings for our district commission commissioners, one of the things that we try to stress is that they follow the the law and what they need to do for their decision making, but that they're also welcoming and accessible to the public. One of the tools that they have for that is the hearing process and bringing people into that. I'll just jump in to the party status piece. So you do have those statutory parties and it might even be the next slide. Is. Yeah. Let's jump there.

[Janet Hurley]: Do people have questions about how a hearing does help? Okay.

[Pete Gill]: And so you'll have these statutory parties which are listed listed here. And as you notice, these are, folks that were getting notice right from the, get go of the application as well. And then you'll also have let me go to next slide. You'll also have individuals that are interested in that project and and have a particular what they call a particularized interest in that project in that project. So it's it's an interest that, the project is going to be affecting them in a way that, can be addressed through those criteria, those criteria, 10 criteria that we talked about earlier. And if that's the case, then they may be granted party status. But if they're not granted party status, we also have another mechanism that's called the Friends of the Commissions. So if there is somebody that is interested in this project, does not have a particularized interest, but wants to provide additional information to the district commission, we allow that to happen through that Friends of the District Commission status.

[R. Scott Campbell]: Correct. Question on this. So somebody who's lives across the way and is concerned about aesthetics, would they be be able to gain party status, or would they be well, second second friends or something?

[Pete Gill]: Yeah. So, I mean, it's the commission would have to go back through that analysis to to see, but likely somebody that's it wouldn't necessarily need to be in a butter or joiner right to the property if they have an impact on aesthetics. Aesthetics is one of our criteria's criteria. If they have an impact from that particularized interest, then they would be able to be granted party status even if they're not an abutter, but they yeah. K.

[R. Scott Campbell]: Some of the testimony we heard on February a, like, some of the abutting landowners, The the applicant send it to the wrong address or is a previous owner or are there multiple ways that buggers

[Janet Hurley]: End up not getting noticed.

[R. Scott Campbell]: Yeah. Between you I mean, you know, in the DEC rules, you know, it has to be verified against certain databases, municipal database, whatnot. Is there who who follows up on that to make sure that these people are actually getting notified?

[Pete Gill]: Yeah. So we do, provide a lot of, resources for the applicants when they're providing that, a joiner's list to us so that trying to get it accurate on the first go round, right, that they're providing, but somebody can move in the middle of the process, right, or something like that. So that can happen. One thing that our district coordinators do is they do they do review those those lists and try to try to look, on a broad level, especially if there's, if it's something that it's it's really, you know, critical or or there's some confusing parts about how that list might look, they may look take that a little more critical look and try to figure out where that is. But, generally, they're using the the applicant is using their resources in our application guide to provide the most most recent joiners list to us at the the get go.

[Janet Hurley]: And are we directing them to municipal data?

[Pete Gill]: I think it's related to the sales of properties and that data.

[Janet Hurley]: Oh, they're updating.

[Pete Gill]: Yeah. There is a database they they can bring you and we point them to.

[Brooke Dingledine]: Okay. And and if they're going through zoning and I two fifty, zoning also has a process whereby, the interested parties list is provided by the municipality, and they are verifying the abutters as well as anyone who appeared at the hearing and participated, because even if they weren't abutting, perhaps they live in the immediate neighborhood. So it's assumed if they if someone came and testified at the zoning hearing, they're put on the list to be notified if there's an appeal to the environmental division. So, you have sort of those two things working in parallel. I have never seen, a problem, or if there was an one preliminarily. I've seen them sorted out very quickly, at zoning or act two fifty. It seems to be a common problem, that I recall seeing a number of times, at the PUC, and I'm not sure why that is, except for the fact that you don't have the human district coordinator person helping and checking and verifying that information. That's the big difference I see.

[Janet Hurley]: Yeah. All that's different. And I'm

[Brooke Dingledine]: not saying that it's a that it's, like, a fault. I I think, you know, we have a an administrative person Mhmm. Who is who works with the applicant who comes in, and we have a special form, write down the abutters, and, you know, sit down and look at a map together often. That's what I would do when I had an applicant make sure, oh, district commission coordinator, did we get this right? And, you know, that was in days when we didn't even have, you know, the Vermont Atlas, and you can pretty much figure out who owns every parcel or who recently has owned it, and then maybe just have to update it. So I I'm not in any way casting aspersions that like, the PUC isn't doing it. I don't think they're just I don't think they're structured to have the same amount of detail oriented review.

[Pete Gill]: Okay. Not that we haven't gotten it wrong before on the active 50 side. It has happened and all, we know that we have had to re notice things before, which we will do. Handholding through the process seems like a critical a critical thing, and that sounds like that's a good coordinator's job.

[Janet Hurley]: Yeah. It's a very comp

[Brooke Dingledine]: you know, it's complex. Yep. There are just so many things that have to be checked. So

[Janet Hurley]: Brooke already mentioned this, but the final part of status decision is part of the district commission's written decision in the end. So Pete did want to describe the administrative amendment Yeah, there's a question of that

[Pete Gill]: third bucket. So, are, again, as I mentioned, these are for record keeping purposes. There's no likelihoods of impact on the criteria when these applications go through. This is a district commission decision. They decide that, yep, that this application should go through this process. But, you know, a couple of important points here, and these are things that we let our commissioners know when they're making these when they're in their trainings so that they understand that that these administrative amendments don't have a notice to the public or other state agencies in in terms of that process. Right. There's not a notice to adjoiners, etcetera, in that process. And again, these are for your record keeping purposes, only. So it makes some sense that there isn't more process, about, surrounding those, but they're they are critical in terms of, making sure that

[Janet Hurley]: t's are crossed and the i's are dotted and on the permitting side effects. So, Pete, probably an interesting question would be, what if there's an existing tower and they're just putting another, antenna on? Would that qualify for an administrative amendment?

[Pete Gill]: So it could or it may not. It does depend on how tall that additional tower might be or antenna antenna on that existing tower might be. There are some portions of changes that would not be required to have a permanent amendment to it, but other things would. And if and if it would, then you do have a likelihood of of impacts under the criteria. It could be under that aesthetic strike criteria. Right? So in which case, an administrative amendment may not be the appropriate, permitting process for those.

[Kathleen James]: I didn't know.

[R. Scott Campbell]: Actually, you said, does that have to do with the height of the tower? Is that the main threshold? Yeah.

[Pete Gill]: I think that's a that's a critical that's a critical one. Right? Yeah. Else? So there could be something like an, you know, an access or something like that. If they were gonna change an access or something like that, then you might have transportation issues or something potentially. So maybe additional infrastructure on the ground or something like that? Yeah. If there's a facility within it. Yeah. Yeah. And if there's, you know, there's statutory language on this too in terms of, you know, repairs or or replacement of in kind parts and things like those. Those would not require a permit.

[R. Scott Campbell]: Okay. Okay. To that.

[Christopher Howland]: Yeah. Okay. So

[Greg Faber]: what is the if the commission denies a permit, does the land use review board listen to the appeal? And what exactly didn't

[Janet Hurley]: So right now, no. The the appeals go to the environmental court. What Brooke mentioned earlier is that part of the task of this new board was to produce an appeals report and recommendations to the legislature. And we did submit that report in November and Brook has testified to now a number of committees on our recommendations, which include not immediately, but sending appeals to the land use review board instead of the environmental court.

[R. Scott Campbell]: You mean not in a hearing?

[Janet Hurley]: We're not ready to take that on Oh, no. We're still implementing act 21. Right. So

[R. Scott Campbell]: just to clarify this, would this be analogous to the de minimis criteria under two forty eight a?

[Brooke Dingledine]: Yes. Very Okay.

[R. Scott Campbell]: So we heard that 90% of the applicants go through

[Greg Faber]: the de

[R. Scott Campbell]: minimis process. So a lot of that would be same kind of administrative.

[Brooke Dingledine]: Yeah. I had a case where it was a church steeple, and they wanted to change the materials of the louvers at the top to something that was not wood, which was original. And so they just ran it by historic preservation, and it ended up, you know, going through similar to the de minimis kind of notion of the PUC. If it's a replacement or if, you know, we need a new antenna, and it's not a material change to a project. It's of some significant aspect. Right. Thank you.

[Christopher Howland]: When when did the land review review process start? Land review board process?

[Janet Hurley]: The land use review board was seated almost

[Pete Gill]: January 27.

[Christopher Howland]: Exactly

[Janet Hurley]: a year ago.

[Brooke Dingledine]: 2024.

[Janet Hurley]: So we've been at it for a year.

[Christopher Howland]: 20¢.

[Janet Hurley]: Thank you. Yep. Yes.

[Greg Faber]: And there's one more for each? There's one for each commission?

[Janet Hurley]: No. Land Use Review Board is five of us. From whole state. From the whole state. Yes. None none of us can be from the same county. We have five year terms. They're staggered five year five year terms pointed by the governor, but the governor cannot remove us. So

[Brooke Dingledine]: And confirmed by the senate. Confirmed by the senate. Yeah.

[R. Scott Campbell]: I I guess I I would ask ask about the de minimis, the proportion of of permits going through two forty eight a that are de minimis versus everything else. Is there any way of gauging since actually, it be a lot of other things besides towers. And can we engage in the proportions that are administrative amendments versus minor review versus the

[Pete Gill]: review? So we don't have a huge dataset for towers.

[R. Scott Campbell]: Yeah.

[Pete Gill]: So, I mean, I think most helpful for you all would be probably towers. We had two applications. One was an AA and one was a minor last year. Two tower. Two tower for tower applications.

[R. Scott Campbell]: Okay.

[Pete Gill]: But what I can tell you is our our permits from last year or 2000, '24. Majors, requiring a hearing was six. Minors, two majors where they converted, right, was an additional five, so that's about 11 in that category. And then minors was 229, and administrative amendments was a 107. So you're talking, yeah, you know, a half of them were administrative amendments out of those minors. Okay.

[Janet Hurley]: Yeah. Thanks.

[R. Scott Campbell]: Can you speak to the capacity of of the system just for new permits? Like, hypothetically not advocating for this. Hypothetically, if February, we went to sunset and everything came back to back to 50, you know, it's a couple 100 applications more a year that you guys would be seeing. Would that strain the system, or is there plenty capacity for that?

[Pete Gill]: I can say that over the course of the last several years, five to ten, that the number of applications going through active 50 has gone down a little bit. So there is that I mean, there was a historical point where we were doing, 900 permits a year, a lot a little bit larger staff at that point as well. But now we're in the range of 350 to 400, somewhere in that range. It does fluctuate with construction costs, etcetera, as you can imagine. So there I would say that there is some some built in capacity to work on that. The other thing I would say is that we are in a time of transition and change in our program, and we are tasked by the legislature to report back in 2029 about staffing levels, etcetera, because we are going into a tiered system of jurisdiction. There's gonna be areas where we have new jurisdiction where we didn't have it under tier three, and we are having exempt areas within tier one a. So how those play out in real time, will be to to be determined a little bit.

[R. Scott Campbell]: Thank you.

[Unknown (committee member)]: Oh. Did you say less than 1% of applications are rejected?

[Christopher Howland]: Or denied? Yeah. Point two.

[Unknown (committee member)]: Point two. Yeah. Lot less than 1%. Yeah. So why is there this general perception that Act two fifty is ruining everything?

[Janet Hurley]: That's a very packed question that's packed with a lot of I mean, are a lot of reasons. One of one reason that Act two fifty gets blamed a lot is for things is that we cannot issue a conditional permit. So, if an application requires other permits through, you know, in other agencies of the state, our commissions cannot issue that final act two fifty permit until those other permits are issued. If those other permits are being used to show that the applicant meets the criteria, the Act two fifty criteria. So, a storm water permit for example. So, sometimes other permits are holding up the Act two fifty process and so it gets blamed for being really cumbersome for that reason. But it might not be the Act two fifty District Commission review and process that's really holding something up. One of many sort of scenarios.

[Brooke Dingledine]: Yeah, and think in the appeals study, what we saw from doing a couple case studies of those poster child horror story cases of housing that took, you know, seven hundred and seventy seven days, one of them, to get through. But what we found was it was the appellate process. It was going to the environmental division, how long that took, the discovery, the motion practice, all of those things that delay a decision and drag out the litigation portion of of this permitting that we were trying to study and figure out how do we speed this process up. And so, you know, don't forget the supreme court can take up to a year or more. That's that's a possible aspect of all this. The middle portion, which is they leave the district commission, and if they don't like the answer, it gets appealed to the environmental division. And the way that I see these kind of a comparison between the public utility commission versus how act two fifty works is that our district commission makes that original determination, and it's a real decision. You have hearing officers that are making a recommendation for a decision to the three member commission, the Public Utility Commission. They can either accept it, reject it, or change it and explain why. In our process, it gets appealed to the environmental division, which is a de novo hearing. So you go to somebody else for them to hear and to make a different decision, typically de novo on most of the cases. And so explain de novo

[R. Scott Campbell]: Sure. Again?

[Brooke Dingledine]: So that means when, to to start with Public Utility Commission, you have a hearing officer that says, this is how I think the case should be decided and writes out the whole decision, and that's either accepted or rejected. In the Act two fifty, district commission makes the decision. If it gets appealed, The court will hear it de novo, blank slate, as if nothing happened below. And so, nothing is in evidence automatically, not even the decision that was made below because that is irrelevant in a sense, Because this is a new tribunal, and the applicant has the opportunity to say, here's my case. I want someone else to decide it, not the district commission.

[R. Scott Campbell]: Scoring the other parent. Pardon me? Scoring the other parent.

[Brooke Dingledine]: Mom's gonna give me another parent. But the the Natural Resources Board, now we are called the LERB. We are now a professional board. We appear in that process as a party, like a neighbor. And we don't get any deferential substantial deference to anything that we say. We're just a party. And but it's it's an interesting comparison because when we thought about this appeal study and what do we do to speed things up? It was the problem with the court is it's a court and it's overly formalized and this is permitting, not a dispute or a war between parties or shouldn't be. And so what we tried to do was focus on accessibility, speed, and cost. Those are the three obstacles to the public being able to engage properly and exercise their due process rights. Now we looked at the Public Utility Commission model, to say, what if we turned our district commissioners into recommenders? And then the lawyer decides and, you know, then you can go to the Supreme Court. And we shot the only thing that we retained from the PUC model was what the standard of appeal was once the appellate board, the LERB, would make a decision. What kind of review would the supreme court do? And so that's about the only thing that we thought was palatable and helpful for the PDC model, and here's why. Because due process is about knowing the evidence, having an opportunity to be heard, cross examine the evidence that's presented, and call for evidence in your own favor. That's what the essence and fundamental nature of due process is. And I'm reporting this from seven multi hour meetings with some very engaged people across the spectrum in terms of our stakeholders looking at this issue and how to preserve the right parts of due process, but still speed things up. And contrary to what I heard testimony before about, well, at the PUC, we can't we don't have site visits or we don't actually even have hearing sometimes. We can't. And beyond that, how can we reduce due process? Well, we looked at that that that was upside down. What we wanted to focus on at act two fifty for that that safeguard that our district commissions were making the right decision if we were going to sit as an appellate body. Most important thing was holding a hearing and holding a site visit. Those are the fundamental aspects of due process. When I hear those are being eliminated, that was what the stakeholder group was trying to focus on as being the most important portion of what you want to preserve. It is not about discovery. It is not about lawyers pushing papers and trying to figure out what you're gonna say to hearing. In active 50, you get a hearing. At the Public Utility Commission, you get paper pushing for weeks that that I think I listened to Annette Smith's testimony and a lady yesterday named Donna. I'm sorry. Didn't know her last name. But they talk about the hairy nature of trying to engage as someone from the public, and I include municipalities in that as well. And this goes to section two forty eight a as well as two forty eight a. It has become so formalized. It is an arena for lawyers. Prefiled testimony is nothing more than the lawyers writing what they want the witnesses to say or the witnesses writing their testimony and giving it to the lawyer and saying, did I say it right? That is the reality of it. A hearing in Act two fifty is people coming and speaking and questions being able to be raised and talked about and tell us more about this. That is the benefit of due process hearing, being heard, having your position heard without having to learn how to draft Greek file testimony and get it in on time. And the other thing is the compressed time period for all of this paper pushing that goes on at the PUC. Know, normally under the civil rules, if you're served interrogatories And when I say discovery, I'm not sure if everyone knows what I'm talking about. But in litigation, before you get to a hearing, you want to prepare your case. And the way that you do it is you're allowed to ask questions on the other side. What are you going to put into evidence when we get to the hearing? What's so and so going to say? Tell me what your experts' opinions are. What are they based on? All of those questions are asked in interrogatories, which are your written questions that you have to answer under oath. You have thirty days, and then we get to see the answers. And you have requests to produce documents. You have even interrogatories. I wanna sit around for a couple hours and ask you questions in a room before we get to the hearing. That's all litigation process. And what we were trying to do is eliminate the process that is not due process. We are requiring, for example, everybody to tell us what you're going to put into evidence. We don't need the parties to ask each other questions back and forth. We are going to issue an order when they show up that says, tell us who your witnesses are, summarize their testimony and tell the salient points of it, and give us any documents you're gonna put into evidence ahead of time so everybody can see them so that when we do sit down and you come and we have our conversation, the hearing, everyone is informed about the basics of what's going to be heard. That is the importance of due process, not pushing paper because what happens is on Monday, you're served with interrogatories. You have to answer them, I have seen many times, in one week. Can you imagine trying to help pro se litigants or municipalities? Oh, you have one week to answer all of these questions. Once that's done, then you have, pre filed testimony, and that's filed. And then questions get to be asked asked about that. Wait a minute. I this is my second round. I wanna know why you said x in your pre filed testimony. There are multiple multiple, versions of testimony. You can put in pre filed testimony, then the other side puts in their rebuttal, then you can put in more testimony to rebut the rebuttal. They call it surrebuttal. And it gets to the point where I, as a practicing attorney, try to go in and help on a tower case for some folks that were living near the tower, including couple 100 feet. Baby's window was near this tower. And so I wanted to cross examine the aesthetics expert. And the aesthetics expert, it took me six documents to review to even figure out all the things that he might say because of this discovery answers. And then there's the report. And then we turn the report into pre filed testimony and spoon feed it. This is who I am. These are my, qualifications. This is my opinion. And it's like, we all we have to do is read the report. This is the very issue that Will Dodge and I from Downs Rappin and Martin, who represents AT and T, I asked Senator Cummings to invite him as well when I testified about this process and how it was shutting out municipalities and neighbors. It is too complicated. It is too expensive. Where I would tell a client in an Act two fifty case, we're looking at 15,000 to $30,000 to litigate this at the environmental division. The starting point at a PUC case to get involved even in any way that I can hopefully help them would be 50,000 to $100,000

[Unknown (committee member)]: Can I ask another question? If only one out of every 500 applications are being denied, it must mean a lot that are approved are getting appealed. Is that accurate? People are appealing positive?

[Janet Hurley]: Some, yeah, are appealing positive.

[Unknown (committee member)]: Yes, so and to appeal you have to have standing?

[Janet Hurley]: Yes.

[Unknown (committee member)]: So it's someone who didn't like the project and you approved it and they appeal that.

[Janet Hurley]: Or it could also be the applicant who didn't like a condition.

[Brooke Dingledine]: And it breaks Six down to

[Pete Gill]: 10 a year or something like that. Another six to 10 a year on jurisdictional opinions deciding whether you're in active 50 or not. So it's actually a relatively small number that are appealed as well. So Yeah.

[Unknown (committee member)]: Twenty twenty appeals a year between

[Brooke Dingledine]: Fifteen's been kind of the max.

[Unknown (committee member)]: 15 to 20 appeals.

[Janet Hurley]: 12.

[Unknown (committee member)]: Get into this long appeals process.

[Janet Hurley]: Right. And what Brooke was describing is the the recommendations that we made to the legislature in November to change the way that active 50 appeals are dealt with. They would come back to the board rather than the environment. And what Brooke is describing are some of the reasons why the board's recommending that happen. Yeah. And if

[Brooke Dingledine]: I what I'm trying to explain is, I mean, you've you've heard how it's in court right now. When we did the appeals today, we tried to build the best board model that we could. We asked everybody to put aside the debate of board versus court that's enraging for twenty years. And we tried to build the best administrative board model for appellate for the cases that would go on appeal. And we think there are important reasons because the administration of Act two fifty and policy can be better is better suited to a diverse board, than just one judge kind of situation. So what we did was we tried to figure out how do we change from a board, from a court model with all this discovery like the PUC has right now, and slim that down. That's the part that we're not losing due process because we're still requiring that exchange of information ahead of time. We're just cutting out all of the rigmarole that's involved in getting information, And that leads to motion practice, and so we try to just eliminate that part of it, but being very sure that due process was protected. It's streamlined, but it's protected. And the the most important aspects, if if there's one takeaway from this in terms of my own personal opinion, after seeing this for thirty years, site visits. A very wise Vermont judge once said, a picture paints a thousand words, but a site visit paints a thousand pictures, and I cannot. It it is so true. I didn't feel like I would represent my client properly at all if I did not go to every site of every case that I was involved in to see it for myself. And that also pertains to the ability to rule on aesthetics. Aesthetics is more than scenic in natural beauty. It is a sense of place, and that is something that has not talked about that much in the case law anymore. It was long ago. But the aesthetics provision is very important because, while that's where most people criticize Act two fifty because they call it the most subjective of the criteria, which is true, there is a very structured way to figure out how whether or not an adverse impact is undue in in this particular criterion eight eight. Okay. One thing that's very different about criterion eight at the PUC versus at act two fifty is that the PUC has a trump card. They get to say, yeah, there's an undue adverse impact, which would be a denial under act two fifty. But then they get to say, but it but the public good is more important. It's more important to put a telecom tower in this location, you know, even though we know it's going to be an undue adverse impact on someone. And I I heard some of the question the other day that I think that there was the comment that, you know, in the end, somebody is a loser in some of these decisions. We cannot accommodate all of the competing interests of, you know, development and protecting the environment or our our aesthetics. And that's very true. It's always a balancing act. But that trump card has made it very, very, very challenging. It's another obstacle yet again where eyes alert could not in any way predict any kind of positive outcome if someone wanted to get involved in a telecom case because it's it's unpredictable, and that is the wildcard that makes it challenging.

[Kathleen James]: Can you quickly remind me and then, any of those folks have additional questions, we wanted to leave some time for community discussion. Where we are in the act one eighty one timeline? This is a pretty expansive overhaul of Yeah.

[Janet Hurley]: We are currently receiving regional plan pre applications. So, we've we've responded to three. We have one that just came in, one that's coming in later this week. There are 11 regional planning commissions. Once they get their pre applications through our process, they'll start applying for a final determination of compliance from us. We will be doing this throughout the year. At times, we'll be reviewing six applications at once. We are working on the tier three rule making, hoping to submit final rule to ALCAR in September. The tier three is supposed to go into effect 12/31/2026, so the end of this year. We are working on criterion eight c rule making as well with essentially the same time frame. The new road construction jurisdiction trigger is set to go into effect July 1. So, we are working on guidance around the road construction jurisdictional trigger based on the language of Act 181. We produced this appeals report that recommended over time for appeals to come back to appeals of Act two fifty permits to come back to the board. We also recommended by the way that applicants could choose to bring their zoning appeals also to the board. And we would also over time take appeals from tier one a areas that are determined from these regional plans approvals that we're doing. Or I'm sorry, one b are determined that way. Once the regional plan is approved, we're going to start seeing applications from municipalities for tier one A. And so that tier one A area exempts all projects from Act two fifty. Those are growth areas that are going be identified on these regional future land use maps. And the tier 1B areas would exempt housing up to 50 units. So, the tiers will go into effect as they are approved this year, the tier one a and b. The tier three won't go into effect until the end of the year. Everything that's not tier three or tier one a or b is tier two, which is basically status quo plus the new road construction jurisdiction and the the criteria eight c will go into effect as well. We do have some other reporting that we are due to provide you this year. We're asking for an extension on that, basically the tier two reporting. Though we are still going to report to the legislature next month on accessory on farm business recommendations.

[Kathleen James]: Do you have any sense of where most cell towers what tier most cell towers are cited in? I

[Janet Hurley]: can't. I don't know that I could answer that. I I would suspect it would it would be I mean, of the state is gonna be tier two. Right. So, it's gonna be tier two. But, you know, for instance, Manchester. There were cell tower applications in Manchester in in the last year, and both of them were for areas that were probably wouldn't be. It depends but probably growth areas. Right.

[Brooke Dingledine]: But, Yeah. I I have seen attempts to put towers on top of elementary schools or

[R. Scott Campbell]: right in a neighborhood. Right. Which would mean no F two fifty jurisdiction in front

[Brooke Dingledine]: of all of

[R. Scott Campbell]: the zoning.

[Janet Hurley]: If that municipality opts for tier one b, then yes, there would be no F two fifty required, there Well,

[Christopher Howland]: but there are housing So it'd

[Janet Hurley]: be For housing for one b, but for tier one a

[R. Scott Campbell]: Yeah.

[Janet Hurley]: When the municipality applies for that exemption, there would be no active 50 jurisdiction within that municipality.

[Unknown (committee member)]: I mean,

[Janet Hurley]: The question is

[R. Scott Campbell]: for the tier one a area

[Janet Hurley]: It would

[R. Scott Campbell]: would not have any active 50 jurisdiction. Right. Purely It so look.

[Janet Hurley]: Exactly. Yep. Yep.

[R. Scott Campbell]: Do you have time to hear from mister paper? I have a few questions. Yeah. That

[Kathleen James]: would be great. Well, folks, that was very helpful. Yes. Yeah. Thank you so much.

[Brooke Dingledine]: And I know I just threw you off a lot. So if you've got any other questions or wanna talk further to understand some of it,

[Unknown (committee member)]: I'll be happy to send you a copy of

[Brooke Dingledine]: the appeals report. So Yeah. You put that place. Yes, have a couple sections. Yeah. People because we're saying Right.

[Pete Gill]: Right. So Brooke was the first one up, and she

[Christopher Howland]: my associate's done too.

[Kathleen James]: Alright. Let's bring Greg up. Thank you so much for your

[Pete Gill]: time. You all.

[Janet Hurley]: Thank you.

[R. Scott Campbell]: Thank you. Thank you.

[Pete Gill]: Would the committee like the outline board here, or should we take that back?

[Kathleen James]: I don't I don't think I need it. Do you guys see it? Maybe somebody take a picture of it.

[R. Scott Campbell]: Oh, we have a we have a slide of it.

[Kathleen James]: Oh, we have a slide.

[Janet Hurley]: Oh, yeah. Have a slide that broken into pieces.

[Kathleen James]: Yeah. I wouldn't mind getting that.

[R. Scott Campbell]: Getting a picture of

[Kathleen James]: it? Sure. Yeah. Okay.

[Laura Sibilia]: Feels like you should ask the sergeant at arms. That could be posted probably in the steak house.

[Kathleen James]: Let me just zoom in. Alright.

[Pete Gill]: Let's do that.

[Kathleen James]: Ready? I got it. Alright. Thank you so much. Thanks for all your time. Really appreciate you being here.

[Janet Hurley]: Thanks for having us. You.

[Kathleen James]: Alright, Greg. As promised.

[Unknown (committee member)]: Do you like for me to

[Kathleen James]: Sure. If you don't mind.

[Greg Faber]: No. I'm

[Unknown (committee member)]: Hello.

[Greg Faber]: Good morning. Morning. Members of the

[Unknown (committee member)]: committee, there's a record I'm in

[Greg Faber]: favor of the PUC.

[R. Scott Campbell]: Since I just have a few questions based on the rules that you provided us that are currently in effect.

[Christopher Howland]: Yep.

[R. Scott Campbell]: No. I knew of the formal rulemaking process. You've provided these These are

[Greg Faber]: essentially rules. Yeah.

[R. Scott Campbell]: Yeah. They seem quite thorough. So Yeah. Hence my questions because you know, we've received a lot of comment and testimony that seems like these rules would preclude. So I'm also I'm little confused about the implementation of the rules vis a vis people's experience of them. So, like, the applicant must submit the application with with all these different parameters that you have.

[Pete Gill]: That's right.

[R. Scott Campbell]: But, like, for instance, one of them has stated any comment motions to intervene or request for hearing regarding the project must be filed with the commission within thirty day comment period beginning once the application is filed. So, you know, we we heard from multiple people that that was a surprise to them.

[Greg Faber]: What what was the

[R. Scott Campbell]: first thirty day period that they had to get everything in within this thirty day period. So I guess my my general question is, do you, as part of your process, review what the applicant sent to abutting landowners and interested parties to make sure it includes all all

[Greg Faber]: Yes. We do a completeness review. Okay. Within five days. Right. I thought I heard you say that. So It's it's right in there. Yeah.

[R. Scott Campbell]: Yes. Okay. So I'm just trying to understand, you know, some of the gaps in here. You know, adjoining landowners again, the same question I asked the BUC is that it seems like there's not all adjoining landowners get

[Greg Faber]: I heard that. I I'm little confused by that. So if you can see on page I don't know. You might have different pages here here, but under c where it says adjoining landowner Yeah. That's what I'm sentence says, the information shall be obtained from the most recent grand list.

[R. Scott Campbell]: Right. Right.

[Greg Faber]: And they file an affidavit to that effect. Right. Yeah. In some instances, maybe one or two over my my long tenure with the UC. Sometimes the grand list hasn't been updated. So the petitioner is relying on that. Right. Sometimes it's not up to date. Right. Sometimes people on the grand list don't send their updated information to the town clerk. That can cause a problem as well, but that's basically it. So you're using the grand list. You file an affidavit to that effect. We're assuming that that's correct.

[Pete Gill]: Right.

[Greg Faber]: Okay. Yeah. That's how we That's that's

[R. Scott Campbell]: This is a more general question on on public goods. The advocate must explain how the proposed project would promote general good of the state consistently. 30 DSA two zero two c, which I did not look up.

[Greg Faber]: But Yes.

[R. Scott Campbell]: You know, for instance, like a a a Lake Littleby Tower, which is not a cell tower. It's a radio two way radio tower, I think.

[Greg Faber]: That's correct. Is that accurate?

[R. Scott Campbell]: Like, so can you just frame for me how that is in the public good?

[Greg Faber]: Right. So there's a definition of telecommunications that's also that's in the first part of the the rules here. You have to show that that you're providing a telecommunications service as the pharmacy. And Two way radio service

[R. Scott Campbell]: does that. And that by definition, it's in the public. That's correct. That's interesting. Okay. And then what about the the municipal and regional plans? If the project does not comply with the plan, the applicant must explain why not and demonstrate how the applicant has nevertheless given substantial deference to those measures or explain why there is good cause not to give substantial deference to those measures. You know, I I I might have misunderstood that. Mhmm. Seemed like substantial deference was, like, in the statute. Like, you needed to provide substantial deference to the municipalities.

[Greg Faber]: Unless there is good cause to do otherwise. Okay. That's the

[R. Scott Campbell]: part I missed. And so give me an example of I'm in I under local and regional plans. Yep. Mhmm. Can you explain what What

[Greg Faber]: would be an example of not giving substantial difference? Let's say that a municipality has structured their town plan to allow sole service only in one small area of the town, and it would be impractical to build their let's say it's below sea level. That would be an example where the municipality is basically prohibiting cell service in the entire town. That would be cause to say we're not giving you substantial reference to that plan. Something like because that that runs into a federal preemption.

[R. Scott Campbell]: That's what it's my

[Greg Faber]: So that would be one example. Okay.

[R. Scott Campbell]: Thank you. This one, I mean, Oh, wait. One maybe one more. There's an opportunity for the applicant to waive the requirements for advance notice. Even looking at at six here. Yes. What what's gonna be what process is why would someone be allowed to waive requirement to notify?

[Greg Faber]: Does that ever happen? Honestly, it's never happened. So I don't know. Okay. I'm sure. You're allowed to make that argument, but I haven't seen it.

[R. Scott Campbell]: Right. And is there anything magical about the thirty days? I mean, if if it was sixty days, would that throw a

[Greg Faber]: Sixty day after the, application has been filed for? Well, so keep in mind, it's listed in there as well. But, So we have certain time guidelines or they're not guidelines, they're actually statutory requirements that we issue decisions by. So that thirty days is coming out of the sixty days or ninety days with that we have to issue that decision. So if you extended that sixty, obviously you gotta extend all those other requirements or deadlines. Know what saying? That sort of thirty days the thirty days comes out of the statute. I We didn't invent that. Right. But, again, it's taking thirty days of the sixty days we have to issue. So we don't get comments within thirty days. As you can imagine, very difficult to stay on time with the sixty day issuance. That's something.

[Kathleen James]: So, Seth?

[R. Scott Campbell]: Just to follow-up on that point, is this that because this is considered an expedited process versus active testing process?

[Greg Faber]: Well, this yeah. This is an expedited process.

[R. Scott Campbell]: So those time frames

[Greg Faber]: really have anything to do with active fifty, but

[R. Scott Campbell]: But those time frames would be based on it being expedited. Correct?

[Greg Faber]: Oh, yeah. And these are statutory deadlines. We didn't make up these thirty days or anything like that. This is all coming from statute.

[R. Scott Campbell]: Thank you. Yeah.

[Kathleen James]: Reps oh, sorry. Yeah. Reps Sibilia and then Howland.

[Laura Sibilia]: Greg, we heard either from you or director Thompson that this ongoing sunset has not allowed reconsideration of any statute or story changes that might be a good idea or or rulemaking that might be helpful. Right.

[Greg Faber]: Right. As you can imagine, it's difficult to plan going forward when you know it's going away in June.

[R. Scott Campbell]: Mhmm.

[Greg Faber]: I'm not here with amendments to the underlying statute because this is going away in June.

[Janet Hurley]: Mhmm. Mhmm.

[Greg Faber]: You know, why would we?

[Laura Sibilia]: If there were if if you are you prepared to say, you know, if there were if if you were able to update the rules or we asked you to update the rules, like,

[Kathleen James]: what you think needs to

[Laura Sibilia]: be updated as part of the rules?

[Greg Faber]: No. We haven't discussed it because this is going away in June as far as we know. Unless this is extended or the sunset is, eliminated, it's really difficult to plan and think about, you know, the future and how we would like to amend the statute. We don't think about it much because it's going away every three years. Mhmm. So we deal in these little three year increments where we're we do the best we can. We have standards and procedures, which we can change. We we have to. This is, the eighth amended, standards and procedures that we have right now. So we change it quite a bit.

[Laura Sibilia]: You've changed the rules quite a bit? Oh, yeah. Yeah. Based on what?

[Greg Faber]: Changes to the statute. There's been many, many, many changes to statute over the years since 2007. Mhmm. Things like substantial deference was added later. There's there's been a whole host of things that are changed.

[Janet Hurley]: How long does the rule making take for this?

[Greg Faber]: It's not a rule making. We can do it by order, which allows us to do it very quickly, which is great because it's going away in three years or two years.

[Laura Sibilia]: I know. I don't understand. Yeah. Yeah. So can you explain that point?

[Greg Faber]: The difference between rule making and an order? Yeah. Okay. Sorry.

[Kathleen James]: Before you explain it, I wanted to ask why why I need to understand it. Is it I thought I just heard you say that these can't be updated or aren't updated unless the statute changes. No. No. What I'm saying I misunderstood. Yeah.

[Greg Faber]: Wouldn't normally enter into a rule making for the long something a year and a half, two years. The LCAR process, the legislative committee on the rules, that process is very difficult. It takes a long time. There's a lot of mile, mileposts you have to meet. It takes a long time. A lot of, public involvement. And then once you do that, it's very difficult to amend that rule. You're basically going through the same process. Again, another one or two years down the line. In contested case proceeding, which we'd have to change these standards and procedures, which are essentially our rules of implementation, we would notice it. We'd invite the all the stakeholders in. We'd invite them to file we'd issue a proposed change, a draft rule. You say, what do you think, folks? Everyone will file comments, And then we would issue an order. We wouldn't even necessarily have a hearing on it. We would just issue an order to change this. And that would be the new rules or standards and procedures. So very different than a rule making. We're not coming over here to LCAR. We're not submitting it to anyone outside. Obviously, all the stakeholders would have it, but so it's much quicker, much easier to do it that way.

[Brooke Dingledine]: And you have the authority to to move it?

[Greg Faber]: Yes. The statute allows us to do this by rule or order.

[Janet Hurley]: So

[Greg Faber]: we're doing it by order because, again, the the three year and two year

[Laura Sibilia]: And you only do it by order when there's a statutory update? Because no other time that you are looking at this and saying, we we may

[Greg Faber]: We did it once for EPUC when we're implementing EPUC, and we had to change something in here, some of the wording?

[R. Scott Campbell]: Mhmm.

[Laura Sibilia]: And is there a prohibition on what you can decide to do in terms of so, I mean, if we're perhaps you're hearing, but there seems to be some dissatisfaction with public process. Is that something that you all could decide to

[Greg Faber]: Of course.

[Laura Sibilia]: To order Yes. Without needing anything from us?

[Greg Faber]: That's right.

[Laura Sibilia]: And do you know why that has not happened? Should we presume that it's not something that Why?

[Christopher Howland]: We see these objects. The

[Laura Sibilia]: improvements to public process. Would should we presume that that's not necessarily position of the fee safe?

[Greg Faber]: We're thinking it's working pretty well. There's very few applications that have been, denied. Yes. We do have hearings on some applications, and that has increased because of the three year headline, recently. But, typically, we get maybe one contested case a year. Right now, I have five, maybe six. I can't remember. But that that's because of the three year, sunset.

[Laura Sibilia]: I don't understand why you would have a public hearing because, of this three year sunset? Like, what is I

[Greg Faber]: don't Not a public hearing. Contested cases. K. So we're we're just seeing a lot more cases right now. People are trying to get things in under the wire.

[Laura Sibilia]: Right. And so the public is contesting.

[Greg Faber]: Well, there's just a lot more cases

[Christopher Howland]: Yeah.

[Greg Faber]: Being filed. So Yeah. I'll put it just The probability of having contested cases among those increases.

[Pete Gill]: Okay.

[Greg Faber]: And it it happens every three years. It's and it's it's disruptive. Mhmm. Well, for me, first, for for the commission as a whole.

[Kathleen James]: And the rule making process, which takes longer and comes back to LCAR for review, By order, is faster, but and there's no legislative review.

[Pete Gill]: It's just

[Greg Faber]: That's right. Well, obviously, you can

[Kathleen James]: Well, right.

[Greg Faber]: Review right now. You could change the statute and require it. A formal

[Unknown (committee member)]: It didn't come back to LCAR.

[Greg Faber]: It's not going to LCAR. Yeah.

[Laura Sibilia]: But that's So so just to clarify, madam chair, like, we so we could change

[R. Scott Campbell]: The statute. We could

[Christopher Howland]: change the statute in any Absolutely.

[Laura Sibilia]: You, the PUC, can take actions to improve the process by border. Or Yes.

[Brooke Dingledine]: Of course. Yes. Yeah. Or you could

[Unknown (committee member)]: be asked to do a rule of any kind.

[Greg Faber]: Yeah. All those things are possible.

[Brooke Dingledine]: Is there are

[Laura Sibilia]: there other ways in which this good process could be changed besides those three?

[Christopher Howland]: Right. Statutory marker rulemaking. That's it. Right?

[Greg Faber]: I don't think so.

[Laura Sibilia]: I get a word I probably guess.

[Greg Faber]: I mean, we we have to adhere to the statute. Right now, our procedures adhere to the statute. This is almost verbatim from the statute. So in order to change our procedure, you'd have to change that underlying statute. Right?

[Kathleen James]: We

[Greg Faber]: can't do things that are not in the statute.

[R. Scott Campbell]: We can't

[Greg Faber]: we're not allowed to do that. That would be bad.

[Laura Sibilia]: No. What I'm I'm I clearly we understand that. I mean, it's implementation of the statute is what you're talking

[Greg Faber]: about. We're all talking about. Most of this comes verbatim from the from the statute. We've added some things, obviously, just to clarify the amount of notice you need to do, what needs to be included in the advance notice, for example, you know, that that sort of thing. But mostly this is this is coming straight from the.

[Kathleen James]: So the ability to change my order would be pretty limited then, actually, because it would you do it, but there's

[Christopher Howland]: not much you can Not much we can change.

[Kathleen James]: Right. Okay.

[Janet Hurley]: I don't know if this Yeah.

[R. Scott Campbell]: Was I I think I was. Sorry. So just to follow-up with that, we could change statute and require the PVC to make changes by the water. Of course. Yes.

[Greg Faber]: If you change the statute, we wouldn't necessarily have to change it.

[R. Scott Campbell]: Yeah. Yeah.

[Greg Faber]: You wouldn't even have to require it.

[R. Scott Campbell]: We would do it. Point being that direction could be to do the changes by order and not go to. Right.

[Greg Faber]: Like, right now, have the option.

[R. Scott Campbell]: Yeah. But I I guess that they might more general question was whether you had any reaction to the description of the p u PVC prices as being overly legalistic.

[Greg Faber]: Right. You know, we function as a superior court, very similar to a superior court. We are a

[R. Scott Campbell]: court. Mhmm.

[Greg Faber]: We are not Act two fifty district commission.

[R. Scott Campbell]: Mhmm.

[Greg Faber]: But keep in mind, you you go through the town zoning, then you go through the district commission process,

[Unknown (committee member)]: and

[Greg Faber]: then the case starts over again at the environmental court if and when it gets appealed.

[R. Scott Campbell]: Yeah. Yeah.

[Unknown (committee member)]: So we're kind of at

[Greg Faber]: that environmental court level, I guess.

[R. Scott Campbell]: Yeah. Well, so I guess I guess the question is whether there's any way of introducing perhaps a somewhat less formal process similar to what the description of the act two fifty process was, where you're conducting a hearing that doesn't necessarily require all of the sort of pre filed testimony at all.

[Greg Faber]: Well, there are public hearings. The statute requires that the Department of Public Service conduct a public hearing in the town at the request of the town during the sixty day advance notice period. This is prior to coming to us.

[R. Scott Campbell]: I see. Okay. So that would that would be the

[Greg Faber]: place for that sort of less formal process. And oftentimes, the petitioner, will go to a town, prior to even filing the advance notice and say, here's what here's what we want to do. And they'll have hearings with the select board and the planning commission. Whether the town involves the entire town, that's kind of up to the town.

[R. Scott Campbell]: But

[Greg Faber]: that does happen in most cases. So what by the time it gets to us, those things are already done. The town knows about it. And now we're going to by hearing.

[R. Scott Campbell]: Right. The only difference being that in between Act 50 process and the 248A process is that every process leads to the PDC, at least to the very formal process, whereas all the appeals lead to district commission or not district commission, but the Environmental.

[Greg Faber]: Environmental. Keep in mind, it's similar in in the respect that 90% of them are minors. Yeah. As Act two fifty calls it. Right. Or for us, it's a de minimis modification. So very little process associated with that. And even some of the larger ones, those aren't necessarily contested.

[R. Scott Campbell]: Yep. It's just Well, even if it's not contested, it's still gonna be form of the form of the PDC hearing.

[Greg Faber]: No. No. No. No. If it's not contested, there's no hearing. Oh. There's no hearing at all. No. We we just issued a decision. Okay. In fact, the statute requires us to do that. Okay. Okay. Yeah. We have to issue within seventy days. Yeah. If if no significant issues are raised. So there's no hearing at all. Okay. I don't I don't wanna leave you folks with the impression that we have hearings in all these cases. No. Like, right now, I have five or six contested cases. We will have hearings in those, but that's it.

[R. Scott Campbell]: Okay.

[Greg Faber]: The other 150, no hearings, no. We just issue an order.

[R. Scott Campbell]: Okay. Great. Thanks for that clarification.

[Unknown (committee member)]: So, Kathleen, were you at the PUC in 2017? Yes. So I'm wondering, and I don't mean this question to sound critical, but you've said a few times that, hey, it's a three year sunset. It's a two year rulemaking process, so that doesn't make any sense. I just wonder if there was any conversation. You know, we're now nineteen years into this statute, and I'm wondering if there were any conversation, like when you got to year 10 in 2017, of saying, jeez, this thing has been around ten years. Maybe it's gonna keep getting extended. Maybe it actually does make sense. Maybe it's not a three year ride we're looking at, but another ten years when we should

[Greg Faber]: do some mold making. You would think. But, again, we we we have this conversation here every three years, and the same thing happens. And we don't really know whether it's gonna get extended or not. We just don't.

[Unknown (committee member)]: You don't. But once it had been extended three or four times, I mean, the same thing has happened every three years. It get extended. It gets extended. It gets extended. It gets extended.

[Greg Faber]: I'm sorry. If there's a sunset, we we we respect it. Alright. Thank you.

[Christopher Howland]: We heard testimony yesterday of a single tower or a single antenna on a 140 foot tower, a large tower. Once a tower is built, does it attract other collocators and the like, and if so, how quickly? And or do co locators apply for co location prior to the construct kind of prior to the construction of a tower once there's been I don't I don't know. There's no idea how long this takes to install this.

[Greg Faber]: Oftentimes, AT and T or Verizon will come in. They have a company build the tower, and it's a joint application. So they're co locating their equipment on that tower at the same time. Okay? So they're putting it up for the purpose of putting their antennas at such and such a height on that tower. Now the height below that or above that, that will be available for lease to another company, another provider.

[Christopher Howland]: So would it be fair to say that there are companies out there that speculate on building these towers with a single tenant to begin with?

[Greg Faber]: I think that some companies have a business plan of offering colocation to other providers. I think every tower that goes up, you're you're you're kinda obligated to provide a colocation space. Well, think you're it encourages that.

[Christopher Howland]: You the the map exists. I I picked them last weekend on some of the green spots and saw that telecommunications company was on it, but maybe the owner was somebody else's name I didn't recognize. Oftentimes, AT

[Greg Faber]: and T and Verizon will use tower building companies, like I said. So if we'll come in with a joint application, it'll be tower company and AT and T. But, basically, that tower company is a subsidiary of the parent company, like AT and T or Verizon. Because they don't they're not in the business of building towers. They're in the business of providing,

[Pete Gill]: service.

[Janet Hurley]: So Yeah.

[Greg Faber]: Could you explain a little bit more? You said you had five contested cases. What what is involved in that? I mean, we having municipal Yes. Municipal saying we don't want it here and stuff like that. All of those, municipal saying no, five or six people in the town saying no. That's basically it. Towns don't always get involved. Sometimes it's just adjoining landowners or just folks who live in the town who will, file motions to intervene and request a hearing in the case. But in the five I have now, I think the towns are involved, but I can't talk about those cases. Okay.

[Kathleen James]: David, thank you so much.

[Greg Faber]: Yeah. You're welcome. Thanks. You.

[Kathleen James]: Talking to us. So looking ahead, we did not get to committee discussion. So this afternoon, we have testimony at 01:00 with a super hard stop at 01:15. That's even pushing it a little bit because we have our joint hearing with senate institutions this afternoon at 01:30 in Room 10. So we need to get there. Everybody needs to get settled. Alex gonna is gonna need to be ready to run the tech. So I would just like everybody to make sure that you help me respect that. We we need to be down in time for our 01:30. And then what I where I think that leaves us is we had tomorrow. Tomorrow morning at 09:00, we have ISO New England coming in. And I think there's gonna be a lot of interest in that topic. So I think it's good to leave them slotted in for an hour and a half. But if our and then we have the Timmith Town Clerk coming in at 10:30. So if folks don't object, I'd like to bump the bill intros and schedule our committee discussion of age five twenty seven for tomorrow at 11:15. That okay with everybody? Or just right after right after Gail finishes, but I'd say 11:15 at the latest. We should shift into committee discussion. So Alex will update the agenda. Alex, did you hear all that? Yes. Got it. Okay. And that takes us to lunch tomorrow. And then we'll see how the rest of the day goes. We're we're gonna walk through the the bill that I requested about the copper to fiber transition tomorrow. Maria has that drafted. She's getting some feedback. We're gonna walk through the energy code bill tomorrow. That's definitely drafted and ready. And then we have Floor 3. So we can always talk about the bill a little bit more tomorrow afternoon if we have time.