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Third Reading; Bill Passed

H. 473

House bill, entitled

An act relating to taxation of electric generation;

Was taken up, read the third time and passed.

Rules Suspended; Bills Messaged to Senate Forthwith

On motion of Rep. Symington of Jericho, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

H. 466

House bill, entitled

An act relating to the captive insurance tax;

H. 471

House bill, entitled

An act relating to motor vehicles;

H. 473

House bill, entitled

An act relating to taxation of electric generation;

Recess

At ten o’clock and forty minutes in the forenoon, the Speaker declared a recess until the fall of the gavel.

At twelve o’clock in the afternoon, the Speaker called the House to order.

Consideration Interrupted by Recess

H. 175

House bill, entitled

An act relating to consolidated environmental appeals and revisions of land use development law;

Was taken up and pending third reading of the bill, Reps. Larrabee of Danville, Howrigan of Fairfield, Lavoie of Swanton and Masland of Thetford moved to amend the bill as follows:

By adding 25 new sections to read as follows:

Sec. 68. 24 V.S.A. § 4302(a) is amended to read:

(a) General purposes. It is the intent and purpose of this chapter to encourage the appropriate development of all lands in this state by the action of its constituent municipalities and regions, with the aid and assistance of the state, in a manner which will promote the public health, safety against fire, floods, explosions and other dangers; to promote prosperity, comfort, access to adequate light and air, convenience, efficiency, economy and general welfare; to enable the mitigation of the burden of property taxes on agricultural, forest and other open lands; to encourage appropriate architectural design; to encourage the development of renewable resources; to protect residential, agricultural and other areas from undue concentrations of population and overcrowding of land and buildings, from traffic congestion, from inadequate parking and the invasion of through traffic, and from the loss of peace, quiet and privacy; to facilitate the growth of villages, towns and cities and of their communities and neighborhoods so as to create an optimum environment, with good civic design; to encourage development of a rich cultural environment and to foster the arts; and to provide means and methods for the municipalities and regions of this state to plan for the prevention, minimization and future elimination of such land development problems as may presently exist or which may be foreseen and to implement those plans when and where appropriate. In implementing any regulatory power under this chapter, municipalities shall take care to protect the constitutional right of the people to acquire, possess, and protect property.

Sec. 69. 24 V.S.A. § 4303 is amended to read:

§ 4303. DEFINITIONS

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

(1) ~~“Plan” means a plan adopted under section 4385 of this title.~~ “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 county 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 80 percent of the county 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.

(2) “Affordable housing development” means a housing development of which at least 20 percent of the units or a minimum of five units, whichever is greater, are affordable housing units. Affordable units shall be subject to covenants or restrictions that preserve their affordability for a minimum of 15 years or longer as provided in municipal bylaws.

(3) “Appropriate municipal panel” means a planning commission performing development review, a board of adjustment, a development review board, or a legislative body performing development review.

(4) “Bylaws” means municipal regulations applicable to land development adopted under the authority of this chapter.

(5) “Capacity study” means an inventory of available natural and human-made resources, based on detailed data collection, that identifies the capacities and limits of those resources to absorb land development. Data gathered, relevant to the geographic information system, shall be compatible with, useful to, and shared with the geographic information system established under 3 V.S.A. § 20.

(6) “Conformance with the plan” means a proposed implementation tool, including a bylaw or bylaw amendment that is in accord with the municipal plan in effect at the time of adoption, when the bylaw or bylaw amendment includes all the following:

(A) Makes progress toward attaining, or at least does not interfere with, the goals and policies contained in the municipal plan.

(B) Provides for proposed future land uses, densities, and intensities of development contained in the municipal plan.

(C) Carries out, as applicable, any specific proposals for community facilities, or other proposed actions contained in the municipal plan.

(7) “Element” means a component of a plan.

(8) “Flood hazard area” for purposes of section 4424 of this title means the land subject to flooding from the base flood. “Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year. Further, with respect to flood and other hazard area regulation pursuant to this chapter, the following terms shall have the meanings set forth below:

(A) “Floodproofing” means any combination of structural and nonstructural additions, changes, or adjustments to properties and structures that substantially reduce or eliminate flood damage to any combination of real estate, improved real property, water or sanitary facilities, structures, and the contents of structures.

(B) “Floodway” means the channel of a river or other watercourse and the adjacent land area that must be reserved in order to discharge the base flood without accumulatively increasing the water surface elevation more than one foot.

(C) “Hazard area” means land subject to landslides, soil erosion, earthquakes, water supply contamination, or other natural or human‑made hazards as identified within a “local mitigation plan” in conformance with and approved pursuant to the provisions of 44 C.F.R. section 201.6.

(D) “New construction” means construction of structures or filling commenced on or after the effective date of the adoption of a community’s flood hazard bylaws.

(E) “Substantial improvement” means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either before the improvement or repair is started or, if the structure has been damaged and is being restored, before the damage occurred. However, the term does not include either of the following:

(i) Any project or improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications that are solely necessary to assure safe living conditions.

(ii) Any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places.

~~(2)~~(9) “Legislative body” means the ~~selectmen~~ selectboard in the case of a town, the trustees in the case of an incorporated village, and the mayor ~~and~~ ~~aldermen~~, alderpersons and city council members in the case of a city, and the supervisor in the case of an unorganized town or gore.

~~(3)~~(10) “Land development” means the division of a parcel into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure, or of any mining, excavation, or landfill, and any change in the use of any building or other structure, or land, or extension of use of land.

(11) “Municipal land use permit” means any of the following whenever issued:

(A) A zoning, subdivision, site plan, or building permit or approval, any of which relate to “land development” as defined in this section, that has received final approval from the applicable board, commission, or officer of the municipality.

(B) A wastewater system permit issued under any municipal ordinance adopted pursuant to chapter 102 of this title.

(C) Final official minutes of a meeting that relate to a permit or approval described in subdivision (11)(A) or (B) of this subsection that serve as the sole evidence of that permit or approval.

(D) A certificate of occupancy, certificate of compliance, or similar certificate that relates to the permits or approvals described in subdivision (11)(A) or (B) of this section, if the bylaws so require.

(E) An amendment of any of the documents listed in subdivisions (11)(A) through (D) of this section.

~~(4)~~(12) “Municipality” means a town, a city, or an incorporated village or an unorganized town or gore. An incorporated village shall be deemed to be within the jurisdiction of a town for the purposes of this chapter, except to the extent that a village adopts its own plan and one or more bylaws either before, concurrently with, or subsequent to such action by the town, in which case the village shall have all authority granted a municipality under this chapter and the plans and bylaws of the town shall not apply during such period of time that said village plan and bylaws are in effect.

(13) “Nonconforming use” means use of land that does not conform with the present bylaws but did conform to all applicable laws, ordinances, and regulations prior to the enactment of the present bylaws; or a use authorized as a result of error by the administrative officer.

(14) “Nonconforming structure” means a structure or part of a structure that does not conform with the present bylaws but was in conformance with all applicable laws, ordinances, and regulations prior to the enactment of the present bylaws; or a structure authorized as a result of error by the administrative officer.

(15) “Nonconforming lots or parcels” means lots or parcels that do not conform with the present bylaws covering dimensional requirements but were in conformance with all applicable laws, ordinances, and regulations prior to the enactment of the present bylaws; or a lot or parcel authorized as a result of error by the administrative officer.

(16) “Nonconformity” means a nonconforming use, structure, lot, or parcel.

~~(5)~~(17) “Person” means an individual, a corporation, a partnership, an association, and any other incorporated or unincorporated organization or group.

(18) “Plan” means a municipal plan adopted under section 4385 of this title.

(19) “Planned unit development” means one or more lots, tracts, or parcels of land to be developed as a single entity, the plan for which may propose any authorized combination of density or intensity transfers or increases, as well as the mixing of land uses. This plan, as authorized, may deviate from bylaw requirements that are otherwise applicable to the area in which it is located with respect to lot size, bulk, or type of dwelling or building, use, density, intensity, lot coverage, parking, required common open space, or other standards.

~~(6)~~(20) “Planning commission” means a planning commission for a municipality created under subchapter 2 of this chapter.

~~(7)~~(21) “Public notice” means the form of notice prescribed by section ~~4447~~ 4444 of this title.

~~(8)~~(22) “Regional plan” means a plan adopted under section 4348 of this title.

~~(9)~~(23) “Regional planning commission” means a planning commission for a region created under subchapter 3 of this chapter.

(24) “Renewable energy resources” means energy available for collection or conversion from direct sunlight, wind, running water, organically derived fuels, including wood, agricultural sources, waste heat, and geothermal sources.

~~(10)~~(25) “Rural town” means a town having, as at the date of the most recent United States census, a population of less than ~~2500~~ 2,500 persons, as evidenced by that census, or a town having ~~2500~~ 2,500 or more but less than ~~5000~~ 5,000 persons ~~which~~ that has voted by Australian ballot to be considered a rural town.

(26) “Should” means that an activity is encouraged but not mandated.

~~(11)~~(27) “Structure” means an assembly of materials for occupancy or use, including, ~~but not limited to,~~ a building, mobile home or trailer, ~~billboard,~~ sign, wall, or fence~~, except a wall~~ ~~or fence on an operating farm~~.

(28) “Technical deficiency” means a defect in a proposed plan or bylaw, or an amendment or repeal thereof, correction of which does not involve substantive change to the proposal, including corrections to grammar, spelling, and punctuation, as well as the numbering of sections.

(29) “Telecommunications facility” means a tower or other support structure, including antennae, that will extend 20 or more feet vertically, equipment, and base structures to be used primarily for communication or broadcast purposes to transmit or receive communication or broadcast signals.

(30) “Transit pass” means any pass, token, farecard, voucher, or similar item entitling a person to transportation to and from work on mass transit facilities and provided by an employer consistent with Internal Revenue Code (I.R.C.) § 132(f).

~~(12)~~(31) “Urban municipality” means a city, an incorporated village, or any town ~~which~~ that is not a rural town.

~~(13) “Bylaws” means zoning regulations, subdivision regulations, or the official map adopted under the authority of this chapter.~~

(14) “Planned unit development” means an area of land, controlled by a landowner, to be developed as a single entity for a number of dwelling units, and commercial and industrial uses, if any; the plan for which does not correspond in lot size, bulk or type of dwelling, commercial or industrial use, density, lot coverage and required open space to the regulations established in any one or more districts created, from time to time, under the provisions of a municipal zoning ordinance adopted under the authority of this chapter.

(15) “Renewable energy resources” means energy available for collection or conversion from direct sunlight, wind, running water, organically derived fuels including wood, agricultural sources, waste materials, waste heat, and geothermal sources.

~~(16) “Element” means a component of a plan.~~

~~(17) “Should” means that a requirement is encouraged but not mandated.~~

(18) “Technical deficiency” means a defect in a proposed plan or bylaw, or an amendment or repeal thereof which does not involve substantive change to the proposal, including but not limited to corrections to grammar, spelling and punctuation, as well as the numbering of sections.

~~(19)~~(32) “Wetlands” means those areas of the state that are inundated by surface or groundwater with a frequency sufficient to support vegetation or aquatic life that depend on saturated or seasonally saturated soil conditions for growth and reproduction. Such areas include ~~but are not limited to~~ marshes, swamps, sloughs, potholes, fens, river and lake overflows, mud flats, bogs, and ponds, but excluding such areas as grow food or crops in connection with farming activities.

(20) “Capacity study” means an inventory of available natural and human-made resources, based on detailed data collection, which identifies the capacities and limits of those resources to absorb land development. Data gathered, relevant to the geographic information system, shall be compatible with, useful to, and shared with the geographic information system established under 3 V.S.A. § 20.

~~(21) “Approved plan,” prior to January 1, 1996, includes a plan that is conditionally approved under the provisions of this chapter, unless specifically provided otherwise.~~

(22) “Transit pass” means any pass, token, farecard, voucher or similar item entitling a person to transportation to and from work on mass transit facilities and provided by an employer consistent with Internal Revenue Code (IRC) § 132(f).

(23) “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.

~~(24) “Municipal land use permit” means any of the following whenever issued:~~

(A) a zoning, subdivision, site plan, or building permit or approval, any of which relate to “land development” as defined in this section, which has received final approval from the applicable board, commission or officer of the municipality; or

~~(B) a septic or sewage system permit issued under any municipal ordinance adopted pursuant to chapter 102 of this title; or~~

(C) final official minutes of meetings which relate to the permits or approvals described in subdivision (24)(A) or (B) of this section which serve as the sole evidence of such permit or approval; or

~~(D) a certificate of occupancy, certificate of compliance or similar certificate which relates to the permits or approvals described in subdivision (24)(A) or (B) of this section; or~~

~~(E) an amendment of any of the documents listed in subdivisions (24)(A) through (D) of this section.~~

~~(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. 70. 24 V.S.A. § 4382(a)(10) is amended to read:

(10) A housing element that shall include a recommended program for addressing low and moderate income persons’ housing needs as identified by the regional planning commission pursuant to section 4348a(a)(9) of this title. The program ~~may include provisions for conditionally~~ should account for permitted accessory ~~apartments~~ dwelling units, as defined in subdivision 4412(1)(E) of this title, within or ~~attached~~ appurtenant to single family residences which provide affordable housing ~~in close proximity to cost-effective care and supervision for relatives or disabled or elderly persons~~.

Sec. 71. 24 V.S.A. chapter 117, subchapter 6 is redesignated to read:

Subchapter 6. ~~Bylaws~~ Implementation of Plan

Sec. 72. 24 V.S.A. § 4401 is amended to read:

§ 4401. ~~AUTHORIZATION~~ PURPOSE AND AUTHORITY

~~(a)(1)~~ Any municipality ~~which~~ that has adopted and has in effect a plan and has created a planning commission under this chapter may implement the plan by adopting, amending and enforcing any or all of the ~~bylaws or the capital budget and program~~ regulatory and nonregulatory tools provided for in this chapter. All such ~~bylaws and the capital budget and program~~ regulatory and nonregulatory tools shall ~~have the purpose of implementing~~ be in conformance with the plan, shall be adopted for the purposes set forth in section 4302 of this title, and shall be in accord with the policies set forth therein.

(2) If a municipality establishes a development review board, and appoints members to that board, under the provisions of section 4461 of this title, the development review board in that municipality, until its existence is terminated by act of the legislative body, shall exercise all of the functions otherwise exercised, under this chapter, by the board of adjustment. It also shall exercise the specified development review functions otherwise exercised, under this chapter, by the planning commission. In municipalities that have created development review boards, the planning commission shall continue to exercise its planning and bylaw development functions and other duties established under this chapter. In situations where this chapter refers to functions that may be performed by a development review board or a planning commission, or functions that may be performed by a development review board or a board of adjustment, it is intended that the function in question shall be performed by the development review board if one exists, and by the other specified body, if a development review board does not exist.

~~(b) The bylaws provided by this chapter are authorized as follows:~~

(1) Zoning Regulations. Within the jurisdiction of a municipality, except as specifically limited herein, the municipality may adopt zoning regulations to permit, prohibit, restrict, regulate, and determine land development, including specifically, without limitation, the following:

~~(A) Specific uses of land, water courses and other bodies of water;~~

~~(B) Dimensions, location, erection, construction, repair, maintenance, alteration, razing, removal and use of structures;~~

(C) Areas and dimensions of land and bodies of water to be occupied by uses and structures, as well as areas, courts, yards and other open spaces and distances to be left unoccupied by uses and structures;

~~(D) Density of population and intensity of use.~~

(2) Subdivision Regulations. A municipality may authorize its planning commission or its development review board to approve, modify or disapprove all plats of land as prescribed below, and approve the development of such plats previously filed in the office of the clerk of such municipality if such plats are entirely or partially undeveloped, under the subdivision regulations of such municipality. Within the jurisdiction of such municipality, except as specifically limited herein, such municipality may adopt subdivision regulations setting forth the procedures, requirements and specifications for the submission, processing and design of plats. Such subdivision regulations must be adopted prior to the exercise of any authority by a planning commission or a development review board under this subdivision (b)(2).

(3) Official Map. Except as limited by this chapter, a municipality may adopt and amend an official map showing the location and widths of the existing and proposed rights-of-way of all streets or drainageways and the location of all existing and proposed parks, schools, and other public facilities. Except as set forth herein, no building or improvement may be constructed within the lines of any existing and proposed rights-of-way of all streets or drainageways, parks, schools, and other public facilities shown or laid out on such official map.

~~(4) Shoreland bylaws. A municipality may adopt shoreland bylaws under section 4411 of this title.~~

~~(5) Flood Hazard Area Bylaws. A municipality may adopt flood hazard area bylaws under section 4412 of this title.~~

(c) Within the jurisdiction of a municipality, except as specifically limited herein, a municipality may adopt and amend an annual capital budget and a capital program for a period of not less than five years.

(d) As part of zoning or subdivision regulations enacted pursuant to subsection (b) of this section, or pursuant to action by the voters of the municipality at a duly warned meeting, a municipality that has a duly adopted plan, subdivision bylaws, zoning bylaws, and a development review board may authorize its development review board to undertake local Act 250 review of municipal impacts caused by a development or subdivision, or both (as those terms are defined in 10 V.S.A. chapter 151), according to the process specified in section 4449 of this title.

Sec. 73. 24 V.S.A. § 4402 is added to read:

§ 4402. BYLAWS AND REGULATORY IMPLEMENTATION TOOLS AUTHORIZED

A municipality may adopt regulatory tools, including the following specific regulatory tools which are more fully described in subchapter 7 of this chapter:

(1) Zoning bylaws.

(2) Site plan bylaws.

(3) Subdivision bylaws.

(4) Unified development bylaws.

(5) Official map.

(6) Impact fees.

(7) Phasing.

(8) Transfer of development rights.

(9) Special or freestanding bylaws.

Sec. 74. 24 V.S.A. § 4403 is added to read:

§ 4403. NONREGULATORY IMPLEMENTATION TOOLS

A municipality may utilize the following tools, and other tools not specifically listed, in conformance with the municipal plan and for the purposes established in section 4302 of this title, alone or in conjunction with regulatory tools described in section 4402 of this title.

(1) Capital budget and program. A municipality may adopt a capital budget and five-year program, pursuant to section 4430 of this title.

(2) Tax increment financing. Pursuant to chapter 53 of this title, a municipality may create within its jurisdiction one or more tax increment financing districts.

(3) Tax stabilization contracts. Pursuant to sections 4969 and 4985 of Title 32, a municipality may enter into tax stabilization contracts.

(4) Purchase or acceptance of development rights. A municipality may purchase or accept development rights as a method to implement its plan, pursuant to chapter 155 of Title 10.

(5) Plans supporting the municipal plan. A municipality may develop supporting plans, and may incorporate these plans into the municipal plan pursuant to the process described in section 4385 of this title.

(6) Advisory commissions. For the purposes of this chapter, the term advisory commissions includes advisory committees. A municipality may form commissions that are composed of persons with particular expertise or interest to assist with implementation of the plan in areas such as design review, historic preservation, housing, and conservation.

Sec. 75. 24 V.S.A. chapter 117, subchapter 7 designation is added, immediately preceding section 4410, to read:

Subchapter 7. Bylaws

Sec. 76. 24 V.S.A. §§ 4410 through 4424 are added to read:

§ 4410. REGULATORY IMPLEMENTATION OF THE MUNICIPAL PLAN

A municipality that has adopted a plan, through its bylaws, may define and regulate land development in any manner that the municipality establishes in its bylaws, provided those bylaws are in conformance with the plan and are adopted for the purposes set forth in section 4302 of this title. In its bylaws, a municipality may utilize any or all of the tools provided in the provisions of this subchapter and any other regulatory tools or methods not specifically listed. However, no bylaws shall directly conflict with sections 4412 and 4413 of this title and subchapters 10 and 11 of this title.

§ 4411. ZONING BYLAWS

(a) A municipality may regulate land development for the purposes established in section 4302 of this title, and in conformance with its adopted municipal plan to govern the use, placement, spacing, and size of land and buildings. Zoning bylaws may permit, prohibit, restrict, regulate, and determine land development, including the following:

(1) Specific uses of land and shoreland facilities;

(2) Dimensions, location, erection, construction, repair, maintenance, alteration, razing, removal, and use of structures;

(3) Areas and dimensions of land to be occupied by uses and structures, as well as areas, courts, yards, and other open spaces and distances to be left unoccupied by uses and structures;

(4) Rate of growth, density of population, and intensity of use.

(b) All zoning bylaws shall apply to all lands within the municipality other than as specifically limited or exempted in accordance with specific standards included within those bylaws, and in accordance with the provisions of this chapter. The provisions of those bylaws may be classified so that different provisions may be applied to different classes of situations, uses, and structures and to different and separate districts of the municipality as may be described by a zoning map made part of the bylaws. The land use map required pursuant to subdivision 4382(a)(2) of this title of any municipality may be designated as the zoning map except in cases in which districts are not deemed by the planning commission to be described in sufficient accuracy or detail by the municipal plan land use map. All provisions shall be uniform for each class of use or structure within each district, except that additional classifications may be made within any district for any or all of the following:

(1) To make transitional provisions at and near the boundaries of districts.

(2) To regulate the expansion, reduction, or elimination of certain nonconforming uses or structures.

(3) To regulate, restrict, or prohibit uses or structures at or near any of the following:

(A) Major thoroughfares, their intersections and interchanges, and transportation arteries.

(B) Natural or artificial bodies of water.

(D) Public buildings and public grounds.

(E) Aircraft and helicopter facilities.

(F) Places having unique patriotic, ecological, historical, archaeological, or community interest or value, or located within scenic or design control districts.

(G) Flood or other hazard areas and other places having a special character or use affecting or affected by their surroundings.

(4) To regulate, restrict, or prohibit uses or structures in overlay districts, as set forth in subdivision 4414(2) of this title.

§ 4412. REQUIRED PROVISIONS AND PROHIBITED EFFECTS

Notwithstanding any existing bylaw, the following land development provisions shall apply in every municipality:

(1) Equal treatment of housing and required provisions for affordable housing.

(A) No bylaw shall have the effect of excluding housing that meets the needs of the population as determined in the housing element of its municipal plan as required under subdivision 4382(a)(10) of this title.

(B) Except as provided in subdivisions 4414(1)(E) and (F) of this title, no bylaw shall have the effect of excluding mobile homes, modular housing, or prefabricated housing from the municipality, except upon the same terms and conditions as conventional housing is excluded. A municipality may establish specific site standards in the bylaws to regulate individual sites within preexisting mobile home parks with regard to distances between structures and other standards as necessary to ensure public health, safety, and welfare, provided the standards do not have the effect of prohibiting the replacement of mobile homes on existing lots.

(C) No bylaw shall have the effect of excluding mobile home parks, as defined in 10 V.S.A. chapter 153, from the municipality.

(D) Bylaws shall designate appropriate districts and reasonable regulations for multiunit or multifamily dwellings. No bylaw shall have the effect of excluding these multiunit or multifamily dwellings from the municipality.

(E) No bylaw shall have the effect of excluding as a permitted use one accessory dwelling unit that is located within or appurtenant to an owner‑occupied single‑family dwelling. An accessory dwelling unit means an efficiency or one‑bedroom apartment that is clearly subordinate to a single‑family dwelling, and has facilities and provisions for independent living, including sleeping, food preparation, and sanitation, provided the unit complies with all the following:

(i) Has sufficient wastewater capacity.

(ii) Does not exceed the total habitable floor area of the single‑family dwelling by more than 30 percent.

(iii) Meets any applicable setback, coverage, and parking requirements specified in the bylaws.

(F) Nothing in subdivision (1)(E) of this section shall be construed to prohibit a bylaw that is less restrictive of accessory dwelling units.

(G) A residential care home or group home, serving not more than eight individuals who have a handicap or disability as defined in 9 V.S.A. § 4501 shall be considered to constitute a permitted single‑family residential use of property, except that a residential care or group home shall not be so considered if it is located within 1,000 feet of another residential care or group home.

(2) Existing small lots. Any lot that is legally subdivided, is in individual and separate and nonaffiliated ownership from surrounding properties, and is in existence on the date of enactment of any bylaw, including an interim bylaw, may be developed for the purposes permitted in the district in which it is located, even though the small lot no longer conforms to minimum lot size requirements of the new bylaw or interim bylaw.

(A) A municipality may prohibit development of a lot if either of the following applies:

(i) the lot is less than one-eighth acre in area; or

(ii) the lot has a width or depth dimension of less than 40 feet.

(B) The bylaw may provide that if an existing small lot subsequently comes under common ownership with one or more contiguous lots, the nonconforming lot shall be deemed merged with the contiguous lot. However, a nonconforming lot shall not be deemed merged and may be separately conveyed if all of the following apply:

(i) The lots are conveyed in their preexisting, nonconforming configuration.

(ii) On the effective date of any bylaw, each lot was developed with a water supply and wastewater disposal system.

(iii) At the time of transfer, each water supply and wastewater system is functioning in an acceptable manner.

(iv) The deeds of conveyance create appropriate easements on both lots for replacement of one or more wastewater systems, potable water systems, or both, in case there is a failed system or failed supply as defined in 10 V.S.A. chapter 64.

(C) Nothing in this subdivision (2) shall be construed to prohibit a bylaw that is less restrictive of development of existing small lots.

(3) Required frontage on, or access to, public roads or public waters. Land development may be permitted on lots that do not have frontage either on a public road or public waters, provided that access through a permanent easement or right-of-way has been approved in accordance with standards and process specified in the bylaws. This approval shall be pursuant to subdivision bylaws adopted in accordance with section 4418 of this title, or where subdivision bylaws have not been adopted or do not apply, through a process and pursuant to standards defined in bylaws adopted for the purpose of assuring safe and adequate access. Any permanent easement or right-of-way providing access to such a road or waters shall be at least 20 feet in width.

(4) Protection of home occupations. No bylaw may infringe upon the right of any resident to use a minor portion of a dwelling unit for an occupation that is customary in residential areas and that does not have an undue adverse effect upon the character of the residential area in which the dwelling is located.

(5) Child care. A family child care home serving six or fewer children shall be considered to constitute a permitted single‑family residential use of property. A family child care home serving no more than six full-time children and four part-time children, as defined in subdivision 33 V.S.A. § 4902(3)(A), shall be considered to constitute a permitted use of property but may require site plan approval based on local zoning requirements. A family child care facility serving more than six full-time and four part‑time children may, at the discretion of the municipality, be subject to all applicable municipal bylaws.

(6) Heights of certain structures. The height of antenna structures, wind turbines with blades less than 20 feet in diameter, or rooftop solar collectors less than 10 feet high, any of which are mounted on complying structures, shall not be regulated unless the bylaws provide specific standards for regulation.

(7) Nonconformities. All bylaws shall define how nonconformities will be addressed, including standards for nonconforming uses, nonconforming structures, and nonconforming lots.

(A) To achieve the purposes of this chapter set forth in section 4302 of this title, municipalities may regulate and prohibit expansion and undue perpetuation of nonconformities. Specifically, a municipality, in its bylaw, may:

(i) Specify a time period that shall constitute abandonment of that nonconforming use, provided the time period is not less than six months.

(ii) Specify the extent to which, and circumstances under which, a nonconformity may be maintained or repaired.

(iii) Specify the extent to which, and circumstances under which, a nonconformity may change or expand.

(iv) Regulate relocation or enlargement of a structure containing a nonconforming use.

(v) Specify the circumstances in which a nonconformity that is destroyed may be rebuilt.

(vi) Specify other appropriate circumstances in which a nonconformity must comply with the bylaws.

(B) If a mobile home park, as defined in 10 V.S.A. chapter 153, is a nonconformity pursuant to a municipality’s bylaws, the entire mobile home park shall be treated as a nonconformity under those bylaws, and individual lots within the mobile home park shall in no event be considered nonconformities. Unless the bylaws provide specific standards as described in subdivision (1)(B) of this section, where a mobile home park is a nonconformity under bylaws, 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. An individual mobile home lot that is vacated shall not be considered a discontinuance or abandonment of a nonconformity.

§ 4413. LIMITATIONS ON MUNICIPAL BYLAWS

(a) The following uses may be regulated only with respect to location, size, height, building bulk, yards, courts, setbacks, density of buildings, off-street parking, loading facilities, traffic, noise, lighting, landscaping, and screening requirements, provided any regulations do not have the effect of interfering with the intended functional use:

(1) State- or community‑owned and operated institutions and facilities.

(2) Public and private schools and other educational institutions certified by the state department of education.

(3) Churches and other places of worship, convents, and parish houses.

(4) Public and private hospitals.

(5) Regional solid waste management facilities certified under 10 V.S.A. chapter 159.

(6) Hazardous waste management facilities for which a notice of intent to construct has been received under section 10 V.S.A. § 6606a.

(b) A bylaw under this chapter may regulate public utility power generating plants and transmission lines, except to the extent they are regulated under 30 V.S.A. § 248.

(c) If any bylaw is enacted with respect to any land development that is subject to regulation under state statutes, the more stringent or restrictive regulation applicable shall apply.

(d) A bylaw under this chapter shall not regulate accepted agricultural and silvicultural practices, including the construction of farm structures, as those practices are defined by the commissioner of agriculture, food and markets or the commissioner of forests, parks and recreation, respectively, under subsections 1021(f) and 1259(f) of Title 10 and section 4810 of Title 6.

(1) For purposes of this section, “farm structure” means a building for housing livestock, raising horticultural or agronomic plants, or carrying out other practices associated with accepted agricultural or farming practices, including a silo, as “farming” is defined in subdivision 6001(22) of Title 10, but excludes a dwelling for human habitation.

(2) A person shall notify a municipality of the intent to build a farm structure and shall abide by setbacks approved by the commissioner of agriculture, food and markets. No municipal permit for a farm structure shall be required.

(3) A municipality may enact a bylaw that imposes forest management practices resulting in a change in a forest management plan for land enrolled in the use value appraisal program pursuant to 32 V.S.A. chapter 124 only to the extent that those changes are silviculturally sound, as determined by the commissioner of forests, parks and recreation, and protect specific natural, conservation, aesthetic, or wildlife features in properly designated zoning districts. These changes also must be compatible with 32 V.S.A. § 3755.

§ 4414. ZONING; PERMISSIBLE TYPES OF REGULATIONS

Any of the following types of regulations may be adopted by a municipality in its bylaws in conformance with the plan and for the purposes established in section 4302 of this title.

(1) Zoning districts. A municipality may define different and separate zoning districts, and identify within these districts which land uses are permitted as of right, and which are conditional uses requiring review and approval, including the districts set forth in this subdivision (1).

(A) Downtown, village center, and new town center districts. The definition or purpose stated for local downtown, village center, or new town center zoning districts should conform with the applicable definitions in section 2791 of this title. Municipalities may adopt downtown, village center, or new town center districts without seeking state designation under section 2793 of this title. A municipality may adopt a manual of graphic or written design guidelines to assist applicants in the preparation of development applications. The following objectives should guide the establishment of boundaries, requirements, and review standards for these districts:

(i) To create a compact settlement oriented toward pedestrian activity and including an identifiable neighborhood center, with consistently higher densities than those found in surrounding districts.

(ii) To provide for a variety of housing types, jobs, shopping, services, and public facilities with residences, shops, workplaces, and public buildings interwoven within the district, all within close proximity.

(iii) To create a pattern of interconnecting streets and blocks, consistent with historic settlement patterns, that encourages multiple routes from origins to destinations.

(iv) To provide for a coordinated transportation system with a hierarchy of appropriately designed facilities for pedestrians, bicycles, public transit, and automotive vehicles.

(v) To provide for natural features and undisturbed areas that are incorporated into the open space of the neighborhood as well as historically compatible squares, greens, landscaped streets, and parks woven into the pattern of the neighborhood.

(vi) To provide for public buildings, open spaces, and other visual features that act as landmarks, symbols, and focal points for community identity.

(vii) To ensure compatibility of buildings and other improvements as determined by their arrangement, building bulk, form, design, character, and landscaping to establish a livable, harmonious, and diverse environment.

(viii) To provide for public and private buildings that form a consistent, distinct edge, are oriented toward streets, and define the border between the public street space and the private block interior.

(B) Agricultural, rural residential, forest, and recreational districts. Where, for the purposes set forth in section 4302 of this title, it is deemed necessary to safeguard certain areas from urban or suburban development and to encourage that development in other areas of the municipality or region, the following districts may be created:

(i) Agricultural or rural residential districts, permitting all types of agricultural uses and prohibiting all other land development except low density residential development.

(ii) Forest districts, permitting commercial forestry and related uses and prohibiting all other land development.

(iii) Recreational districts, permitting camps, ski areas, and related recreational facilities, including lodging for transients and seasonal residents, and prohibiting all other land development except for construction of residences for occupancy by caretakers and their families.

(C) Airport hazard area. In accordance with 5 V.S.A. chapter 17, any municipality may adopt special bylaws governing the use of land, location, and size of buildings and density of population within a distance of two miles from the boundaries of an airport under an approach zone and for a distance of one mile from the boundaries of the airport elsewhere. The designation of that area and the bylaws applying within that area shall be in accord with applicable airport zoning guidelines, if any, adopted by the Vermont transportation board.

(D) Shorelands.

(i) A municipality may adopt bylaws to regulate shorelands as defined in section 1422 of Title 10 to prevent and control water pollution; preserve and protect wetlands and other terrestrial and aquatic wildlife habitat; conserve the scenic beauty of shorelands; minimize shoreline erosion; reserve public access to public waters; and achieve other municipal, regional, or state shoreland conservation and development objectives.

(ii) Shoreland bylaws may regulate the design and maintenance of sanitary facilities; regulate filling of and other adverse alterations to wetlands and other wildlife habitat areas; control building location; require the provision and maintenance of vegetation; require provisions for access to public waters for all residents and owners of the development; and impose other requirements authorized by this chapter.

(E) Design review districts. Bylaws may contain provisions for the establishment of design review districts. Prior to the establishment of such a district, the planning commission shall prepare a report describing the particular planning and design problems of the proposed district and setting forth a design plan for the areas which shall include recommended planning and design criteria to guide future development. The planning commission shall hold a public hearing, after public notice, on that report. After this hearing, the planning commission may recommend to the legislative body a design review district as a bylaw amendment. A design review district may be created for any area containing structures of historical, architectural, or cultural merit, and other areas in which there is a concentration of community interest and participation such as a central business district, civic center, or a similar grouping or focus of activities. These areas may include townscape areas that resemble in important aspects the earliest permanent settlements, including a concentrated urban settlement with striking vistas, views extending across open fields and up to the forest edge, a central focal point and town green, and buildings of high architectural quality, including styles of the early 19th century. Within such a designated design review district, no structure may be erected, reconstructed, substantially altered, restored, moved, demolished, or changed in use or type of occupancy without approval of the plans by the appropriate municipal panel. A design review board may be appointed by the legislative body of the municipality, in accordance with section 4433 of this title, to advise any appropriate municipal panel.

(F) Local historic districts and landmarks.

(i) Bylaws may contain provisions for the establishment of historic districts and the designation of historic landmarks. Historic districts shall include structures and areas of historic or architectural significance and may include distinctive design or landscape characteristics, areas, and structures with a particular relationship to the historic and cultural values of the surrounding area, and structures whose exterior architectural features bear a significant relationship to the remainder of the structures or to the surrounding area. Bylaws may reference national and state registers of historic places, properties, and districts. A report prepared under section 4441 of this title with respect to the establishment of a local historic district or designation of a historic landmark shall contain a map that clearly delineates the boundaries of the local historic district or landmark, justification for the boundary, a description of the elements of the resources that are integral to its historical, architectural, and cultural significance, and a statement of the significance of the local historic district or landmark.

(ii) With respect to external appearances and other than normal maintenance, no structure within a designated historic district may be rehabilitated, substantially altered, restored, moved, demolished, or changed, and no new structure within an historic district may be erected without approval of the plans therefore by the appropriate municipal panel. The panel shall consider the following in its review of plans submitted:

(I) The historic or architectural significance of the structure, its distinctive characteristics, and its relationship to the historic significance of the surrounding area.

(II) The relationship of the proposed changes in the exterior architectural features of the structure to the remainder of the structure and to the surrounding area.

(III) The general compatibility of the proposed exterior design, arrangement, texture, and materials proposed to be used.

(IV) Any other factors including the environmental setting and aesthetic factors that the panel deems to be pertinent.

(iii) When an appropriate municipal panel is reviewing an application relating to an historic district, the panel:

(I) Shall be strict in its judgment of plans for those structures deemed to be valuable under subdivision (1)(F)(i) of this section, but is not required to limit new construction, alteration, or repairs to the architectural style of any one period, but may encourage compatible new design.

(II) If an application is submitted for the alteration of the exterior appearance of a structure or for the moving or demolition of a structure deemed to be significant under subdivision (1)(F)(i) of this section, shall meet with the owner of the structure to devise an economically feasible plan for the preservation of the structure.

(III) Shall approve an application only when the panel is satisfied that the proposed plan will not materially impair the historic or architectural significance of the structure or surrounding area.

(IV) In the case of a structure deemed to be significant under subdivision (1)(F)(i) of this section, may approve the proposed alteration despite subdivision (1)(F)(ii)(III) of this section if the panel finds either or both of the following:

(aa) The structure is a deterrent to a major improvement program that will be of clear and substantial benefit to the municipality.

(bb) Retention of the structure would cause undue financial hardship to the owner.

(iv) This subdivision (1)(F), and bylaws issued pursuant to it, shall apply to designation of individual landmarks as well as to designation of local historic districts. A landmark is any individual building, structure, or site that by itself has a special historic, architectural, or cultural value.

(v) The provisions of this subdivision (1)(F) shall not in any way apply to or affect buildings, structures, or land within the “Capitol complex,” as defined in 29 V.S.A. chapter 6.

(2) Overlay districts. Special districts may be created to supplement or modify the zoning requirements otherwise applicable in underlying districts in order to provide supplementary provisions for areas such as shorelands and floodplains, aquifer and source protection areas, ridgelines and scenic features, highway intersection, bypass, and interchange areas, or other features described in section 4411 of this title.

(3) Conditional uses.

(A) In any district, certain uses may be allowed only by approval of the appropriate municipal panel, if general and specific standards to which each allowed use must conform are prescribed in the appropriate bylaws and if the appropriate municipal panel, under the procedures in subchapter 10 of this chapter, determines that the proposed use will conform to those standards. These general standards shall require that the proposed conditional use shall not result in an undue adverse effect on one or more of the following:

(i) The capacity of existing or planned community facilities.

(ii) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan.

(iii) Traffic on roads and highways in the vicinity.

(iv) Bylaws and ordinances then in effect.

(v) Utilization of renewable energy resources.

(B) The general standards set forth in subdivision (3)(A) of this section may be supplemented by more specific criteria, including requirements with respect to any of the following:

(i) Minimum lot size.

(ii) Distance from adjacent or nearby uses.

(iii) Performance standards, as under subdivision (6) of this section.

(iv) Criteria adopted relating to site plan review pursuant to section 4416 of this title.

(v) Any other standards and factors that the bylaws may include.

(C) One or more of the review criteria found in 10 V.S.A. § 6086 may be adopted as standards for use in conditional use review.

(4) Parking and loading facilities. A municipality may adopt provisions setting forth standards for permitted and required facilities for off-street parking and loading which may vary by district and by uses within each district. These bylaws may also include provisions covering the location, size, design, access, landscaping, and screening of those facilities. In determining the number and size of parking spaces required under these regulations, the appropriate municipal panel may take into account the existence or availability of employer “transit pass” and rideshare programs, public transit routes, and public parking spaces in the vicinity of the development.

(5) Performance standards. As an alternative or supplement to the listing of specific uses permitted in districts, including those in manufacturing or industrial districts, bylaws may specify acceptable standards or levels of performance that will be required in connection with any use. These bylaws shall specifically describe the levels of operation that are acceptable and not likely to affect adversely the use of the surrounding area by the emission of such dangerous or objectionable elements as noise, vibration, smoke, dust, odor, or other form of air pollution, heat, cold, dampness, electromagnetic, or other disturbance, glare, liquid, or solid refuse or wastes; or create any dangerous, injurious, noxious, fire, explosive, or other hazard. The land planning policies and development bylaws manual prepared pursuant to section 4304 of this title shall contain recommended forms of alternative performance standards, and the assistance of the agency of commerce and community development shall be available to any municipality that requests aid in the application or enforcement of these bylaws.

(6) Access to renewable energy resources. Any municipality may adopt zoning and subdivision bylaws to encourage energy conservation and to protect and provide access to, among others, the collection or conversion of direct sunlight, wind, running water, organically derived fuels, including wood, agricultural sources, waste heat, and geothermal sources, including those recommendations contained in the adopted municipal plan, regional plan, or both. The bylaw shall establish a standard of review in conformance with the municipal plan provisions required pursuant to subdivision 4382(a)(9) of this title.

(7) Inclusionary zoning. In order to provide for affordable housing, bylaws may require that a certain percentage of housing units in a proposed subdivision or planned unit development meets defined affordability standards. These provisions, at a minimum, shall comply with all the following:

(A) Be in conformance with specific policies of the housing element of the municipal plan.

(B) Be determined from an analysis of the need for affordable rental and sale housing units in the community.

(C) Include development incentives that contribute to the economic feasibility of providing affordable housing units such as density bonuses, reductions or waivers of minimum lot, dimensional or parking requirements, reductions or waivers of applicable fees, or reductions or waivers of required public or nonpublic improvements.

(D) Require, through conditions of approval, that once affordable housing is built, its availability will be maintained through measures that establish income qualifications for renters or purchasers, promote affirmative marketing, and regulate the price, rent, and resale price of affordable units for a time period specified in the bylaws.

(8) Waivers.

(A) A bylaw may allow a municipality to grant waivers to reduce dimensional requirements, in accordance with specific standards that shall be in conformance with the plan and the goals set forth in section 4302 of this title. These standards may:

(i) Allow mitigation through design, screening, or other remedy;

(ii) Allow waivers for structures providing for disability accessibility, fire safety, and other requirements of law; and

(iii) Provide for energy conservation and renewable energy structures.

(B) If waivers from dimensional requirements are provided, the bylaws shall specify the process by which these waivers may be granted and appealed.

(9) Stormwater management and control. Any municipality may adopt bylaws to implement stormwater management and control consistent with the program developed by the secretary of natural resources pursuant to 10 V.S.A. § 1264.

(10) Time-share projects. The bylaws may require that time-share projects consisting of five or more time-share estates or licenses be subject to development review.

(11) Archaeological resources. A municipality may adopt bylaws for the purpose of regulating archaeological sites and areas that may contain significant archaeological sites to make progress toward attaining the goals in the municipal plan concerning the protection of archaeological sites.

(12) Wireless telecommunications facilities and ancillary improvements. A municipality may adopt bylaws to regulate wireless telecommunications facilities and ancillary improvements in a manner consistent with federal law. These bylaws may include requiring the decommissioning or dismantling of wireless telecommunications facilities and ancillary improvements, and may establish requirements that bond be posted, or other security acceptable to the legislative body, in order to finance facility decommissioning or dismantling activities.

§ 4415. INTERIM BYLAWS

(a) If a municipality is conducting or has taken action to conduct studies, or has held or is holding a hearing for the purpose of considering a bylaw, a comprehensive plan, or an amendment, extension, or addition to a bylaw or plan, the legislative body may adopt interim bylaws regulating land development in all or a part of the municipality, in order to protect the public health, safety, and general welfare and provide for orderly physical and economic growth. These interim bylaws shall be adopted, reenacted, extended, or amended by the legislative body of the municipality after public hearing upon public notice as an emergency measure. They shall be limited in duration to two years from the date they become effective and may be extended or reenacted only in accordance with subsections (f) and (g) of this section. An interim bylaw adopted under this section may be repealed after public hearing, upon public notice by the legislative body. The legislative body, upon petition of five percent of the legal voters filed with the clerk of the municipality, shall hold a public hearing for consideration of amendment or repeal of the interim bylaws.

(b) An interim bylaw adopted, extended, or reenacted under this section may contain any provision authorized under this chapter.

(c) Interim bylaws shall be administered and enforced in accordance with the provisions of this title applicable to the administration and enforcement of permanent bylaws, except that uses other than those permitted by an interim bylaw may be authorized as provided for in subsection (d) of this section.

(d) Under interim bylaws, the legislative body may, upon application, authorize the issuance of permits for any type of land development as a conditional use not otherwise permitted by the bylaw after public hearing preceded by notice in accordance with section 4464 of this title. The authorization by the legislative body shall be granted only upon a finding by the body that the proposed use is consistent with the health, safety, and welfare of the municipality and the standards contained in subsection (e) of this section. The applicant and all abutting property owners shall be notified in writing of the date of the hearing and of the legislative body’s final determination.

(e) In making a determination, the legislative body shall consider the proposed use with respect to all the following:

(1) The capacity of existing or planned community facilities, services, or lands.

(2) The existing patterns and uses of development in the area.

(3) Environmental limitations of the site or area and significant natural resource areas and sites.

(4) Municipal plans and other municipal bylaws, ordinances, or regulations in effect.

(f) The legislative body of the municipality may extend or reenact interim bylaws for a one-year period beyond the initial two-year period authorized by subsection (a) of this section in accordance with the procedures for adoption in that subsection.

(g) A copy of the adopted, amended, reenacted, or extended interim bylaw shall be sent to adjoining towns, to the regional planning commission of the region in which the municipality is located, and to the agency of commerce and community development.

§ 4416. SITE PLAN REVIEW

As prerequisite to the approval of any use other than one- and two-family dwellings, the approval of site plans by the appropriate municipal panel may be required, under procedures set forth in subchapter 10 of this chapter. In reviewing site plans, the appropriate municipal panel may impose, in accordance with the bylaws, appropriate conditions and safeguards with respect to: the adequacy of parking, traffic access, and circulation for pedestrians and vehicles; landscaping and screening; the protection of the utilization of renewable energy resources; exterior lighting; the size, location, and design of signs; and other matters specified in the bylaws. The bylaws shall specify the maps, data, and other information to be presented with applications for site plan approval and a review process pursuant to section 4464 of this title.

§ 4417. PLANNED UNIT DEVELOPMENT

(a) Any municipality adopting a bylaw may provide for planned unit developments to permit flexibility in the application of land development regulations for the purposes of section 4302 of this title and in conformance with the municipal plan. The following may be purposes for planned unit development bylaws:

(1) To encourage compact, pedestrian-oriented development and redevelopment, and to promote a mix of residential uses, nonresidential uses, or both, especially in downtowns, village centers, new town centers, and associated neighborhoods.

(2) To implement the policies of the municipal plan, such as the provision of affordable housing.

(3) To encourage any development in the countryside to be compatible with the use and character of surrounding rural lands.

(4) To provide for flexibility in site and lot layout, building design, placement, and clustering of buildings, use of open areas, provision of circulation facilities, including pedestrian facilities and parking, and related site and design considerations, that will best achieve the goals for the area as articulated in the municipal plan and bylaws within the particular character of the site and its surroundings.

(5) To provide for the conservation of open space features recognized as worthy of conservation in the municipal plan and bylaws, such as the preservation of agricultural land, forest land, trails, and other recreational resources, critical and sensitive natural areas, scenic resources, and protection from natural hazards.

(6) To provide for efficient use of public facilities and infrastructure.

(7) To encourage and preserve opportunities for energy-efficient development and redevelopment.

(b) The application of planned unit development bylaws to a proposed development may:

(1) Involve single or multiple properties, contiguous or noncontiguous, and one owner or multiple owners. Procedures for application and review of noncontiguous parcels under a common application, if allowed, shall be specified in the bylaws.

(2) Be limited to parcels that have a minimum area specified in the bylaws or a minimum size or number of units.

(3) Be mandatory for land located in specified zoning districts or for projects of a specified type or magnitude as provided in the bylaws.

(c) Planned unit development bylaws adopted pursuant to this section at a minimum shall include the following provisions:

(1) A statement of purpose in conformance with the purposes of the municipal plan and bylaws.

(2) The development review process to be used for review of planned unit developments to include conditional use or subdivision review procedures, or both, as specified in the bylaws.

(3) Specifications, or reference to specifications, for all application documents and plan drawings.

(4) Standards for the review of proposed planned unit developments, which may vary the density or intensity of land use otherwise applicable under the provisions of the bylaws in consideration of, and with respect to, any of the following:

(A) The location and physical characteristics of the proposed planned unit development.

(B) The location, design, type, and use of the lots and structures proposed.

(5) Standards requiring related public improvements or nonpublic improvements, or both; and the payment of impact fees, incorporating by reference any development impact fee ordinance adopted pursuant to chapter 131 of this title.

(6) Provisions for the proposed planned unit development to be completed in reasonable phases, in accordance with the municipal plan and any capital budget and program.

(7) Provisions for coordinating the planned unit development review with other applicable zoning or subdivision review processes, specifying the sequence in which the various review standards will be considered.

(8) Reviews that are conducted in accordance with the procedures in subchapter 10 of this chapter.

(d) Planned unit development bylaws may provide for, as part of the standards described in subdivision (c)(3) of this section, the authorization of uses, densities, and intensities that do not correspond with or are not otherwise expressly permitted by the bylaws for the area in which a planned unit development is located, provided that the municipal plan contains a policy that encourages mixed use development, development at higher overall densities or intensities, or both.

(e) Standards for the reservation or dedication of common land or other open space for the use or benefit of the residents of the proposed planned unit development shall include provisions for determining the amount and location of that common land or open space, and for ensuring its improvement and maintenance.

(1) The bylaws may provide that the municipality may, at any time, accept the dedication of land or any interest in land for public use and maintenance.

(2) The bylaws may require that the applicant or landowner provide for and establish an organization or trust for the ownership and maintenance of any common facilities or open space, and that this organization or trust shall not be dissolved or revoked nor shall it dispose of any common open space, by sale or otherwise, except to an organization or trust conceived and established to own and maintain the common open space, without first offering to dedicate the same to the municipality or other governmental agency to maintain those common facilities or that open space.

(f) The approval of a proposed planned unit development shall be based on findings by the appropriate municipal panel that the proposed planned unit development is in conformance with the municipal plan and satisfies other requirements of the bylaws.

(g) The appropriate municipal panel may prescribe, from time to time, rules and regulations to supplement the standards and conditions set forth in the zoning bylaws, provided the rules and regulations are not inconsistent with any municipal bylaw. The panel shall hold a public hearing after public notice, as required by section 4464 of this title, prior to the enactment of any supplementary rules and regulations.

§ 4418. SUBDIVISION BYLAWS

In order to guide community settlement patterns and to ensure the efficient extension of services, utilities, and facilities as land is developed, a municipality may regulate the division of a lot or parcel of land into two or more lots or other division of land for sale, development, or lease. Subdivision bylaws shall establish standards and procedures for approval, modification or disapproval of plats of land, and approval or modification of plats previously filed in the office of the municipal clerk or land records.

(1) Subdivision bylaws shall be administered in accordance with the requirements of subchapter 10 of this chapter, and shall contain:

(A) Procedures and requirements for the design, submission, and processing of plats, any drawing and plans, and any other documentation required for review of subdivisions.

(B) Standards for the design and layout of streets, sidewalks, curbs, gutters, street lights, fire hydrants, landscaping, water, sewage and stormwater management facilities, public and private utilities, and other necessary improvements as may be specified in a municipal plan. Standards in accordance with subdivision 4412(3) of this title shall be required for lots without frontage on, or access to, public roads or public waters.

(C) Standards for the design and configuration of parcel boundaries and location of associated improvements necessary to implement the municipal plan and achieve the desired settlement pattern for the neighborhood, area or district in which the subdivision is located.

(D) Standards for the protection of natural resources and cultural features and the preservation of open space, as appropriate in the municipality.

(2) Subdivision bylaws may include:

(A) Provisions allowing the appropriate municipal panel to waive or modify, subject to appropriate conditions, the provision of any or all improvements and requirements as in its judgment of the special circumstances of a particular plat or plats are not requisite in the interest of the public health, safety, and general welfare, or are inappropriate because of inadequacy or lack of connecting facilities adjacent or in proximity to the subdivision.

(B) Procedures for conceptual, preliminary, partial, and other reviews preceding submission of a subdivision plat, including any administrative reviews.

(C) Specific development standards to promote the conservation of energy or to permit the utilization of renewable energy resources, or both.

(D) State standards and criteria under 10 V.S.A. § 6086(a).

§ 4419. UNIFIED DEVELOPMENT BYLAWS

(a) Any bylaws authorized under this chapter may be integrated into a unified land development bylaw that combines the separate requirements into a consolidated review and permitting process. At a minimum, unified development bylaws shall consolidate zoning and subdivision bylaws. Unified development bylaws should incorporate other bylaws in conformance with this chapter and should reference all ordinances adopted by a municipality pursuant to authority outside this chapter that affect land development. Unified development bylaws shall provide for an orderly permitting process for all applicable regulations, in accordance with subchapters 10 and 11 of this chapter.

(b) Any municipality that has adopted unified development bylaws in conformance with the requirements of sections 4410, 4411, 4412, 4413, and 4417 of this title shall be deemed to have adopted permanent zoning and subdivision regulations in accordance with 10 V.S.A. § 6001(3).

§ 4420. LOCAL ACT 250 REVIEW OF MUNICIPAL IMPACTS

(a) This section shall apply to any municipality in which all of the following have taken place, either at the direction of the legislative body, or pursuant to a vote of the municipality’s voters at a duly warned municipal meeting considering the question:

(1) The criteria specified in this section have been adopted in the appropriate bylaws authorized under this chapter.

(2) The municipality’s plan has been duly adopted under the provisions of this chapter.

(3) The municipality has adopted zoning bylaws and subdivision bylaws, either separately or incorporated into one unified development bylaw.

(4) The municipality has adopted, for purposes of this section, the municipal administrative procedure act established in chapter 36 of this title.

(5) A development review board has been created and has been authorized to undertake local Act 250 review of municipal impacts caused by a development or subdivision, or both, as the terms “development” and “subdivision” are defined in 10 V.S.A. chapter 151.

(b)(1) With respect to developments or subdivisions to which this section applies, the development review board, pursuant to the procedures established in chapter 36 of this title, shall hear such applications as meet the criteria set forth in the bylaws with respect to size, impact, or both, for local Act 250 review of municipal impacts. Once a municipality has determined to conduct reviews under this section, all applicants meeting such criteria for Act 250 permits for developments or subdivisions located within the municipality shall go through this process, unless all of the following apply:

(A) The applicant can establish to the satisfaction of the development review board that the applicant relied on a determination by the environmental board’s local district coordinator that Act 250 jurisdiction did not apply to the development or subdivision in question, and based upon that reliance, the applicant obtained local permits without complying with this section.

(B) The environmental board’s local district coordinator’s jurisdictional ruling was later reconsidered or overturned on appeal, with the result that Act 250 jurisdiction does apply to the development or subdivision in question.

(C) The development review board waives its jurisdiction under this section in the interest of fairness to the applicant.

(2) Determinations by the development review board regarding whether to waive jurisdiction under this subsection shall not be subject to review.

(1) Will not cause an unreasonable burden on the ability of the municipality to provide educational services.

(2) Will not cause an unreasonable burden on the ability of the municipality to provide municipal or governmental services.

(3) Is in conformance with the plan of the municipality adopted in accordance with this chapter.

(d) A violation of the provisions of this section shall be subject to enforcement as a violation of this chapter.

§ 4421. OFFICIAL MAP

A municipality may adopt an official map that identifies future municipal utility and facility improvements, such as road or recreational path rights-of-way, parkland, utility rights-of-way, and other public improvements, in order to provide the opportunity for the community to acquire land identified for public improvements prior to development for other use and to identify the locations of required public facilities for new subdivisions and other development under review by the municipality.

(1) Preparation of an official map. For the purposes of this chapter, the official map shall be based upon the most accurate data available as to the location and width of existing and proposed streets and drainageways and the location of all existing and proposed parks, schools, and other public facilities. Where questions arise in the administration of this section that require more precise determinations of the location of any street right-of-way line on all drainageways or the location of any park, school, or any other public facility, the legislative body shall have a survey prepared of the street or section, park, school, or other public facility in question, that may by resolution of the legislative body become a part of the official map.

(2) Changes to the official map. After adoption of the official map, the recordation of plats that have been approved as provided by this chapter, or the adoption of any urban renewal plan under chapter 85 of this title, shall, without further action, modify the official map accordingly. Minor changes in the location of proposed public facilities may also be made to particular sections of the official map if the change is recommended by a majority of the planning commission and approved by resolution of the legislative body. This process may take place concurrently with review of development or subdivision of a parcel that is proposed to be subject to a map change.

(3) Status of mapped public facilities. The adoption, as part of an official map, of any existing or proposed street or street line or drainageway, or any proposed park, school, or other public facility, shall not constitute a taking or acceptance of land by the municipality, nor shall the adoption of any street in an official map constitute the opening or establishment of the street for public use or obligate the municipality in any way for the maintenance of the street.

(4) Building on properties with mapped public facilities. No zoning permit may be issued for any land development within the lines of any street, drainageway, park, school, or other public facility shown on the official map, except as specifically provided in this section. No person shall recover any damages for the taking for public use of any land development constructed within the lines of any proposed street, drainageway, park, school, or other public facility after it has been included in the official map, and any such land development shall be removed at the expense of the owner.

(A) If a permit for any land development within the lines of any proposed street, drainageway, park, school, or other public facility shown on an official map is denied pursuant to subdivision (5) of this section, the legislative body shall have 120 days from the date of the denial of the permit to institute proceedings to acquire that land or interest in that land, and if no such proceedings are started within that time, the administrative officer shall issue the permit if the application otherwise conforms to all the applicable bylaws.

(B) A municipality may specify in its bylaws that conditional use review is required for any structure within the line of any public facility shown on the official map, or within a specified area adjacent to the lines on the map. If conditional use review is required for these structures, the purpose of the review shall be to ensure that the structure is compatible with the location and function of existing and planned public facilities. If the conditional use is denied, the procedure provided in subdivision (4)(A) of this section shall be instituted.

(5) Development review for properties with mapped public facilities. Any application for subdivision or other development review that involves property on which the official map shows a public facility shall demonstrate that the mapped public facility will be accommodated by the proposed subdivision or development in accordance with the municipality’s bylaws. Failure to accommodate the mapped public facility or obtain a minor change in the official map shall result in denial of the development or subdivision. The legislative body shall have 120 days from the date of the denial of the permit to institute proceedings to acquire that land or interest in land, and if these proceedings are not started within that time, the appropriate municipal panel shall review the application without regard to the proposed public facilities.

§ 4422. ADEQUATE PUBLIC FACILITIES; PHASING

Development may be phased or limited under a bylaw to avoid or mitigate any undue adverse impact on existing or planned community facilities or services. Where a capital budget and program has been adopted, the bylaw may limit or phase development based on the timing of construction or implementation of related necessary public facilities and services, in conformance with an adopted capital budget and program. A municipality also may levy impact fees in accordance with chapter 131 of this title.

§ 4423. TRANSFER OF DEVELOPMENT RIGHTS

(a) In order to accomplish the purposes of 10 V.S.A. § 6301, bylaws may contain provisions for the transfer of development rights. The bylaws shall do all the following:

(1) Specify one or more sending areas for which development rights may be acquired.

(2) Specify one or more receiving areas in which those development rights may be used.

(3) Define the amount of the density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases.

(4) Define “density increase” in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage or ratio of floor area to lot size, or any combination.

(5) Define “development rights,” which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending area solely to specified purposes, but including, at a minimum, agriculture and forestry.

(b) Upon approval by the appropriate municipal panel, a zoning permit may be granted for land development based in part upon a density increase, provided there is compliance with all the following:

(1) The area subject to the application is a receiving area, and the density increase is allowed by the provisions relating to transfer of development rights.

(2) The applicant has obtained development rights from a sending area that are sufficient under the regulations for the density increase sought.

(3) The development rights are evidenced by a deed that recites that it is a conveyance under this subdivision and recites the number of acres affected in the sending area.

(4) The sending area from which development rights have been severed has been surveyed and suitably monumented.

(c) The municipality shall maintain a map of areas from which development rights have been severed. Following issuance of a zoning permit under this section, the municipality shall effect all the following:

(1) Ensure that the instruments transferring the conservation easements and the development rights are recorded.

(2) Mark the development rights map showing the area from which development rights have been severed, and indicating the book and page in the land records where the easement is recorded.

(d) Failure to record an instrument or mark a map does not invalidate a transfer of development rights. Development rights transferred under this section shall be valid notwithstanding any subsequent failure to file a notice of claim under the marketable record title act.

§ 4424. SPECIAL OR FREESTANDING BYLAWS

Any municipality may adopt freestanding bylaws to address particular areas in conformance with the plan, including the following, which may also be part of zoning or unified development bylaws:

(1) Bylaws to regulate development and use along shorelands.

(2) Bylaws to regulate development and use in flood or other hazard areas.

(A) Purposes.

(i) To minimize and prevent the loss of life and property, the disruption of commerce, the impairment of the tax base, and the extraordinary public expenditures and demands on public service that result from flooding, landslides, erosion hazards, earthquakes, and other natural or human‑made hazards.

(ii) To ensure that the design and construction of development in flood and other hazard areas are accomplished in a manner that minimizes or eliminates the potential for flood and loss or damage to life and property.

(iii) To manage all flood hazard areas designated pursuant to 10 V.S.A. § 753.

(iv) To make the state and municipalities eligible for federal flood insurance and other federal disaster recovery and hazard mitigation funds as may be available.

(B) Contents of bylaws. Flood and other hazard area bylaws may:

(i) Contain standards and criteria that prohibit the placement of damaging obstructions or structures, the use and storage of hazardous or radioactive materials, and practices that are known to further exacerbate hazardous or unstable natural conditions.

(ii) Require flood and hazard protection through elevation, floodproofing, disaster preparedness, hazard mitigation, relocation, or other techniques.

(iii) Require adequate provisions for flood drainage and other emergency measures.

(iv) Require provision of adequate and disaster‑resistant water and wastewater facilities.

(v) Establish other restrictions to promote the sound management and use of designated flood and other hazard areas.

(C) Effect on zoning bylaws. Flood or other hazard area bylaws may alter the uses otherwise permitted, prohibited, or conditional in a flood or other hazard area under a bylaw, as well as the applicability of other provisions of that bylaw. Where a flood hazard bylaw, a hazard area bylaw, or both apply along with any other bylaw, compliance with the flood or other hazard area bylaw shall be prerequisite to the granting of a zoning permit. Where a flood hazard area bylaw or a hazard area bylaw shall be administered in the same manner as are zoning bylaws, a flood hazard area or hazard area permit shall be required for land development covered under the bylaw.

(D) Mandatory provisions. All flood and other hazard area bylaws shall provide that no permit for new construction or substantial improvement shall be granted for a flood or other hazard area until after both the following:

(i) A copy of the application is mailed or delivered by the administrative officer or by the appropriate municipal panel to the agency of natural resources.

(ii) Either 30 days have elapsed following the mailing or the agency delivers comments on the application.

(E) Special exceptions. The appropriate municipal panel, after public hearing, may approve the repair, relocation, replacement, or enlargement of a nonconforming structure within a regulated flood or other hazard area, subject to compliance with applicable federal and state laws and regulations, and provided that the following criteria are met:

(i) The appropriate municipal panel finds that the repair, relocation, or enlargement of the nonconforming structure is required for the continued economically feasible operation of a nonresidential enterprise.

(ii) The appropriate municipal panel finds that the repair, relocation, or enlargement of the nonconforming structure will not increase flood levels in the regulatory floodway, increase the risk of other hazard in the area, or threaten the health, safety, and welfare of the public or other property owners.

(iii) The permit so granted states that the repaired, relocated, or enlarged nonconforming structure is located in a regulated flood or other hazard area, does not conform to the bylaws pertaining to that area, and will be maintained at the risk of the owner.

Sec. 77. 24 V.S.A. chapter 117, subchapter 8 designation is added, immediately preceding section 4430, to read:

Subchapter 8. Nonregulatory Implementation of the Municipal Plan

Sec. 78. 24 V.S.A. §§ 4430 through 4433 are added to read:

§ 4430. CAPITAL BUDGET AND PROGRAM

(a) A capital budget shall list and describe the capital projects to be undertaken during the coming fiscal year, the estimated cost of those projects, and the proposed method of financing. A capital program is a plan of capital projects proposed to be undertaken during each of the following five years, the estimated cost of those projects, and the proposed method of financing. A capital project is any one or more of the following:

(1) Any physical betterment or improvement, including furnishings, machinery, apparatus, or equipment for that physical betterment or improvement when first constructed or acquired.

(2) Any preliminary studies and surveys relating to any physical betterment or improvement.

(3) Land or rights in land.

(4) Any combination of subdivisions (1), (2), and (3) of this subsection.

(b) The capital budget and program shall be arranged to indicate the order of priority of each capital project, and to state for each project all the following:

(1) A description of the proposed project and the estimated total cost of the project.

(2) The proposed method of financing, indicating the amount proposed to be financed by direct budgetary appropriation or duly established reserve funds; the amount, if any, estimated to be received from the federal or state governments; the amount, if any, to be financed by impact fees; and the amount to be financed by the issuance of obligations, showing the proposed type or types of obligations, together with the period of probable usefulness for which they are proposed to be issued.

(3) An estimate of the effect, if any, upon operating costs of the municipality.

(c) The planning commission may submit recommendations annually to the legislative body for the capital budget and program, that shall be in conformance with the municipal plan.

§ 4431. PURCHASE OR ACCEPTANCE OF DEVELOPMENT RIGHTS

A municipality may develop a program for purchase or acceptance of development rights and stewardship of those rights for the purposes set forth in section 4302 of this title and in conformance with the plan.

§ 4432. SUPPORTING PLANS

A municipality may adopt a plan or plans that support the municipal plan, and may incorporate such supporting plan or plans into the municipal plan in the same manner as adoption of the municipal plan set forth in section 4385 of this title. In this event, the supporting plan shall become a part of the municipal plan. Supporting plans may include:

(1) Access management plan. A municipality may adopt an access management plan to manage traffic and access onto public roads from adjacent property in a manner that complies with 19 V.S.A. § 1111.

(2) Downtown, village center, or new town center plan. A municipality may adopt a plan for the development and revitalization of its downtown, villages, or a new town center, consistent with the purposes set forth in section 2790 of this title.

(3) Open space plan. A municipality may adopt a plan to guide public and private conservation strategies.

§ 4433. ADVISORY COMMISSIONS AND COMMITTEES

Municipalities may at any time create one or more advisory commissions, which for the purposes of this chapter include committees, or a combination of advisory commissions to assist the legislative body or the planning commission in preparing, adopting, and implementing the municipal plan. Advisory commissions authorized under this section and under chapter 118 of this title may advise appropriate municipal panels, applicants, and interested parties in accordance with the procedures established under section 4464 of this title.

(1) Creation of an advisory commission. Advisory commissions not authorized in chapter 118 of this title shall be created as follows:

(A) An advisory commission may be created at any time when a municipality votes to create one, or through adoption of bylaws, or if the charter of a municipality permits it, when the legislative body of the municipality votes to create one.

(B) An advisory commission shall have not less than three members. All members should be residents of the municipality, except that historic preservation, design advisory, or conservation commissions may be composed of professional and lay members, a majority of whom shall reside within the municipality creating the commission.

(C) Members of the advisory commission shall be appointed, and any vacancy filled, by the legislative body of the municipality. The term of each member shall be as established by the legislative body, except for those first appointed, whose terms shall be varied in length so that in the future the number whose terms expire in each successive year shall be minimized. Any appointment to fill a vacancy shall be for the unexpired term.

(D) Any member of an advisory commission may be removed at any time for just cause by vote of the legislative body, for reasons given to the member in writing, and after a public hearing on the issue if the member so requests.

(2) Procedures for advisory commissions. Advisory commissions not authorized in chapter 118 of this title shall establish the following procedures:

(A) At its organizational meeting, an advisory commission shall adopt by majority vote of those present and voting such rules as it deems necessary and appropriate for the performance of its functions. It shall annually elect a chairperson, a treasurer, and a clerk.

(B) Times and places of meetings of an advisory commission shall be publicly posted in the municipality, and its meetings shall be open to the public in accordance with the terms of the open meeting law, subchapter 2 of chapter 5 of Title 1.

(C) The advisory commission shall keep a record of its transactions, that shall be filed with the town clerk as a public record of the municipality.

(D) The advisory commission shall comply with ethical policies or ordinances as adopted by the town.

(3) Duties and powers of historic preservation commissions. In addition to the requirements set forth in subdivision (2) of this section, all historic preservation commissions shall comply with all the following:

(A) To the extent possible, have among their members professionals in the fields of historic preservation, history, architecture, archaeology, and related disciplines.

(B) Meet no fewer than four times each year and maintain an attendance rule for commission members.

(i) Preparation of reports and recommendations on standards for the planning commission in creating a local historic district bylaw under this chapter.

(ii) Advising and assisting the legislative body, planning commission, and other entities on matters related to historic preservation; and

(iii) Advising the appropriate municipal panel and administrative officer in development review and enforcement pursuant to subdivision 4414(2)(C) and section 4464 of this title.

(iv) If provided in the bylaw, advising and assisting the legislative body, appropriate municipal panel, and administrative officer in creating and administering a design review district or downtown or village center district pursuant to subdivision 4414(1)(A) or (B) of this title.

(v) If provided in a bylaw developed in cooperation with the division for historic preservation, these procedural and advisory powers required of a Certified Local Government under the National Historic Preservation Act.

(4) Powers and duties of design review commissions. In addition to the requirements set forth in subdivision (2) of this section, all design review commissions shall:

(A) To the extent possible, have among their members professionals in the fields of architecture, landscape architecture, urban planning, historic preservation, and related disciplines.

(B) Have responsibilities identified by the legislative body that include:

(i) Preparation of reports and standards for the planning commission in creating a design review district bylaw under this chapter.

(ii) Advising and assisting the legislative body, planning commission, and other entities on design-related matters in the creation of plans and bylaws and planning for public improvements.

(iii) Advising appropriate municipal panels and the administrative officer in development review and enforcement pursuant to subdivisions 4414(1)(E) and (F) and section 4464 of this title.

(5) Powers and duties of housing commissions. In addition to the requirements set forth in subdivision (2) of this section, housing commissions may:

(A) Make an inventory of the current stock of housing units in the municipality and identify any gaps in the housing stock according to household incomes or special needs of the community. The inventory may include documentation of the affordable housing cost index for an average citizen of the municipality, the average cost of rental units and vacancy rates, and the annual average sales price of homes.

(B) Review the zoning ordinances, subdivision bylaws, building codes, and the development review process of the municipality, make recommendations to facilitate the development of affordable housing in the municipality, and promote bylaws that increase densities for the purpose of providing affordable housing.

(C) Assist the local appropriate municipal panels pursuant to section 4464 of this title and the district environmental commission by providing advisory testimony on the housing needs of the municipality, where pertinent to applications made to those bodies, for permits for development.

(D) Cooperate with the local legislative body, planning commission, zoning board of adjustment, road committee, or other municipal or private organizations on matters affecting housing resources of the municipality. This may include working with the municipality on a wastewater and water allocation policy that reserves a percentage of the capacity for future affordable housing.

(E) Collaborate with not-for-profit housing organizations, government agencies, developers, and builders in pursuing options to meet the housing needs of the local residents.

Sec. 79. 24 V.S.A. chapter 117, subchapter 7 is redesignated and placed immediately preceding section 4440 to read:

Subchapter 7 9. Adoption, Administration, and Enforcement

Sec. 80. 24 V.S.A. § 4440 is added to read:

§ 4440. ADMINISTRATION; FINANCE

(a) Appropriations may be made by any municipality to finance the work of planning commissions, regional planning commissions, administrative officers, appropriate municipal panels, and other officials in the preparation, adoption, administration, and enforcement of development plans and supporting plans, bylaws, capital budgets and programs, and other regulatory and nonregulatory efforts to implement the municipal plan, and to support or oppose, upon appeal to the courts, decisions of an appropriate municipal panel. For these same purposes, any municipality may accept gifts and grants of money and services from private sources and from the state and federal governments.

(b) The legislative body may prescribe reasonable fees to be charged with respect to the administration of bylaws and for the administration of development review. These fees may include the cost of posting and publishing notices and holding public hearings and the cost of conducting periodic inspections during the installation of public improvements. These fees may be required to be payable by the applicant upon submission of the application or prior to issuance of permits or certificates of occupancy.

(c) The legislative body may set reasonable fees for filing of notices of appeal and for other acts as it deems proper, the payment of which shall be a condition to the validity of the filing or act under this chapter.

(d) The legislative body may establish procedures and standards for requiring an applicant to pay for reasonable costs of an independent technical review of the application.

Sec. 81. 24 V.S.A. §§ 4441 through 4449 are added to read:

§ 4441. PREPARATION OF BYLAWS AND REGULATORY TOOLS; AMENDMENT OR REPEAL

(a) A municipality may have one or more bylaws. Any bylaw for a municipality shall be prepared by or at the direction of the planning commission of the municipality and shall have the purpose of implementing the plan. An amendment or repeal of a bylaw may be prepared by the planning commission or by any other person or body.

(b) A proposed amendment or repeal prepared by a person or body other than the planning commission shall be submitted in writing along with any supporting documents to the planning commission. The planning commission may then proceed under this subchapter as if the amendment or repeal had been prepared by the commission. However, if the proposed amendment or repeal of a bylaw is supported by a petition signed by not less than five percent of the voters of the municipality, the commission shall correct any technical deficiency and shall, without otherwise changing the amendment or repeal, promptly proceed in accordance with subsections (c) through (g) of this section, as if it had been prepared by the commission.

(c) When considering an amendment to a bylaw, the planning commission shall prepare and approve a written report on the proposal. A single report may be prepared so as to satisfy the requirements of this subsection concerning bylaw amendments and subsection 4384(c) of this title concerning plan amendments. The department of housing and community affairs shall provide all municipalities with a form for this report. The report shall provide a brief explanation of the proposed bylaw, amendment, or repeal and shall include a statement of purpose as required for notice under section 4444 of this title, and shall include findings regarding how the proposal:

(1) Conforms with or furthers the goals and policies contained in the municipal plan, including the effect of the proposal on the availability of safe and affordable housing.

(2) Is compatible with the proposed future land uses and densities of the municipal plan.

(3) Carries out, as applicable, any specific proposals for any planned community facilities.

(d) The planning commission shall hold at least one public hearing within the municipality after public notice on any proposed bylaw, amendment, or repeal.

(e) At least 15 days prior to the first hearing, a copy of the proposed bylaw, amendment, or repeal and the written report shall be delivered with proof of receipt, or mailed by certified mail, return receipt requested, to each of the following:

(1) The chairperson of the planning commission of each abutting municipality, or in the absence of any planning commission in a municipality, to the clerk of that abutting municipality.

(2) The executive director of the regional planning commission of the area in which the municipality is located.

(3) The department of housing and community affairs within the agency of commerce and community development.

(f) Any of the bodies identified in subsection (e) of this section, or their representatives, may submit comments on the proposed bylaw, amendment, or repeal to the planning commission, or may appear and be heard in any proceeding with respect to the adoption of the proposed bylaw, amendment, or repeal.

(g) The planning commission may make revisions to a proposed bylaw, amendment, or repeal and to the written report, and shall then submit the proposed bylaw, amendment, or repeal and the written report to the legislative body of the municipality. However, if requested by the legislative body, or if a proposed amendment was supported by a petition signed by not less than five percent of the voters of the municipality, the planning commission shall promptly submit the amendment, with changes only to correct technical deficiencies, to the legislative body of the municipality, together with any recommendation or opinion it considers appropriate. Simultaneously with the submission, the planning commission shall file with the clerk of the municipality a copy of the proposed bylaw, amendment, or repeal, and the written report for public review.

§ 4442. ADOPTION OF BYLAWS AND RELATED REGULATORY TOOLS; AMENDMENT OR REPEAL

(a) Public hearings. Not less than 15 nor more than 120 days after a proposed bylaw, amendment, or repeal is submitted to the legislative body of a municipality under section 4441 of this title, the legislative body shall hold the first of one or more public hearings, after public notice, on the proposed bylaw, amendment, or repeal, and shall make copies of the proposal and the written report of the planning commission available to the public upon request. Failure to hold a hearing within the 120 days shall not invalidate the adoption of the bylaw or amendment or the validity of any repeal.

(b) Amendment of proposal. The legislative body may make minor changes to the proposed bylaw, amendment, or repeal, but shall not do so less than 14 days prior to the final public hearing. If the legislative body at any time makes substantial changes in the concept, meaning, or extent of the proposed bylaw, amendment, or repeal, it shall warn a new public hearing or hearings under subsection (a) of this section. If any part of the proposal is changed, the legislative body, at least 10 days prior to the hearing, shall file a copy of the changed proposal with the clerk of the municipality and with the planning commission. The planning commission shall amend the report prepared pursuant to subsection 4441(c) of this title to reflect the changes made by the legislative body and shall submit that amended report to the legislative body at or prior to the public hearing.

(1) A bylaw, amendment, or repeal shall be adopted by a majority of the members of the legislative body at a meeting that is held after the final public hearing, and shall be effective 21 days after adoption.

(2) However, a rural town, by action of the legislative body or by vote of that town at a special or regular meeting duly warned on the issue, may elect to require that bylaw amendments or repeals shall be adopted by vote of the town by Australian ballot at a special or regular meeting duly warned on the issue. That procedure shall then apply until rescinded by the voters at a regular or special meeting of the town.

(d) Petition for popular vote. Notwithstanding subdivision (c)(1) of this section, a vote by the legislative body on a bylaw, amendment, or repeal shall not take effect if five percent of the voters of the municipality petition for a meeting of the municipality to consider the bylaw, amendment, or repeal, and the petition is filed within 20 days of the vote. In that case, a meeting of the municipality shall be duly warned for the purpose of acting by Australian ballot upon the bylaw, amendment, or repeal.

(e) Multipurpose hearings. Nothing contained in this chapter shall be construed to prohibit any public hearing held under this chapter to be held for more than one purpose under this chapter. A municipality may prepare and adopt a plan, one or more bylaws, and a capital budget and program in the same proceedings. However, all of the provisions of this chapter applicable to each purpose of the hearing shall be complied with.

(f) Unorganized towns and gores. A bylaw, amendment, or repeal of an unorganized town or gore shall be adopted by a majority of votes cast at a meeting of the regional planning commission in which the unorganized town or gore is located at which a quorum is present.

(g) Time for action. If the proposed bylaw, amendment, or repeal is not approved or rejected under subsection (c) of this section within one year of the date of the final hearing of the planning commission, it shall be considered disapproved unless five percent of the voters of the municipality petition for a meeting of the municipality to consider the bylaw, amendment, or repeal and the petition is filed within 60 days of the end of that year. In that case, a meeting of the municipality shall be duly warned for the purpose of acting upon the bylaw, amendment, or repeal by Australian ballot.

§ 4443. ADOPTION, AMENDMENT, OR REPEAL OF CAPITAL BUDGET AND PROGRAM

(a) Notwithstanding any other provision of this chapter, a capital budget and program may be adopted, amended, or repealed by the legislative body of a municipality following one or more public hearings, upon public notice, if a utility and facilities plan as described in subdivision 4382(a)(4) of this title has been adopted by the legislative body in accordance with sections 4384 and 4385 of this title. A copy of the proposed capital budget and program shall be filed at least 15 days prior to the final public hearing with the clerk of the municipality and the secretary of the planning commission. The planning commission may submit a report on the proposal to the legislative body prior to the public hearing.

(b) The capital budget and program, or its amendment or repeal, shall be adopted or rejected by an act of the legislative body of a municipality promptly after the final public hearing held under subsection (a) of this section.

§ 4444. PUBLIC HEARING NOTICE FOR ADOPTION, AMENDMENT, OR REPEAL OF BYLAW AND OTHER REGULATORY TOOLS

(a) Any public notice required for public hearing under this subchapter shall be given not less than 15 days prior to the date of the public hearing by:

(1) the publication of the date, place, and purpose of the hearing in a newspaper of general circulation in the municipality affected;

(2) the posting of the same information in three or more public places within the municipality in conformance with location requirements of 1 V.S.A. § 312(c)(2); and

(3) compliance with subsection (b) or (c) of this section.

(b) A municipality may complete public notice commenced under subsection (a) of this section by publishing and posting the full text of the proposed material, or by publishing and posting the following:

(1) A statement of purpose.

(2) A map or description of the geographic areas affected.

(3) A table of contents or list of section headings.

(4) A description of a place within the municipality where the full text may be examined.

(c) As an alternative to the publication and posting provisions established under subsection (b) of this section, a municipality may make reasonable effort to mail or deliver copies of the full text or the material specified in subdivisions (b)(1) through (4), together with the public hearing notice of the proposed material and the public hearing notice to each voter, as evidenced by the voter checklist of the municipality, and to each owner of land within the municipality, as evidenced by the grand list of the municipality.

(d) No defect in the form or substance of any public hearing notice under this chapter shall invalidate the adoption, amendment, or repeal of any plan, bylaw, or capital budget and program. However, the action shall be invalidated if the notice is materially misleading in content or fails to include one of the elements required by subsection (b) of this section or if the defect was the result of a deliberate or intentional act.

§ 4445. AVAILABILITY AND DISTRIBUTION OF DOCUMENTS

Current copies of plans, bylaws, and capital budgets and programs shall be available to the public during normal business hours in the office of the clerk of any municipality in which those plans, bylaws, or capital budgets or programs have been adopted. The municipality shall provide all final adopted bylaws, amendments, or repeals to the regional planning commission of the area in which the municipality is located, and to the department of housing and community affairs.

§ 4446. BYLAWS; EFFECT OF ADOPTION

Within the jurisdiction of any municipality that has adopted any of the bylaws authorized by this chapter, no land development may be undertaken or effected except in conformance with those bylaws. Bylaws authorized by this chapter may specify for exclusion from review any land development determined to impose no impact, or merely a de minimus impact on the surrounding area and the overall pattern of land development.

§ 4447. CLERK’S CERTIFICATE

A certificate of the clerk of a municipality showing the publication, posting, consideration, and adoption or amendment of a plan, bylaw, or capital budget or program shall be presumptive evidence of the facts as they relate to the lawful adoption or amendment of that plan, bylaw, or capital budget or program, so stated in any action or proceeding in court or before any board, commission, or other tribunal.

§ 4448. APPOINTMENT AND POWERS OF ADMINISTRATIVE OFFICER

(a) An administrative officer, who may hold any other office in the municipality, shall be nominated by the planning commission and appointed by the legislative body for a term of three years promptly after the adoption of the first bylaws or when a vacancy exists. The compensation of the administrative officer shall be fixed under sections 932 and 933 of this title, and the officer shall be subject to the personnel rules of the municipality adopted under sections 1121 and 1122 of this title. The administrative officer shall administer the bylaws literally and shall not have the power to permit any land development that is not in conformance with those bylaws. An administrative officer may be removed for cause at any time by the legislative body after consultation with the planning commission.

(b) The planning commission may nominate, and the legislative body may appoint, an acting administrative officer who shall have the same duties and responsibilities as the administrative officer in the administrative officer’s absence. If an acting administrative officer position is established, or, for municipalities that establish the position of assistant administrative officer, there shall be clear policies regarding the authority of the administrative officer in relation to the acting or assistant officer.

(c) The administrative officer should provide an applicant with forms required to obtain any municipal permit or other municipal authorization required under this chapter, or under other laws or ordinances that relate to the regulation by municipalities of land development. If other municipal permits or authorizations are required, the administrative officer should coordinate a unified effort on behalf of the municipality in administering its development review programs. The administrative officer should inform any person applying for municipal permits or authorizations that the person should contact the regional permit specialist employed by the agency of natural resources in order to assure timely action on any related state permits; nevertheless, the applicant retains the obligation to identify, apply for, and obtain relevant state permits.

(d) If the administrative officer fails to act with regard to a complete application for a permit within 30 days, whether by issuing a decision or by making a referral to the appropriate municipal panel, a permit shall be deemed issued on the 31st day.

§ 4449. ZONING PERMIT, CERTIFICATE OF OCCUPANCY, AND MUNICIPAL LAND USE PERMIT

(a) Within any municipality in which any bylaws have been adopted:

(1) No land development may be commenced within the area affected by the bylaws without a permit issued by the administrative officer. No permit may be issued by the administrative officer except in conformance with the bylaws. No permit shall be issued by the administrative officer until the applicant has demonstrated that a copy of the permit application has been delivered to all adjoining property owners without regard to public right-of-way. The copy of the application shall be accompanied by a notice that clearly informs the recipient that participation in the local permit proceeding is a prerequisite to the right to take any subsequent appeal. The applicant shall demonstrate proof of delivery either by certified mail, return receipt requested, or by actual notice supported by a sworn certificate of service.

(2) If the bylaws so adopted so provide, it shall be unlawful to use or occupy or permit the use or occupancy of any land or structure, or part thereof, created, erected, changed, converted, or wholly or partly altered or enlarged in its use or structure after the effective date of this chapter, within the area affected by those bylaws, until a certificate of occupancy is issued therefore by the administrative officer stating that the proposed use of the structure or land conforms to the requirements of those bylaws.

(3) No permit issued pursuant to this section shall take effect until the time for appeal in section 4465 of this title has passed, or in the event that a notice of appeal is properly filed, such permit shall not take effect until final adjudication of that appeal or any subsequent appeal to the environmental court.

(b) Each permit issued under this section shall contain a statement of the period of time within which an appeal may be taken and shall require posting of a notice of permit on a form prescribed by the municipality within view from the public right-of-way most nearly adjacent to the subject property until the time for appeal in section 4465 of this title has passed. Within three days following the issuance of a permit, the administrative officer shall:

(1) Deliver a copy of the permit to the listers of the municipality; and

(2) Post a copy of the permit in at least one public place in the municipality until the expiration of 15 days from the date of issuance of the permit.

(c)(1) Within 30 days after a municipal land use permit has been issued or within 30 days of the issuance of any notice of violation, the appropriate municipal official shall:

(A) deliver the original or a legible copy of the municipal land use permit or notice of violation or a notice of municipal land use permit generally in the form set forth in subsection 1154(c) of this title to the town clerk for recording as provided in subsection 1154(a); and

(B) file a copy of that municipal land use permit in the offices of the municipality in a location where all municipal land use permits shall be kept.

(2) The municipal officer may charge the applicant for the cost of the recording fees as required by law.

(d) If a public notice for a first public hearing pursuant to subsection 4442(a) of this title is issued under this chapter by the local legislative body with respect to the adoption or amendment of a bylaw, or an amendment to an ordinance adopted under prior enabling laws, the administrative officer, for a period of 150 days following that notice, shall review any new application filed after the date of the notice under the proposed bylaw or amendment and applicable existing bylaws and ordinances. If the new bylaw or amendment has not been adopted by the conclusion of the 150‑day period or if the proposed bylaw or amendment is rejected, the permit shall be reviewed under existing bylaws and ordinances. An application that has been denied under a proposed bylaw or amendment that has been rejected or that has not been adopted within the 150-day period shall be reviewed again, at no cost, under the existing bylaws and ordinances, upon request of the applicant. Any determination by the administrative officer under this section shall be subject to appeal as provided in section 4465 of this title.

Sec. 82. 24 V.S.A. §§ 4450 through 4454 are added to read:

§ 4450. ELIGIBILITY TO APPLY FOR PERMITS

Municipalities and solid waste management districts empowered to condemn property or an interest in property may apply for any permit or approval required by any bylaws adopted under this chapter.

§ 4451. ENFORCEMENT; PENALTIES

(a) Any person who violates any bylaw after it has been adopted under this chapter or who violates a comparable ordinance or regulation adopted under prior enabling laws shall be fined not more than $100.00 for each offense. No action may be brought under this section unless the alleged offender has had at least seven days’ warning notice by certified mail. An action may be brought without the seven-day notice and opportunity to cure if the alleged offender repeats the violation of the bylaw or ordinance after the seven-day notice period and within the next succeeding 12 months. The seven-day warning notice shall state that a violation exists, that the alleged offender has an opportunity to cure the violation within the seven days, and that the alleged offender will not be entitled to an additional warning notice for a violation occurring after the seven days. In default of payment of the fine, the person, the members of any partnership, or the principal officers of the corporation shall each pay double the amount of the fine. Each day that a violation is continued shall constitute a separate offense. All fines collected for the violation of bylaws shall be paid over to the municipality whose bylaw has been violated.

(b) Any person who, being the owner or agent of the owner of any lot, tract, or parcel of land, lays out, constructs, opens, or dedicates any street, sanitary sewer, storm sewer, water main, or other improvements for public use, travel, or other purposes or for the common use of occupants of buildings abutting thereon, or sells, transfers, or agrees or enters into an agreement to sell any land in a subdivision or land development whether by reference to or by other use of a plat of that subdivision or land development or otherwise, or erects any structure on that land, unless a final plat has been prepared in full compliance with this chapter and the bylaws adopted under this chapter and has been recorded as provided in this chapter, shall be fined not more than $100.00 and each lot or parcel so transferred or sold or agreed or included in a contract to be sold shall be deemed a separate violation. All fines collected for these violations shall be paid over to the municipality whose bylaw has been violated. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring shall not exempt the seller or transferor from these penalties or from the remedies provided in this chapter.

§ 4452. ENFORCEMENT; REMEDIES

If any street, building, structure, or land is or is proposed to be erected, constructed, reconstructed, altered, converted, maintained, or used in violation of any bylaw adopted under this chapter, the administrative officer shall institute in the name of the municipality any appropriate action, injunction, or other proceeding to prevent, restrain, correct, or abate that construction or use, or to prevent, in or about those premises, any act, conduct, business, or use constituting a violation.

§ 4453. CHALLENGES TO HOUSING PROVISIONS IN BYLAWS

The attorney general or a designee may investigate and may hold a public hearing when there is a complaint that a bylaw or its manner of administration violates subdivision 4382(a)(10) or 4412(1) of this title, relating to equal treatment of housing and adequate provision of affordable housing. Upon determining after hearing that a violation has occurred, the attorney general may file an action in the environmental court to challenge the validity of the bylaw or its manner of administration. In this action, the municipality shall have the burden of proof to establish by a preponderance of the evidence that the challenged bylaw or its manner of administration does not violate the provisions of this section. If the court finds the bylaw or its administration to be in violation, it shall grant the municipality a reasonable period of time to correct the violation and may extend that time. If the violation continues after that time, the court shall order the municipality to grant all requested permits and certificates of occupancy for housing relating to the area of continuing violation.

§ 4454. ENFORCEMENT; LIMITATIONS

(a) An action, injunction, or other enforcement proceeding relating to the failure to obtain or comply with the terms and conditions of any required municipal land use permit may be instituted under sections 1974a, 4452, or 4453 of this title against the alleged offender if the action, injunction, or other enforcement proceeding is instituted within 15 years from the date the alleged violation first occurred and not thereafter. The burden of proving the date the alleged violation first occurred shall be on the person against whom the enforcement action is instituted.

(b) No action, injunction, or other enforcement proceeding may be instituted to enforce an alleged violation of a municipal land use permit that received final approval from the applicable board, commissioner, or officer of the municipality after July 1, 1998, unless the municipal land use permit or a notice of the permit generally in the form provided for in subsection 1154(c) of this title was recorded in the land records of the municipality as required by subsection 4449(c) of this title.

(c) Nothing in this section shall prevent any action, injunction, or other enforcement proceeding by a municipality under any other authority it may have, including a municipality’s authority under Title 18, relating to the authority to abate or remove public health risks or hazards.

(d)(1) As used in this section, “person” means any of the following:

(A) An individual, partnership, corporation, association, unincorporated organization, trust, or other legal or commercial entity, including a joint venture or affiliated ownership.

(B) A municipality or state agency.

(C) Individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from real estate.

(2) The following individuals and entities shall be presumed not to be affiliated with a person for the purpose of profit, consideration, or other beneficial interest within the meaning of this section, unless there is substantial evidence of an intent to evade the purposes of this section:

(A) A stockholder in a corporation shall be presumed not to be affiliated with a person solely on the basis of being a stockholder if the stockholder owns, controls, or has a beneficial interest in less than five percent of the outstanding shares in the corporation.

(B) An individual shall be presumed not to be affiliated with a person solely for actions taken as an agent of another within the normal scope of duties of a court‑appointed guardian, 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.

(C) A seller or chartered lending institution shall be presumed not to be affiliated with a person solely for financing all or a portion of the purchase price at rates not substantially higher than prevailing lending rates in the community.

Sec. 83. 24 V.S.A. chapter 117, subchapter 8 is redesignated, and placed immediately preceding section 4460, to read:

Subchapter 8 10. ~~Appeals~~ Appropriate Municipal Panels

Sec. 84. 24 V.S.A. § 4460 is added to read:

§ 4460. APPROPRIATE MUNICIPAL PANELS

(a) If a municipality establishes a development review board and appoints members to that board, the development review board in that municipality, until its existence is terminated by act of the legislative body, shall exercise all of the functions otherwise exercised, under this chapter, by the board of adjustment. It also shall exercise the specified development review functions otherwise exercised under this chapter by the planning commission. In municipalities that have created development review boards, the planning commission shall continue to exercise its planning and bylaw development functions and other duties established under this chapter. In situations where this chapter refers to functions that may be performed by a development review board or a planning commission, or functions that may be performed by a development review board or a board of adjustment, it is intended that the function in question shall be performed by the development review board if one exists, and by the other specified body if a development review board does not exist.

(b) The board of adjustment or the development review board for a rural town or an urban municipality may consist of the members of the planning commission of that town or may include one or more members of the planning commission. The board of adjustment for a rural town or an urban municipality shall consist of not fewer than three nor more than nine persons, as the legislative body of the municipality determines, appointed by the legislative body of the municipality promptly after the first adoption of a bylaw by the municipality. If the legislative body of a municipality creates a development review board to perform all development review functions under this chapter, that board shall consist of not fewer than five nor more than nine persons, as the legislative body of the municipality determines, appointed by the legislative body of the municipality. A municipality may not have a board of adjustment and a development review board at the same time. Upon creation of a development review board, the existence of any board of adjustment shall terminate.

(c) In the case of an urban municipality or of a rural town where the planning commission does not serve as the board of adjustment or the development review board, members of the board of adjustment or the development review board shall be appointed by the legislative body, the number and terms of office of which shall be determined by the legislative body subject to the provisions of subsection (a) of this section. The municipal legislative body may appoint alternates to a board of adjustment or a development review board for a term to be determined by the legislative body. Alternates may be assigned by the legislative body to serve on the board of adjustment or the development review board in situations when one or more members of the board are disqualified or are otherwise unable to serve. Vacancies shall be filled by the legislative body for the unexpired terms and upon the expiration of such terms. Each member of a board of adjustment or a development review board may be removed for cause by the legislative body upon written charges and after public hearing. If a development review board is created, provisions of this subsection regarding removal of members of the board of adjustment shall not apply.

(d) A joint board of adjustment or development review board may be created upon the act of each legislative body of those municipalities having joint planning commissions as provided in section 4327 of this title. The joint board of adjustment or development review board for these participating municipalities shall consist of persons who would have been the members of the board of adjustment or development review board of each of those municipalities. Joint entities created under this subsection may include a board of adjustment and a development review board, if those different entities exist in the participating municipalities.

(e) The following review functions shall be performed by the appropriate municipal panel authorized by a municipality as specified in the municipal bylaws and in accordance with this chapter, whether zoning board of adjustment, planning commission, or development review board. Unless the matter is an appeal from the decision of the administrative officer, the matter shall come before the panel by referral from the administrative officer. Any such referral decision shall be appealable as a decision of the administrative officer.

(1) Review of right-of-way or easement for land development without frontage as authorized in subdivision 4412(3) of this title;

(2) Review of land development or use within an historic district or with respect to historic landmarks as authorized in subdivision 4414(1)(F) of this title;

(3) Review of land development or use within a design control district as authorized in subdivision 4414(1)(E) of this title;

(4) Review of proposed conditional uses as authorized in subdivision 4414(3) of this title;

(5) Review of planned unit developments as authorized in subdivision 4417 of this title;

(6) Review of requests for waivers as authorized in subdivision 4414(9) of this title;

(7) Site plan review as authorized in section 4416 of this title;

(8) Review of proposed subdivisions as authorized in section 4418 of this title;

(9) Review of wireless telecommunications facilities as authorized in subdivision 4414(13) of this title;

(10) Appeals from a decision of the administrative officer pursuant to section 4465 of this title;

(11) Review of requests for variances pursuant to section 4469 of this title;

(12) Any other reviews required by the bylaws.

Sec. 85. 24 V.S.A. §§ 4461 through 4464 are added to read:

§ 4461. DEVELOPMENT REVIEW PROCEDURES

(a) Meetings. An appropriate municipal panel shall elect its own officers and adopt rules of procedure, subject to this section and other applicable state statutes, and shall adopt rules of ethics with respect to conflicts of interest. Meetings of any appropriate municipal panel shall be held at the call of the chairperson and at such times as the panel may determine. The officers of the panel may administer oaths and compel the attendance of witnesses and the production of material germane to any issue under review. All meetings of the panel, except for deliberative and executive sessions, shall be open to the public. The panel shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating this, and shall keep records of its examinations and other official actions, all of which shall be filed immediately in the office of the clerk of the municipality as a public record. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of the members of the panel, and any action of the panel shall be taken by the concurrence of a majority of the panel.

(b) Information gathering and record of participation by interested persons. An appropriate municipal panel in connection with any proceeding under this chapter may examine or cause to be examined any property, maps, books, or records bearing upon the matters concerned in that proceeding, may require the attendance of any person having knowledge in the premises, may take testimony and require proof material for its information, and may administer oaths or take acknowledgment in respect of those matters. Any of the powers granted to an appropriate municipal panel by this subsection may be delegated by it to a specifically authorized agent or representative, except in situations where the municipal administrative procedure act applies. In any hearing, there shall be an opportunity for each person wishing to achieve status as an interested person under subsection 4465(b) of this title to demonstrate that the criteria set forth in that subsection are met, and the panel shall keep a written record of the name, address, and participation of each of these persons.

(c) Expenditures for service. An appropriate municipal panel may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. All members of an appropriate municipal panel may be compensated for the performance of their duties, and may be reimbursed by their municipality for necessary and reasonable expenses.

§ 4462. COMBINED REVIEW

If more than one type of review is required for a project, the review, to the extent feasible, shall be conducted concurrently. A process defining the sequence of review and issuance of decisions shall be defined in the bylaw.

§ 4463. SUBDIVISION REVIEW

(a) Approval of plats. Before any plat is approved, a public hearing on the plat shall be held by the appropriate municipal panel after public notice. A copy of the notice shall be sent to the clerk of an adjacent municipality, in the case of a plat located within 500 feet of a municipal boundary, at least 15 days prior to the public hearing.

(b) Plat; record. The approval of the appropriate municipal panel shall expire 180 days from that approval or certification unless, within that 180‑day period, that plat shall have been duly filed or recorded in the office of the clerk of the municipality. After an approved plat or certification by the clerk is filed, no expiration of that approval or certification shall be applicable.

(1) The bylaw may allow the administrative officer to extend the date for filing the plat by an additional 90 days, if final local or state permits or approvals are still pending.

(2) No plat showing a new street or highway may be filed or recorded in the office of the clerk of the municipality until it has been approved by the appropriate municipal panel, and that approval is endorsed in writing on the plat, or the certificate of the clerk of the municipality showing the failure of the appropriate municipal panel to take action within the 45‑day period is attached to the plat and filed or recorded with the plat. After that filing or recording, the plat shall be a part of the official map of the municipality.

(c) Acceptance of streets; improvements. Every street or highway shown on a plat filed or recorded as provided in this chapter shall be deemed to be a private street or highway until it has been formally accepted by the municipality as a public street or highway by ordinance or resolution of the legislative body of the municipality. No public municipal street, utility, or improvement may be constructed by the municipality in or on any street or highway until it has become a public street or highway as provided in this section. The legislative body shall have authority after a public hearing on the subject to name and rename all public streets and to number and renumber lots so as to provide for existing as well as future structures.

§ 4464. HEARING AND NOTICE REQUIREMENTS; DECISIONS AND CONDITIONS; ADMINISTRATIVE REVIEW; ROLE OF ADVISORY COMMISSIONS IN DEVELOPMENT REVIEW

(a) Notice procedures. All development review applications before an appropriate municipal panel under procedures set forth in this chapter shall require notice as follows.

(1) A warned public hearing shall be required for conditional use review, variances, administrative officer appeals, and final plat review for subdivisions. Any public notice for a warned public hearing shall be given not less than 15 days prior to the date of the public hearing by all the following:

(A) Publication of the date, place, and purpose of the hearing in a newspaper of general circulation in the municipality affected;

(B) Posting of the same information in three or more public places within the municipality in conformance with location requirements of 1 V.S.A. § 312(c)(2), including posting within view from the public right‑of‑way most nearly adjacent to the property for which an application is made.

(C) Written notification to the applicant and to owners of all properties adjoining the property subject to development, without regard to any public right-of-way.

(2) Public notice for hearings on all other types of development review, including site plan review, shall be given not less than seven days prior to the date of the public hearing, and shall include at a minimum all the following:

(A) Posting of the date, place, and purpose of the hearing in three or more public places within the municipality in conformance with the time and location requirements of 1 V.S.A. § 312(c)(2).

(B) Written notification to the applicant and to the owners of all properties adjoining the property subject to development, without regard to right-of-way.

(3) The applicant may be required to bear the cost of the public warning and the cost and responsibility of notification of adjoining landowners.

(4) The bylaw may also require public notice through other effective means such as a notice board on a municipal website.

(5) No defect in the form or substance of any requirements in subdivision (1) or (2) of this subsection shall invalidate the action of the appropriate municipal panel where reasonable efforts are made to provide adequate posting and notice. However, the action shall be invalid when the defect posting or notice was materially misleading in content. If an action is considered invalid by the environmental court or by the applicable municipal panel itself, the applicable municipal panel must provide new posting and notice, hold a new hearing, and take a new action.

(b) Decisions.

(1) The appropriate municipal panel may recess the proceedings on any application pending submission of additional information. The panel should close the evidence promptly after all parties have submitted the requested information. The panel shall adjourn the hearing and issue a decision within 45 days after the adjournment of the hearing, and failure of the panel to issue a decision within this period shall be deemed approval. Decisions shall be issued in writing and shall include a statement of the factual bases on which the appropriate municipal panel has made its conclusions and a statement of the conclusions. The minutes of the meeting may suffice, provided the factual bases and conclusions relating to the review standards are provided in conformance with this subsection.

(2) In rendering a decision in favor of the applicant, the panel may attach additional reasonable conditions and safeguards as it deems necessary to implement the purposes of this chapter and the pertinent bylaws and the municipal plan then in effect. A bylaw may provide for the conditioning of permit issuance on the submission of a bond, escrow account, or other surety in a form acceptable to the legislative body of the municipality to assure one or more of the following: the completion of the project, adequate stabilization, or protection of public facilities that may be affected by a project.

(3) Any decision shall be sent by certified mail within the period set forth in subdivision (1) of this subsection to the applicant and the appellant in matters on appeal. Copies of the decision shall also be mailed to every person or body appearing and having been heard at the hearing and a copy of the decision shall be filed with the administrative officer and the clerk of the municipality as a part of the public records of the municipality.

(4) Conditions may require that no zoning permit, except for any permits that may be required for infrastructure construction, may be issued for an approved development unless the streets and other required public improvements have been satisfactorily installed in accordance with the approval decision and pertinent bylaws. In lieu of the completion of the required public improvements, the appropriate municipal panel may require from the owner for the benefit of the municipality a performance bond issued either by a bonding or surety company approved by the legislative body or by the owner with security acceptable to the legislative body, in an amount sufficient to cover the full cost of those new streets and required improvements on or in those streets or highways and their maintenance for a period of two years after completion as is estimated by the appropriate municipal panel or such municipal departments or officials as the panel may designate. This bond or other security shall provide for, and secure to the public, the completion of any improvements that may be required within the period fixed in the subdivision bylaws for that completion, and for the maintenance of those improvements for a period of two years after completion.

(5) The legislative body may enter into an agreement governing any combination of the timing, financing, and coordination of private or public facilities and improvements in accordance with the terms and conditions of a municipal land use permit provided that agreement is in compliance with all applicable bylaws in effect.

(6) The performance bond required by this subsection shall run for a term to be fixed by the appropriate municipal panel, but in no case for a longer term than three years. However, with the consent of the owner, the term of that bond may be extended for an additional period not to exceed three years. If any required improvements have not been installed or maintained as provided within the term of the performance bond, the bond shall be forfeited to the municipality and upon receipt of the proceeds of the bond, the municipality shall install or maintain such improvements as are covered by the performance bond.

(c) Administrative review. In addition to the delegation of powers authorized under this chapter, any bylaws adopted under this chapter may establish procedures under which the administrative officer may review and approve new development and amendments to previously approved development that would otherwise require review by an appropriate municipal panel. If administrative review is authorized, the bylaws shall clearly specify the thresholds and conditions under which the administrative officer classifies an application as eligible for administrative review. The thresholds and conditions shall be structured such that no new development shall be approved that results in a substantial impact under any of the standards set forth in the bylaws. No amendment issued as an administrative review shall have the effect of substantively altering any of the findings of fact of the most recent approval. Any decision by an administrative officer under this subsection may be appealed as provided in section 4465 of this title.

(d) Role of advisory commissions in development review. An advisory commission that has been established through section 4433 or chapter 118 of this title and that has been granted authority under the bylaws, by ordinance, or by resolution of the legislative body to advise the appropriate municipal panel or panels, applicants, and interested parties should perform the advisory function in the following manner:

(1) The administrative officer shall provide a copy or copies of applications subject to review by the advisory commission and all supporting information to the advisory commission upon determination that the application is complete.

(2) The advisory commission may review the application and prepare recommendations on each of the review standards within the commission’s purview for consideration by the appropriate municipal panel at the public hearing on the application. The commission or individual members of the commission may meet with the applicant, interested parties, or both, conduct site visits, and perform other fact-finding that will enable the preparation of recommendations.

(3) Meetings by the advisory commission on the application shall comply with the open meeting law, subchapter 2 of chapter 5 of Title 1, and the requirements of the commission’s rules of procedure, but shall not be conducted as public hearings before a quasijudicial body.

(4) The advisory commission’s recommendations may be presented in writing at or before the public hearing of the appropriate municipal panel on the application, or may be presented orally at the public hearing.

(5) If the advisory commission finds that an application fails to comply with one or more of the review standards, it shall make every effort to inform the applicant of the negative recommendations before the public hearing, giving the applicant an opportunity to withdraw the application or otherwise prepare a response to the advisory committee’s recommendations at the public hearing. Advisory commissions may also suggest remedies to correct the deficiencies that resulted in the negative recommendations.

Sec. 86. 24 V.S.A. chapter 117, subchapter 11 is added, immediately preceding section 4465, to read:

Subchapter 11. Appeals

Sec. 87. 24 V.S.A. §§ 4465 through 4469 are added to read:

§ 4465. APPEALS OF DECISIONS OF THE ADMINISTRATIVE OFFICER

(a) An interested person may appeal any decision or act taken by the administrative officer in any municipality by filing a notice of appeal with the secretary of the board of adjustment or development review board of that municipality or with the clerk of that municipality if no such secretary has been elected. This notice of appeal must be filed within 15 days of the date of that decision or act, and a copy of the notice of appeal shall be filed with the administrative officer.

(b) For the purposes of this chapter, an interested person means any one of the following:

(1) A person owning title to property, or a municipality or solid waste management district empowered to condemn it or an interest in it, affected by a bylaw who alleges that the bylaw imposes on the property unreasonable or inappropriate restrictions of present or potential use under the particular circumstances of the case.

(2) The municipality that has a plan or a bylaw at issue in an appeal brought under this chapter or any municipality that adjoins that municipality.

(3) A person owning or occupying property in the immediate neighborhood of a property that is the subject of any decision or act taken under this chapter, who can demonstrate a physical or environmental impact on the person’s interest under the criteria reviewed, and who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality.

(4) Any ten persons who may be any combination of voters or real property owners within a municipality listed in subdivision (2) of this subsection, who, by signed petition to the appropriate municipal panel of a municipality, the plan or a bylaw of which is at issue in any appeal brought under this title, allege that any relief requested by a person under this title, if granted, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality. This petition to the appropriate municipal panel must designate one person to serve as the principal contact regarding all matters related to the appeal.

(5) Any department and administrative subdivision of this state owning property or any interest in property within a municipality listed in subdivision (2) of this subsection, and the agency of commerce and community development of this state.

(c) In the exercise of its functions under this section, a board of adjustment or development review board shall have the following powers, in addition to those specifically provided for elsewhere in this chapter:

(1) To hear and decide appeals taken under this section, including, without limitation, where it is alleged that an error has been committed in any order, requirement, decision, or determination made by an administrative officer under this chapter in connection with the administration or enforcement of a bylaw;

(2) To hear and grant or deny a request for a variance under section 4469 of this title;

§ 4466. NOTICE OF APPEAL

A notice of appeal shall be in writing and shall include the name and address of the appellant, a brief description of the property with respect to which the appeal is taken, a reference to the regulatory provisions applicable to that appeal, the relief requested by the appellant, and the alleged grounds why the requested relief is believed proper under the circumstances.

§ 4467. [Reserved for future use.]

§ 4468. HEARING ON APPEAL

The appropriate municipal panel shall set a date and place for a public hearing of an appeal under this chapter, that shall be within 60 days of the filing of the notice of appeal under section 4465 of this title. The appropriate municipal panel shall give public notice of the hearing, and shall mail to the appellant a copy of that notice at least 15 days prior to the hearing date. Any person or body empowered by section 4465 of this title to take an appeal with respect to that property at issue may appear and be heard in person or be represented by agent or attorney at the hearing. Any hearing held under this section may be adjourned by the appropriate municipal panel from time to time; provided, however, that the date and place of the adjourned hearing shall be announced at the hearing. All hearings under this section shall be open to the public and the rules of evidence applicable at these hearings shall be the same as the rules of evidence applicable in contested cases in hearings before administrative agencies as set forth in 3 V.S.A. § 810.

§ 4469. APPEAL; VARIANCES

(a) On an appeal under section 4465 or 4471 of this title in which a variance from the provisions of a bylaw or interim bylaw is requested for a structure that is not primarily a renewable energy resource structure, the board of adjustment or development review board or the environmental court created under 4 V.S.A. chapter 27 shall grant variances, and render a decision in favor of the appellant, if all the following facts are found and the finding is specified in its decision:

(1) There are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to these conditions, and not the circumstances or conditions generally created by the provisions of the bylaw in the neighborhood or district in which the property is located.

(2) Because of these physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the bylaw and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

(3) Unnecessary hardship has not been created by the appellant.

(4) The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, or be detrimental to the public welfare.

(5) The variance, if authorized, will represent the minimum variance that will afford relief and will represent the least deviation possible from the bylaw and from the plan.

(b) On an appeal under section 4465 or 4471 of this title in which a variance from the provisions of a bylaw or interim bylaw is requested for a structure that is primarily a renewable energy resource structure, the board of adjustment or development review board or the environmental court may grant that variance, and render a decision in favor of the appellant if all the following facts are found and the finding is specified in its decision:

(1) That it is unusually difficult or unduly expensive for the appellant to build a suitable renewable energy resource structure in conformance with the bylaws.

(2) That the hardship was not created by the appellant.

(3) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare.

(4) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least deviation possible from the bylaws and from the plan.

(c) In rendering a decision in favor of an appellant under this section, a board of adjustment or development review board or the environmental court may attach such conditions to variances as it may consider necessary and appropriate under the circumstances to implement the purposes of this chapter and the plan of the municipality then in effect.

Sec. 88. 24 V.S.A. §§ 4470 through 4472 are amended to read:

§ 4470. ~~DECISIONS ON APPEAL~~ REQUESTS FOR RECONSIDERATION TO AN APPROPRIATE MUNICIPAL PANEL

(a) The board of adjustment or the development review board shall render its decision, which shall include findings of fact, within forty-five days after completing the hearing, and shall within that period send to the appellant, by certified mail, a copy of the decision. Copies of the decision shall also be mailed to every person or body appearing and having been heard at the hearing, and a copy thereof shall be filed with the administrative officer and the clerk of the municipality as a part of the public records thereof. If the board of adjustment or the development review board does not render its decision within the period prescribed by this chapter, the board shall be deemed to have rendered a decision in favor of the appellant and granted the relief requested by the applicant on the last day of such period.

~~(b) A board of adjustment or a development review board~~ An appropriate municipal panel may reject an appeal or request for reconsideration without hearing and render a decision, which shall include findings of fact, within ten days of the date of filing of the notice of appeal, if the ~~board of adjustment or a development review board~~ appropriate municipal panel considers the issues raised by the appellant in ~~his or her~~ the appeal have been decided in an earlier appeal or ~~the same in~~ involve substantially or materially the same facts by or on behalf of that appellant~~, such~~. The decision shall be rendered, on notice given, as in the case of a decision under ~~subsection (a) of this section~~ subdivision 4464(b)(3) of this title, and shall constitute a decision of the ~~board of adjustment or the~~ development review ~~board~~ panel for the purpose of section 4471 of this title.

~~(c)~~(b) A municipality shall enforce all decisions of ~~the board of adjustment or the~~ its ~~development review~~ ~~board of that municipality~~ appropriate municipal panels, and further, the superior court, district court, or the environmental court (which in this instance is not bound by Rule 76 of the Rules of Civil Procedure) shall enforce such decisions upon petition, complaint or appeal or other means in accordance with the laws of this state by such municipality or any interested person by means of mandamus, injunction, process of contempt, or otherwise.

§ 4471. APPEAL TO ENVIRONMENTAL COURT

(a) An interested person who has participated in a municipal regulatory proceeding authorized under this title may appeal a decision ~~of a~~ ~~board of adjustment, a planning commission, or a development review board~~ rendered in that proceeding by an appropriate municipal panel to the environmental court. Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, evidence or a statement of concern related to the subject of the proceeding. An appeal from a decision of the ~~board of adjustment, a planning commission, or a development review board~~ appropriate municipal panel shall be taken in such manner as the supreme court may by rule provide for appeals from state agencies governed by sections 801 through 816 of Title 3, unless the decision is ~~a board of adjustment, a planning commission, or a development review board~~ an appropriate municipal panel decision which the municipality has elected to be subject to review on the record.

(b) If the municipal legislative body has determined (or been instructed by the voters) to provide that appeals of certain ~~development review board, board of adjustment, or planning commission determinations, or both board of adjustment and planning commission~~ appropriate municipal panel determinations, shall be on the record, has defined what magnitude or nature of development proposal shall be subject to the production of an adequate record by the ~~development review board, board of adjustment, or planning commission~~ panel, and has provided that the municipal administrative procedure act shall apply in these instances, then an appeal from such a decision of a development review ~~board, board of adjustment, or planning commission~~ panel shall be taken on the record in accordance with Rules 74 and 75 of the Rules of Civil Procedure.

(c) Notice of the appeal shall ~~be sent by mail to~~ be filed by certified mailing, with fees, to the environmental court and by mailing a copy to the municipal clerk or the administrative officer, if so designated, who shall supply a list of interested persons to the appellant within five working days. Upon receipt of the list of interested persons, the appellant shall, by certified mail, provide a copy of the notice of appeal to every interested person ~~appearing and having been heard at the hearing before the planning commission, board of adjustment, or the development review board~~, and, if any one or more of those persons are not then parties to the appeal, upon motion they shall be granted leave by the court to intervene.

~~(b)~~(d) Notwithstanding the provisions of subsection (a) of this section, decisions of a development review board under section ~~4449~~ 4419 of this title, with respect to local Act 250 review of municipal impacts, are not subject to appeal, but shall serve as presumptions under the provisions of 10 V.S.A. chapter 151.

§ 4472. EXCLUSIVITY OF REMEDY; FINALITY

(a) Except as provided in ~~subsection~~ subsections (b) and (c) ~~hereof~~ of this section, the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this chapter or with respect to any one or more of the provisions of any plan or bylaw shall be the appeal to the ~~board of adjustment or the~~ development review ~~board~~ panel under section ~~4464~~ 4465 of this title, and the appeal to the environmental court from an adverse decision upon such appeal under section 4471 of this title. The appeal to the environmental court, if not on the record, as allowed under section 4471 of this title, shall be governed by the Vermont rules of civil procedure and such interested person shall be entitled to a de novo trial in the environmental court. If the appeal to the environmental court is on the record, according to the provisions of section 4471 of this title, it shall be governed by Rules 74 and 75 of the Rules of Civil Procedure. Whether proceeding on the record or de novo, the court shall have and may exercise all powers and authorities of a superior court in a proceeding under Rule 75 of the Vermont Rules of Civil Procedure.

(b) The remedy of an interested person with respect to the constitutionality of any one or more of the provisions of any bylaw or ~~development~~ municipal plan shall be governed by the Vermont ~~rules of civil procedure~~ Rules of Civil Procedure with a de novo trial in the superior court. In such cases hearings before the ~~zoning board of adjustment~~ appropriate municipal panel shall not be required.

(c) The provisions of this section shall not be construed as preventing appeals to the supreme court from decisions of the superior courts in accordance with the Vermont ~~rules of civil procedure~~ Rules of Civil Procedure and the Vermont ~~rules of appellate procedure~~ Rules of Appellate Procedure.

(d) Upon the failure of any interested person to appeal to ~~a board of adjustment~~ an appropriate municipal panel under section ~~4464~~ 4465 of this title, or to appeal to ~~a superior~~ the environmental court under section 4471 of this title, all interested persons affected shall be bound by ~~such~~ that decision or act of ~~such~~ that officer, ~~such~~ the provisions, or ~~such~~ the decisions of the ~~board~~ panel, as the case may be, and shall not thereafter contest, either directly or indirectly, ~~such~~ the decision or act, ~~such~~ provision, or ~~such~~ decision of the ~~board~~ panel in any proceeding, including~~, without limitation,~~ any proceeding brought to enforce this chapter.

Sec. 89. 24 V.S.A. chapter 117, subchapter 9 is redesignated, and placed immediately preceding section 4480, to read:

Subchapter 912. Construction of Act, Saving Clause, Severability

Sec. 90. 24 V.S.A. §§ 4480 through 4483 are added to read:

§ 4480. CONSTRUCTION OF CHAPTER

The provisions of this chapter shall not affect any act done, contract executed, or liability incurred prior to its effective date, or affect any suit or prosecution pending or to be instituted, to enforce any right, rule, regulation, or ordinance or to punish any offense against any such repealed laws or against any ordinance enacted under them. All ordinances, resolutions, regulations, and rules made under any act of the general assembly repealed by this chapter shall continue in effect as if such act had not been repealed, except as otherwise specifically provided in this chapter.

§ 4481. SAVING CLAUSE

The passage of this chapter and the repeal by it of prior enabling laws relating to zoning ordinances, subdivision regulations, or any ordinance or regulation similar to a bylaw authorized by this chapter shall not invalidate any zoning ordinance, subdivision regulation, or any other ordinance or regulation enacted under prior enabling laws. However, any previously enacted zoning ordinance, subdivision regulation, or any similar ordinance or regulation shall be amended to conform with the provisions of this chapter within a period of seven years following the effective date of this chapter and unless amended, shall expire and be void at the end of that seven year period.

§ 4482. SEVERABILITY

If any provision of this chapter or the application of this chapter to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and for this purpose the provisions of this chapter are severable.

§ 4483. CONSTRUCTION; LIMITATION

(a) In reviewing the procedures used in the adoption, amendment, or repeal of any plan or bylaw, no court shall invalidate the plan or bylaw or its amendment or repeal because of a failure to adhere to strict and literal requirements of this chapter concerning minor or nonessential particulars. The court shall uphold the plan, bylaw, or action if there has been substantial compliance with the procedural requirements of this chapter.

(b) No person shall challenge for purported procedural defects the validity of any plan or bylaw as adopted, amended, or repealed under this chapter after two years following the day on which it would have taken effect if no defect had occurred.

Sec. 91. REPEAL

(a) The following sections are repealed in the form they exist upon passage of this bill. After being repealed, the following numbers are being added into this bill creating new statutory sections and are not to be repealed by this section: 24 V.S.A. §§ 4402, 4403, 4410, 4411, 4412, 4413, 4414, 4415, 4416, 4417, 4418, 4419, 4420, 4421, 4422, 4423, 4424, 4441, 4442, 4443, 4444, 4445, 4446, 4447, 4448, 4449, 4461, 4462, 4463, 4464, 4465, 4466, 4467, 4468, and 4469.

(b) 24 V.S.A. §§ 4404 (adoption, amendment, and repeal of bylaws), 4404a (adoption, amendment, or repeal of capital budget and program), 4405 (zoning, zoning districts), 4406 (required regulations), 4407 (permitted types of regulations), 4408 (noncomplying uses and structures), 4409 (limitations), 4425 (building in mapped areas), 4426 (capital budget and program), 4445a (challenges to housing provisions), 4475 (appeals, planning commission decisions), 4490 (construction of chapter), 4491 (saving clause), 4492 (severability), 4493 (applicability of subdivision regulations), 4494 (construction; limitation), 4495 (exemption of accepted agricultural and silvicultural practices from municipal regulation), and 4496 (enforcement limitation) are repealed.

Sec. 92 APPROPRIATION

In fiscal year 2004, there is appropriated $250,000.00 from the general fund to the department of housing and community affairs to coordinate outreach and training for municipal officials on municipal land use planning and regulation through the Regional Planning Commissions and the Vermont Land Use Education and Training Collaborative.

Pending the question, Shall the House amend the bill as recommended by Reps. Larrabee of Danville, et al?

Recess

At twelve o’clock and five minutes in the afternoon, the Speaker declared a recess until one o’clock in the afternoon.

At one o’clock and twenty minutes in the afternoon, the Speaker called the House to order.

Consideration Resumed;

Bill Amended; Read the Third Time and Passed

H. 175

Consideration resumed on House bill, entitled

An act relating to consolidated environmental appeals and revisions of land use development law;

Pending the recurring question, Shall the bill be amended as recommended by Reps. Larrabee of Danville, et al? Rep. Westman of Cambridge moved to amend the recommendation of amendment offered by Reps. Larrabee of Danville, et al, as follows:

By striking Sec. 92 and inserting in lieu thereof the following:

Sec. 92 Appropriation for Training

In fiscal year 2004, there is appropriated $110,000.00 from the general fund to the department of housing and communities affairs. This appropriation, combined with $140,000.00 appropriated in Sec. 237 of H. 464 of 2003 shall be used to coordinate outreach and training for municipal officials on municipal land use planning and regulation through the Regional Planning Commissions and the Vermont Land Use Education and Training Collaborative.

Which was agreed to.

Pending the question, Shall the House amend the bill as recommended by Reps. Larrabee of Danville, et al, as amended? Rep. Symington of Jericho moved to postpone action until Thursday, April 17, 2003, or until S. 92 is reported out of committee.

Pending the question, Shall the House postpone action until Thursday, April 17, 2003, or until S. 92 is reported out of committee? Rep. Symington of Jericho demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Shall the House postpone action until Thursday, April 17, 2003, or until S. 92 is reported out of committee? was decided in the negative. Yeas, 69. Nays, 75.

Those who voted in the affirmative are:

Pending third reading of the bill, Rep. Atkins of Winooski moved to amend the bill as follows:

By adding two new sections to read as follows:

Sec. 1a. 3 V.S.A. § 2822(g) is amended to read:

(g) The secretary shall make all practical efforts to process permits in a prompt manner. The secretary shall establish time limits for the processing of each permit as well as procedures and time periods within which to notify applicants whether an application is complete. The secretary shall assign a permit specialist to each applicant for multiple permits from the agency or for an agency permit together with a permit from the department of labor and industry or under 10 V.S.A. chapter 151. The permit specialist shall guide the applicant in coming into compliance with the permitting requirements of the various agencies and programs. By no later than July 1, 2005, permit specialists shall be able to guide an applicant’s interactions, concerning the same overall project, with the various federal permitting agencies and programs. The secretary shall report no later than the third Tuesday of each annual legislative session to the house and senate committees on natural resources and government operations. The annual report shall assess the agency's performance in meeting the limits; identify areas which hinder effective agency performance; list fees collected for each permit; summarize changes made by the agency to improve performance; describe staffing needs for the coming year; and certify that the revenue from the fees collected is at least equal to the costs associated with those positions. This report is in addition to the fee report and request, required by subchapter 6 of chapter 7 of Title 32.

Sec. 1b. 3 V.S.A. § 2825(e) is added to read:

(e) The secretary shall assure that each recipient of an agency of natural resources permit as well as a permit from another state entity and each recipient of more than one permit from the agency of natural resources obtains a glossary that provides definitions of crucial terms that are contained in agency permits, but that have different meanings to different entities or in different programs operated by the same agency. By no later than July 1, 2005, the glossary required under this subsection shall be expanded to include definitions of crucial terms from overlapping permits issued by federal agencies.

Pending the question, Shall the House amend the bill as recommended by Rep. Atkins of Winooski? Rep. Deen of Westminster moved to amend the recommendation of amendment offered by Rep. Atkins of Winooski, as follows:

By adding a new Sec. 1c. to read:

Sec. 1c. APPROPRIATION; ENVIRONMENTAL PERMIT SPECIALIST

The sum of $130,000.00 is appropriated above the amount in the approved budget for the department of environmental conservation to the agency of natural resources in fiscal year 2004 from the general fund. The agency is authorized one new full‑time development permit specialist and one new full-time permit manager.

Which was disagreed to on a Division vote. Yeas, 50. Nays, 62.

The recurring question, Shall the House amend the bill as recommended by Rep. Atkins of Winooski? was disagreed to.

Pending third reading of the bill, Reps. Nitka of Ludlow and Johnson of Canaan moved to amend the bill as follows:

First: In Sec. 2, 3 V.S.A. § 2828(e), by striking the words “any adjacent Vermont municipality and its municipal and regional planning commissions” and inserting in lieu thereof the following: “any Vermont municipality whose boundary at any point meets the boundary of the municipality where the project is located, and its municipal and regional planning commissions”

Second: In Sec. 12, 10 V.S.A. § 6084(b), by striking the words “any adjacent Vermont municipality and its municipal and regional planning commissions” and inserting in lieu thereof the following: “any Vermont municipality whose boundary at any point meets the boundary of the municipality where the project is located, and its municipal and regional planning commissions”

Which was agreed to.

Pending third reading of the bill, Reps. Zuckerman of Burlington and Tracy of Burlington moved to amend the bill as follows:

First: in Sec. 82, 24 V.S.A. § 4453, in the first sentence, by striking the word “may” in both places it appears and by inserting in both places, the word “shall”

Second: in Sec. 87, 24 V.S.A. § 4465(b)(4), in the first sentence, before the following: “, who,” by inserting the following: “or a number of these persons equal to at least one percent of the registered voters of the municipality, whichever is greater”

Which was agreed to.

Pending third reading of the bill, Rep. Kilmartin of Newport City moved to amend the bill as follows:

By striking Sec. 19 in its entirety and inserting a new Sec. 19 to read as follows:

Sec. 19. 10 V.S.A. § 6093 is added to read:

§ 6093. AGRICULTURAL LANDS OFF-SITE MITIGATION

(a) An applicant for a permit under this chapter for a development or subdivision that is proposed to take place on primary agricultural soils may elect, in lieu of satisfying subdivision 6086(a)(9)(B) of this title, to enter into an agricultural off-site mitigation agreement with the department of agriculture, food and markets, in which the applicant agrees to pay a calculated contribution into the department, from which such funds shall be used either to put back into production other farmlands or to assist farmers implementing the best management practices program in the form of grants to farmers. An executed mitigation agreement shall be presented to the district commission with jurisdiction where the development or subdivision is proposed to occur; the commission shall then accept the mitigation agreement in full and complete satisfaction of subdivision 6086(a)(9)(B) of this title, provided, notwithstanding any other provision of law, the contribution shall not exceed $200.00 per acre, adjusted annually thereafter according to the consumer price index (CPI).

(b) The department shall enter into a mitigation agreement whenever the applicant cannot realize a reasonable net profit of 10 percent by devoting the primary agricultural soils to productive farming purposes. The burden shall be upon the department to demonstrate, under market principles, that the use of the land for agricultural purposes will yield a net profit of at least 10 percent to the developer.

(1) determining the number of acres of primary agricultural soils that would suffer potential reduction as a result of a particular development or subdivision;

(2) multiplying that number by a value determined by the commissioner of agriculture, food and markets based on the quality of the agricultural soils lost through the proposed development. The quality of agricultural soils shall be determined by the commissioner in conformance with the United States Department of Agriculture value groups for Vermont soils. In no case shall this value be less than two in order to achieve a 2:1 (protected acres: acres of primary agricultural soils whose potential has been reduced) ratio, and then multiplying that result by a “price per acre” factor. The “price per acre” for primary agricultural soils shall be based on the amount that the department of agriculture, food and markets has determined to be the average, per-acre cost to acquire conservation easements on productive farmland in the county in which the development or subdivision is to occur; and

(3) the foregoing formula shall not be used when the department is unable to prove by clear and convincing evidence that the land can yield a net profit of at least 10 percent. The maximum contribution in the event that the department cannot prove the same is $50.00 per acre. Notwithstanding any other law or regulation, the maximum contribution, in the event that the department can prove a net profit of 10 percent or more, shall be $200.00 per acre, with adjustments thereto according to the CPI to be made on July 1, 2006 and continuing annually thereafter.

Thereupon, Rep. Kilmartin of Newport City asked and was granted leave of the House to withdraw his amendment.

Pending third reading of the bill, Reps. Lippert of Hinesburg, Larson of Burlington, Maier of Middlebury and Symington of Jericho moved to amend the bill as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

* * * The Consolidated Enhanced Environmental Board * * *

Sec. 1. 10 V.S.A. chapter 220 is added to read:

Chapter 220. Consolidated Environmental

Appeals AND RULEMAKING

§ 8501. PURPOSE

It is the purpose of this chapter to:

(1) consolidate existing appeal routes for acts or decisions of the secretary and the district commission excluding enforcement actions brought pursuant to chapters 201 and 211 of this title and the adoption of rules under chapter 25 of Title 3;

(2) standardize the appeal periods, the parties who may appeal these acts or decisions, and the ability to stay any act or decision upon appeal, taking into account the nature of the different programs affected;

(3) encourage people to get involved in the Act 250 permitting process at the initial stages of review by a district commission by requiring participation as a prerequisite for an appeal of a district commission decision to the environmental board; and

(4) assure that clear appeal routes exist for acts and decisions of the secretary.

§ 8502. DEFINITIONS

As used in this chapter:

(1) “District commission” means a district commission established under chapter 151 of this title;

(2) “Environmental board” means the environmental board established under section 8503 of this title;

(3) “Person” means any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity;

(4) “Person aggrieved” means any person who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede that person’s ability to protect his or her interest.

(5) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative. For the purposes of this chapter, “secretary” shall also mean the commissioner of the department of environmental conservation, the commissioner of the department of forests, parks, and recreation, and the commissioner of the department of fish and wildlife, with respect to those statutes that refer to the authority of that commissioner or department.

§ 8503. ENVIRONMENTAL BOARD

(a) An environmental board is created. The environmental board shall consist of a chair and two members. No member shall be required to be admitted to the practice of law in this state.

(b) The chair shall be nominated, appointed, and confirmed in the manner of a superior judge.

(c) Members of the board other than the chair shall be appointed in accordance with this subsection. Whenever a vacancy occurs, public announcement of the vacancy shall be made. The governor shall submit at least five names of potential nominees to the judicial nominating board for review. The judicial nominating board shall review the candidates in respect to judicial criteria and standards only and shall recommend to the governor those candidates the board considers qualified. The governor shall make the appointment from the list of qualified candidates. The appointment shall be subject to the consent of the senate.

(d) The term of each member shall be six years. Any appointment to fill a vacancy shall be for the unexpired portion of the term vacated. A member wishing to succeed himself or herself in office may seek reappointment under the terms of this section.

(e) Notwithstanding section 2004 of Title 3, or any other provision of law, members of the board may be removed only for cause. When a board member who hears all or a substantial part of a case retires from office before the case is completed, he or she shall remain a member of the board for the purpose of concluding and deciding that case, and signing the findings and judgments involved. A retiring chair shall also remain a member for the purpose of certifying questions of law, if appeal is taken.

(f) A case shall be deemed completed when the board enters a final decision even though that decision is appealed to the supreme court and the case remanded by that court to the board. Upon remand, the board then in office may in its discretion consider relevant evidence, including any part of the transcript of testimony in the proceedings prior to appeal.

(g) The chair shall have general charge of the offices and employees of the board.

§ 8504. POWERS OF SINGLE BOARD MEMBER OR OTHER OFFICER

OR EMPLOYEE

(a) One board member or any officer or employee of the board duly appointed by the chair of the board may inquire into and examine any matter within the jurisdiction of the board.

(b) A hearing officer may administer oaths in all cases, so far as the exercise of that power is properly incidental to the performance of his or her duty or that of the board. A hearing officer may hold any hearing in any matter within the jurisdiction of the board to hear. Hearings conducted by a hearing officer shall be in accordance with chapter 25 of Title 3.

(c) A hearing officer shall report his or her findings of fact in writing to the board in the form of a proposal for decision. A copy shall be served upon the parties pursuant to section 811 of Title 3. However, judgment on those findings shall be rendered only by a majority of the board.

(d) At least 12 days prior to a hearing before the board or a hearing officer, the board shall give written notice of the time and place of the hearing to all parties to the case and shall indicate the name and title of the person designated to conduct the hearing.

(e) Upon written request to the board at least five days prior to the hearing by all parties to the case, the chair shall appoint at least a majority of the board to conduct the hearing.

(f) Notwithstanding subsection (c) of this section, the chair may appoint a hearing officer to hear and finally determine any appeal of a permitting decision under this chapter. Upon petition of a party, filed within 30 days of issuance of the hearing officer's decision, or on its own motion, the board may determine that the hearing officer's decision should be treated as a proposal for decision and order as provided in subsection (c) of this section. The board may grant such request for good cause, including but not limited to apparent error of fact, or procedural or substantive law, and may conduct additional evidentiary hearings or hear oral argument from the parties. If such request is not timely made, or is not granted by the board, the decision and order of the hearing officer shall become the final decision of the board.

§ 8505. COURT OF RECORD; PROCESS

(a) The board shall have the powers of a court of record in the determination and adjudication of all appeals of all applicable environmental permits provided in section 8509 of this title. It may render judgments and enforce the same by any suitable process issuable by courts in this state.

(b) All processes issued by the board shall state the time and place of return, in those cases where return is to be made to the board. Notices and other processes issued by the board shall be served personally or by first class mail, except that the board may direct that service be made by registered or certified mail. If the whereabouts of a person are unknown or if the number of parties or interested persons, as the case may be, is so great that personal service or service by mail is impracticable, service may be made by publication.

(d) A prehearing or procedural conference may be held upon any reasonable notice.

(e) An evidentiary hearing, once commenced upon proper notice, may be continued to a subsequent date upon any reasonable notice.

(f) The forms, pleadings, and rules of practice and procedure before the board shall be prescribed by it.

(g) The board shall hear appeals on all decisions specified in section 8509 of this title and make its findings of fact and rulings of law. Upon appeal to the supreme court, its findings of fact shall be accepted unless clearly erroneous.

§ 8506. EXPERTS

With the approval of the governor, the board may appoint and employ, at the expense of the state, engineers, accountants, legal counsel, and such number of clerks, stenographers, experts, and temporary employees as it deems necessary in the performance of its duties, and in the investigation of matters within its jurisdiction.

§ 8507. PARTICULAR PROCEEDINGS; PERSONNEL

(a)(1) The board may authorize or retain legal counsel, official stenographers, expert witnesses, advisors, temporary employees, and other research services:

(A) to assist the board in any proceeding listed in section 8510 or 8511 of this title; and

(B) to monitor compliance with any formal opinion of the board; and

(C) to assist other state agencies that are named parties to the proceeding where the board determines that they are essential to a full consideration of the appeal; and

(2) The personnel authorized by this section shall be in addition to the regular personnel of the board or other state agencies; and in the case of other state agencies, may be retained only with the approval of the governor and after notice to the applicant. The board or department shall fix the amount of compensation and expenses to be paid such additional personnel.

(b) Persons employed by the state are competent to be designated to act for the same purposes and in lieu of or in conjunction with additional personnel retained under this section. However, when so acting, they shall not receive compensation in addition to their regular pay.

§ 8508. INTERGOVERNMENTAL COOPERATION

Other departments and agencies of state government shall cooperate with the board and make available to it data and facilities 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 chapter 151 of this title shall endeavor to assist all applicants regardless of the size and value of the projects involved.

§ 8509. APPELLATE JURISDICTION OF BOARD

(a) This chapter shall govern all appeals of an act or decision of the secretary, excluding enforcement actions under chapters 201 and 211 of this title and rulemaking, under the following authorities:

(1) 10 V.S.A. chapter 23 (air pollution control).

(2) 10 V.S.A. § 922 (aquatic nuisance control grants-in-aid).

(3) 10 V.S.A. chapter 41 (regulation of stream flow).

(4) 10 V.S.A. chapter 43 (dams).

(5) 10 V.S.A. chapter 47 (water pollution control).

(6) 10 V.S.A. chapter 48 (groundwater protection).

(7) 10 V.S.A. chapter 53 (beverage containers).

(8) 10 V.S.A. chapter 55 (aid to municipalities for water supply, pollution abatement and sewer separation).

(9) 10 V.S.A. chapter 56 (public water supply).

(10) 10 V.S.A. chapter 59 (underground liquid storage tanks).

(11) 10 V.S.A. chapter 64 (potable water supply and wastewater permit).

(12) 10 V.S.A. § 2625 (regulation of heavy cutting).

(13) 10 V.S.A. chapter 123 (protection of endangered species).

(14) 10 V.S.A. chapter 159 (waste management).

(15) 29 V.S.A. chapter 11 (management of lakes and ponds).

(b) This chapter shall govern all appeals from an act or decision of a district commission under chapter 151 of this title.

§ 8510. APPEALS TO THE ENVIRONMENTAL BOARD

(a) Any person aggrieved by an act or decision of the secretary or district commission under the provisions of law listed in section 8509 of this title may appeal to the environmental board within 30 days of the date of the act or decision.

(b) Upon filing an appeal from an act or decision of the district commission, the appellant shall notify all parties who had party status as of the end of the district commission proceeding that an appeal is being filed.

(1) No aggrieved person may appeal an act or decision that was made by a district commission unless:

(A) the person is a party pursuant to subdivisions 6085(c)(1)(A) through (D) of this title; or

(B) the person was granted party status by the district commission pursuant to subdivision 6085(c)(1)(E) or (F), participated in the proceedings before the district commission, and retained party status at the end of the district commission proceedings. In addition, the person may only appeal those issues under the criteria with respect to which the person was granted party status.

(2) Notwithstanding subdivision (b)(1) of this section, an aggrieved person may appeal an act or decision of the district commission if the environmental board determines that:

(A) there was a procedural defect which prevented the person from obtaining party status or participating in the proceeding;

(B) the decision being appealed is the granting or denying of party status; or

(1) acts or decisions involving stream alteration permits or shoreline encroachment permits issued by the secretary; and

(2) the denial of party status.

(d) The environmental board may grant a stay of any act or decision that has been appealed, upon petition by a party or upon its own motion.

(e) The environmental board may consolidate or coordinate different appeals where those appeals all relate to the same project.

(f) The environmental board shall hold a de novo hearing on those issues which have been appealed, unless the decision of the district commission has been conducted as a recorded hearing pursuant to section 6085a of this title, in which case the review shall be on the record developed in the recorded hearing.

(g) Any appeal of an authorization to discharge under the terms of a general permit shall be limited in scope to whether the permitted activity complies with the terms and conditions of the general permit.

(h) Notwithstanding any other provision of this section:

(1) the environmental board shall not hear an appeal of a district commission decision when the commission has issued a permit and no preliminary hearing was requested;

(2) a district commission’s decision to grant or deny a motion for a recorded hearing shall not be subject to appeal;

(3) if a district commission issues a partial decision under subsection 6086(b) of this title, any appeal of that decision must be taken within 30 days of the date of that decision.

(i) The secretary may represent the agency in all appeals under this section. If more than one state agency either appeals or seeks to intervene in an appeal under this section, only the attorney general may represent the interests of the state in the appeal.

(j) Prior decisions of the water resources board and waste facilities panel shall be given the same weight and consideration as prior decisions of the environmental board.

(k) No defect in the form or substance of any of the scoping requirements in section 2828 of Title 3 shall invalidate the action of the secretary or a district commission or be grounds for an appeal pursuant to this section.

§ 8511. RULEMAKING

The board may adopt rules, in accordance with the provisions of chapter 25 of Title 3, in the following areas:

(1) Rules that interpret and carry out the provisions of chapter 151 of this title, including rules 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 title. In accordance with that classification, the rules may:

(A) provide for simplified or less stringent procedures than are otherwise required under sections 6083, 6084, and 6085 of this title; and

(B) provide for the filing of notices instead of applications for the permits that would otherwise be required under section 6081 of this title; and

(C) provide a procedure by which a district commission may authorize a district coordinator to issue a permit that the district commission has determined under board rules is a minor application with no undue adverse impact.

(2) Rules governing surface levels of lakes and ponds, which are public waters of Vermont.

(3) Rules regarding classification of the waters of the state, in accordance with 10 V.S.A. chapter 47.

(4) Rules regarding the establishment of water quality standards, in accordance with 10 V.S.A. chapter 47.

(5) Rules regulating the surface use of public waters, in accordance with 10 V.S.A. chapter 49.

(6) 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;

(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.

(7) Rules regarding petitions, including petitions on the board’s own motion, to designate specific wetlands as significant, when considered under the criteria established in subdivision (6) of this subsection;

(8) Rules protecting wetlands that have been determined under subdivision (6) or (7) 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 board shall not adopt rules that restrain agricultural activities without the consent of the commissioner of the department 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.

§ 8512. APPEALS TO THE SUPREME COURT

(a) Any person aggrieved by an act or decision of the environmental board pursuant to this subchapter may appeal to the supreme court within 30 days of the date of the entry of the judgment or order appealed from, provided that the person was a party to the appeal before the environmental board.

(b) Notwithstanding subsection (a) of this section, an aggrieved person may appeal a decision of the environmental board if the supreme court determines that:

(1) there was a procedural defect which prevented the person from participating in the proceeding;

(2) some other condition exists which would result in manifest injustice if the person’s right to appeal was disallowed.

(c) An objection that has not been raised before the environmental board may not be considered by the supreme court, unless the failure or neglect to raise that objection is excused by the court because of extraordinary circumstances. The findings of the environmental board with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive.

(d) The attorney general may represent the state in all appeals under this section.

§ 8513. FEES

(a) All persons filing an appeal to the board from an action of the secretary of natural resources or an appeal to the board from a district environmental commission decision or jurisdictional determination shall pay a fee of $100.00, plus any associated publication costs.

(b) All funds collected pursuant to this section shall be deposited into the fund created in section 6029 of this title.

Sec. 2. 3 V.S.A. § 2828 is added to read:

§ 2828. PROJECT SCOPING PROCESS

(a) Applicability. This section shall govern all applications for permits, certifications, or other authorizations issued by the department of environmental conservation, except for permit renewals, and wastewater and water supply permits for single family homes located on their own lots, and except for professional licenses. It also shall govern applications for permits under chapter 151 of Title 10.

(b) Determining project scope. The department of environmental conservation and, if appropriate, the district coordinator shall prepare a project review sheet based on information submitted by the applicant. The project review sheet shall indicate:

(1) a brief description of the project and all permits necessary for the project known at the outset of the scoping process;

(2) whether a land use permit is required by chapter 151 of Title 10; and

(3) a project identification number assigned by the secretary, for use on all applications, notices, permits, and decisions issued by the secretary.

(c) Project review sheet. The project review sheet shall be prepared based on the information submitted by the project applicant. If, based on supplemental information, or for other good cause, the secretary determines that a project will require other permits or the district coordinator determines that a land use permit under chapter 151 of Title 10 is required, notwithstanding the fact that the permit requirement did not appear on the initial project review sheet, the project review sheet shall be amended. Any failure by the applicant, secretary, or a district coordinator to identify on the project review sheet a required permit or authorization issued by the secretary, or a land use permit issued under chapter 151 of Title 10, shall not constitute a waiver of jurisdiction.

(d) Notice of project. Upon completion of the project review sheet, the secretary or district coordinator shall send a copy of the project review sheet by first class mail, postage prepaid, at least to each of the following: the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for any municipality in which the project is located; any adjacent Vermont municipality and its municipal and regional planning commissions; any state agency identified on the project scoping sheet as being directly affected by the project; and all adjoining landowners.

(e) Scheduling of project scoping meeting. If requested by a person within 15 days of the date of mailing of the project review sheet, the secretary shall schedule a project scoping meeting. If no department of environmental conservation permit, certification or other authorization is required, the meeting shall be scheduled by the district coordinator.

(f) Notice of project scoping meeting. The secretary or district commissioner shall notice any project scoping meeting, at least 30 days prior to the date of the meeting, by sending a copy of the notice to the persons required to receive the project review sheet under subsection (c) of this section. This notice shall be sent by first class mail, postage prepaid. The applicant shall assure that this notice is published in a newspaper of general circulation in the area of the proposed project.

(g) Project scoping meeting. The following persons shall be present at the scoping meeting: the applicant or a representative of the applicant; the secretary or the secretary’s designee; the district coordinator, if the proposed project will require a land use permit under chapter 151 of Title 10; and a representative of a local permitting authority or a member of the selectboard of the town in which the project is located, if no local permitting authority exists. At the meeting, the applicant or a representative of the applicant shall present a description of the proposed project, and be available for questions from the public concerning the proposed project. The purpose of the meeting shall be to provide public information and increase notice about the project, allow discussion of the proposed project, and identify potential issues at the beginning of the project review process. The applicant shall provide copies of the project review sheet to persons attending the meeting.

(h) Report. Following the project scoping meeting, the secretary shall prepare a scoping report documenting the proceedings. The secretary shall distribute the report to persons who requested a copy at the meeting and to any person who received notice under this section. The report shall become a permanent part of the file for the project.

(i) No defect in the form or substance of any of the scoping requirements of this section shall invalidate the action of the secretary or a district commission or be grounds for an appeal to the environmental board pursuant to section 8510 of Title 10.

Sec. 3. 10 V.S.A. § 6029 is amended to read:

§ 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 and chapter 220 of this title. Revenues to the fund shall be those fees collected in accordance with rules adopted under 10 V.S.A. §§ ~~6025(a),~~ 6083(a)(3) ~~and~~, 6089(a), and 8511 (1), gifts, appropriations, and copying and distribution fees. The environmental board shall be responsible for the fund and shall account for revenues and expenditures of the environmental 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 environmental 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 or appeals of decisions of the secretary. This fund shall be administered as provided in subchapter 5 of chapter 7 of Title 32, as a special program fund.

Sec. 4. 10 V.S.A. § 6083a(d) is amended to read:

(d) ~~All persons filing an appeal, cross appeal or petition from a district environmental commission decision or jurisdictional determination shall pay a fee of $100.00, plus publication costs.~~

Sec. 5. 10 V.S.A. § 6084 is amended to read:

§ 6084. NOTICE

(a) On or before the date of filing of application the applicant shall send notice and a copy of the application to the owner of the land if the applicant is not the owner; any adjoining property 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 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 land lies.

(b) The district commission shall forward notice and a copy of the application to the board and any state agency directly affected, 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 or board deems appropriate. In addition, the district commission shall forward notice to any adjacent Vermont municipality and its municipal and regional planning commissions. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 seven days after receipt of the application.

Sec. 6. 10 V.S.A. § 6085 is amended to read:

§ 6085. HEARINGS; PARTY STATUS

(a) Anyone required to receive notice by section 6084 of this title and any adjoining property owner may request a hearing by filing a request within 15 days of receipt of notice. Upon receipt of notice the district commission shall treat the application pursuant to section 814 of Title 3. The district commission may order a hearing without a request within 20 days of receipt of the application.

(b) The hearing or a prehearing conference shall be held within 40 days of receipt of the application or notice of appeal. The parties shall be given not less than 10 days notice. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not less than 10 days before the hearing date.

(c)(1) Parties shall be those who have received notice, adjoining property owners who have requested a hearing, and such other persons as the board may allow by rule. For the purposes of appeal to the supreme court, only the applicant, the landowner if the applicant is not the landowner, a state agency, the regional and municipal planning commissions and the municipalities required to receive notice shall be considered parties. An adjoining property owner may participate in hearings and present evidence only to the extent the proposed development or subdivision will have a direct effect on his or her property under section 6086(a)(1) through (a)(10) of this title. Party status. In proceedings before the board and 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; and 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 section 6602(10) of Title 10;

(D) Any state agency directly affected by the proposed project, and any state agency receiving notice of the proceedings through the interagency Act 250 review committee;

(E) Any adjoining property owner who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede the person’s ability to protect that interest; and

(F) Any person who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede the person’s ability to protect that interest.

(2) Content of Petitions. All persons seeking to participate in proceedings before the board or district commission as parties pursuant to subdivision (c)(1)(E) or (F) of this section must petition for party status. Any petition for party status may be made orally or in writing to the district commission and shall be made in writing to the board, unless waived by the chair. 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, appellant, or petitioner; and

(B) In the case of an organization, a description of the organization, its purposes, and the nature of its membership; and

(C) A statement of the reasons the petitioner believes the board or district commission should allow the petitioner party status in the pending proceeding.

(D) In the case of an adjoining property owner:

(i) A description of the location of the adjoining 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 adjoiner’s interest with respect to each of the relevant criteria or subcriteria under which party status is being requested.

(E) In the case of a person seeking party status under subdivision (c)(1)(F) 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) or (F) 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 board or district commission, within their respective jurisdictions, directs otherwise. The board or district commission, within their respective jurisdictions, 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) or (F) of this section, the board or district commission, within their respective jurisdictions, shall restrict the person’s participation to only those issues in which it 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 expediency. A person who has been granted party status as an adjoining property owner may participate in the hearings and present evidence only to the extent the proposed project will have a direct effect on the person’s property under any provision of subsection 6086(a) of this title, or under the relevant criteria of the proceeding involved.

(5) Amicus Curiae. The board or district commission, on its own motion or by petition, may allow amicus curiae to participate in any of its proceedings. Amicus curie shall not be 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 board or 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 amicus curiae 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 board or the district commission. Except where all parties consent, or as otherwise ordered by the board or district commissions, in their respective proceedings or their respective chairs, all amicus curiae shall file their memoranda, testimony, or evidence within the times allowed other parties.

~~(2)~~(6) Re-examination of party status. A district commission~~, according to the procedures established in the rules of the board, shall determine party status with respect to individuals and organizations at the commencement of the hearing process and~~ shall re‑examine ~~those~~ 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.

* * *

Sec. 7. 10 V.S.A. § 6086 is amended to read:

§ 6086. ISSUANCE OF PERMIT; CONDITIONS AND CRITERIA

(a) Before granting a permit, the board or 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 ~~Vermont department of health~~ agency of natural resources; or

(v) areas supplying significant amounts of recharge waters to aquifers.

* * *

(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 ~~water resources~~ board, ~~as adopted under section 905(9) of this title,~~ relating to significant wetlands.

* * *

(9) Is in conformance with a duly adopted capability and development plan, and land use plan when adopted. However, the legislative findings of ~~sections~~ subdivisions 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 or the environmental board.

* * *

(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~~ the applicant’s 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, except that cluster planning shall not be required within an area exclusively designated by a municipality as an industrial park, and by providing for new community planning designed to economize on the cost of roads, utilities and land usage. For the purposes of this subdivision (a)(9)(B)(iii), “industrial park” means an area designated as such in the approved town plan of a town with a confirmed planning process, or in the case of an approved plan that has expired, the area shall be designated as such in duly adopted zoning bylaws; 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, and will not significantly reduce the potential 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~~ the applicant’s 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, except that cluster planning shall not be required within an area exclusively designated by a municipality as an industrial park, and by providing for new community planning designed to economize on the cost of roads, utilities and land usage. For the purposes of this subdivision (a)(9)(C)(iii), “industrial park” means an area designated as such in the approved town plan of a town with a confirmed planning process, or in the case of an approved plan that has expired, the area shall be designated as such in duly adopted zoning bylaws.

* * *

(E) Extraction of earth resources. A permit will be granted for the extraction or processing of mineral and earth resources, including fissionable source material:

* * *

(ii) upon approval by the district commission or the board 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 regulations of the ~~water resources board~~ agency of natural resources, and natural gas and oil may be removed pursuant to the rules of the natural gas and oil resources board.

* * *

(b) At the request of an applicant, or upon its own motion, the district commission or the board 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 ~~or the board~~, 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. If the district commission or the board first issues a partial decision under this subsection, the applicant or a party may appeal that decision within 30 days under section 6089 of this title, or may appeal it after the final decision on the complete application. If the applicant or party has not taken a prior appeal of a partial decision under this subsection with respect to particular criteria, then any findings on the complete application, relating to those criteria, may be appealed under section 6089 of this title.

(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)~~ subdivisions (a)(1) – (10) of this section, including but not limited to those set forth in sections 4407(4), (8), and (9), 4411(a)(2), 4415, 4416, and 4417 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.

(d) The board 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)~~ subdivisions (a)(1) – (5) of this section or a permit or permits of a specified municipal government with respect to ~~(1) through (7) and (9) and (10) of subsection (a)~~ subdivisions (a)(1) – (7) and (9) and (10) of this section, or a combination of such permits or approvals, in lieu of evidence by the applicant. In the case of approvals and permits issued by the agency of natural resources with respect to subdivisions (a)(1) – (5) of this section, determinations of the agency shall be rebuttable presumptions for any issue addressed in the agency permits or approvals under the relevant criteria of subsection (a) of this section in district commission proceedings. The board shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, 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 and the board. The acceptance of negative determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, 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. § 4449 shall create presumptions only to the extent that the impacts under the criteria are limited to the municipality issuing the decision. The board shall accept determinations issued, after opportunity for comment by the parties, by the department of agriculture, food and markets, with respect to whether particular soils are primary agricultural soils, and those determinations shall be presumed to be accurate. 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 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.

Sec. 8. 10 V.S.A. § 6089 is amended to read:

§ 6089. APPEALS

~~(a)(1) An appeal from the district commission shall be to the board and shall be accompanied by a fee prescribed by section 6083a of this title.~~

(2) An appellant to the board, under this section, shall file with the notice of appeal a statement of the issues to be addressed in the appeal, a summary of the evidence that will be presented, and a preliminary list of witnesses who will testify on behalf of the appellant.

~~(3) The board shall hold a de novo hearing on all findings requested by any party that files an appeal or cross appeal, according to the rules of the board.~~

(4) Notice of appeal shall be filed with the board within 30 days. The board shall notify the parties set forth in section 6085(c) of this title of the filing of any appeal. The board shall proceed as in section 6085(b) and (c) of this title and treat the applicant pursuant to section 814 of Title 3.

~~(b) An appeal from a decision of the board under subsection (a) of this section shall be to the supreme court by a party as set forth in section 6085(c) of this title.~~

(c) No objection that has not been urged before the board may be considered by the supreme court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the board with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive.

(d) An appeal from the board will be allowed for all usual reasons, including the unreasonableness or insufficiency of the conditions attached to a permit. An appeal from the district commission will be allowed for any reason except no appeal shall be allowed when an application has been granted and no preliminary hearing requested.

Appeals of any act or decision of a district commission under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 9. 10 V.S.A. § 6093 is added to read:

§ 6093. AGRICULTURAL LANDS OFF-SITE MITIGATION

(a) An applicant for a permit under this chapter for a development or subdivision that is proposed to take place on primary agricultural soils may enter into an agricultural off-site mitigation agreement with the department of agriculture, food and markets, in which the applicant agrees to pay a calculated contribution into the Vermont housing and conservation trust fund established under section 312 of this title, from which it is used to protect other farmlands. An executed mitigation agreement shall be presented to the district commission with jurisdiction where the development or subdivision is proposed to occur; the commission then shall consider the mitigation agreement in evaluating whether a project satisfies subdivision 6086(a)(9)(B) of this title.

(b) The department will not enter a mitigation agreement unless the following all apply to an applicant’s project:

(1) the project complies with the requirements of subdivision 6086(a)(9)(B)(ii), (iii), and (iv);

(2) designs minimizing the reduction in soils agricultural potential have been considered and an on-site cluster development or subdivision would not result in the conservation of agricultural land with the ability to contribute to commercial agricultural enterprise; and

(3) the lands are in an area which is being or is likely to be converted to uses incompatible with farming or which will not support farming.

(1) determining the number of acres of primary agricultural soils that would suffer potential reduction as a result of a particular development or subdivision;

(2) multiplying that number by a value determined by the commissioner of agriculture, food, and markets based on the quality of the agricultural soils lost through the proposed development. The quality of agricultural soils shall be determined by the commissioner in conformance with the United States department of agriculture value groups for Vermont soils. In no case shall this value be less than two in order to achieve a 2:1 (protected acres: acres of primary agricultural soils whose potential has been reduced) ratio, and then multiplying that result by a “price per acre” factor. The “price per acre” for primary agricultural soils shall be based on the amount that the department of agriculture, food and markets has determined to be the average, per-acre cost to acquire conservation easements on productive farmland in the county in which the development or subdivision is to occur.

* * * ANR revisions and conforming changes * * *

Sec. 10. 3 V.S.A. § 2802(b) is amended to read:

(b) The environmental board ~~and the water resources board are~~ is attached to the agency for the purpose of receiving administrative support.

Sec. 11. 3 V.S.A. § 2803(b) is amended to read:

(b) Notwithstanding subsection (a) of this section or any other provision of this chapter the fish and wildlife board, and the environmental board ~~and the water resources board~~ shall retain and exercise all powers and functions given to them by law which are of regulatory or quasi-judicial nature, including the power to adopt, amend and repeal rules and regulations, to conduct hearings, to adjudicate controversies and to issue and enforce orders, in the manner and to the extent to which those powers are given to those respective boards by law.

Sec. 12. 3 V.S.A. § 2826 is amended to read:

§ 2826. ENVIRONMENTAL NOTICE BULLETIN; PERMIT HANDBOOK;

NOTICE BY SIGN

(a) The secretary shall establish ~~procedures for the publication of~~ an environmental notice bulletin, in order to provide for the timely public notification of permit applications, notices, comment periods, hearings, and permitting decisions. The secretary shall begin publication of the bulletin by no later than July 1, 1995 on the agency’s website. At a minimum, the bulletin shall contain the following information:

(1) notice of administratively complete permit applications submitted to the department of environmental conservation;

(2) notice of the comment period on the application and draft permit, if any, for those applications which were noticed;

(3) notice of the issuance of draft permit, if required by law, for those applications that were noticed;

(4) information on how to request a public hearing or meeting, if one is provided for by law, for those applications that were noticed;

(5) notice of all public hearings or meetings that are scheduled for those applications that were noticed; and

(6) notice of the issuance or denial of a permit for those applications that were noticed.

* * *

(c) In addition to any notice required for a permit issued by the department of environmental conservation, the secretary shall require each applicant to post a sign provided by the secretary, at cost, where it is prominently displayed along the public road or highway, unless it is a limited access highway, that is the closest to the exact location of the project to be permitted. The applicant shall post the sign upon filing the application. This signage requirement shall not apply to applications for professional licenses or to potable water supply and wastewater permits for single‑family residences on their own individual lots.

Sec. 13. 4 V.S.A. § 2878 is amended to read:

§ 2878. INDEPENDENT ~~BOARDS~~ BOARD

The environmental board ~~and the water resources board are~~ is created and ~~are~~ is attached to the agency of natural resources for the purpose of receiving administrative support. ~~These~~ ~~boards~~ This board shall be constituted as provided by law and shall perform the duties and functions specified by law.

Sec. 14. 10 V.S.A. § 552 is amended to read:

§ 552. DEFINITIONS

As used in this chapter:

* * *

(4) “~~Board” means the solid waste and air quality variance board.~~

* * *

(7) “Secretary” means the secretary of the agency of natural resources or ~~such person as the secretary may designate~~ the secretary’s duly authorized representative.

* * *

Sec. 15. 10 V.S.A. § 553 is amended to read:

§ 553. AGENCY ~~AND BOARD~~

(a) The agency is designated as the air pollution control agency for the state. The secretary or ~~his~~ the secretary’s duly ~~designated~~ authorized representative, within the agency, shall perform the functions vested in the agency, as specified in the following sections of this chapter.

(b) A solid waste and air quality variance board shall be appointed by the governor, with the advice and consent of the senate. The board shall consist of five members, none of whom is otherwise employed by the state. The board shall consist of a lawyer, a manufacturer, a professional engineer, a businessman and a member representing the public at large. The governor shall designate the chairman. The terms of office shall be five years except that the initial members shall be appointed so that the term of one member shall expire in each of the succeeding five years.

Sec. 16. 10 V.S.A. § 561 is amended to read:

§ 561. VARIANCES

(a) A person who owns or is in control of any plant, building, structure, process or equipment may apply to the ~~board~~ secretary for a variance from the rules ~~of the secretary~~ adopted under this chapter. If a request for a variance is related to an application for a permit under this chapter, the applicant may file that request only after the secretary has issued a declaratory ruling that makes it clear that the applicant would not be eligible for the permit or after the secretary has granted or denied the permit, according to the provisions of subsection 562(e) of this title. The ~~board~~ secretary may grant a variance if it the secretary finds that:

(1) The emissions occurring or proposed to occur do not endanger or tend to endanger human health or safety; and

(2) Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.

(b) No variance shall be granted pursuant to this section except after public ~~hearing on due notice~~ notice and an opportunity for a public meeting and until the ~~board~~ secretary has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public.

(c) Any variance or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions consistent with the reasons therefore, and within the following limitations:

(1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary practicable means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measures that the ~~board~~ secretary may prescribe.

(2) If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the ~~board~~ secretary is requisite for the taking of the necessary measures. A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.

(d) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods, which would be appropriate on initial granting of a variance. If complaint is made to the ~~board~~ secretary on account of the variance, no renewal thereof shall be granted, unless following public ~~hearing on the complaint on due~~ notice and an opportunity for a public meeting on the complaint, the ~~board~~ secretary finds that renewal is justified. No renewal shall be granted except on application therefore. The application shall be made at least ~~sixty~~ 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the ~~board~~ secretary shall give public notice of the application ~~in accordance with rules of the board~~.

(e) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the ~~board~~ secretary. However, any person adversely affected by a variance or renewal granted or denied by the board may obtain judicial review thereof by appealing that decision within 30 days to the environmental court established under 4 V.S.A. chapter 27, according to the provisions of section 562 of this title.

(f) Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of section 560 of this chapter to any person or ~~his~~ the person’s property.

(g) On application from a person who is subject to an increased air emission fee caused by amendments to the provisions of 3 V.S.A. § 2822(j), (k) and (l), the ~~board~~ secretary may grant an amendment in fee amount. A fee amendment under this subsection may be granted only if the applicant establishes that payment of fees would produce serious hardship. Fee amendments granted under this subsection shall not be subject to the findings required for the issuance of a variance under subsection (a) of this section, but fee amendments shall otherwise be subject to the provisions of this chapter regarding variances.

Sec. 17. 10 V.S.A. § 562 is amended to read:

§ 562. HEARINGS AND JUDICIAL REVIEW APPEALS

(a) No rule or regulation and no amendment or repeal thereof shall take effect except after public hearing. The secretary shall appoint a time and place for the hearing and shall order the publication of the substance thereof and of the time and place of hearing two weeks successively in the daily newspapers of the state, the last publication to be at least seven days before the day appointed for the hearing Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

(b) ~~Nothing in this section shall be construed to require a hearing before issuance of an emergency order pursuant to section 560 of this chapter~~.

(d) Any person aggrieved by the issuance, denial, suspension, termination, revocation, annulment, withdrawal or renewal of an individual or general permit pursuant to this chapter may appeal that decision within 30 days to the environmental court established under 4 V.S.A. chapter 27, except as otherwise provided in section 6104 of this title. The environmental court shall hold a de novo hearing and shall issue an order affirming, revising or reversing the decision of the secretary. An appeal filed pursuant to this section shall not stay the decision of the secretary. For the purposes of an appeal pursuant to this subsection, the environmental court shall have and may exercise all powers and authorities of the superior court in a proceeding under Rule 75 of the Vermont Rules of Civil Procedure. V.R.C.P. 76 shall not apply to appeals filed pursuant to this section. A person appealing an issue under this subsection may not request a variance on that same issue under subsection (e) of this section. A person requesting a variance under subsection (e) of this section may not appeal the same issue under this subsection.

(e) As a mutually exclusive alternative to appealing an issue as provided in subsection (d) of this section, a person aggrieved by the issuance, denial, suspension, termination, revocation, annulment, withdrawal or renewal of an individual or general permit may request a variance under section 561 of this title, if the action in question involved a rule adopted under this chapter, and if the person is entitled to request a variance under the terms of section 561. A request for a variance shall be filed within 30 days. If an action on a permit results in an appeal on one issue under subsection (d) and a request for a variance under this subsection with respect to a different issue, the court shall stay the appeal until the board has granted or denied the variance.

(f) With respect to appeals from variance decisions under subsection (e) of this section, the environmental court shall hold a hearing based on the record developed before the variance board, and shall issue an order affirming, revising or reversing the decision of the board. An appeal filed pursuant to this subsection shall not stay the decision of the secretary. For the purposes of an appeal pursuant to this subsection, the environmental court shall have and may exercise all powers and authorities of the superior court in a proceeding under V.R.C.P. 74.

(g) If a permit is denied under this section, and that denial is the subject of either an appeal or a request for a variance, the applicant need not commence application proceedings anew, once those issues are resolved.

Sec. 18. 10 V.S.A. § 752 is amended to read:

§ 752. DEFINITIONS

For the purposes of this chapter:

* * *

(9) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative.

Sec. 19. 10 V.S.A. § 902 is amended to read:

§ 902. DEFINITIONS

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1) “~~Board” means the Vermont water resources board~~;

* * *

Sec. 20. 10 V.S.A. § 905b is amended to read:

§ 905b. DUTIES; POWERS

The department shall protect and manage the water resources of the state in accordance with the provisions of this subchapter and shall:

* * *

(18) study and investigate the wetlands of the state and cooperate with other agencies and the board in collecting and compiling data relating to wetlands, propose to the board specific wetlands to be designated as significant wetlands, and implement through existing programs the rules adopted by the board governing significant wetlands, including the issuance or denial of conditional use determinations pursuant to section 1272 of this title;

(19) cooperate with the agencies of the federal government and of the province of Quebec, adjoining states and states through which water from Vermont streams flows in all matters relating to interstate streams;

(20) cooperate with the state board of health in matters of stream pollution where public health is involved;

(21) act as the Vermont water resources board mentioned in the act of Congress entitled, “An act authorizing the construction of certain public works on rivers and harbors for flood control and for other purposes,” approved December 22, 1944. In this connection, the department shall carry out the policy of the state as defined by section 1100 of this title.

Sec. 21. 10 V.S.A. § 1002 is amended to read:

§ 1002. DEFINITIONS

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

* * *

(4) “Board” means the Vermont ~~water resources~~ environmental board;

* * *

(9) “Person” means ~~applies to an individual, partnership, corporation, municipality, state agency or other legal entity~~ any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 22. 10 V.S.A. § 1004 is amended to read:

§ 1004. STATE’S AGENT

The secretary shall be the agent to coordinate the state interest before the Federal Energy Regulatory Commission in all matters involving water quality and regulation or control of natural stream flow through the use of dams situated on streams within the boundaries of the state, and it shall advise the Federal Energy Regulatory Commission of the amount of flow considered necessary in each stream under consideration. The agency of natural resources shall be the certifying agency of the state for purposes of section 401 of the federal Clean Water Act and the secretary’s determinations on these certifications shall be final action by the secretary appealable to the ~~water resources board~~ environmental board. The secretary shall be the agent of the state and shall represent the state’s interest under the provisions of the Federal Power Act, including those that protect state-designated outstanding resource waters. However, the secretary’s authority shall not infringe upon the powers and duties of the public service board or the relations of that board to the Federal Energy Regulatory Commission as set forth in the Federal Power Act respecting water used for the development of hydro-electric power or projects incident to the generation of electric energy for public use as part of a public utility system.

Sec. 23. 10 V.S.A. § 1024 is amended to read:

§ 1024. Appeals

(a) Any person aggrieved by the decision of the secretary under section 1023 or section 1004 of this title may file an appeal with the board within fifteen days of issuance of notice of the secretary’s action. The filing of an appeal shall stay the action of the secretary. Within five days of receipt of an appeal, the board shall schedule a hearing giving notice to all persons required to receive notice under section 1023. The hearing before the board shall be de novo and shall be conducted as a contested case.

(b) Any party aggrieved by a final order of the board, pursuant to subsection (a) of this section, may appeal from a final order of the board to the Supreme Court within 30 days of the date of the order. An appeal filed pursuant to this section shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders.

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 24. 10 V.S.A. § 1032 is amended to read:

§ 1032. RULEMAKING ON SNOWMAKING WITHDRAWALS

The secretary shall adopt rules to determine conservation flow standards for snowmaking, to be used in relevant agency of natural resources regulatory processes governing water withdrawals, diversions, impoundments, and the construction of appurtenant facilities, and to be used in developing positions to be asserted by the agency in other state regulatory processes governing conservation flows for snowmaking. These rules shall not supersede water quality standards adopted by the ~~water resources~~ environmental board pursuant to chapter 47 of this title. These rules shall achieve the purposes of this subchapter, and shall provide for the periodic review of any decision issued under the rules. All existing water withdrawals, diversions, and impoundments for snowmaking which are permitted at instream flows below the standards shall be reviewed by July 1, 2000.

Sec. 25. 10 V.S.A. § 1080(2) is amended to read:

(2) “Person” means ~~an individual, firm, partnership, cooperative electric association, governmental body, state agency or domestic or foreign corporation~~ any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity;

Sec. 26. 10 V.S.A. § 1099 is amended to read:

§ 1099. ~~APPEAL~~ APPEALS

(a) A person aggrieved by a decision of the department under this chapter may appeal that decision to the water resources board within 30 days from its date. The water resources board shall hold a de novo hearing at which all persons and parties in interest may appear and be heard, and shall issue an order affirming, reversing or modifying the act or decision of the department within 10 days following the conclusion of the hearing. The order shall be binding upon the department. Filing an appeal shall not automatically stay the effectiveness of any act or decision of the department pending determination by the water resources board. Any party aggrieved by a final order of the water resources board pursuant to this subsection may appeal to the supreme court within 30 days of the date of the order. An appeal filed pursuant to this subsection shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders Appeals of any act or decision of the department under this chapter shall be made in accordance with chapter 220 of this title.

(b) Appeals from actions or orders of the public service board may be taken in the Supreme Court in accord with section 12 of Title 30.

Sec. 27. 10 V.S.A. § 1251 is amended to read:

§ 1251. DEFINITIONS

Whenever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1) “Board” means the Vermont ~~water resources~~ environmental board;

* * *

(8) “Person” means an individual, partnership, public or private corporation, municipality, institution or agency of the state or federal government and includes any officer or governing or managing body of a partnership, association, firm or corporation any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 28. 10 V.S.A. § 1251a(b) is amended to read:

(b) The secretary shall establish by rule requirements for the issuance of permits under subsection 1259(e) of this title, including in-stream water quality parameters necessary to establish permit conditions and performance monitoring; however these in-stream water quality parameters shall not supersede water quality standards adopted by the ~~water resources~~ board.

Sec. 29. 10 V.S.A. § 1263(b) is amended to read:

(b) Except for applications for permission to discharge under the terms of a previously issued general permit, the secretary shall provide for notice of each application to the public and any appropriate officials of another state and the federal government including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing or both on the application before making a final ruling on the application. Prior to issuing a general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing or both as provided in this subsection. For applications for permission to discharge under the terms of a previously issued general permit, the applicant shall provide notice, on a form provided by the secretary, to the municipal clerk of the municipality in which the discharge is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment, regarding whether the application complies with the terms and conditions of the general permit, for ten days following receipt of the application. The secretary may require any applicant to submit any additional information, which the secretary considers necessary and may refuse to grant a permit, or permission to discharge under the terms of a general permit, until the information is furnished and evaluated. Any person or party in interest aggrieved by a final ruling of the secretary on an application for permission to discharge under the terms of a previously issued general permit may appeal to the board pursuant to section 1269 of this title, provided, however, that this appeal shall be limited in scope to whether the discharge complies with the terms and conditions of the general permit.

Sec. 30. 10 V.S.A. § 1264 is amended to read:

§ 1264. STORMWATER MANAGEMENT

* * *

(b) The secretary shall prepare a plan for the management of collected stormwater runoff found by the department to be deleterious to receiving waters. The plan shall recognize that the runoff of stormwater is different from the discharge of sanitary and industrial wastes because of the influence of natural events of stormwater runoff, the variations in characteristics of those runoffs, and the increased stream flows and natural degradation of the receiving water quality at the time of discharge. The plan shall be cost effective and designed to minimize any adverse impact of stormwater runoff to waters of the state. By no later than February 1, 2001, the secretary shall prepare an enhanced stormwater management program and report on the content of that program to the house committees on fish, wildlife and water resources and on natural resources and energy and to the senate committee on natural resources and energy. In developing the program, the secretary shall consult with the ~~water resources~~ board, affected municipalities, regional entities, other state and federal agencies, and members of the public. The secretary shall be responsible for implementation of the program. The secretary’s stormwater management program shall include, at a minimum, provisions that:

* * *

(g)(1) The secretary may issue a permit consistent with the requirements of subsection (f) of this section, even where a Total Maximum Daily Load (TMDL) or wasteload allocation has not been prepared for the receiving water. In any appeal ~~to the board pursuant to section 1269 of this title:~~ under this chapter,

~~(A)~~ an individual permit meeting the requirements of subsection (f) of this section shall have a rebuttable presumption in favor of the permittee that the discharge does not cause or contribute to a violation of the Vermont water quality standards for the receiving waters with respect to the discharge of collected stormwater runoff. This rebuttable presumption shall only apply to permitted discharges into receiving waters on the Section 303(d) list that are principally impaired by sources other than collected stormwater runoff~~; and~~

(B) the review of an individual discharge seeking coverage under a general permit issued pursuant to the requirements of subsection (f) of this section shall be limited in scope as specified in subsection 1263(b) of this chapter.

(2) This subsection shall apply to stormwater permits issued under the federally delegated NPDES program only to the extent allowed under federal law.

* * *

Sec. 31. 10 V.S.A. § 1269 is amended to read:

§ 1269. APPEALS ~~TO BOARD~~

Any person or party in interest aggrieved by an act or decision of the secretary pursuant to this subchapter may appeal to the board within thirty days. The board shall hold a de novo hearing at which all persons and parties in interest as determined by board rule may appear and be heard and shall issue an order affirming, reversing or modifying the act or decision of the secretary within 10 days following the conclusion of the hearing. The order shall be binding upon the department. An appeal filed pursuant to this section shall not stay the effectiveness of any act or decision of the department pending determination by the board Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 32. 10 V.S.A. § 1272 is amended to read:

§ 1272. REGULATION OF ACTIVITIES CAUSING DISCHARGE OR

AFFECTING SIGNIFICANT WETLANDS

If the secretary finds that any person’s action, or an activity, results in the construction, installation, operation or maintenance of any facility or condition which reasonably can be expected to create or cause a discharge to waters in violation of this subchapter, or to violate the board’s rules under section ~~905(9)~~ 8511 of this title relating to significant wetlands, the secretary may issue an order establishing reasonable and proper methods and procedures for the control of that activity and the management of substances used therein which cause discharges or violations of board rules with respect to significant wetlands in order to reduce or eliminate those discharges and rule violations with respect to significant wetlands. ~~Any person who receives an order pursuant to this section may appeal to the board as provided in section 1269 of this title~~.

Sec. 33. 10 V.S.A. § 1381 is amended to read:

§ 1381. DEFINITIONS AS USED IN THIS SUBCHAPTER

* * *

(5) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative;

(6) “Person” means any proprietor of a commercial establishment, corporation, municipality, the state of Vermont or any department, agency or subdivision of the state, and any partnership, unincorporated association or other legal entity any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity.

Sec. 34. 10 V.S.A. § 1392(d) is amended to read:

(d) The groundwater management strategy, including groundwater classification and associated technical criteria and standards, shall be adopted as a rule in accordance with the provisions of 3 V.S.A., chapter 25. The secretary shall file any final proposed rules regarding the groundwater management strategy, with the ~~water resources~~ environmental board not less than 30 days prior to filing with the legislative committee on administrative rules. The board shall review the final proposed rules and comment regarding their compatibility with the Vermont water quality standards and the objectives of the Vermont Water Pollution Control Act. The secretary shall include the ~~water resources~~ environmental board’s comments in filing the final proposed rules with the legislative committee on administrative rules.

Sec. 35. 10 V.S.A. § 1400 is amended to read:

§ 1400. APPEALS

(a) A person aggrieved by a decision of the commissioner under section 1402 of this title may appeal the decision to the water resources board and from there to Washington superior court or the superior court of the county in which the person’s principal place of business is located.

(b) A person aggrieved by a decision or order of the commissioner under section 1403 of this title may appeal the decision or order to the water resources board and from there to the superior court for the county in which he or she resides or the well is located.

Appeals of any act or decision of the commissioner or secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 36. 10 V.S.A. § 1422 is amended to read:

§ 1422. DEFINITIONS

In this chapter, unless the context clearly requires otherwise:

* * *

(2) “Board” means ~~water resources~~ environmental board;

* * *

(7) “Secretary” means the secretary of natural resources or the secretary’s duly authorized representative;

* * *

Sec. 37. 10 V.S.A. § 1571 is amended to read:

§ 1571. DEFINITIONS

As used in this chapter:

* * *

(2) “~~Board” means the water resources board~~.

* * *

(8) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representatives.

* * *

Sec. 38. 10 V.S.A. § 1629 is amended to read:

§ 1629. ~~APPEAL~~ APPEALS

Any municipality aggrieved by an act or decision of the department in establishing the priority system and the priority of awards to projects under this chapter may appeal to the board within 30 days. The board shall hold a hearing at which all persons and parties in interest may appear and be heard to determine whether the decision of the department complies with the priority system adopted pursuant to section 1628 of this title. The board shall issue an order affirming, reversing or modifying the decision of the department. The order shall be binding upon the department. An appeal filed pursuant to this section shall not stay the effectiveness of any decision of the department pending determination by the board. Appeals from the decisions of the board shall be taken de novo to the superior court Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 39. 10 V.S.A. § 1680 is amended to read:

§ 1680. APPEALS

Any person or party in interest who is aggrieved by the secretary’s decision to issue, renew, deny, suspend or revoke a permit or certification pursuant to this chapter may appeal such decision, pursuant to Rule 74 of the Vermont Rules of Civil Procedure, within 30 days of the date thereof to the superior court of the county in which the public water supply is located or the county where the certificate holder’s principal place of business is located. An appeal shall not stay the effectiveness of the secretary’s decision unless the court so orders Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 40. 10 V.S.A § 1683 is amended to read:

§ 1683. FILTRATION REQUIREMENTS

* * *

(b) The department of environmental conservation shall grant waivers to requirements for water filtration and exemptions to public and private water systems as provided under the federal Safe Drinking Water Act, surface water rule, when a water system owner demonstrates that the water system has a proven record of delivering adequate quantities of clean and safe drinking water and that adequate protection of the surface water source is or may be assured. In the event that the department denies an application for a waiver, the water system owner may appeal the decision to the water resources board within 30 days of such decision. The water system owner may appeal a decision of the water resources board to the superior court within 30 days of the board’s decision, following the same procedure provided by section 1680 of this title for an appeal from a decision by the secretary.

Sec. 41. 10 V.S.A. § 1933 is amended to read:

§ 1933. APPEALS

Any person or party in interest aggrieved by an act or decision of the secretary pursuant to this chapter may appeal within 30 days to the superior court of the county where the tanks are located. The court shall hold a de novo hearing at which all persons and parties in interest as determined by court rule may appear and be heard and shall issue an order affirming, reversing or modifying the act or decision of the secretary. The order shall be binding on the secretary. An appeal filed pursuant to this section shall not stay the effectiveness of any act or decision of the department, unless the court specifically grants that stay upon petition or its own motion Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 42. 10 V.S.A. § 1977 is amended to read:

§ 1977. APPEALS~~; STAYS~~

(a) A person aggrieved by an act or decision, other than an enforcement decision, of the secretary under this chapter, may appeal to the water resources board within 30 days of the date of the act or decision. The filing of an appeal shall not stay the effectiveness of an act or decision of the secretary, unless the board so orders in accordance with board rule. The board shall hold a de novo hearing at which all parties, as determined by board rule, may appear and be heard, and shall issue an order that shall be binding on the secretary and all parties.

(b) Any party aggrieved by a final order of the water resources board pursuant to this section may appeal to the Supreme Court within 30 days of the date of the order. An appeal filed pursuant to this section shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders.

Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title

Sec. 43. 10 V.S.A. § 2625 is amended to read:

§ 2625. REGULATION OF HEAVY CUTTING

* * *

(f) Appeals. If the exemption is denied or if authorization to proceed is denied, the landowner shall have 30 days in which to file an appeal with the commissioner.

(1) Upon the filing of an appeal, the commissioner may appoint a review team of natural resources professionals to visit the site, gather information about the proposed heavy cut, and make recommendations to the commissioner. The commissioner may also appoint a hearing officer to take sworn statements of the landowner, the review team, and other witnesses called by the landowner or the hearing officer, and make recommendations to the commissioner.

(2) The commissioner shall issue a decision in writing within 30 days of the receipt of an appeal.

(3) The landowner may appeal the commissioner’s decision within 30 days to the environmental court. The court shall review the case on the record, and affirm the decision, unless it finds that the commissioner did not have reasonable grounds on which to base the decision Appeals of the commissioner’s decision shall be made in accordance with chapter 220 of this title.

* * *

Sec. 44. 10 V.S.A. § 6602 is amended to read:

§ 6602. DEFINITIONS

For the purposes of this chapter:

* * *

(15) ~~“Board” means the solid waste and air quality variance board established by section 553 of this title.~~

* * *

(22) ~~“Panel” means the waste facility panel established by section 6101 of this title.~~

* * *

Sec. 45. 10 V.S.A. § 6606a(f) is amended to read:

(f) ~~Appeals from a determination of the secretary regarding a certificate of need shall be to the waste facility panel under 10 V.S.A. chapter 151, subchapter 5.~~

Sec. 46. 10 V.S.A. § 6606b(b) is amended to read:

(b) Review of a permit, certification, classification action, or endangered species variance issued by the secretary for the construction, operation, maintenance, closure and post-closure of a hazardous waste management facility shall be governed by subchapter 5 of chapter 151 of this title. A request for review shall be filed with the waste facility panel within 30 days of the secretary’s determination.

Sec. 47. 10 V.S.A. § 6613 is amended to read:

§ 6613. VARIANCES

(1) The variance proposed does not endanger or tend to endanger human health or safety; and

(2) Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.

(3) The variance granted does not enable the applicant to generate, transport, treat, store, or dispose of hazardous waste in a manner which is less stringent than that required by the provisions of Subtitle C of the Resource Conservation and Recovery Act of 1976, and amendments thereto, codified in 42 U.S.C. Chapter 82, subchapter 3, and regulations promulgated under such subtitle.

(1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement or control of the air and water pollution involved, it shall be only until the necessary practicable means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measures that the ~~board~~ secretary may prescribe.

(2) If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the ~~board~~ secretary, is requisite for the taking of the necessary measures. A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.

(3) If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivisions (1) and (2) of this subsection, it shall be for not more than one year, except that in the case of a variance from the siting requirements for a ~~sanitary landfill~~ solid waste management facility, the variance may be for as long as the ~~board~~ secretary determines necessary, including a permanent variance.

(d) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods, which would be appropriate on initial granting of a variance. If complaint is made to ~~the board~~ secretary on account of the variance, no renewal thereof shall be granted, unless following public ~~hearing on the complaint on due notice~~ notice and an opportunity for a public meeting on the complaint, the ~~board~~ secretary finds that renewal is justified. No renewal shall be granted except on application therefore. The application shall be made at least 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the ~~board~~ secretary shall give public notice of the application ~~in accordance with rules of the board~~.

(e) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the ~~board. However, any person adversely affected by a variance or renewal granted or denied by the board may obtain judicial review thereof in the Supreme Court~~ secretary.

(f) This section does not limit the authority of the secretary under section 6610 of this title concerning imminent hazards from solid waste, nor under section 6610a of this title concerning hazards from hazardous waste and violations of statutes, rules or orders relating to hazardous waste.

Sec. 48. 10 V.S.A. § 6620(b) is amended to read:

(b) Review of a permit, certification, provisional certification, classification action, or endangered species variance issued by the secretary for the construction, operation, maintenance, closure and post-closure of a waste management facility shall be governed by subchapter 5 of chapter 151 of this title. A request for review shall be filed with the waste facility panel within 30 days of the secretary’s determination.

Sec. 49. 10 V.S.A. § 6622b is added to read:

§ 6622b. APPEALS

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 50. 29 V.S.A. § 401 is amended to read:

§ 401. POLICY

Lakes and ponds which are public waters of Vermont and the lands lying thereunder are a public trust, and it is the policy of the state that these waters and lands shall be managed to serve the public good, as defined by section 405 of this title, to the extent authorized by statute. For the purposes of this chapter, the exercise of this management shall be limited to encroachments subject to section 403 of this title. The management of these waters and lands shall be exercised by the department of environmental conservation in accordance with this chapter and the rules of the ~~water resources~~ environmental board. For the purposes of this chapter, jurisdiction of the department shall be construed as extending to all lakes and ponds which are public waters and the lands lying thereunder, which lie beyond the shoreline or shorelines delineated by the mean water level of any lake or pond which is a public water of the state, as such mean water level is determined by the board. No provision of this chapter shall be construed to permit trespass on private lands without the permission of the owner.

Sec. 51. 29 V.S.A. § 402 is amended to read:

§ 402. DEFINITIONS

Whenever used in this chapter, unless a different meaning clearly appears from the context:

(1) “~~Board” means the Vermont water resources board~~;

* * *

(5) “Person” means ~~an individual, partnership, public or private corporation, municipality, institution or agency of the state, and any other legal or commercial entity~~ any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 52. 29 V.S.A. § 406 is amended to read:

§ 406. APPEALS

(a) Any person aggrieved by the decision of the department under section 405(c) of this title may appeal to the board within 10 days from the date of notice of action. The filing of an appeal shall stay the action of the department Appeals of any act or decision of the department under this chapter shall be made in accordance with chapter 220 of Title 10.

(b) Within five days of receipt of an appeal, the board shall give notice to all persons required to receive notice under section 405(a) of this title and to other persons as it considers appropriate. Within 20 days of the receipt of an appeal, the board shall schedule a hearing and give notice to all persons required to receive notice. The hearing by the board shall be de novo and shall be conducted as a contested case.

(c) Parties shall be the applicant, the municipality in which the project is located, the department and other persons whom the board allows by rule. Within a reasonable period of time after the conclusion of the hearing, the board shall issue an order affirming, modifying or reversing the action of the department. The board shall send copies of its order to all parties and the appropriate city or town clerk.

Sec. 53. 29 V.S.A. § 408 is amended to read:

§ 408. PERMIT

(a) A permit may contain any conditions that the department ~~or board~~ considers necessary to protect the public good.

(b) No person granted a permit under this chapter is relieved of ~~his~~ responsibility to comply with any other applicable federal, state and local laws, regulations and permits.

(c) A permit may be revoked by the ~~board or the~~ department in the event of violation of any condition attached to the permit.

Sec. 54. 29 V.S.A. § 409 is amended to read:

§ 409. INJUNCTION

Any person aggrieved by any violation of this chapter, or the attorney general at the request of the department ~~or board~~, may institute any appropriate action in the superior court of the county in which a proposed or existing encroachment is located, to prevent, restrain, correct or abate any violation of this chapter or of the conditions of any permit issued under this chapter.

Sec. 55. REPEAL

10 V.S.A. §§ 903 (creation of water resources board), 904 (records, assistants), 905 (duties; powers), 1270 (appeals from water resources board), 6021 (creation of environmental board), 6025 (rules), 6101 (waste facility panel), 6102 (parties), 6103 (review of provisional certifications), 6103a (review of certifications of need), 6104 (review of agency determinations), 6105 (appeal of district commission decisions), 6106 (consolidation of Act 250 and agency permits), 6107 (appeals to the supreme court), 6108 (transition), and 6024 (intergovernmental cooperation), and 29 V.S.A. § 407 (appeals to supreme court) are repealed.

Sec. 56. TRANSITION AND IMPLEMENTATION

(a)(1) Continued jurisdiction. Notwithstanding the repeal of their respective enabling authorities, the water resources board, waste facility panel, and the air and solid waste variance board shall continue to exist and have jurisdiction with their preexisting membership to complete their consideration of any action pending before them as