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Act 250 Permit Condition Expanding the Jurisdiction of the Environmental Commission is Unenforceable

In In re Treetop Development Company Act 250 Development, 2016 VT 20 (February 12, 2016), the Vermont Supreme Court affirmed the Environmental Commission’s refusal to enforce a condition of an Act 250 permit that would have impermissibly expanded the authority of the Environmental Commission. The appellees were successfully represented by Langrock attorney Lisa B. Shelkrot.

Issue: Homeowners’ Association appealed the Environmental Commission’s refusal to impose additional conditions on an approved Act 250 permit that was never appealed, on the grounds that a condition in the permit allowed the Commission to review and amend the permit.

Holding: The Court upheld the Environmental Commission’s refusal to impose additional conditions on the approved Act 250 permit. The Court held that the National Resources Board and Agency of Natural Resources had exclusive power to enforce compliance with Act 250 permits and their underlying conditions. The condition in the approved permit, in which the Commission initially reserved the right to evaluate certain issues and impose additional conditions on the permit as needed, created a mechanism to enforce and continuously amend the permit. The Court held this condition exceeded the statutory authority of the Commission. While generally parties are bound by the terms of a permit that exceeds the municipal body’s authority to issue it, since this condition would expand the jurisdiction of the Commission, creating perpetual uncertainty as to the terms of the permit, the Court found that that this condition was unenforceable.

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