§6086. Issuance of permit; conditions and criteria

Link to law: http://legislature.vermont.gov/statutes/section/10/151/06086
Published: 2015

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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.)
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