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The Vermont Statutes Online
Title
10
:
Conservation and Development
Chapter
151
:
STATE LAND USE AND DEVELOPMENT PLANS
Subchapter
004
:
PERMITS
§
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 Secretary of Natural Resources, as adopted under
chapter 37 of this title, 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)(A) 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.
(B) As
appropriate, will incorporate transportation demand management strategies and
provide safe access and connections to adjacent lands and facilities and to
existing and planned pedestrian, bicycle, and transit networks and services. In
determining appropriateness under this subdivision (B), the District Commission
shall consider whether such a strategy, access, or connection constitutes a
measure that a reasonable person would take given the type, scale, and
transportation impacts of the proposed development or subdivision.
(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 subdivisions 7(a)(1)
through (19) of Act 85 of 1973 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 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 result in any reduction in the agricultural potential of
the primary agricultural soils; or:
(i) 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;
(ii) except in
the case of an application for a project located in a designated area listed in
subdivision 6093(a)(1) of this title, there are no lands other than primary
agricultural soils owned or controlled by the applicant which are reasonably
suited to the purpose of the development or subdivision;
(iii) except in
the case of an application for a project located in a designated area listed in
subdivision 6093(a)(1) of this title, the subdivision or development has been
planned to minimize the reduction of agricultural potential of the primary
agricultural soils through innovative land use design resulting in compact
development patterns, so that the remaining primary agricultural soils on the
project tract are capable of supporting or contributing to an economic or
commercial agricultural operation; and
(iv) suitable
mitigation will be provided for any reduction in the agricultural potential of
the primary agricultural soils caused by the development or subdivision, in accordance
with section 6093 of this title and rules adopted by the Natural Resources
Board.
(C) Productive
forest soils. A permit will be granted for the development or subdivision of
productive forest soils only when it is demonstrated by the applicant that, in
addition to all other applicable criteria, either, the subdivision or
development will not result in any reduction in the potential of those soils
for commercial forestry; or:
(i) 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; and
(ii) except in
the case of an application for a project located in a designated growth center,
there are no lands other than productive forest soils owned or controlled by
the applicant which are reasonably suited to the purpose of the development or
subdivision; and
(iii) except in
the case of an application for a project located in a designated growth center,
the subdivision or development has been planned to minimize the reduction of
the potential of those productive forest soils through innovative land use
design resulting in compact development patterns, so that the remaining forest
soils on the project tract may contribute to a commercial forestry operation.
(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 that ensures
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, including reduction of greenhouse gas emissions from the use of
energy, and incorporate the best available technology for efficient use or
recovery of energy. An applicant seeking an affirmative finding under this
criterion shall provide evidence that the subdivision or development complies
with the applicable building energy standards under 30 V.S.A. § 51 or 53.
(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 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) Settlement
patterns. To promote Vermont's historic settlement pattern of compact village
and urban centers separated by rural countryside, a permit will be granted for
a development or subdivision outside an existing settlement when it is
demonstrated by the applicant that, in addition to all other applicable
criteria, the development or subdivision:
(i) will make
efficient use of land, energy, roads, utilities, and other supporting
infrastructure; and
(ii)(I) will not
contribute to a pattern of strip development along public highways; or
(II) if the
development or subdivision will be confined to an area that already constitutes
strip development, will incorporate infill as defined in 24 V.S.A. § 2791 and
is designed to reasonably minimize the characteristics listed in the definition
of strip development under subdivision 6001(36) of this title.
(10) Is in
conformance with any duly adopted local or regional plan or capital program
under 24 V.S.A. chapter 117. 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 subdivisions
(a)(1) through (10) of this section, including those set forth in 24 V.S.A. §§
4414(4), 4424(a)(2), 4414(1)(D)(i), 4463(b), and 4464, 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 Natural Resources Board.
(d) The Natural
Resources Board may by rule allow the acceptance of a permit or permits or
approval of any State agency with respect to subdivisions (a)(1) through (5) of
this section or a permit or permits of a specified municipal government with
respect to subdivisions (a)(1) through (7) and (9) and (10) of this section, 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
Board, 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 Board
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 Division. 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 Division pursuant to the provisions of chapter 220
of this title. A District Commission shall not stay construction authorized by
a permit processed under Board's minor application procedures. (Added 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; 1989, 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; 2005, No. 183 (Adj.
Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 138 (Adj. Sess.), §§
16, 27, eff. May 14, 2012; 2013, No. 11, § 25; 2013, No. 89, §§ 10, 11; 2013,
No. 147 (Adj. Sess.), § 2, eff. June 1, 2014; 2015, No. 51, § F.7.)
