Court Addresses Issue Of Party Status In Act 250 Cases

05/08/12 5:50PM By John Dillon
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The Vermont Environmental Court has clarified who gets to intervene in Act 250 permit reviews.

The court ruling reverses a district environmental commission decision that barred environmental groups from intervening in a case involving a Wal-Mart proposed for Bennington.

The court ruling addresses "party status." In Act 250, who gets party status in an Act 250 case often determines whether a project faces opposition in the hearing room.

Christopher Kilian is the Vermont director of the Conservation Law Foundation. He says that for years, the Legislature and the courts have nibbled away at the ability of citizens and environmental groups to get involved in Act 250 proceedings.

"There's been a steady drumbeat for the 20 years plus that I've worked on environmental issues in Vermont from real estate developers to limit and reduce the rights of Vermonters that are affected by real estate development activities, limiting their ability to participate in the process," he says.

The Legislature went home this year without passing a bill that that would have clarified the rights of those who want to intervene in Act 250 land use cases.

But Environmental Court Judge Thomas Walsh addressed the issue head-on in the Bennington Wal-Mart case.

Jamey Fidel, general counsel for the statewide Vermont Natural Resources Council, says Walsh's ruling will now be used by environmentalists in other development cases.

"A lot of citizens, a lot of neighbors, a lot of people participating in Act 250 will cite this case to demonstrate what they need to prove in order to just have an interest to participate," he says.

Judge Walsh's ruling in the Wal-Mart case reversed a district Act 250 commission decision that said VNRC and a local group could not participate.

"What this case does, is it now clarifies that a party just needs to show there is a reasonable possibility that a decision on the proposed project may affect that person's interest," Fidel says. "And that's a very important clarification moving forward."

Fidel points out that Judge Walsh's ruling is consistent with the Act 250 bill that died in the Statehouse.

"The court really took the language that was being debated in the Statehouse and incorporated it on their own into the decision," he says.

Rutland lawyer Alan George represents the developer in the case. He says it's not likely that he'll appeal the judge's decision on party status.

George says that while Walsh's ruling may get cited in other cases, only the Vermont Supreme Court can create binding precedents.

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