§ 6001. Definitions
When used in this chapter:
(1) "Board" means the environmental board.
(1) "Board" means the natural resources board.
(2) "Capability and development plan" means the plan prepared pursuant to section 6042 of this title.
(3)(A) "Development" means:
(i) The construction of improvements on a tract or tracts of land,
owned or controlled by a person, involving more than 10 acres of land
within a radius of five miles of any point on any involved land, for
commercial or industrial purposes in a municipality that has adopted
permanent zoning and subdivision bylaws.
(ii) The construction of improvements for commercial or industrial
purposes on more than one acre of land within a municipality that has
not adopted permanent zoning and subdivision bylaws.
(iii) The construction of improvements for commercial or industrial
purposes on a tract or tracts of land, owned or controlled by a person,
involving more than one acre of land within a municipality that has
adopted permanent zoning and subdivision bylaws, if the municipality in
which the proposed project is located has elected by ordinance, adopted
under chapter 59 of Title 24, to have this jurisdiction apply.
(iv) The construction of housing projects such as cooperatives,
condominiums, or dwellings, or construction or maintenance of mobile
homes or trailer parks, with 10 or more units, constructed or
maintained on a tract or tracts of land, owned or controlled by a
person, within a radius of five miles of any point on any involved
land, and within any continuous period of five years.
(v) The construction of improvements on a tract of land involving
more than 10 acres that is to be used for municipal, county or state
purposes. In computing the amount of land involved, land shall be
included that is incident to the use such as lawns, parking areas,
roadways, leaching fields and accessory buildings.
(vi) The construction of improvements for commercial, industrial or residential use above the elevation of 2,500 feet.
(vii) Exploration for fissionable source materials beyond the
reconnaissance phase or the extraction or processing of fissionable
source material.
(viii) The drilling of an oil and gas well.
(B) Notwithstanding the provisions of subdivision (3)(A) of this
section, if a project consists exclusively of any combination of mixed
income housing or mixed use and is located entirely within a downtown
development district designated pursuant to 24 V.S.A. § 2793,
"development" means:
(i) Construction of mixed income housing with 100 or more housing
units or a mixed use project with 100 or more housing units, in a
municipality with a population of 20,000 or more.
(ii) Construction of mixed income housing with 50 or more housing
units or a mixed use project with 50 or more housing units, in a
municipality with a population of 10,000 or more but less than 20,000.
(iii) Construction of mixed income housing with 30 or more housing
units or a mixed use project with 30 or more housing units, in a
municipality with a population of 5,000 or more and less than 10,000.
(iv) Construction of mixed income housing with 20 or more housing
units or a mixed use project with 20 or more housing units, in a
municipality of less than 5,000.
(v) Construction of 10 or more units of mixed income housing or a
mixed use project with 10 or more housing units where the construction
involves the demolition of one or more buildings that are listed on or
eligible to be listed on the state or national register of historic
places.
(C) For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:
(i) Housing units constructed by a person partially or completely
outside a designated downtown development district shall not be counted
to determine jurisdiction over housing units constructed by a person
entirely within a designated downtown development district.
(ii) Within any continuous period of five years, housing units
constructed by a person entirely within a designated downtown district
shall be counted together with housing units constructed by a person
partially or completely outside a designated downtown development
district to determine jurisdiction over the housing units constructed
by a person partially or completely outside the designated downtown
development district and within a five-mile radius.
(iii) All housing units constructed by a person within a designated
downtown development district within any continuous period of five
years, commencing on or after the effective date of this subdivision,
shall be counted together.
(iv) In the case of a project undertaken by a railroad, no portion
of a railroad line or railroad right-of-way that will not be physically
altered as part of the project shall be included in computing the
amount of land involved. In the case of a project undertaken by a
person to construct a rail line or rail siding to connect to a
railroad's line or right-of-way, only the land used for the rail line
or rail siding that will be physically altered as part of the project
shall be included in computing the amount of land involved.
(D) The word "development" does not include:
(i) The construction of improvements for farming, logging or forestry purposes below the elevation of 2,500 feet.
(ii) The construction of improvements for an electric generation or
transmission facility that requires a certificate of public good under
section 30 V.S.A. § 248 or a natural gas facility as defined in
subdivision 30 V.S.A. § 248(a)(3).
(iii) The construction of, improvements to, or maintenance of any
portion of a statewide trail system on a tract of land not currently
under the jurisdiction of this chapter and located below the elevation
of 2,500 feet, including construction and maintenance of unpaved
trailhead parking facilities of two acres or less, provided that
construction and maintenance take place in a manner that meets or
exceeds acceptable management practices for maintaining water quality
on logging jobs in Vermont, as adopted by the commissioner of forests,
parks and recreation; and in the case of snowmobile trails, provided
that construction and maintenance also take place in a manner that
meets or exceeds practices established in the guide for the development
of snowmobile trails, dated 2001-2002, as published by the Vermont
Association of Snow Travelers, Inc. Jurisdiction under this chapter
shall not continue to exist after a trail has been discontinued,
stabilized, and suitably rehabilitated, in the determination of the
district commission, or the board on appeal. The exemption created
under this subdivision shall not apply to trails for motorized
recreational vehicles other than snowmobiles. This subdivision
(3)(D)(iii) shall be repealed on July 1, 2005. The secretary of natural
resources shall evaluate and report on the experience derived under
this exemption in reports to the house and senate committees on natural
resources and energy, to be submitted by January 15, 2005 and by
January 15, 2006.
(iv) The construction of improvements for agricultural fairs that
are open to the public for 60 days per year, or fewer, provided that
any improvements constructed do not include one or more buildings.
(v) The construction of improvements for the exhibition or showing
of equines at events that are open to the public for 60 days per year,
or fewer, provided that any improvements constructed do not include one
or more buildings.
(E) When development is proposed to occur on a parcel or tract of
land that is devoted to farming activity as defined in subdivision
6001(22) of this section, only those portions of the parcel or the
tract that support the development shall be subject to regulation under
this chapter. Permits issued under this chapter shall not impose
conditions on other portions of the parcel or tract of land which do
not support the development and that restrict or conflict with accepted
agricultural practices adopted by the secretary of agriculture, food
and markets.
(4) "District commission" means the district environmental commission.
(5) "Endangered species" means those species the taking of which is
prohibited under rules adopted under chapter 123 of this title.
(6) "Floodway" means the channel of a watercourse which is expected
to flood on an average of at least once every 100 years and the
adjacent land areas which are required to carry and discharge the flood
of the watercourse, as determined by the secretary of natural resources
with full consideration given to upstream impoundments and flood
control projects.
(7) "Floodway fringe" means an area which is outside a floodway and
is flooded with an average frequency of once or more in each 100 years
as determined by the secretary of natural resources with full
consideration given to upstream impoundments and flood control projects.
(8) "Forest and secondary agricultural soils" means soils which are
not primary agricultural soils but which have reasonable potential for
commercial forestry or commercial agriculture, and which have not yet
been developed. In order to qualify as forest or secondary agricultural
soils the land containing such soils shall be characterized by
location, natural conditions and ownership patterns capable of
supporting or contributing to present or potential commercial forestry
or commercial agriculture. If a tract of land includes other than
forest or secondary agricultural soils only the forest or secondary
agricultural soils shall be affected by criteria relating specifically
to such soils.
(9) "Historic site" means any site, structure, district or
archeological landmark which has been officially included in the
National Register of Historic Places and/or the state register of
historic places or which is established by testimony of the Vermont
Advisory Council on Historic Preservation as being historically
significant.
(10) "Land use plan" means the plan prepared pursuant to section 6043 of this title.
(11) "Lot" means any undivided interest in land, whether freehold or
leasehold, including but not limited to interests created by trusts,
partnerships, corporations, cotenancies and contracts.
(12) "Necessary wildlife habitat" means concentrated habitat which
is identifiable and is demonstrated as being decisive to the survival
of a species of wildlife at any period in its life including breeding
and migratory periods.
(13) "Plat" means a map or chart of a subdivision with surveyed lot lines and dimensions.
(14)(A) "Person":
(i) shall mean an individual, partnership, corporation, association,
unincorporated organization, trust or other legal or commercial entity,
including a joint venture or affiliated ownership;
(ii) means a municipality or state agency;
(iii) includes individuals and entities affiliated with each other
for profit, consideration, or any other beneficial interest derived
from the partition or division of land;
(iv) includes an individual's parents and children, natural and
adoptive, and spouse, unless the individual establishes that he or she
will derive no profit or consideration, or acquire any other beneficial
interest from the partition or division of land by the parent, child or
spouse;
(B) The following individuals and entities shall be presumed not to
be affiliated for the purpose of profit, consideration, or other
beneficial interest within the meaning of this chapter, unless there is
substantial evidence of an inntent to evade the purposes of this
chapter:
(i) a stockholder in a corporation shall be presumed not to be
affiliated with others, solely on the basis of being a stockholder, if
the stockholder and the stockholder's spouse, and natural or adoptive
parents, children, and siblings own, control or have a beneficial
interest in less than five percent of the outstanding shares in the
corporation;
(ii) an individual shall be presumed not to be affiliated with
others, solely for actions taken as an agent of another within the
normal scope of duties of a court appointed guardian, a licensed
attorney, real estate broker or salesperson, engineer or land surveyor,
unless the compensation received or beneficial interest obtained as a
result of these duties indicates more than an agency relationship;
(iii) a seller or chartered lending institution shall be presumed
not to be affiliated with others, solely for financing all or a portion
of the purchase price at rates not substantially higher than prevailing
lending rates in the community, and subsequently granting a partial
release of the security when the buyer partitions or divides the land.
(15) "Primary agricultural soils" means soils which have a potential
for growing food and forage crops, are sufficiently well drained to
allow sowing and harvesting with mechanized equipment, are well
supplied with plant nutrients or highly responsive to the use of
fertilizer, and have few limitations for cultivation or limitations
which may be easily overcome. In order to qualify as primary
agricultural soils, the average slope of the land containing such soils
does not exceed 15 percent, and such land is of a size capable of
supporting or contributing to an economic agricultural operation. If a
tract of land includes other than primary agricultural soils, only the
primary agricultural soils shall be affected by criteria relating
specifically to such soils.
(16) "Rural growth areas" means lands which are not natural
resources referred to in section 6086(a)(1)(A) through (F), section
6086(a)(8)(A) and section 6086(a)(9)(B), (C), (D), (E) and (K) of this
title.
(17) "Shoreline" means the land adjacent to the waters of lakes,
ponds, reservoirs and rivers. Shorelines shall include the land between
the mean high water mark and the mean low water mark of such surface
waters.
(18) "Stream" means a current of water which is above an elevation
of 1,500 feet above sea level or which flows at any time at a rate of
less than 1.5 cubic feet per second.
(19) "Subdivision" means a tract or tracts of land, owned or
controlled by a person, which the person has partitioned or divided for
the purpose of resale into 10 or more lots within a radius of five
miles of any point on any lot, or within the jurisdictional area of the
same district commission, within any continuous period of five years.
In determining the number of lots, a lot shall be counted if any
portion is within five miles or within the jurisdictional area of the
same district commission. The word "subdivision" shall not include a
lot or lots created for the purpose of conveyance to the state or to a
qualified organization, as defined under section 6301a of this title,
if the land to be transferred includes and will preserve a segment of
the Long Trail. The word "subdivision" shall not include a lot or lots
created for the purpose of conveyance to the state or to a "qualified
holder" of "conservation rights and interest," as those terms are
defined in section 821 of this title. "Subdivision" shall also mean a
tract or tracts of land, owned or controlled by a person, which the
person has partitioned or divided for the purpose of resale into six or
more lots, within a continuous period of five years, in a municipality
which does not have duly adopted permanent zoning and subdivision
bylaws.
(20) "Fissionable source material" means mineral ore which
(A) is extracted or processed with the intention of permitting the
product to become or to be further processed into fuel for nuclear
fission reactors or weapons; or
(B) contains uranium or thorium in concentrations which might
reasonably be expected to permit economically profitable conversion or
processing into fuel for nuclear reactors or weapons.
(21) "Reconnaissance" means:
(A) a geologic and mineral resource appraisal of a region by
searching and analyzing published literature, aerial photography and
geologic maps; or
(B) use of geophysical, geochemical, and remote sensing techniques
that do not involve road building, land clearing, the use of
explosives, or the introduction of chemicals to a land or water area; or
(C) surface geologic, topographic or other mapping and property surveying; or
(D) sample collections which do not involve excavation or drilling
equipment, the use of explosives or the introduction of chemicals to
the land or water area.
(22) "Farming" means:
(A) the cultivation or other use of land for growing food, fiber,
Christmas trees, maple sap, or horticultural and orchard crops; or
(B) the raising, feeding, or management of livestock, poultry, fish, or bees; or
(C) the operation of greenhouses; or
(D) the production of maple syrup; or
(E) the on-site storage, preparation and sale of agricultural products principally produced on the farm; or
(F) the on-site production of fuel or power from agricultural products or wastes produced on the farm; or
(G) the raising, feeding, or management of four or more equines
owned or boarded by the farmer, including training, showing, and
providing instruction and lessons in riding, training, and the
management of equines.
(23) "Adjoining property owner" means a person who owns land in fee simple, if that land:
(A) shares a property boundary with a tract of land where a proposed or actual development or subdivision is located; or
(B) is adjacent to a tract of land where a proposed or actual
development or subdivision is located and the two properties are
separated only by a river, stream, or public highway.
(24) "Solid waste management district" means a solid waste
management district formed pursuant to section 2202a and chapter 121 of
Title 24, or by charter adopted by the general assembly.
(25) "Slate quarry" means a quarry pit or hole from which slate has
been extracted or removed for the purpose of commercial production of
building material, roofing, tile, or other dimensional stone products.
"Dimensional stone" refers to slate that is processed into regularly
shaped blocks, according to specifications. The words "slate quarry"
shall not include pits or holes from which slate is extracted primarily
for purposes of crushed stone products, unless, as of June 1, 1970,
slate had been extracted from those pits or holes primarily for those
purposes.
(26) "Telecommunications facility" means a support structure which
is primarily for communication or broadcast purposes and which will
extend vertically 20 feet, or more, in order to transmit or receive
communication signals for commercial, industrial, municipal, county or
state purposes.
(27) "Mixed income housing" means a housing project in which at
least 15 percent of the total housing units are affordable housing
units.
(28) "Mixed use" means construction of both mixed income housing and
construction of space for any combination of retail, office, services,
artisan, and recreational and community facilities, provided at least
40 percent of the gross floor area of the buildings involved is mixed
income housing. "Mixed use" does not include industrial use.
(29) "Affordable housing" means either of the following:
(A) Owner-occupied housing in which the owner's gross annual
household income does not exceed 80 percent of the county median
household income, and for which the annual housing costs, which include
payment of principal, interest, taxes, and insurance, are not more than
30 percent of the gross annual household income.
(B) Rental housing in which the renter's gross annual household
income does not exceed 80 percent of the county median household
income, and for which the annual housing costs, which include rent and
utilities expenses, are not more than 30 percent of the gross annual
household income. (Added 1969, No. 250 (Adj. Sess.), § 2, eff. April 4,
1970; amended 1973, No. 85, § 8; 1979, No. 123 (Adj. Sess.), §§ 1-3,
eff. April 14, 1980; 1981, No. 240 (Adj. Sess.), § 6, eff. April 28,
1982; 1983, No. 114 (Adj. Sess.), § 1; 1985, No. 64; 1987, No. 64, § 2;
1987, No. 273 (Adj. Sess.), § 2, eff. June 21, 1988; 1989, No. 154
(Adj. Sess.); No. 231 (Adj. Sess.), § 1, eff. July 1, 1991; No. 234
(Adj. Sess.), § 4; 1993, No. 200 (Adj. Sess.), § 1; No. 232 (Adj.
Sess.), § 24, eff. March 15, 1995; 1995, No. 10, § 1; No. 30, § 1, eff.
April 13, 1995; 1997, No. 48, § 1; 1997, No. 94 (Adj. Sess.), § 5, eff.
April 15, 1998; 2001, No. 40, § 1; 2001, No. 114 (Adj. Sess.), §§ 6, 7,
eff. May 28, 2002; 2003, No. 66, § 217c; 2003, No. 115 (Adj. Sess.), §
46, eff. Jan. 31, 2005; 2003, No. 121 (Adj. Sess.), §§ 75, 76, eff.
June 8, 2004.)
§ 6001a. Public auctions
As used in this chapter "development" shall also mean the sale of
any interest in a tract or tracts of land, owned or controlled by a
person, which have been partitioned or divided for the purpose of
resale into five or more separate parcels of any size within a radius
of five miles of any point on any such parcel, and within any period of
ten years, by public auction; and "public auction" means any auction
advertised or publicized in any manner, or to which more than ten
persons have been invited. However, if the sales described under this
section are of interests that, when sold by means other than public
auction, are exempt from the provisions of this chapter under the
provisions of subsection 6081(b) of this title, the fact that these
interests are sold by means of a public auction shall not, in itself,
create a requirement for a permit under this chapter. (Added 1973, No.
256 (Adj. Sess.), eff. April 11, 1974; amended 1991, No. 111, § 4, eff.
June 28, 1991.)
§ 6001b. Low-level radioactive waste disposal facility
Any low-level radioactive waste disposal facility proposed for
construction under chapter 161 of this title shall be a development,
for purposes of this chapter, independent of the acreage involved. Any
construction of improvements which is likely to generate low-level
radioactive waste is a development, for purposes of this chapter,
independent of the acreage involved. The criteria and procedures for
obtaining a permit shall be the same as for any other development.
(Added 1989, No. 296 (Adj. Sess.), § 6, eff. June 29, 1990.)
§ 6001c. Jurisdiction over broadcast and communication support structures and related improvements
In addition to other applicable law, any support structure proposed
for construction, which is primarily for communication or broadcast
purposes and which will extend vertically 20 feet, or more, in order to
transmit or receive communication signals for commercial, industrial,
municipal, county or state purposes, shall be a development under this
chapter, independent of the acreage involved. If jurisdiction is
triggered for such a support structure, then jurisdiction will also
extend to the construction of improvements ancillary to the support
structure, including buildings, broadcast or communication equipment,
foundation pads, cables, wires, antennas or hardware, and all means of
ingress and egress to the support structure. To the extent that future
improvements are not ancillary to the support structure and do not
involve an additional support structure, those improvements shall not
be considered a development, unless they would be considered a
development under this chapter in the absence of this section. The
criteria and procedures for obtaining a permit under this section shall
be the same as for any other development. (Added 1997, No. 48, § 2.)
§ 6002. Procedures
The provisions of chapter 25 of Title 3 shall apply unless otherwise
specifically stated. (1969, No. 250 (Adj. Sess.), § 26, eff. April 4,
1970.)
§ 6003. Penalties
A violation of any provision of this chapter or the rules
promulgated hereunder is punishable by a fine of not more than $500.00
for each day of the violation or imprisonment for not more than two
years, or both. A person who completely transfers ownership and control
of property that is the subject of a permit under this chapter shall
not be liable for later violations of that permit by another person.
(1969, No. 250 (Adj. Sess.), § 28, eff. April 4, 1970; amended 2001,
No. 40, § 2.)
§ 6007. Act 250 disclosure statement; jurisdictional determination
(a) Prior to the division or partition of land, the seller or other
person dividing or partitioning the land shall prepare an "Act 250
Disclosure Statement." A person who is dividing or partitioning land,
but is not selling it, shall file a copy of the statement with the town
clerk, who shall record it in the land records. The seller who is
dividing or partitioning land as part of the sale shall provide the
buyer with the statement within 10 days of entering into a purchase and
sale agreement for the sale or exchange of land, or at the time of
transfer of title, if no purchase and sales agreement was executed, and
shall file a copy of the statement with the town clerk, who shall
record it in the land records. Failure to provide the statement as
required shall, at the buyer's option, render the purchase and sales
agreement unenforceable. If the disclosure statement establishes that
the transfer is or may be subject to 10 V.S.A. chapter 151, and that
information had not been disclosed previously, then at the buyer's
option the contract may be rendered unenforceable. The statement shall
include the following, on forms determined jointly by the board and the
commissioner of the department of taxes:
(1) the name and tax identification number of the seller's or
divider's or partitioner's spouse, and parents and children, natural or
adoptive, and whether or not any of the individuals named will derive
profit or consideration, or acquire any other beneficial interest from
the partition or division of the land in question. However, this
information will be required only to the extent that:
(A) the individuals in question have been sellers or buyers of
record with respect to the partition or division of other land within
the previous five years, and
(B) that other land is located within five miles of any part of the
land currently being divided or partitioned, or is located within the
jurisdictional area of the same district environmental commission;
(2) the name and tax identification number of all individuals and
entities affiliated with the seller or divider or partitioner for the
purpose of deriving profit or consideration, or acquiring any other
beneficial interest from the partition or division of the land, as that
affiliation is conditioned and limited according to the definition of
"person" in section 6001(14) of this title;
(3) a statement identifying any partition or division of land which has been completed:
(A) within the preceding five years;
(B) by any of the entities or individuals identified under
subdivisions (a)(1) or (2) of this section as deriving profit or
consideration or acquiring any other beneficial interest from the
partition or division of the land;
(C) within five miles of any part of the land being divided or
partitioned, or within the jurisdictional area of the district
environmental commission in which the land is located;
(4) notice that a permit may be required under this chapter.
(b) If, before the transfer of title, facts contained in the
disclosure statement change, the seller shall provide the buyer with an
amended statement in a timely manner.
(c) With respect to the partition or division of land, or with
respect to an activity which might or might not constitute development,
any person may submit to the district coordinator an "Act 250
Disclosure Statement" and other information required by the rules of
the board, and may request a jurisdictional opinion from the district
coordinator concerning the applicability of this chapter. If a
requestor wishes a final determination to be rendered on the question,
the district coordinator, at the expense of the requestor and in
accordance with rules of the board shall publish notice of the issuance
of the opinion in a local newspaper generally circulating in the area
where the land which is the subject of the opinion is located, and
shall serve the opinion on all persons listed in subdivision
6085(c)(1)(A) through (D) of this title. In addition, the requestor who
is seeking a final determination shall consult with the district
coordinator and obtain approval of a subdivision 6085(c)(1)(E) list of
persons who shall be notified by the district coordinator because they
are adjoining property owners or other persons who would be likely to
be able to demonstrate a particularized interest protected by this
chapter that may be affected by an act or decision by a district
commission. A jurisdictional opinion of a district coordinator shall be
subject to a request for reconsideration in accordance with rules of
the board and may be appealed to the environmental court pursuant to
chapter 220 of this title. (Added 1987, No. 64, § 3; amended 1991, No.
111, § 3, eff. June 28, 1991; No. 111, § 7, eff. Oct. 1, 1991; 1993,
No. 232 (Adj. Sess.), § 25, eff. March 15, 1995; 1999, No. 49, § 155;
2003, No. 115 (Adj. Sess.), § 47, eff. Jan. 31, 2005.)
§ 6021. Board; vacancy, removal
(a) A natural resources board is created with a land use panel and a
water resources panel. The board shall consist of nine members
appointed by the governor, with the advice and consent of the senate,
so that one appointment on each panel expires in each odd numbered
year. In making appointments, the governor and the senate shall give
consideration to experience, expertise, or skills relating to the
environment or land use. The governor shall appoint a chair of the
board, a position that shall be a full-time position. The other eight
members shall be appointed by the governor, four to the water resources
panel of the board and four others to the land use panel of the board.
The chair shall serve as chair on each panel of the board. Following
initial appointments, the members, except for the chair, shall be
appointed for terms of four years. The governor shall appoint up to
five persons, with preference given to former environmental board,
water resources board, natural resources board or district commission
members, with the advice and consent of the senate, to serve as
alternates for board members. Alternates shall be appointed for terms
of four years, with initial appointments being staggered. The board
chair may assign alternates to sit on specific matters before the
panels of the board, in situations where fewer than five panel members
are available to serve. No person who receives or, during the previous
two years, has received a significant portion of the person's income
directly or indirectly from permit holders or applicants for one or
more permits under chapter 47 of this title may be a member of the
water resources panel.
(b) Any vacancy occurring in the membership of the board shall be filled by the governor for the unexpired portion of the term.
(c) Notwithstanding the provisions of 3 V.S.A. § 2004, members shall
be removable for cause only, except the chair, who shall serve at the
pleasure of the governor.
(d) The chair, upon request of the chair of a district commission,
may appoint and assign former commission members to sit on specific
commission cases when some or all of the regular members and alternates
are disqualified or otherwise unable to serve. (1969, No. 250 (Adj.
Sess.), § 3, eff. April 4, 1970; amended 1989, No. 234 (Adj. Sess.), §
2; 1991. No. 111, § 1, eff. June 28, 1991; 1993, No. 82, § 1; amended
1993, No. 232 (Adj. Sess.), § 26, eff. March 15, 1995; 2003, No. 115
(Adj. Sess.), § 48, eff. Jan. 31, 2005.)
§ 6022. Personnel
The board may appoint legal counsel and administrative personnel, as
it finds necessary in carrying out its duties, unless the governor
shall otherwise provide. (1969, No. 250 (Adj. Sess.), § 4, eff. April
4, 1970; amended 1993, No. 82, § 2.)
§ 6023. Grants
The board may apply for and receive grants from the federal
government and from other sources. (1969, No. 250 (Adj. Sess.), § 4,
eff. April 4, 1970.)
§ 6024. Intragovernmental cooperation
Other departments and agencies of state government shall cooperate
with the board and make available to it data, facilities and personnel
as may be needed to assist the board in carrying out its duties and
functions. There shall be established a regular schedule of project
review that shall assure that all affected departments and agencies
recognize and pursue their respective responsibilities. State employees
whose job is to assist applicants in the permitting process established
under this chapter, shall endeavor to assist all applicants regardless
of the size and value of the projects involved. (1969, No. 250 (Adj.
Sess.), § 4, eff. April 4, 1970; amended 2001, No. 40, § 3.)
§ 6025. Rules
(a) The board may adopt rules of procedure for the panels, the district commissions, and the board itself.
(b) The land use panel may adopt substantive rules, in accordance
with the provisions of chapter 25 of Title 3, that interpret and carry
out the provisions of this chapter that pertain to land use regulated
under section 6086 of this title. These rules shall include provisions
that establish criteria under which applications for permits under this
chapter may be classified in terms of complexity and significance of
impact under the standards of subsection 6086(a) of this chapter. In
accordance with that classification the rules may:
(1) provide for simplified or less stringent procedures than are
otherwise required under sections 6083, 6084 and 6085 of this chapter;
and
(2) provide for the filing of notices instead of applications for
the permits that would otherwise be required under section 6081 of this
chapter; and
(3) provide a procedure by which a district commission may authorize
a district coordinator to issue a permit that the district commission
has determined under land use panel rules is a minor application with
no undue adverse impact.
(c)(1) This subsection shall apply to lots within a subdivision:
(A) that were created as part of a subdivision owned or controlled
by a person who may have been required to obtain a permit under this
chapter; and
(B) with respect to which a determination has been made that a permit was needed under this chapter; and
(C) that were sold to a purchaser prior to January 1, 1991 without a required permit.
(2) The rules shall provide for a modified process by which the sole
purchaser, or the group of purchasers, of one or more lots to which
this subsection applies may apply for and obtain a permit under this
chapter that shall be issued in light of the existing improvements,
facts, and circumstances that pertain to the lots; provided, however,
that the requirements of this chapter shall be modified only to the
extent needed to issue those permits. For purposes of these rules, a
purchaser eligible for relief under this subsection must not have been
involved in creating the lots, must not be a person who owned or
controlled the land when it was divided or partitioned, as a person is
defined in this chapter, and must not have known at the time of
purchase that the transfer was subject to a permit requirement that had
not been met.
(3) [Deleted.]
(d) The water resources panel may adopt rules, in accordance with
the provisions of chapter 25 of Title 3, in the following areas:
(1) Rules governing surface levels of lakes, ponds, and reservoirs that are public waters of Vermont.
(2) Rules regarding classification of the waters of the state, in accordance with chapter 47 of this title.
(3) Rules regarding the establishment of water quality standards, in accordance with chapter 47 of this title.
(4) Rules regulating the surface use of public waters, and rules
pertaining to the designation of outstanding resource waters, in
accordance with chapter 49 of this title.
(5) Rules regarding the identification of wetlands which are so
significant that they merit protection. Any determination that a
particular wetland is significant will result from an evaluation of at
least the following functions which a wetland serves:
(A) provides temporary water storage for flood water and storm runoff;
(B) contributes to the quality of surface and groundwater through chemical action;
(C) naturally controls the effects of erosion and runoff, filtering silt and organic matter;
(D) contributes to the viability of fisheries by providing spawning, feeding, and general habitat for freshwater fish;
(E) provides habitat for breeding, feeding, resting, and shelter to both game and nongame species of wildlife;
(F) provides stopover habitat for migratory birds;
(G) provides for hydrophytic vegetation habitat;
(H) provides for threatened and endangered species habitat;
(I) provides valuable resources for education and research in natural sciences;
(J) provides direct and indirect recreational value and substantial economic benefits; and
(K) contributes to the open-space character and overall beauty of the landscape.
(6) Rules regarding the ability to reclassify wetlands, in general, or on a case-by-case basis.
(7) Rules protecting wetlands that have been determined under
subdivision (5) or (6) of this subsection to be significant, including
rules that provide for the issuance or denial of conditional use
determinations by the department of environmental conservation;
provided, however, that the rules may only protect the values and
functions sought to be preserved by the designation. The panel shall
not adopt rules that restrain agricultural activities without the
consent of the secretary of the agency of agriculture, food and markets
and shall not adopt rules that restrain silvicultural activities
without the consent of the commissioner of the department of forests,
parks and recreation.
(8) Rules implementing 29 V.S.A. chapter 11, relating to management of lakes and ponds.
(e) Except for subsection (a) of this section, references to rules
adopted by the board shall be construed to mean rules adopted by the
appropriate panel of the board, as established by this section. (1969,
No. 250 (Adj. Sess.), § 25, eff. April 4, 1970; amended 1973, No. 85, §
2; 1979, No. 123 (Adj. Sess.), § 4, eff. April 14, 1980; 1985, No. 52,
§ 3, eff. May 15, 1985; 1987, No. 186 (Adj. Sess.), eff. May 5, 1988;
1991, No. 111, § 5, eff. June 28, 1991; 2003, No. 115 (Adj. Sess.), §
49, eff. Jan. 31, 2005.)
§ 6026. District commissioners
(a) For the purposes of the administration of this chapter, the state is divided into nine districts.
(1) District No. 1, comprising administrative district 1 as provided in section 4001 of Title 3.
(2) District No. 2, comprising administrative district 2 as provided in section 4001 of Title 3.
(3) District No. 3, comprising administrative district 3 as provided in section 4001 of Title 3.
(4) District No. 4, comprising administrative district 4 as provided
in section 4001 of Title 3, excluding the towns of Addison, Bridport,
Bristol, Cornwall, Ferrisburg, Goshen, Leicester, Lincoln, Middlebury,
Monkton, New Haven, Orwell, Panton, Ripton, Salisbury, Shoreham,
Starksboro, Vergennes, Waltham, Weybridge and Whiting.
(5) District No. 5, comprising administrative district 5 as provided in section 4001 of Title 3.
(6) District No. 6, comprising administrative district 6 as provided in section 4001 of Title 3.
(7) District No. 7, comprising administrative district 7 as provided in section 4001 of Title 3.
(8) District No. 8, comprising administrative district 8 as provided in section 4001 of Title 3.
(9) District No. 9, comprising the towns of Addison, Bridport,
Bristol, Cornwall, Ferrisburg, Goshen, Leicester, Lincoln, Middlebury,
Monkton, New Haven, Orwell, Panton, Ripton, Salisbury, Shoreham,
Starksboro, Vergennes, Waltham, Weybridge, and Whiting.
(b) A district environmental commission is created for each
district. Each district commission shall consist of three members from
that district appointed in the month of February by the governor so
that two appointments expire in each odd numbered year. Two of the
members shall be appointed for a term of four years, and the chair
(third member) of each district shall be appointed for a two-year term.
In any district, the governor may appoint not more than four alternate
members from that district whose terms shall not exceed two years, who
may hear any case when a regular member is disqualified or otherwise
unable to serve.
(c) Members shall be removable for cause only, except the chairman who shall serve at the pleasure of the governor.
(d) Any vacancy shall be filled by the governor for the unexpired
period of the term. (1969, No. 250 (Adj. Sess.), § 5, eff. April 4,
1970; amended 1971, No. 74, § 1; 1973, No. 54; 1985, No. 107 (Adj.
Sess.), eff. March 14, 1986; 1993, No. 232 (Adj. Sess.), § 27, eff.
March 15, 1995.)
§ 6027. Powers
(a) The panels of the board and district commissions each shall have
the power, with respect to any matter within its jurisdiction, to:
(1) Administer oaths, take depositions, subpoena and compel the attendance of witnesses, and require the production of evidence.
(2) Allow parties to enter upon lands of other parties for the
purposes of inspecting and investigating conditions related to the
matter before the panel or commission.
(3) Enter upon lands for the purpose of conducting inspections,
investigations, examinations, tests, and site evaluations as it deems
necessary to verify information presented in any matter within its
jurisdiction.
(4) Apply for and receive grants from the federal government and from other sources.
(b) The powers granted under this chapter are additional to any other powers which may be granted by other legislation.
(c) The land use panel may designate or establish such regional
offices as it deems necessary to implement the provisions of this
chapter and the rules adopted hereunder. The land use panel may
designate or require a regional planning commission to receive
applications, provide administrative assistance, perform
investigations, and make recommendations.
(d) At the request of a district commission, if the board chair
determines that the workload in the requesting district is likely to
result in unreasonable delays or that the requesting district
commission is disqualified to hear a case, the chair may authorize the
district commission of another district to sit in the requesting
district to consider one or more applications.
(e) The land use panel may by rule allow joint hearings to be
conducted with specified state agencies or specified municipalities.
(f) The board may publish or contract to publish annotations and
indices of the decisions of the environmental court, and the text of
those decisions. The published product shall be available at a
reasonable rate to the general public and at a reduced rate to
libraries and governmental bodies within the state.
(g) The land use panel shall manage the process by which land use
permits are issued under section 6086 of this title, may initiate
enforcement on related matters, under the provisions of chapter 201 and
211 of this title, and may petition the environmental court for
revocation of land use permits issued under this chapter. Grounds for
revocation are:
(1) noncompliance with this chapter, rules adopted under this chapter, or an order that is issued that relates to this chapter;
(2) noncompliance with any permit or permit condition;
(3) failure to disclose all relevant and material facts in the application or during the permitting process;
(4) misrepresentation of any relevant and material fact at any time;
(5) failure to pay a penalty or other sums owed pursuant to, or
other failure to comply with, court order, stipulation agreement,
schedule of compliance, or other order issued under Vermont statutes
and related to the permit; or
(6) failure to provide certification of construction costs, as
required under subsection 6083a(a) of this title, or failure to pay
supplemental fees as required under that section.
(h) The land use panel may hear appeals of fee refund requests under section 6083a of this title.
(i) The chair, subject to the direction of the board, shall have
general charge of the offices and employees of the board and the
offices and employees of the district commissions.
(j) The land use panel may participate as a party in all matters
before the environmental court that relate to land use permits issued
under this chapter.
(k) The water resources panel may participate as a party in all
matters before the environmental court that relate to rules adopted by
the panel under the authority of section 6025 of this title. (1969, No.
250 (Adj. Sess.), § 25, eff. April 4, 1970; amended 1973, No. 85, § 3;
1979, No. 123 (Adj. Sess.), § 8, eff. April 14, 1980; 1991, No. 111, §
6 eff. June 28, 1991; 1993, No. 232 (Adj. Sess.), § 28, eff. March 15,
1995; 2003, No. 115 (Adj. Sess.), § 50, eff. Jan. 31, 2005.)
§ 6028. Compensation
Members of the board and district commissions shall receive per diem
pay and all necessary and actual expenses in accordance with 32 V.S.A.
§ 1010. (1969, No. 250 (Adj. Sess.), § 31, eff. April 4, 1970; amended
1993, No. 82, § 3.)
§ 6029. Act 250 permit fund
There is hereby established a special fund to be known as the Act
250 permit fund for the purposes of implementing the provisions of this
chapter. Revenues to the fund shall be those fees collected in
accordance with section 6083a of this title, gifts, appropriations, and
copying and distribution fees. The board shall be responsible for the
fund and shall account for revenues and expenditures of the board. At
the commissioner's discretion, the commissioner of finance and
management may anticipate amounts to be collected and may issue
warrants based thereon for the purposes of this section. Disbursements
from the fund shall be made through the annual appropriations process
to the board, and to the agency of natural resources to support those
programs within the agency that directly or indirectly assist in the
review of Act 250 applications. This fund shall be administered as
provided in subchapter 5 of chapter 7 of Title 32. (Added 1989, No. 279
(Adj. Sess.), § 2, eff. June 30, 1990; amended 1993, No. 70, § 1; 1997,
No. 59, § 41, eff. June 30, 1997; 2003, No. 115 (Adj. Sess.), § 51; No.
163 (Adj. Sess.), § 25.)
§ 6030. Map of wireless telecommunications facilities
The board shall maintain a map that shows the location of all
wireless telecommunications facilities in the state. (Added 1997, No.
94 (Adj. Sess.), § 1, eff. April 15, 1998.)
§ 6041. Omitted.
§ 6042. Capability and development plan
The board shall adopt a capability and development plan consistent
with the interim land capability plan which shall be made with the
general purpose of guiding and accomplishing a coordinated, efficient
and economic development of the state, which will, in accordance with
present and future needs and resources, best promote the health,
safety, order, convenience, prosperity and welfare of the inhabitants,
as well as efficiency and economy in the process of development,
including but not limited to, such distribution of population and of
the uses of the land for urbanization, trade, industry habitation,
recreation, agriculture, forestry and other uses as will tend to create
conditions favorable to transportation, health, safety, civic
activities and educational and cultural opportunities, reduce the
wastes of financial and human resources which result from either
excessive congestion or excessive scattering of population and tend
toward an efficient and economic utilization of drainage, sanitary and
other facilities and resources and the conservation and production of
the supply of food, water and minerals. In addition, the plan may
accomplish the purposes set forth in section 4302 of Title 24. (1969,
No. 250 (Adj. Sess.), § 19, eff. April 4, 1970.)
§ 6043. Repealed. 1983, No. 114 (Adj. Sess.), § 5.
§ 6044. Public hearings
(a) The board shall hold public hearings for the purpose of
collecting information to be used in establishing the capability and
development plan, and interim land capability plan. The public hearings
may be held in an appropriate area or areas of the state and shall be
conducted according to rules to be established and published by the
board.
(b) The board may, on its own motion or on petition of an interested
agency of the state or any regional or local planning commission, hold
such other hearings as it may deem necessary from time to time for the
purpose of obtaining information necessary or helpful in the
determination of its policies, the carrying out of its duties, or the
formulation of its rules and regulations.
(c) At least one public hearing shall be held in each district prior
to adoption of a plan pursuant to section 6042 of this title. Notice of
a hearing shall be furnished each municipality, and municipal and
regional planning commission in the district where the hearing is to be
held not less than fifteen days prior to the hearing.
(d) The provisions of chapter 25 of Title 3 shall not apply to the
hearings under this section. (1969, No. 250 (Adj. Sess.), § 21, eff.
April 4, 1970; amended 1983, No. 114 (Adj. Sess.), § 2.)
§ 6045. Repealed. 1983, No. 114 (Adj. Sess.), § 5.
§ 6046. Approval of governor and legislature
(a) Upon approval of a capability and development or interim land
capability plan by the board, it shall submit the plan to the governor
for approval. The governor shall approve the plan, or disapprove the
plan or any portion of a plan, within 30 days of receipt. If the
governor fails to act, the plan shall be deemed approved by the
governor. This section shall also apply to any amendment of a plan.
(b) After approval by the governor, plans pursuant to section 6042
of this title shall be submitted to the general assembly when next in
session for approval. A plan shall be considered adopted for the
purposes of section 6086(a)(9) of this title when adopted by the act of
the general assembly. No permit shall be issued or denied by a district
commission or environmental board which is contrary to or inconsistent
with a local plan, capital program or municipal bylaw governing land
use unless it is shown and specifically found that the proposed use
will have a substantial impact or effect on surrounding towns, the
region or an overriding interest of the state and the health, safety
and welfare of the citizens and residents thereof requires otherwise.
(1969, No. 250 (Adj. Sess.), § 23, eff. April 4, 1970; amended 1973,
No. 85, § 5; 1983, No. 114 (Adj. Sess.), § 3.)
§ 6047. Changes in the capability and development plan
(a) After final adoption, any department or agency of the state or a
municipality, or any property owner or lessee may petition the board
for a change in the capability and development plan.
(b) Within 10 days of receipt, the board shall forward a copy of the
petition to the district commission and regional planning agency for
comments and recommendations. If no regional planning commission
exists, the copy shall be sent to the affected municipal planning
commissions and municipalities.
(c) After 60 days but within 120 days of the original receipt of a
petition, the board shall advertise a public hearing to be held in the
appropriate county. The board shall notify the persons and agencies
that have an interest in the change of the time and place of the
hearing and the procedures established for initial adoption of a plan
shall apply.
(d)-(f) [Repealed.] (1969, No. 250 (Adj. Sess.), § 24, eff. April 4, 1970; amended 1983, No. 114 (Adj. Sess.), § 4.)
§ 6081. Permits required; exemptions
(a) No person shall sell or offer for sale any interest in any
subdivision located in this state, or commence construction on a
subdivision or development, or commence development without a permit.
This section shall not prohibit the sale, mortgage or transfer of all,
or an undivided interest in all, of a subdivision unless the sale,
mortgage or transfer is accomplished to circumvent the purposes of this
chapter.
(b) Subsection (a) of this section shall not apply to a subdivision
exempt under the regulations of the department of health in effect on
January 21, 1970 or any subdivision which has a permit issued prior to
June 1, 1970 under the board of health regulations, or has pending a
bona fide application for a permit under the regulations of the board
of health on June 1, 1970, with respect to plats on file as of June 1,
1970 provided such permit is granted prior to August 1, 1970.
Subsection (a) of this section shall not apply to development which is
not also a subdivision, which has been commenced prior to June 1, 1970,
if the construction will be completed by March 1, 1971. Subsection (a)
of this section shall not apply to a state highway on which a hearing
pursuant to section 222 of Title 19 has been held prior to June 1,
1970. Subsection (a) of this section shall not apply to any
telecommunications facility in existence prior to July 1, 1997, unless
that facility is a "development" as defined in subdivision 6001(3) of
this title. Subsection (a) of this section shall apply to any
substantial change in such excepted subdivision or development.
(c) No permit or permit amendment is required for activities at a
solid waste management facility authorized by a provisional
certification issued under 10 V.S.A. § 6605d; however, development at
such a facility that is beyond the scope of that provisional
certification is not exempt from the provisions of this chapter.
(d) For purposes of this section, the following municipal projects
shall not be considered to be substantial changes, regardless of the
acreage involved, and shall not require a permit as provided under
subsection (a) of this section:
(1) essential municipal wastewater treatment facility enhancements
that do not expand the capacity of the facility by more than 10 percent.
(2) essential municipal waterworks enhancements that do not expand the capacity of the facility by more than 10 percent.
(3) essential public school reconstruction or expansion that does
not expand the student capacity of the school by more than 10 percent.
(4) essential municipal building reconstruction or expansion that
does not expand the floor space of the building by more than 10 percent.
(e) For purposes of this section, the replacement of water and sewer
lines, as part of a municipality's regular maintenance or replacement
of existing facilities, shall not be considered to be substantial
changes and shall not require a permit as provided under subsection (a)
of this section, provided that the replacement does not expand the
capacity of the relevant facility by more than 10 percent.
(f) A permit application for a development for which a certificate
of need pursuant to section 6606a of this title is required shall be
accompanied by such certificate.
(g) The owners or operators of earth removal sites associated with a
landfill closing, other than the landfill site itself, shall obtain a
municipal zoning permit in lieu of a permit under this chapter, unless
the municipality chooses to refer the matter to the district
environmental commission having jurisdiction. At the district
commission level, the matter will be treated as a minor application. If
municipal zoning bylaws do not exist, the excavation application shall
be subject to the provisions of this chapter as a minor application.
(h) No permit or permit amendment is required for closure operations
at an unlined landfill which began disposal operations prior to July 1,
1992 and which has been ordered closed under section 6610a or chapter
201 of this title. Closure and post-closure operations covered by this
provision are limited to the following on-site operations: final
landfill cover system construction and related maintenance operations,
water quality monitoring, landfill gas control systems installation and
maintenance, erosion control measures, site remediation and general
maintenance. Prior to issuing a final order for closure for landfills
qualifying for this exemption, a public informational meeting shall be
noticed and held by the secretary with public comment accepted on the
draft order. The public comment period shall extend no less than seven
days before the public meeting and 14 days after the meeting. Public
comment related to the public health, water pollution, air pollution,
traffic, noise, litter, erosion and visual conditions shall be
considered. Landfills with permits in effect under this chapter as of
July 1, 1994, shall not qualify for an exemption as described under
this section.
(i) The repair or replacement of railroad facilities used for
transportation purposes, as part of a railroad's maintenance, shall not
be considered to be substantial changes and shall not require a permit
as provided under subsection (a) of this section, provided that the
replacement or repair does not result in the physical expansion of the
railroad's facilities.
(j) With respect to the extraction of slate from a slate quarry that
is included in final slate quarry registration documents, if it were
removed from a site prior to June 1, 1970, the site from which slate
was actually removed, if lying unused at any time after those
operations commenced, shall be deemed to be held in reserve, and shall
not be deemed to be abandoned.
(k)(1) With respect to the commercial extraction of slate from a
slate quarry, activities that are not ancillary to slate mining
operations may constitute substantial changes, and be subject to
permitting requirements under this chapter. "Ancillary activities"
include the following activities that pertain to slate and that take
place within a registered parcel that contains a slate quarry:
drilling, crushing, grinding, sizing, washing, drying, sawing and
cutting stone, blasting, trimming, punching, splitting and gauging, and
use of buildings and use and construction of equipment exclusively to
carry out the above activities. Buildings that existed on April 1,
1995, or any replacements to those buildings, shall be considered
ancillary.
(2) Activities that are ancillary activities that involve crushing,
may constitute substantial changes if they may result in significant
impact with respect to any of the criteria specified in subdivisions
6086(a)(1) through (10) of this title.
( l )(1) By no later than January 1, 1997, any owner of land or
mineral rights or any owner of slate quarry leasehold rights on a
parcel of land on which a slate quarry was located as of June 1, 1970,
may register the existence of the slate quarry with the district
commission and with the clerk of the municipality in which the slate
quarry is located, while also providing each with a map which indicates
the boundaries of the parcel which contains the slate quarry.
(2) Slate quarry registration shall state the name and address of
the owner of the land, mineral rights or leasehold rights; whether that
person holds mineral rights, or leasehold rights or is the owner in fee
simple; the physical location of the same; the physical location and
size of ancillary buildings; and the book and page of the recorded deed
or other instrument by which the owner holds title to the land or
rights.
(3) Slate quarry registration documents shall be submitted to the
district commission together with a request, under the provisions of
subsection 6007(c) of this title, for a final determination regarding
the applicability of this chapter.
(4) The final determination regarding a slate quarry registration
under subsection 6007(c) of this title shall be recorded in the
municipal land records at the expense of the registrant along with an
accurate site plan of the parcel depicting the site specific
information contained in the registration documents.
(5) With respect to a slate quarry located on a particular
registered parcel of land, ancillary activities on the parcel related
to the extraction and processing of slate into products that are
primarily other than crushed stone products shall not be deemed to be
substantial changes, as long as the activities do not involve the
creation of one or more new slate quarry holes that are not related to
an existing slate quarry hole.
(m) No permit is required for the replacement of a preexisting
telecommunications facility, in existence prior to July 1, 1997,
provided the facility is not a development as defined in subdivision
6001(3) of this title, unless the replacement would constitute a
substantial change to the telecommunications facility being replaced,
or to improvements ancillary to the telecommunications facility, or
both. No permit is required for repair or routine maintenance of a
preexisting telecommunications facility or of those ancillary
improvements associated with the telecommunications facility.
(n) No permit amendment is required for the replacement of a
permitted telecommunications facility unless the replacement would
constitute a material or substantial change to the permitted
telecommunications facility to be replaced, or to improvements
ancillary to the telecommunications facility, or both. No permit is
required for repair or routine maintenance of a permitted
telecommunications facility or of those ancillary improvements
associated with the telecommunications facility.
(o) If a downtown development district designation pursuant to 24
V.S.A. § 2793 is removed, subsection (a) of this section shall apply to
any subsequent substantial change to a project that was originally
exempt pursuant to subdivision 6001(3)(B) of this title.
(p) No permit or permit amendment is required for any change to a
project that is located entirely within a downtown development district
designated pursuant to 24 V.S.A. § 2793, if the change consists
exclusively of any combination of mixed use and mixed income housing,
and the cumulative changes within any continuous period of five years,
commencing on or after the effective date of this subsection, remain
below the jurisdictional threshold specified in subdivision 6001(3)(B)
of this title.
(q) For the purposes of reviewing any combination of electrical
distribution and communications lines and subsidiary facilities that,
standing alone, constitutes a development for purposes of this chapter,
the actual and potential impacts considered by the board or district
commission under subsection 6086(a) of this title shall not include
actual or potential impacts of the construction of other improvements
to be served by those lines and subsidiary facilities.
(r) In situations in which the construction of improvements for any
combination of electrical distribution and communications lines and
subsidiary facilities, standing alone, constitutes a development
subject to the jurisdiction of the board or district commission under
this chapter, subsequent construction of improvements for any
combination of electrical distribution and communications lines and
subsidiary facilities not identified or reasonably identifiable at the
time construction commences, standing alone, shall be considered new
construction of improvements and shall not be considered a material or
substantial change to that previously permitted development. (Added
1969, No. 250 (Adj. Sess.), §§ 6, 7, subsec. (a), eff. June 1, 1970,
subsec. (b), eff. April 4, 1970; amended 1989, No. 218 (Adj. Sess.), §
2; No. 276 (Adj. Sess.), §§ 17a, 17b, eff. June 20, 1990; No. 282 (Adj.
Sess.), § 7, eff. June 22, 1990; 1991, No. 256 (Adj. Sess.), § 30, eff.
June 9, 1992; 1993, No. 200 (Adj. Sess.), § 2; No. 208 (Adj. Sess.), §
4; 1995, No. 30, § 2, eff. April 13, 1995; 1999, No. 93 (Adj. Sess.),
§§ 1, 2; 2001, No. 114 (Adj. Sess.), § 7c, eff. May 28, 2002; No. 133
(Adj. Sess.), § 1.)
§ 6082. Approval by local governments and state agencies
The permit required under section 6081 of this title shall not
supersede or replace the requirements for a permit of any other state
agency or municipal government. (1969, No. 250 (Adj. Sess.), § 27, eff.
April 4, 1970.)
§ 6083. Applications
(a) An application for a permit shall be filed with the district
commissioner as prescribed by the rules of the board and shall contain
at least the following documents and information:
(1) The applicant's name, address, and the address of each of the
applicant's offices in this state, and, where the applicant is not an
individual, municipality or state agency, the form, date and place of
formation of the applicant.
(2) Five copies of a plan of the proposed development or subdivision
showing the intended use of the land, the proposed improvements, the
details of the project, and any other information required by this
chapter, or the rules adopted under this chapter.
(3) The fee prescribed by section 6083a of this title.
(4) Certification of filing of notice as set forth in 6084 of this title.
(b) An applicant or petitioner shall grant the appropriate panel of
the board or district commission, or their agents, permission to enter
upon the applicant's or petitioner's land for these purposes.
(c) Where an application concerns the extraction or processing of
fissionable source material, before the application is considered the
district commission shall obtain the express approval of the general
assembly by act of legislation stating that extraction or processing of
fissionable source material will promote the general welfare. The
district commission shall advise the general assembly of any
application for extraction or processing of fissionable source material
by delivering written notice to the speaker of the house of
representatives and to the president of the senate, and shall make
available all relevant material. The procedural requirements and
deadlines applicable to permit applications under this chapter shall be
suspended until the approval is granted. Approval by the general
assembly under this subsection shall not be construed as approval of
any particular application or proposal for development.
(d) The panels of the board and commissions shall make all practical
efforts to process matters before the board and permits in a prompt
manner. The land use panel shall establish time limits for the
processing of land use permits issued under section 6086 of this title
as well as procedures and time periods within which to notify
applicants whether an application is complete. The land use panel shall
report annually by February 15 to the house and senate committees on
natural resources and energy and government operations. The annual
report shall assess the performance of the board and commissions in
meeting the limits; identify areas which hinder effective performance;
list fees collected for each permit; summarize changes made to improve
performance; and describe staffing needs for the coming year.
(e) The district commissions shall give priority to municipal
projects that have been mandated by the state through a permit,
enforcement order, court order, enforcement settlement agreement,
statute, rule or policy.
(f) In situations where the party seeking to file an application is
a state agency, municipality, solid waste management district empowered
to condemn the involved land or an interest in it, the application need
only be signed by that party.
(g)(1) A district commission, pending resolution of noncompliance,
may stay the issuance of a permit or amendment if it finds, by clear
and convincing evidence, that a person who is an applicant:
(A) is not in compliance with a court order, an administrative
order, or an assurance of discontinuance with respect to a violation
that is directly related to the activity which is the subject of the
application; or
(B) has one or more current violations of this chapter, or any
rules, permits, assurances of discontinuance, court order, or
administrative orders related to this chapter, which, when viewed
together, constitute substantial noncompliance.
(2) Any decision under this subsection to issue a stay may be
subject to review by the environmental court, as provided by rule of
the supreme court.
(3) If the same violation is the subject of an enforcement action
under chapter 201 of this title, then jurisdiction over the issuance of
a stay shall remain with the environmental court and shall not reside
with the district commission. (1969, No. 250 (Adj. Sess.), §§ 8, 15,
eff. April 4, 1970; amended 1979, No. 123 (Adj. Sess.), § 6, eff. April
14, 1980; 1987, No. 76, § 10; 1989, No. 276 (Adj. Sess.), § 17, eff.
June 20, 1990; No. 279 (Adj. Sess.), § 3; 1991, No. 109, § 7, eff. June
28, 1991; 1995, No. 186 (Adj. Sess.), § 35, eff. May 22, 1996; 1997,
No. 155 (Adj. Sess.), § 26; 2001, No. 40, § 4; 2003, No. 151 (Adj.
Sess.), § 1; No. 115 (Adj. Sess.), § 52, eff. Jan. 31, 2005.)
§ 6083a. Act 250 fees
(a) All applicants for a land use permit under section 6086 of this
title shall be directly responsible for the costs involved in the
publication of notice in a newspaper of general circulation in the area
of the proposed development or subdivision and the costs incurred in
recording any permit or permit amendment in the land records. In
addition, applicants shall be subject to the following fees for the
purpose of compensating the state of Vermont for the direct and
indirect costs incurred with respect to the administration of the Act
250 program:
(1) For projects involving construction, $4.75 for each $1,000.00 of
the first $15,000,000.00 of construction costs, and $2.25 for each
$1,000.00 of construction costs above $15,000,000.00.
(2) For projects involving the creation of lots, $100.00 for each lot.
(3) For projects involving exploration for or removal of oil, gas
and fissionable source materials, a fee as determined under subdivision
(1) of this subsection or $1,000.00 for each day of commission hearings
required for such projects, whichever is greater.
(4) For projects involving the extraction of earth resources,
including but not limited to sand, gravel, peat, topsoil, crushed stone
or quarried material, a fee as determined under subdivision (1) of this
subsection or a fee equivalent to the rate of $0.10 per cubic yard of
maximum estimated annual extraction, whichever is greater.
(5) For projects involving the review of a master plan, a fee
equivalent to $0.10 per $1,000.00 of total estimated construction costs
in current dollars in addition to the fee established in subdivision
(1) of this subsection for any portion of the project seeking
construction approval.
(6) In no event shall a permit application fee exceed $135,000.00.
(b) Notwithstanding the provisions of subsection (a) of this
section, there shall be a minimum fee of $150.00 for original
applications and $50.00 for amendment applications, in addition to
publication and recording costs. These costs shall be in addition to
any other fee established by statute, unless otherwise expressly stated.
(c) Fees shall not be required for projects undertaken by municipal
agencies or by state governmental agencies, except for publication and
recording costs.
(d) [Deleted.]
(e) A written request for an application fee refund shall be
submitted to the district commission to which the fee was paid within
90 days of the withdrawal of the application.
(1) In the event that an application is withdrawn prior to the
convening of a hearing, the district commission shall, upon request of
the applicant, refund 50 percent of the fee paid between $100.00 and
$5,000.00, and all of that portion of the fee paid in excess of
$5,000.00 except that the district commission may decrease the amount
of the refund if the direct and indirect costs incurred by the state of
Vermont with respect to the administration of the Act 250 program
clearly and unreasonably exceed the fee that would otherwise be
retained by the district commission.
(2) In the event that an application is withdrawn after a hearing,
the district commission shall, upon request of the applicant, refund 25
percent of the fee paid between $100.00 and $10,000.00 and all of that
portion of the fee paid in excess of $10,000.00 except that the
district commission may decrease the amount of the refund if the direct
and indirect costs incurred by the state of Vermont with respect to the
administration of the Act 250 program clearly and unreasonably exceed
the fee that would otherwise be retained by the district commission.
(3) The district commission shall, upon request of the applicant,
increase the amount of the refund if the application of subdivisions
(1) and (2) of this subsection clearly would result in a fee that
unreasonably exceeds the direct and indirect costs incurred by the
state of Vermont with respect to the administration of the Act 250
program.
(4) District commission decisions regarding application fee refunds
may be appealed to the land use panel in accordance with board rules.
(5) For the purposes of this section, a "hearing" is a duly warned
meeting concerning an application convened by a quorum of the district
commission, at which parties may be present. However, a hearing does
not include a prehearing conference.
(6) In no event may an application fee or a portion thereof be
refunded after a district commission has issued a final decision on the
merits of an application.
(7) In no event may an application fee refund include the payment of interest on the application fee.
(f) In the event that an application involves a project or project
impacts that previously have been reviewed, the applicant may petition
the chair of the district commission to waive all or part of the
application fee. If an application fee was paid previously in
accordance with subdivisions (a)(1) through (4) of this section, the
chair may waive all or part of the fee for a new or revised project if
the chair finds that the impacts of the project have been reviewed in
an applicable master permit application, or that the project is not
significantly altered from a project previously reviewed, or that there
will be substantial savings in the review process due to the scope of
review of the previous applications.
(g) A commission or the land use panel may require any permittee to
file a certification of actual construction costs and may direct the
payment of a supplemental fee in the event that an application
understated a project's construction costs. Failure to file a
certification or to pay a supplemental fee shall be grounds for permit
revocation.
(h) The costs of republishing a notice due to a scheduling change
requested by a party shall be borne by the party requesting the change.
(Added 1997, No. 155 (Adj. Sess.), § 27; amended 2003, No. 163 (Adj.
Sess.), § 26; No. 115 (Adj. Sess.), § 53, eff. Jan. 31, 2005.)
§ 6084. Notice of application; hearings, commencement of review
(a) On or before the date of filing of an application with the
district commission, the applicant shall send notice and a copy of the
initial application to the owner of the land if the applicant is not
the owner; the municipality in which the land is located; the municipal
and regional planning commissions for the municipality in which the
land is located; any adjacent Vermont municipality and municipal and
regional planning commission if the land is located on a municipal or
regional boundary. The applicant shall furnish to the district
commission the names of those furnished notice by affidavit, and shall
post a copy of the notice in the town clerk's office of the town or
towns wherein the project lies. The applicant shall also provide a list
of adjoining landowners to the district commission. Upon request and
for good cause, the district commission may authorize the applicant to
provide a partial list of adjoining landowners in accordance with board
rules.
(b) Upon an application being ruled complete, the district
commission shall determine whether to process the application as a
major application with a required public hearing or process the
application as a minor application with the potential for a public
hearing in accordance with board rules.
(1) For major applications, the district commission shall provide
notice not less than ten days prior to any scheduled hearing or
prehearing conference to: the applicant; the owner of the land if the
applicant is not the owner; the municipality in which the land is
located; the municipal and regional planning commissions for the
municipality in which the land is located; any adjacent Vermont
municipality and municipal and regional planning commission if the land
is located on a municipal or regional boundary; adjoining landowners as
deemed appropriate by the district commission pursuant to the rules of
the board, and any other person the district commission deems
appropriate.
(2) For minor applications, the district commission shall provide
notice of the commencement of application review to the persons listed
in subdivision (1) of this subsection.
(3) For both major and minor applications, the district commission
shall also provide such notice and a copy of the application to: the
board and any affected state agency ; the solid waste management
district in which the land is located, if the development or
subdivision constitutes a facility pursuant to subdivision 6602(10) of
this title; and any other municipality, state agency, or person the
district commission deems appropriate.
(c) Anyone required to receive notice of commencement of minor
application review pursuant to subsection (b) of this section may
request a hearing by filing a request within the public comment period
specified in the notice pursuant to board rules. The district
commission, on its own motion, may order a hearing within 20 days of
notice of commencement of minor application review.
(d) Any hearing or prehearing conference for a major application
shall be held within 40 days of receipt of a complete application; or
within 20 days of the end of the public comment period specified in the
notice of minor application review if the district commission
determines that it is appropriate to hold a hearing for a minor
application.
(e) Any notice for a major or minor application, as required by this
section, shall also be published by the district commission in a local
newspaper generally circulating in the area where the development or
subdivision is located not more than ten days after receipt of a
complete application.
(1) Notice of any hearing for a major application shall be
published, as required by this section, not less than ten days before
the hearing or prehearing conference.
(2) If the district commission determines that it is appropriate to
hold a hearing for an application that was originally noticed as a
minor application, then the application shall be renoticed as a major
application in accordance with the requirements of this section and
board rules, except that there shall be no requirement to publish the
second notice in a local newspaper. Direct notice of the hearing to all
persons listed in subdivisions (b)(1) and (3) of this section shall be
deemed sufficient. (1969, No. 250 (Adj. Sess.), § 9, eff. April 4,
1970; amended 1991, No. 109, § 2 eff. June 28, 1991; 1993, No. 232
(Adj. Sess.), § 29, eff. March 15, 1995; 1995, No. 189 (Adj. Sess.), §
10, eff. May 22, 1996; 2003, No. 115 (Adj. Sess.), § 54.)
§ 6085. Hearings; party status
(a), (b) [Deleted.]
(c)(1) Party status. In proceedings before the district commissions, the following persons shall be entitled to party status:
(A) The applicant;
(B) The landowner, if the applicant is not the landowner;
(C) The municipality in which the project site is located, and the
municipal and regional planning commissions for that municipality; if
the project site is located on a boundary, any Vermont municipality
adjacent to that border and the municipal and regional planning
commissions for that municipality; and the solid waste management
district in which the land is located, if the development or
subdivision constitutes a facility pursuant to subdivision 6602(10) of
this title;
(D) Any state agency affected by the proposed project;
(E) Any adjoining property owner or other person who has a
particularized interest protected by this chapter that may be affected
by an act or decision by a district commission.
(2) Content of Petitions. All persons seeking to participate in
proceedings before the district commission as parties pursuant to
subdivision (c)(1)(E) of this section must petition for party status.
Any petition for party status may be made orally or in writing to the
district commission. All petitions must include:
(A) A detailed statement of the petitioner's interest under the
relevant criteria of the proceeding, including, if known, whether the
petitioner's position is in support of or in opposition to the relief
sought by the permit applicant, or petitioner.
(B) In the case of an organization, a description of the organization, its purposes, and the nature of its membership.
(C) A statement of the reasons the petitioner believes the district
commission should allow the petitioner party status in the pending
proceeding.
(D) In the case of a person seeking party status under subdivision (c)(1)(E) of this section:
(i) If applicable, a description of the location of the petitioner's
property in relation to the proposed project, including a map, if
available;
(ii) A description of the potential effect of the proposed project
upon the petitioner's interest with respect to each of the relevant
criteria or subcriteria under which party status is being requested.
(3) Timeliness. A petition for party status pursuant to subdivision
(c)(1)(E) of this section must be made at or prior to an initial
prehearing conference held pursuant to board rule or at the
commencement of the hearing, whichever shall occur first, unless the
district commission directs otherwise. The district commission may
grant an untimely petition if it finds that the petitioner has
demonstrated good cause for failure to request party status in a timely
fashion, and that the late appearance will not unfairly delay the
proceedings or place an unfair burden on the parties.
(4) Conditions. Where a person has been granted party status
pursuant to subdivision (c)(1)(E) of this section, the district
commission shall restrict the person's participation to only those
issues in which the person has demonstrated an interest, and may
encourage the person to join with other persons with respect to
representation, presentation of evidence, or other matters in the
interest of promoting judicial efficiency.
(5) Friends of the commission. The district commission, on its own
motion or by petition, may allow nonparties to participate in any of
its proceedings, without being accorded party status. Participation may
be limited to the filing of memoranda, proposed findings of fact and
conclusions of law, and argument on legal issues. However, if approved
by the district commission, participation may be expanded to include
the provision of testimony, the filing of evidence, or the cross
examination of witnesses. A petition for leave to participate as a
friend of the commission shall identify the interest of the petitioner
and the desired scope of participation and shall state the reasons why
the participation of the petitioner will be beneficial to the district
commission. Except where all parties consent or as otherwise ordered by
the district commission or by the chair of the district commission, all
friends of the commission shall file their memoranda, testimony, or
evidence within the times allowed the parties.
(6) Re-examination of party status. A district commission shall
re-examine party status determinations before the close of hearings and
state the results of that re-examination in the district commission
decision. In the re-examination of party status coming before the close
of district commission hearings, persons having attained party status
up to that point in the proceedings shall be presumed to retain party
status. However, on motion of a party, or on its own motion, a
commission shall consider the extent to which parties continue to
qualify for party status. Determinations made before the close of
district commission hearings shall supersede any preliminary
determinations of party status.
(d) If no hearing has been requested or ordered within the
prescribed period no hearing need be held by the district commission.
In such an event a permit shall be granted or denied within 60 days of
receipt; otherwise, it shall be deemed approved and a permit shall be
issued.
(e) The land use panel and any district commission, acting through
one or more duly authorized representatives at any prehearing
conference or at any other times deemed appropriate by the land use
panel or by the district commission, shall promote expeditious,
informal, and nonadversarial resolution of issues, require the timely
exchange of information concerning the application, and encourage
participants to settle differences. No district commissioner who is
participating as a decisionmaker in a particular case may act as a duly
authorized representative for the purposes of this subsection. These
efforts at dispute resolution shall not affect the burden of proof on
issues before a commission or the environmental court, nor shall they
affect the requirement that a permit may be issued only after the
issuance of affirmative findings under the criteria established in
section 6086 of this title.
(f) A hearing shall not be closed until a commission provides an
opportunity to all parties to respond to the last permit or evidence
submitted. Once a hearing has been closed, a commission shall conclude
deliberations as soon as is reasonably practicable. A decision of a
commission shall be issued within 20 days of the completion of
deliberations. (1969, No. 250 (Adj. Sess.), §§ 10, 11, eff. April 4,
1970; amended 1973, No. 85, § 9; 1989, No. 234 (Adj. Sess.), § 3; 1993,
No. 82, § 4; 1993, No. 232 (Adj. Sess.), §§ 30, 31, eff. March 15,
1995; 2003, No. 115 (Adj. Sess.), § 55, eff. Jan. 31, 2005.)
§ 6086. Issuance of permit; conditions and criteria
(a) Before granting a permit, the district commission shall find that the subdivision or development:
(1) Will not result in undue water or air pollution. In making this
determination it shall at least consider: the elevation of land above
sea level; and in relation to the flood plains, the nature of soils and
subsoils and their ability to adequately support waste disposal; the
slope of the land and its effect on effluents; the availability of
streams for disposal of effluents; and the applicable health and
environmental conservation department regulations.
(A) Headwaters. A permit will be granted whenever it is demonstrated
by the applicant that, in addition to all other applicable criteria,
the development or subdivision will meet any applicable health and
environmental conservation department regulation regarding reduction of
the quality of the ground or surface waters flowing through or upon
lands which are not devoted to intensive development, and which lands
are:
(i) headwaters of watersheds characterized by steep slopes and shallow soils; or
(ii) drainage areas of 20 square miles or less; or
(iii) above 1,500 feet elevation; or
(iv) watersheds of public water supplies designated by the agency of natural resources; or
(v) areas supplying significant amounts of recharge waters to aquifers.
(B) Waste disposal. A permit will be granted whenever it is
demonstrated by the applicant that, in addition to all other applicable
criteria, the development or subdivision will meet any applicable
health and environmental conservation department regulations regarding
the disposal of wastes, and will not involve the injection of waste
materials or any harmful or toxic substances into ground water or wells.
(C) Water conservation. A permit will be granted whenever it is
demonstrated by the applicant that, in addition to all other applicable
criteria, the design has considered water conservation, incorporates
multiple use or recycling where technically and economically practical,
utilizes the best available technology for such applications, and
provides for continued efficient operation of these systems.
(D) Floodways. A permit will be granted whenever it is demonstrated
by the applicant that, in addition to all other applicable criteria:
(i) the development or subdivision of lands within a floodway will
not restrict or divert the flow of flood waters, and endanger the
health, safety and welfare of the public or of riparian owners during
flooding; and
(ii) the development or subdivision of lands within a floodway
fringe will not significantly increase the peak discharge of the river
or stream within or downstream from the area of development and
endanger the health, safety, or welfare of the public or riparian
owners during flooding.
(E) Streams. A permit will be granted whenever it is demonstrated by
the applicant that, in addition to all other applicable criteria, the
development or subdivision of lands on or adjacent to the banks of a
stream will, whenever feasible, maintain the natural condition of the
stream, and will not endanger the health, safety, or welfare of the
public or of adjoining landowners.
(F) Shorelines. A permit will be granted whenever it is demonstrated
by the applicant that, in addition to all other criteria, the
development or subdivision of shorelines must of necessity be located
on a shoreline in order to fulfill the purpose of the development or
subdivision, and the development or subdivision will, insofar as
possible and reasonable in light of its purpose:
(i) retain the shoreline and the waters in their natural condition,
(ii) allow continued access to the waters and the recreational opportunities provided by the waters,
(iii) retain or provide vegetation which will screen the development or subdivision from the waters, and
(iv) stabilize the bank from erosion, as necessary, with vegetation cover.
(G) Wetlands. A permit will be granted whenever it is demonstrated
by the applicant, in addition to other criteria, that the development
or subdivision will not violate the rules of the board, as adopted
under this chapter, relating to significant wetlands.
(2) Does have sufficient water available for the reasonably foreseeable needs of the subdivision or development.
(3) Will not cause an unreasonable burden on an existing water supply, if one is to be utilized.
(4) Will not cause unreasonable soil erosion or reduction in the
capacity of the land to hold water so that a dangerous or unhealthy
condition may result.
(5) Will not cause unreasonable congestion or unsafe conditions with
respect to use of the highways, waterways, railways, airports and
airways, and other means of transportation existing or proposed.
(6) Will not cause an unreasonable burden on the ability of a municipality to provide educational services.
(7) Will not place an unreasonable burden on the ability of the local governments to provide municipal or governmental services.
(8) Will not have an undue adverse effect on the scenic or natural
beauty of the area, aesthetics, historic sites or rare and
irreplaceable natural areas.
(A) Necessary wildlife habitat and endangered species. A permit will
not be granted if it is demonstrated by any party opposing the
applicant that a development or subdivision will destroy or
significantly imperil necessary wildlife habitat or any endangered
species, and
(i) the economic, social, cultural, recreational, or other benefit
to the public from the development or subdivision will not outweigh the
economic, environmental, or recreational loss to the public from the
destruction or imperilment of the habitat or species, or
(ii) all feasible and reasonable means of preventing or lessening
the destruction, diminution, or imperilment of the habitat or species
have not been or will not continue to be applied, or
(iii) a reasonably acceptable alternative site is owned or
controlled by the applicant which would allow the development or
subdivision to fulfill its intended purpose.
(9) Is in conformance with a duly adopted capability and development
plan, and land use plan when adopted. However, the legislative findings
of sections 7(a)(1) through 7(a)(19) of this act shall not be used as
criteria in the consideration of applications by a district commission.
(A) Impact of growth. In considering an application, the district
commission shall take into consideration the growth in population
experienced by the town and region in question and whether or not the
proposed development would significantly affect their existing and
potential financial capacity to reasonably accommodate both the total
growth and the rate of growth otherwise expected for the town and
region and the total growth and rate of growth which would result from
the development if approved. After considering anticipated costs for
education, highway access and maintenance, sewage disposal, water
supply, police and fire services and other factors relating to the
public health, safety and welfare, the district commission or the board
shall impose conditions which prevent undue burden upon the town and
region in accommodating growth caused by the proposed development or
subdivision. Notwithstanding section 6088 of this title the burden of
proof that proposed development will significantly affect existing or
potential financial capacity of the town and region to accommodate such
growth is upon any party opposing an application, excepting however,
where the town has a duly adopted capital improvement program the
burden shall be on the applicant.
(B) Primary agricultural soils. A permit will be granted for the
development or subdivision of primary agricultural soils only when it
is demonstrated by the applicant that, in addition to all other
applicable criteria, either, the subdivision or development will not
significantly reduce the agricultural potential of the primary
agricultural soils; or,
(i) the applicant can realize a reasonable return on the fair market
value of his land only by devoting the primary agricultural soils to
uses which will significantly reduce their agricultural potential; and
(ii) there are no nonagricultural or secondary agricultural soils
owned or controlled by the applicant which are reasonably suited to the
purpose; and
(iii) the subdivision or development has been planned to minimize
the reduction of agricultural potential by providing for reasonable
population densities, reasonable rates of growth, and the use of
cluster planning and new community planning designed to economize on
the cost of roads, utilities and land usage; and
(iv) the development or subdivision will not significantly interfere
with or jeopardize the continuation of agriculture or forestry on
adjoining lands or reduce their agricultural or forestry potential.
(C) Forest and secondary agricultural soils. A permit will be
granted for the development or subdivision of forest or secondary
agricultural soils only when it is demonstrated by the applicant that,
in addition to all other applicable criteria, either, the subdivision
or development will not significantly reduce the potential of those
soils for commercial forestry, including but not limited to specialized
forest uses such as maple production or Christmas tree production, of
those or adjacent primary agricultural soils for commercial
agriculture; or
(i) the applicant can realize a reasonable return on the fair market
value of his land only by devoting the forest or secondary agricultural
soils to uses which will significantly reduce their forestry or
agricultural potential; and
(ii) there are no nonforest or secondary agricultural soils owned or
controlled by the applicant which are reasonably suited to the purpose;
and
(iii) the subdivision or development has been planned to minimize
the reduction of forestry and agricultural potential by providing for
reasonable population densities, reasonable rates of growth, and the
use of cluster planning and new community planning designed to
economize on the cost of roads, utilities and land usage.
(D) Earth resources. A permit will be granted whenever it is
demonstrated by the applicant, in addition to all other applicable
criteria, that the development or subdivision of lands with high
potential for extraction of mineral or earth resources, will not
prevent or significantly interfere with the subsequent extraction or
processing of the mineral or earth resources.
(E) Extraction of earth resources. A permit will be granted for the
extraction or processing of mineral and earth resources, including
fissionable source material:
(i) when it is demonstrated by the applicant that, in addition to
all other applicable criteria, the extraction or processing operation
and the disposal of waste will not have an unduly harmful impact upon
the environment or surrounding land uses and development; and
(ii) upon approval by the district commission of a site
rehabilitation plan which insures that upon completion of the
extracting or processing operation the site will be left by the
applicant in a condition suited for an approved alternative use or
development. A permit will not be granted for the recovery or
extraction of mineral or earth resources from beneath natural water
bodies or impoundments within the state, except that gravel, silt and
sediment may be removed pursuant to the rules of the agency of natural
resources, and natural gas and oil may be removed pursuant to the rules
of the natural gas and oil resources board.
(F) Energy conservation. A permit will be granted when it has been
demonstrated by the applicant that, in addition to all other applicable
criteria, the planning and design of the subdivision or development
reflect the principles of energy conservation and incorporate the best
available technology for efficient use or recovery of energy.
(G) Private utility services. A permit will be granted for a
development or subdivision which relies on privately-owned utility
services or facilities, including central sewage or water facilities
and roads, whenever it is demonstrated by the applicant that, in
addition to all other applicable criteria, the privately-owned utility
services or facilities are in conformity with a capital program or plan
of the municipality involved, or adequate surety is provided to the
municipality and conditioned to protect the municipality in the event
that the municipality is required to assume the responsibility for the
services or facilities.
(H) Costs of scattered development. The district commission will
grant a permit for a development or subdivision which is not physically
contiguous to an existing settlement whenever it is demonstrated that,
in addition to all other applicable criteria, the additional costs of
public services and facilities caused directly or indirectly by the
proposed development or subdivision do not outweigh the tax revenue and
other public benefits of the development or subdivision such as
increased employment opportunities or the provision of needed and
balanced housing accessible to existing or planned employment centers.
(J) Public utility services. A permit will be granted for a
development or subdivision whenever it is demonstrated that, in
addition to all other applicable criteria, necessary supportive
governmental and public utility facilities and services are available
or will be available when the development is completed under a duly
adopted capital program or plan, an excessive or uneconomic demand will
not be placed on such facilities and services, and the provision of
such facilities and services has been planned on the basis of a
projection of reasonable population increase and economic growth.
(K) Development affecting public investments. A permit will be
granted for the development or subdivision of lands adjacent to
governmental and public utility facilities, services, and lands,
including, but not limited to, highways, airports, waste disposal
facilities, office and maintenance buildings, fire and police stations,
universities, schools, hospitals, prisons, jails, electric generating
and transmission facilities, oil and gas pipe lines, parks, hiking
trails and forest and game lands, when it is demonstrated that, in
addition to all other applicable criteria, the development or
subdivision will not unnecessarily or unreasonably endanger the public
or quasi-public investment in the facility, service, or lands, or
materially jeopardize or interfere with the function, efficiency, or
safety of, or the public's use or enjoyment of or access to the
facility, service, or lands.
(L) Rural growth areas. A permit will be granted for the development
or subdivision of rural growth areas when it is demonstrated by the
applicant that in addition to all other applicable criteria provision
will be made in accordance with subdivisions (9)(A) "impact of growth,"
(G) "private utility service," (H) "costs of scattered development" and
(J) "public utility services" of subsection (a) of this section for
reasonable population densities, reasonable rates of growth, and the
use of cluster planning and new community planning designed to
economize on the cost of roads, utilities and land usage.
(10) Is in conformance with any duly adopted local or regional plan
or capital program under chapter 117 of Title 24. In making this
finding, if the district commission finds applicable provisions of the
town plan to be ambiguous, the district commission, for interpretive
purposes, shall consider bylaws, but only to the extent that they
implement and are consistent with those provisions, and need not
consider any other evidence.
(b) At the request of an applicant, or upon its own motion, the
district commission shall consider whether to review any criterion or
group of criteria of subsection (a) of this section before proceeding
to or continuing to review other criteria. This request or motion may
be made at any time prior to or during the proceedings. The district
commission, in its sole discretion, shall, within 20 days of the
completion of deliberations on the criteria that are the subject of the
request or motion, either issue its findings and decision thereon, or
proceed to a consideration of the remaining criteria.
(c) A permit may contain such requirements and conditions as are
allowable proper exercise of the police power and which are appropriate
within the respect to (1) through (10) of subsection (a), including but
not limited to those set forth in sections 4414(4), 4424(2),
4414(1)(D)(i), 4463(b), and 4464 of Title 24, the dedication of lands
for public use, and the filing of bonds to insure compliance. The
requirements and conditions incorporated from Title 24 may be applied
whether or not a local plan has been adopted. General requirements and
conditions may be established by rule of the land use panel.
(d) The land use panel may by rule allow the acceptance of a permit
or permits or approval of any state agency with respect to (1) through
(5) of subsection (a) or a permit or permits of a specified municipal
government with respect to (1) through (7) and (9) and (10) of
subsection (a), or a combination of such permits or approvals, in lieu
of evidence by the applicant. A district commission, in accordance with
rules adopted by the land use panel, shall accept determinations issued
by a development review board under the provisions of 24 V.S.A. § 4420,
with respect to local Act 250 review of municipal impacts. The
acceptance of such approval, positive determinations, permit, or
permits shall create a presumption that the application is not
detrimental to the public health and welfare with respect to the
specific requirement for which it is accepted. In the case of approvals
and permits issued by the agency of natural resources, technical
determinations of the agency shall be accorded substantial deference by
the commissions. The acceptance of negative determinations issued by a
development review board under the provisions of 24 V.S.A. § 4420, with
respect to local Act 250 review of municipal impacts shall create a
presumption that the application is detrimental to the public health
and welfare with respect to the specific requirement for which it is
accepted. Any determinations, positive or negative, under the
provisions of 24 V.S.A. § 4420 shall create presumptions only to the
extent that the impacts under the criteria are limited to the
municipality issuing the decision. Such a rule may be revoked or
amended pursuant to the procedures set forth in 3 V.S.A., chapter 25,
the Vermont Administrative Procedure Act. The rules adopted by the land
use panel shall not approve the acceptance of a permit or approval of
such an agency or a permit of a municipal government unless it
satisfies the appropriate requirements of subsection (a) of this
section.
(e) This subsection shall apply with respect to a development that
consists of the construction of temporary physical improvements for the
purpose of producing films, television programs, or advertisements.
These improvements shall be considered "temporary improvements" if they
remain in place for less than one year, unless otherwise extended by
the permit or a permit amendment, and will not cause a long-term
adverse impact under any of the 10 criteria after completion of the
project. In situations where this subsection applies, jurisdiction
under this chapter shall not continue after the improvements are no
longer in place and the conditions in the permit have been met,
provided there is not a long-term adverse impact under any of the 10
criteria after completion of the project; except, however, if
jurisdiction is otherwise established under this chapter, this
subsection shall not remove jurisdiction. This termination of
jurisdiction in these situations does not represent legislative intent
with respect to continuing jurisdiction over other types of development
not specified in this subsection.
(f) Prior to any appeal of a permit issued by a district commission,
any aggrieved party may file a request for a stay of construction with
the district commission together with a declaration of intent to appeal
the permit. The stay request shall be automatically granted for seven
days upon receipt and notice to all parties and pending a ruling on the
merits of the stay request pursuant to board rules. The automatic stay
shall not extend beyond the 30-day appeal period unless a valid appeal
has been filed with the environmental court. The automatic stay may be
granted only once under this subsection during the 30-day appeal
period. Following appeal of the district commission decision, any stay
request must be filed with the environmental court pursuant to the
provisions of chapter 220 of this title. A district commission shall
not stay construction authorized by a permit processed under the land
use panel's minor application procedures. (1969, No. 250 (Adj. Sess.),
§ 12, eff. April 4, 1970; amended 1973, No. 85, § 10; 1973, No. 195
(Adj. Sess.), § 3, eff. April 2, 1974; 1979, No. 123 (Adj. Sess.), § 5,
eff. April 14, 1980; 1981, No. 240 (Adj. Sess.), § 7, eff. April 28,
1982; 1985, No. 52, § 4, eff. May 15, 1985; 1985, No. 188 (Adj. Sess.),
§ 5; 1987, No. 76, § 18; 1989, No. 234 (Adj. Sess.), § 1; No. 280 (Adj.
Sess.), § 13; 1993, No. 232 (Adj. Sess.), § 32, eff. March 15, 1995,
2001, No. 40, §§ 6-9; 2003, No. 115 (Adj. Sess.), § 56, eff. Jan. 31,
2005.)
§ 6086a. Generators of radioactive waste
No land use permit will be issued for a development which generates
low-level radioactive waste unless it shows that it will have access to
a low-level radioactive waste disposal facility and that the facility
is expected to have sufficient capacity for the waste. (Added 1989, No.
296 (Adj. Sess.), § 7, eff. June 29, 1990.)
§ 6087. Denial of application
(a) No application shall be denied by the district commission unless
it finds the proposed subdivision or development detrimental to the
public health, safety or general welfare.
(b) A permit may not be denied solely for the reasons set forth in
subdivisions (5), (6) and (7) of section 6086(a) of this title.
However, reasonable conditions and requirements allowable in section
6086(c) of this title may be attached to alleviate the burdens created.
(c) A denial of a permit shall contain the specific reasons for
denial. A person may, within 6 months, apply for reconsideration of his
permit which application shall include an affidavit to the district
commission and all parties of record that the deficiencies have been
corrected. The district commission shall hold a new hearing upon 25
days notice to the parties. The hearing shall be held within 40 days of
receipt of the request for reconsideration. (1969, No. 250 (Adj.
Sess.), § 12, eff. April 4, 1970; amended 2003, No. 115 (Adj. Sess.), §
57, eff. Jan. 31, 2005.)
§ 6088. Burden of proof
(a) The burden shall be on the applicant with respect to
subdivisions (1), (2), (3), (4), (9) and (10) of section 6086(a) of
this title.
(b) The burden shall be on any party opposing the applicant with
respect to subdivisions (5) through (8) of section 6086(a) of this
title to show an unreasonable or adverse effect. (1969, No. 250 (Adj.
Sess.), § 13, eff. April 4, 1970.)
§ 6089. Appeals
Appeals of any act or decision of a district coordinator or a
district commission under this chapter shall be made to the
environmental court in accordance with chapter 220 of this title.
(1969, No. 250 (Adj. Sess.), § 14, eff. April 4, 1970; amended 1973,
No. 85, § 12; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974;
1985, No. 52, § 1, eff. May 15, 1985; 1987, No. 76, § 10a; 1993, No.
232 (Adj. Sess.), § 34, eff. March 15, 1995; 1997, No. 155 (Adj.
Sess.), § 28; 2003, No. 115 (Adj. Sess.), § 58, eff. Jan. 31, 2005.)
§ 6090. Recording; duration and revocation of permits
(a) In order to afford adequate notice of the terms and conditions
of land use permits, permit amendments and revocations of permits, they
shall be recorded in local land records. Recordings under this chapter
shall be indexed as though the permittee were the grantor of a deed.
(b)(1) Any permit granted under this chapter for extraction of
mineral resources, operation of solid waste disposal facilities, or
logging above 2,500 feet, shall be for a specified period determined by
the board in accordance with the rules adopted under this chapter as a
reasonable projection of the time during which the land will remain
suitable for use if developed or subdivided as contemplated in the
application, and with due regard for the economic considerations
attending the proposed development or subdivision. Other permits issued
under this chapter shall be for an indefinite term, as long as there is
compliance with the conditions of the permit.
(2) Expiration dates contained in permits issued before July 1, 1994
(involving developments that are not for extraction of mineral
resources, operation of solid waste disposal facilities, or logging
above 2,500 feet) are extended for an indefinite term, as long as there
is compliance with the conditions of the permits.
(1969, No. 250
(Adj. Sess.), § 16, eff. April 4, 1970; amended 1985, No. 32; 1993, No.
232 (Adj. Sess.), § 35, eff. June 21, 1994.)
§ 6091. Renewals and nonuse
(a) Renewal. At the expiration of each permit, it may be renewed
under the same procedure herein specified for an original application.
(b) Nonuse of permit. Nonuse of a permit for a period of three years
following the date of issuance shall constitute an abandonment of the
development or subdivision and the permit shall be considered expired.
For purposes of this section, for a permit to be considered "used,"
construction must have commenced and substantial progress toward
completion must have occurred within the three-year period, unless
construction is delayed by litigation or proceedings to secure other
permits or to secure title through foreclosure, or unless, at the time
the permit is issued or in a subsequent proceeding, the district
commission provides that substantial construction may be commenced more
than three years from the date the permit is issued.
(c) Extensions. If the application is made for an extension prior to
expiration the district commission may grant an extension and may waive
the necessity of a hearing.
(d) Completion dates for developments and subdivisions. Permits
shall include dates by which there shall be full or phased completion.
The land use panel, by rule, shall establish requirements for review of
those portions of developments and subdivisions that fail to meet their
completion dates, giving due consideration to fairness to the parties
involved, competing land use demands, and cumulative impacts on the
resources involved. If completion has been delayed by litigation,
proceedings to secure other permits, proceedings to secure title
through foreclosure, or because of market conditions, the district
commission shall provide that the completion dates be extended for a
reasonable period of time. (1969, No. 250 (Adj. Sess.), § 17, eff.
April 4, 1970; amended 1991, No. 111, § 2 eff. June 28, 1991; 1993, No.
232 (Adj. Sess.), § 36, eff. June 21, 1994; 2003, No. 115 (Adj. Sess.),
§ 59, eff. January 31, 2005.)
§ 6092. Construction
In the event that the federal government preempts part of the
activity regulated by this chapter, this chapter shall be construed to
regulate activity that has not been preempted. (Added 1979, No. 123
(Adj. Sess.), § 7, eff. April 14, 1980.)
