Vermont § 248a - Certificate of public good for communications facilities

§ 248a. Certificate of public good for communications facilities

• (a) Certificate. Notwithstanding any other provision of law, if the applicant seeks approval for the
  construction or installation of telecommunications facilities that are to be interconnected
  with other telecommunications facilities proposed or already in existence, the applicant
  may obtain a certificate of public good issued by the Public Utility Commission under
  this section, which the Commission may grant if it finds that the facilities will
  promote the general good of the State consistent with subsection 202c(b) of this title. A single application may seek approval of one or more telecommunications facilities.
  An application under this section shall include a copy of each other State and local
  permit, certificate, or approval that has been issued for the facility under a statute,
  ordinance, or bylaw pertaining to the environment or land use. (b) Definitions. As used in this section: (1) “Ancillary improvements” means telecommunications equipment and site improvements
  that are primarily intended to serve a telecommunications facility, including wires
  or cables and associated poles to connect the facility to an electric or communications
  grid; fencing; equipment cabinets or shelters; emergency backup generators; and access
  roads. (2) “De minimis modification” means the addition, modification, or replacement of telecommunications
  equipment, antennas, or ancillary improvements on a telecommunications facility or
  existing support structure, whether or not the structure was constructed as a telecommunications
  facility, or the reconstruction of such a facility or support structure, provided: (A) the height and width of the facility or support structure, excluding equipment, antennas,
  or ancillary improvements, are not increased; (B) the total amount of impervious surface, including access roads, surrounding the facility
  or support structure is not increased by more than 300 square feet; (C) the addition, modification, or replacement of an antenna or any other equipment on
  a facility or support structure does not extend vertically more than 10 feet above
  the facility or support structure and does not extend horizontally more than 10 feet
  from the facility or support structure; and (D) the additional equipment, antennas, or ancillary improvements on the support structure,
  excluding cabling, does not increase the aggregate surface area of the faces of the
  equipment, antennas, or ancillary improvements on the support structure by more than
  75 square feet. (3) “Good cause” means a showing of evidence that the substantial deference required under
  subdivision (c)(2) of this section would create a substantial shortcoming detrimental
  to the public good or the State’s interests in section 202c of this title. (4)(A) “Limited size and scope” means: (i) a new telecommunications facility, including any ancillary improvements, that does
  not exceed 140 feet in height; or (ii) an addition, modification, replacement, or removal of telecommunications equipment
  at a lawfully constructed telecommunications facility or on an existing support structure,
  and ancillary improvements, that would result in a facility of a total height of less
  than 200 feet and does not increase the width of the existing support structure by
  more than 20 feet. (B) For construction described in subdivision (3)(A) of this subsection (b) to be of limited
  size and scope, it shall not disturb more than 10,000 square feet of earth. As used
  in this subdivision (B), “disturbed earth” means the exposure of soil to the erosive
  effects of wind, rain, or runoff. (5) “Substantial deference” means that the plans and recommendations referenced under
  subdivision (c)(2) of this section are presumed correct, valid, and reasonable. (6) “Telecommunications facility” means a communications facility that transmits and receives
  signals to and from a local, State, national, or international network used primarily
  for two-way communications for commercial, industrial, municipal, county, or State
  purposes and any associated support structure that is proposed for construction or
  installation that is primarily for communications purposes and any ancillary improvements
  that are proposed for construction or installation and are primarily intended to serve
  the communications facilities or support structure. An applicant may seek approval
  of construction or installation of a telecommunications facility whether or not the
  telecommunications facility is attached to an existing structure. (7) “Wireless service” means any commercial mobile radio service, wireless service, common
  carrier wireless exchange service, cellular service, personal communications service
  (PCS), specialized mobile radio service, paging service, wireless data service, or
  public or private radio dispatch service. (c) Findings. Before the Public Utility Commission issues a certificate of public good under this
  section, it shall find that: (1) The proposed facility will not have an undue adverse effect on aesthetics, historic
  sites, air and water purity, the natural environment, and the public health and safety,
  and the public’s use and enjoyment of the I-89 and I-91 scenic corridors or of any
  highway that has been designated as a scenic road pursuant to 19 V.S.A. § 2501 or a scenic byway pursuant to 23 U.S.C. § 162, with due consideration having been given to the relevant criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through (8) and (9)(K). However, with respect to telecommunications facilities of
  limited size and scope, the Commission shall waive all criteria of this subdivision
  other than 10 V.S.A. § 6086(a)(1)(D) (floodways) and (a)(8) (aesthetics, scenic beauty, historic sites, rare and irreplaceable
  natural areas; endangered species; necessary wildlife habitat). Such waiver shall
  be on condition that: (A) the Commission may determine, pursuant to the procedures described in subdivision
  (j)(2)(A) of this section, that a petition raises a significant issue with respect
  to any criterion of this subdivision; and (B) a telecommunications facility of limited size and scope shall comply, at a minimum,
  with the requirements of the Low Risk Site Handbook for Erosion Prevention and Sediment
  Control issued by the Department of Environmental Conservation, regardless of any
  provisions in that handbook that limit its applicability. (2) Unless there is good cause to find otherwise, substantial deference has been given
  to the plans of the affected municipalities; to the recommendations of the municipal
  legislative bodies and the municipal planning commissions regarding the municipal
  plans; and to the recommendations of the regional planning commission concerning the
  regional plan. Nothing in this section or other provision of law shall prevent a municipal
  body from basing its recommendations to which substantial deference is required under
  this subdivision (2) on an ordinance adopted under 24 V.S.A. § 2291(19) or bylaw adopted under 24 V.S.A. chapter 117 by the municipality in which the facility is located. A rebuttable presumption respecting
  compliance with the applicable plan shall be created by a letter from an affected
  municipal legislative body or municipal planning commission concerning compliance
  with the municipal plan and by a letter from a regional planning commission concerning
  compliance with the regional plan. (3) If the proposed facility relates to the provision of wireless service, the proposed
  facility reasonably cannot be colocated on or at an existing telecommunications facility,
  or such colocation would cause an undue adverse effect on aesthetics. (A) If a proposed new support structure for a new telecommunications facility that provides
  wireless service will exceed 50 feet in height in a cleared area or will exceed 20
  feet in height above the average treeline measured within a 100-foot radius from the
  structure in a wooded area, the application shall identify all existing telecommunications
  facilities within the area to be served by the proposed structure and, for each such
  existing facility, shall include a projection of the coverage and an estimate of additional
  capacity that would be provided if the applicant’s proposed telecommunications equipment
  were located on or at the existing facility. The applicant also shall compare each
  such projection and estimate to the coverage and capacity that would be provided at
  the site of the proposed structure. (B) To obtain a finding that a proposed facility cannot reasonably be colocated on or
  at an existing telecommunications facility, the applicant must demonstrate that: (i) colocating on or at an existing facility will result in a significant reduction of
  the area to be served or the capacity to be provided by the proposed facility or substantially
  impede coverage or capacity objectives for the proposed facility that promote the
  general good of the State under subsection 202c(b) of this title; (ii) the proposed antennas and equipment will exceed the structural or spatial capacity
  of the existing or approved tower or facility, and the existing or approved tower
  or facility cannot be reinforced, modified, or replaced to accommodate planned or
  equivalent equipment, at a reasonable cost, to provide coverage and capacity comparable
  to that of the proposed facility; (iii) the owner of the existing facility will not provide space for the applicant’s proposed
  telecommunications equipment on or at that facility on commercially reasonable terms;
  or (iv) the proposed antennas and equipment will cause radio frequency interference that will
  materially impact the usefulness of other existing or permitted equipment at the existing
  or approved tower or facility and such interference cannot be mitigated at a reasonable
  cost. (d) Existing permits. When issuing a certificate of public good under this section, the Commission shall
  give due consideration to all conditions in an existing State or local permit and
  shall harmonize the conditions in the certificate of public good with the existing
  permit conditions to the extent feasible. (e) Notice. No less than 60 days prior to filing an application for a certificate of public good
  under this section, the applicant shall serve written notice of an application to
  be filed with the Commission pursuant to this section to the legislative bodies and
  municipal and regional planning commissions in the communities in which the applicant
  proposes to construct or install facilities; the Secretary of Natural Resources; the
  Secretary of Transportation; the Division for Historic Preservation; the Commissioner
  of Public Service and its Director for Public Advocacy; the Land Use Review Board
  if the application concerns a telecommunications facility for which a permit previously
  has been issued under 10 V.S.A. chapter 151; and the landowners of record of property adjoining the project sites. In addition,
  at least one copy of each application shall be filed with each of these municipal
  and regional planning commissions. The notices to the legislative body and planning
  commission of the municipality shall attach a statement that itemizes the rights and
  opportunities available to those bodies under subdivisions (c)(2) and (e)(2) of this
  section and under subsections (m), (n), and (o) of this section and informs them of
  the guide published under subsection (p) of this section and how to obtain a copy
  of that guide. (1) Upon motion or otherwise, the Public Utility Commission shall direct that further
  public or personal notice be provided if the Commission finds that such further notice
  will not unduly delay consideration of the merits and that additional notice is necessary
  for fair consideration of the application. (2) On the request of the municipal legislative body or the planning commission, the applicant
  shall attend a public meeting with the municipal legislative body or planning commission,
  or both, within the 60-day notice period before filing an application for a certificate
  of public good. The Department of Public Service shall attend the public meeting on
  the request of the municipality. The Department shall consider the comments made and
  information obtained at the meeting in making recommendations to the Commission on
  the application and in determining whether to retain additional personnel under subsection
  (o) of this section. (3) With the notice required under this subsection, the applicant shall include a written
  assessment of the colocation requirements of subdivision (c)(3) of this section, as
  they pertain to the applicant’s proposed telecommunications facility. On the request
  of the municipal legislative body or the planning commission, the Department of Public
  Service, pursuant to its authority under subsection (o) of this section, shall retain
  an expert to review the applicant’s colocation assessment and to conduct further independent
  analysis, as necessary. Within 45 days following receiving the applicant’s notice
  and colocation assessment, the Department shall report its own preliminary findings
  and recommendations regarding colocation to the applicant and to all persons required
  to receive notice of an application for a certificate of public good under this subsection
  (e). (f) Review period. If the Public Utility Commission determines that an application does not raise a significant
  issue, the Commission shall issue a final determination on an application filed pursuant
  to this section within 60 days following its filing or, if the original filing did
  not substantially comply with the Public Utility Commission’s rules, within 60 days
  following the date on which the Clerk of the Commission notifies the applicant that
  the filing is complete. If the Commission rules that an application raises a significant
  issue, it shall issue a final determination on an application filed pursuant to this
  section within 180 days following its filing or, if the original filing did not substantially
  comply with the Public Utility Commission’s rules, within 180 days following the date
  on which the Clerk of the Commission notifies the applicant that the filing is complete. (g) Letter of intent. Nothing in this section shall be construed to prohibit an applicant from executing
  a letter of intent or entering into a contract before the issuance of a certificate
  of public good under this section, provided that the obligations under that letter
  of intent or contract are made subject to compliance with the requirements of this
  section. (h) Exemptions from other law. (1) An applicant using the procedures provided in this section shall not be required to
  obtain a permit or permit amendment or other approval under the provisions of 24 V.S.A. chapter 117 or 10 V.S.A. chapter 151 for the facilities subject to the application or to a certificate of public good
  issued pursuant to this section. This exemption from obtaining a permit or permit
  amendment under 24 V.S.A. chapter 117 shall not affect the substantial deference to be given to a plan or recommendation
  based on a local land use bylaw under subdivision (c)(2) of this section. (2) An applicant using the procedures provided in this section shall not be required to
  obtain an approval from the municipality under an ordinance adopted pursuant to 24 V.S.A. § 2291(19) or a municipal charter that would otherwise apply to the construction or installation
  of facilities subject to this section. This exemption from obtaining an approval under
  such an ordinance shall not affect the substantial deference to be given to a plan
  or recommendation based on such an ordinance under subdivision (c)(2) of this section. (3) Disputes over jurisdiction under this section shall be resolved by the Public Utility
  Commission, subject to appeal as provided by section 12 of this title. An applicant that has obtained or been denied a permit or permit amendment under
  the provisions of Title 24 or 10 V.S.A. chapter 151 for the construction of a telecommunications facility may not apply for approval
  from the Commission for the same or substantially the same facility, except that an
  applicant may seek approval for a modification to such a facility. (i) Sunset of Commission authority. Effective on July 1, 2026, no new applications for certificates of public good under
  this section may be considered by the Commission. (j) Telecommunications facilities of limited size and scope. (1) The Commission may, subject to such conditions as it may otherwise lawfully impose,
  issue a certificate of public good in accordance with the provisions of this subsection
  and without the notice and hearings required by any provision other than subdivision
  (2) of this subsection if the Commission finds that such facilities will be of limited
  size and scope, and the application does not raise a significant issue with respect
  to the substantive criteria of this section. The Commission may make findings based
  on the application and the supporting evidence submitted by the applicant. If an applicant
  requests approval of multiple telecommunications facilities in a single application
  under this section, the Commission may issue a certificate of public good in accordance
  with the provisions of this subsection for all or some of the telecommunications facilities
  described in the application. (2)(A) Any person seeking to proceed under the procedures authorized by this subsection (j)
  shall file a proposed certificate of public good and proposed findings of fact with
  its application. Within two business days following notification from the Commission
  that the filing is complete, the applicant shall serve notice and a copy of the application,
  proposed certificate of public good, and proposed findings of fact on the Commissioner
  of Public Service and its Director for Public Advocacy, the Secretary of Natural Resources,
  the Division for Historic Preservation, the Land Use Review Board if the application
  concerns a telecommunications facility for which a permit previously has been issued
  under 10 V.S.A. chapter 151, and each of the legislative bodies and municipal and regional planning commissions
  in the communities in which the applicant proposes to construct or install facilities.
  Within two business days following notification from the Commission that the filing
  is complete, the applicant also shall serve written notice of the proposed certificate
  on the landowners of record of property adjoining the project site or sites unless
  the Commission has previously determined on request of the applicant that good cause
  exists to waive or modify the notice requirement with respect to such landowners.
  Such notice shall request comment to the Commission within 30 days following the date
  of service on the question of whether the application raises a significant issue with
  respect to the substantive criteria of this section. If the Commission finds that
  an application raises a significant issue with respect to the substantive criteria
  of this section, the Commission shall hear evidence on any such issue. (B) An applicant seeking a waiver or modification of notice to adjoining landowners under
  this subsection shall file a request for such a waiver or modification with the Public
  Utility Commission not later than 30 days prior to serving written notice under subsection
  (e) of this section, together with a description of the project and its location,
  the applicant’s reasons for seeking a waiver or modification, and the applicant’s
  demonstration that the standard for granting a waiver or modification is met. Any
  granting of such a waiver or modification shall be based on a determination that the
  landowners subject to the waiver or modification could not reasonably be affected
  by one or more of the proposed facilities and that notice to such landowners would
  constitute a significant administrative burden without corresponding public benefit.
  The Commission shall rule on a waiver or modification request under this subsection
  within 21 days following the filing of the request. (C) If the Commission accepts a request to consider an application under the procedures
  of this subsection (j), then unless the Public Utility Commission subsequently determines
  that an application raises a significant issue, the Commission shall issue a final
  determination on an application within 60 days following the date on which the Clerk
  of the Commission notifies the applicant that the filing is complete. If, subsequent
  to acceptance of an application under this subsection (j), the Commission rules that
  an application raises a significant issue, it shall issue a final determination on
  an application filed pursuant to this subsection (j) within 90 days following the
  date on which the Clerk of the Commission notifies the applicant that the filing is
  complete. (D) If the Commission denies a request to consider an application under the procedures
  of this subsection (j), a filing made under this subsection that the Commission has
  found to be complete shall be deemed to satisfy notice requirements of subsection
  (e) of this section, and the periods stated under subsection (f) of this section shall
  run from the date of the Commission’s denial of such request. (k) De minimis modifications. An applicant intending to make a de minimis modification of a telecommunications facility
  shall provide written notice of its intent, including a description of the de minimis
  modification, its plans for the de minimis modification, and its certification that
  the project constitutes a de minimis modification under this section, to the following:
  the landowner of record of the property on which the facility is located, the legislative
  body of the municipality in which the applicant proposes to undertake such limited
  modifications to the facility, and the Commissioner of Public Service and his or her
  Director for Public Advocacy. Unless an objection to the classification of a proposed
  project as a de minimis modification is filed with the Commission within 30 days following
  this notice, a certificate of public good shall be issued. Objections may be filed
  only by persons entitled to notice of this proposed project pursuant to this subsection.
  If an objection of the classification of the proposed project as a de minimis modification
  is timely filed with the Commission, the Commission may determine whether the intended
  project meets the definition of de minimis modification established in subdivision
  (b)(2) of this section. (l) Rules. The Public Utility Commission may issue rules or orders implementing and interpreting
  this section. In developing such rules and orders, the Commission shall seek to simplify
  the application and review process as appropriate. Subject to the provisions of subdivision
  (c)(1) of this section regarding waiver of the substantive criteria set forth in that
  subdivision, the Commission may by rule or order waive the requirements of this section
  that the Commission determines are not applicable to telecommunications facilities
  of limited size or scope. Determination by the Commission that an application raises
  a substantial issue with regard to one or more substantive criteria of this section
  shall not prevent the Commission from waiving other substantive criteria that it has
  determined are not applicable to such a telecommunications facility. (m) Municipal bodies; participation. The legislative body and the planning commission for the municipality in which a telecommunications
  facility is located shall have the right to appear and participate on any application
  under this section seeking a certificate of public good for the facility. (n) Municipal recommendations. The Commission shall consider the comments and recommendations submitted by the municipal
  legislative body and planning commission. The Commission’s decision to issue or deny
  a certificate of public good shall include a detailed written response to each recommendation
  of the municipal legislative body and planning commission. (o) Retention; experts. The Department of Public Service may retain experts and other personnel as identified
  in section 20 of this title to provide information essential to a full consideration of an application for a
  certificate of public good under this section. The Department may allocate the expenses
  incurred in retaining these personnel to the applicant in accordance with section 21 of this title. The Department may commence retention of these personnel once the applicant has
  filed the 60-day notice under subsection (e) of this section. A municipal legislative
  body or planning commission may request that the Department retain these personnel.
  Granting such a request shall not oblige the Department or the personnel it retains
  to agree with the position of the municipality. (p) Review process; guide. The Department of Public Service, in consultation with the Commission, shall create,
  maintain, and make available to the public a guide to the process of reviewing telecommunications
  facilities under this section for use by local governments and regional planning commissions
  and members of the public who seek to participate in the process. On or before September
  1, 2014, the Department shall complete the creation of this guide and make it publicly
  available. (q) Emergency waiver. (1) Notwithstanding any other provisions of this section, when the Governor has declared
  a state of emergency pursuant to 20 V.S.A. § 9 and for 180 days after the declared state of emergency ends, the Commission may waive,
  for a specified and limited time, the prohibitions contained in this section upon
  site preparation for or construction of a temporary telecommunications facility necessary
  for maintaining or improving access to telecommunications services. Waivers issued
  under this subsection shall be valid for a period not to exceed the duration of the
  declared emergency plus 180 days. (2) A person seeking a waiver under this subsection shall file a petition with the Commission
  and shall provide copies to the Department of Public Service and the Agency of Natural
  Resources. The Commission shall require that additional notice be provided to those
  listed in subsection (e) of this section and any affected communications union districts.
  Upon receipt of the petition, the Commission shall conduct an expedited preliminary
  hearing. (3) An order granting a waiver may include terms, conditions, and safeguards to mitigate
  significant adverse impacts, including the posting of a bond or other security, as
  the Commission deems proper, based on the scope and duration of the requested waiver. (4) A waiver shall be granted only when the Commission finds that: (A) good cause exists due to an emergency situation; (B) the waiver is necessary to maintain or provide access to wireless telecommunications
  services; (C) procedures will be followed to minimize significant adverse impacts under the criteria
  specified in subdivision (c)(1) of this section; and (D) taking into account any terms, conditions, and safeguards that the Commission may
  require, the waiver will promote the general good of the State. (5) Upon the expiration of a waiver, if a certificate of public good has not been issued
  under this section, the Commission shall require the removal, relocation, or alteration
  of the facilities subject to the waiver, as it finds will best promote the general
  good of the State. (Added 2007, No. 79, § 17, eff. June 9, 2007; amended 2009, No. 54, § 44, eff. June 1, 2009; 2011, No. 53, § 2, eff. May 27, 2011; 2013, No. 167 (Adj. Sess.), § 31; 2013, No. 190 (Adj. Sess.), § 17, eff. June 16, 2014; 2013, No. 199 (Adj. Sess.), § 27; 2015, No. 130 (Adj. Sess.), § 5a, eff. May 25, 2016; 2017, No. 32, § 1; 2017, No. 53, § 5; 2019, No. 125 (Adj. Sess.), § 1; 2023, No. 20, § 1, eff. May 25, 2023; 2023, No. 85 (Adj. Sess.), § 385, eff. July 1, 2024.)