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NO. 161. AN ACT RELATING TO REGULATORY AUTHORITY OVER MOBILE HOME PARKS WITH FAILED WASTEWATER SYSTEMS OR FAILED POTABLE WATER SUPPLIES.

(S.309)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 10 V.S.A. § 6255 is added to read:

§ 6255. FAILED POTABLE WATER SUPPLIES AND FAILED WASTEWATER SYSTEMS

(a) If a potable water supply or wastewater system serving a mobile home park fails, the mobile home park owner shall be required to obtain a permit from the secretary under this section to correct the failure, whether or not the mobile home park was established prior to the effective date of this chapter, and whether or not the mobile home park is otherwise exempt from the permitting requirements set forth in other sections of this chapter. For mobile home parks that are served by multiple potable water supplies or wastewater systems, the failure of one supply or system will not require the issuance of a permit for any other supply or system that is not in a state of failure.

(b) For the purpose of this section, the following terms shall be defined as follows:

(1) “Failed Potable Water Supply” means a potable water supply, as that term is defined in section 1952 of this title, which does not meet the drinking water quality requirements adopted by the secretary.

(2) “Failed Wastewater System” means a wastewater system, as that term is defined in section 1952 of this title, that is functioning in a manner that:

(A) allows wastewater to be exposed to the open air, pool on the surface of the ground, discharge directly to surface water, or back up into a building or structure, unless, in any of these instances, the approved design of the system specifically requires the system to function in such a manner;

(B) causes a potable water supply to fail; or

(C) otherwise presents a threat to human health.

(3) “Secretary” means the secretary of the agency of natural resources or his or her duly authorized representative.

(c) Permits issued under this section to correct failed potable water supplies or wastewater systems may include permits that include variance provisions, if the failed supply or system cannot be modified or replaced in a way that enables the secretary to issue a permit that fully complies with the rules adopted under this chapter. When approving a variance under this section, the secretary shall consider the preservation of the housing stock, the cost of the modification or replacement of the failed potable water supply or wastewater system, and the potential impact on human health and the environment.

(d) Notwithstanding the other provisions of this section, if the failed potable water supply is a public water system regulated under chapter 56 of this title, the requirements of chapter 56, rather than this section, shall govern the correction of the failure.

(e) Notwithstanding the provisions of subdivision (b)(2) of this section:

(1) a wastewater disposal system which has been in a state of failure for only a brief period of time where the cause of the failure has been determined to be an unusual and non-recurring event, and where the system has recovered from the state of failure, shall not be considered to be a failed system for the purposes of this section. Systems which have recurring, continuing, or seasonal failures shall be considered to be failed systems; and

(2) a wastewater system shall not be considered a failed system if the failure can be and is remedied solely by minor repairs, including the repair of a broken pipe leading from a structure to the septic tank.

Sec. 2. 10 V.S.A. § 6204(e) is added to read:

(e) Notwithstanding any other provision of this section, where a mobile home park is a nonconforming use under local zoning regulations, its status regarding conformance or nonconformance shall apply to the parcel as a whole, and not to any individual mobile home lot within the park. The vacancy of any individual mobile home lot shall not be considered a discontinuance or abandonment of the nonconforming use.

Sec. 3. 10 V.S.A. § 6231(c) is added to read:

(c) A mobile home park that has been closed pursuant to subdivision 6237(a)(5) of this title and reduced to no more than two occupied leased lots, shall be required, if the number of occupied leased lots subsequently is increased to more than two, to obtain all state land use and environmental permits required for a mobile home park that has been established or expanded after May 31, 1970.

Sec. 4. 24 V.S.A. § 4408(c) is added to read:

(c) Notwithstanding any other provision of this section, with respect to a mobile home park that is a nonconforming use, subsection 6204(e) of Title 10 shall apply.

Sec. 5. 10 V.S.A. § 1954 is amended to read:

§ 1954. EXEMPTIONS

(a) The secretary shall not require permits under this chapter for the construction of potable water supply and wastewater facilities serving single family residences on their own individual lots, family day care, homes or existing mobile home parks exempt from permit review under section 6235(b) of this title. The secretary shall not require permits under this chapter for the construction of potable water supply and wastewater facilities serving single family residences with attached or included accessory residential units as described in 24 V.S.A. § 4406(4)(D) but inhabited by not more than two persons, one of whom is related by blood or marriage to an owner of the primary single family residence, provided that a licensed professional engineer or certified site technician reviews the water supply and wastewater facilities and determines them to be adequate to accommodate the needs of the single family residence together with the attached or included accessory residential unit.

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(f) This subsection shall apply in situations in which a permit is not required under this chapter because the construction is exempt under subsection (a) of this section, on the grounds that it is to serve a single family residence with an attached or included accessory residential unit inhabited by not more than two persons, one of whom is related by blood or marriage to the owner of the primary single family residence. If this subsection applies, the owner shall deliver to the town clerk for recording under 24 V.S.A. § 1154:

(1) a copy of the engineer or site technician determination of system adequacy issued under subsection (a) of this section; and

(2) a notice that if the accessory apartment is ever inhabited by more than two persons, or exclusively by persons that are not related by blood or marriage to an owner of the primary single family residence, then a permit shall be required to be obtained under the provisions of chapter 61 of this title.

Sec. 6. 24 V.S.A. § 3633(d) is amended to read:

(d) Municipal ordinances relating to sewage systems, which were approved before July, 1984 under 18 V.S.A. § 613 by the board of health, shall remain in effect and shall be deemed to have been adopted and approved under this section. Municipal ordinances relating to sewage systems which were approved before July 1984 by the commissioner of health, shall remain in effect until either the ordinance has been approved pursuant to this chapter or July 1, *[2000]* 2002, whichever occurs first.

Sec. 7. 24 V.S.A. § 4303 is amended to read:

§ 4303. DEFINITIONS

The following definitions shall apply throughout this chapter unless the context otherwise requires:

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(25) “Affordable housing” means either of the following:

(A) Housing that is owned by its inhabitants, whose gross annual household income does not exceed 80 percent of the state median income, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including principal, interest, taxes and insurance, is not more than 30 percent of the household’s gross annual income.

(B) Housing that is rented by its inhabitants whose gross annual household income does not exceed 65 percent of the state median income, as defined by the United States Department of Housing and Urban Development, and the total annual cost of the housing, including rent, utilities, and condominium association fees, is not more than 30 percent of the household’s gross annual income.

(26) “Affordable housing development” means a housing development of which at least 50 percent of the units are affordable housing units.

Sec. 8. 24 V.S.A. § 4407 is amended to read:

§ 4407. PERMITTED TYPES OF REGULATIONS

Any municipality may adopt zoning regulations that may include, but shall not be limited to, any of the following provisions:

* * *

(3) Planned residential development. Any municipality may adopt zoning regulations providing for planned residential development to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and to preserve the natural and scenic qualities of the open lands of this state. The modification of zoning regulations by the planning commission or the development review board may be permitted simultaneously with the approval of a subdivision plan, subject to the following conditions:

* * *

(B) If authorized in the bylaw the permitted number of dwelling units may include a density increase of as much as 25 percent, or 50 percent in the case of an affordable housing development, beyond the number which could be permitted in the planning commission's or the development review board's judgment, if the land were subdivided into lots in conformance with the zoning regulations for the districts in which such land is situated, giving due consideration to site conditions limiting development, such as shallow depth of soil, wetness and steep slopes. When a bylaw authorizes a density increase, no person shall be required to apply for or accept a density increase. In granting a density increase, the planning commission or the development review board shall consider the capacities of community facilities and services and the character of the area affected;

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(12) Planned unit development. Any municipality may adopt zoning regulations providing for planned unit developments to encourage new communities, innovation in design and layout, and more efficient use of land. The modification of zoning regulations by the planning commission or the development review board may be permitted simultaneously with the approval of a subdivision plat subject to the conditions set forth in this subdivision. Any local zoning regulations containing provisions for planned unit development shall describe the standards and conditions by which a proposed planned unit development shall be evaluated. The planning commission or the development review board may prescribe, from time to time, rules and regulations to supplement the standards and conditions set forth in the zoning regulations, provided the rules and regulations are not inconsistent with the zoning regulations. The planning commission or the development review board shall hold a public hearing after public notice as required by section 4447 of this *[chapter]* title, prior to the establishment of any supplementary rules and regulations. Permitted uses may include and shall be limited to:

(A) dwelling units in detached, semi-detached, or multi-storied structures, or any combination thereof, and may include for an affordable housing development a density increase of as much as 50 percent beyond the number which could be permitted in the judgment of the planning commission or the development review board if the land were subdivided into lots in conformance with the zoning regulations for the districts in which the land is situated, giving due consideration to site conditions that limit development, including shallow soil depth, wetness and steep slopes. When a bylaw authorizes a density increase, no person shall be required to apply for or accept a density increase. In granting a density increase, the planning commission or the development review board shall consider the capacities of community facilities and services and the character of the area affected;

(B) any nonresidential use;

(C) public and private educational facilities; and

(D) industrial uses and buildings.

Approved: May 29, 2000