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ACT NO. 183


Conservation; municipal planning; growth center designation; Act 250

This act is designed to assist communities in accommodating growth and development while supporting the economic vitality of the state's downtowns, village centers, and new town centers and maintaining the rural character and working landscape of the surrounding countryside. To accomplish this purpose, the act expands upon the existing program that offers incentives for communities that undergo the process of becoming designated "downtowns," "village centers," or "new town centers" by creating a new category of "designated growth centers."

The act establishes a two-part definition of "growth center." Under the first part of the definition, an area must be located in or adjacent to a designated downtown, village center, or new town center. A particular meaning of "adjacent" is detailed. Under the second part of the definition, a growth center must contain substantially characteristics listed in the act, which include (1) incorporating a mix of uses; (2) providing public spaces; (3) being organized around a focal point; (4) promoting development that is more dense than that outside a designated area; (5) being supported by existing or planned infrastructure; (6) resulting in concentrated development surrounded by rural countryside; (7) being planned in accordance with chapter 117 planning goals and with smart growth principles, which are defined in the act; and (8) supporting the purposes of Act 250.

The act provides that designation decisions will be made by the existing downtown board, expanded for these purposes by the addition to its membership of a representative of the Vermont planners association, the chair of the natural resources board or a designee, and a representative of a regional planning commission. The act anticipates providing assistance to municipalities interested in pursuing designation. This includes technical support from the regional planning commissions on matters relating to population and other projections for not less than a 20-year period, GIS mapping that identifies development capacity, land use, important natural resources and physical constraints to development; and build-out analyses to document the nature and effects of projected growth. The act creates a planning coordination group, consisting of the chair of the land use panel and the commissioner of housing and community affairs, which is directed to provide a preapplication assistance and review process to help applicants, and to develop a checklist and an implementation manual, among other supporting material.

The act requires that a local decision to apply for designation be made by vote of the legislative body, subject to citizen call for reconsideration. It establishes requirements for application for designation, which includes: a demonstration that the area in the application meets the definition of a growth center; maps; identification of important natural resources that are protected under Act 250 and how they may be affected; a demonstration that agricultural soils guidelines have been used to identify agricultural soils that ought to be preserved; a demonstration that the planning process has been confirmed, and that plans, budgets, and bylaws will implement the growth center; a demonstration that the application is appropriately sized to accommodate a significant share of projected growth over a 20-year period; a demonstration that the growth center will support and reinforce existing designated entities, and that the growth cannot reasonably be expected to be achieved within an existing designated downtown, village center, or new town center.

The act requires a designation decision be made by the state board within 90 days of receipt of a completed application, after providing notice and an opportunity to be heard, upon the issuance of findings that correspond to the required demonstrations. The act provides that designation will extend for a period of 20 years, but shall be reviewed no less frequently than every five years, after providing notice and an opportunity to be heard. If, at the time of review, the state board determines that the standards for designation are no longer met, it may require corrective action, provide technical assistance, or remove designation.

Upon receipt of designation, a municipality may apply to the land use panel of the natural resources board for Act 250 findings on Act 250 criteria specified by the applicant. After a public notice and hearing process based on the Act 250 notice process, the panel may issue findings of fact and conclusions of law that will exist for a period of five years. This decision is subject to an appeal within 30 days to the environmental court. During the period when the findings are in effect, applicants for Act 250 permits within the growth center shall be entitled to those findings and conclusions, and the district commissions will hear other issues de novo. District commissions are allowed to require mitigation for impacts on important resources as an alternative to permit denial.

The act establishes other benefits to flow from designation, while making it clear that growth centers are not intended to take precedence over designated downtowns and village centers. Among financial incentives, the act provides that designation creates a presumption that the applicant has met any locational criteria for tax increment financing, and allows the downtown board to make recommendations regarding whether any project criteria in the tax increment financing statutes have been met. State infrastructure and development assistance incentives include priority consideration for agency of natural resources funding of wastewater management facilities, for brownfields remediation assistance, and for block grant programs. Special consideration is given to designated growth centers, while the state is selecting sites for state buildings. The act expands the downtown transportation fund to include growth center incentives, and it requires that priority consideration be given in allocation of transportation enhancement improvements and of grants for housing renovation and affordable housing construction assistance programs. The act allows municipalities to apply for Act 250 master permits in designated growth centers without owning or controlling the land that is subject to the application.

The act amends the Act 250 definition of "development" to entitle growth centers to count housing units, for purposes of determining Act 250 jurisdiction, in the permissive manner in which they are counted in the case of a designated downtown. In addition, with respect to municipalities with a population of less than 5,000 people, the act raises the number of housing units that it takes to trigger Act 250 from 20 to 25 units. It provides that with respect to affordable housing units built within a growth center or designated downtown, the only units that will be counted will be those built in the last 12 months. It also amends the Act 250 definition of forest and secondary agricultural soils to remove references to secondary agricultural soils. It amends the definition of primary agricultural soils to include explicitly soils federally rated as "prime," "statewide," or "local importance," and to focus more on location and adjoining uses. It amends the general Act 250 definition of affordable housing to be consistent with the definition that exists in chapter 117 of Title 24.

In criterion 9 of Act 250, the act provides in subdivision (B) that any reduction in primary soils will require consideration of the other factors in that subdivision. It repeals the requirement that an applicant show that conversion of the land is the only way to make a reasonable return. It clarifies the language on clustering of development and makes conforming changes relating to productive forest soils criteria (9)(C). It then goes on to authorize explicitly mitigation for conversion of agricultural lands. Within growth centers, general development will be entitled to a ratio of 1:1 acre of agricultural land conserved to agricultural land converted; and in the case of mixed use that is suitably dense with affordable housing, no mitigation will be required. Rental affordable housing is defined for purposes of determining mitigation as being pegged to 60 percent of the county median income. Development on agricultural lands located outside designated growth centers shall be entitled to ratios of between 2:1 to 3:1 (conserved land to converted land), as is the case under existing law. For development on agricultural lands located outside designated growth centers, mitigation will be on site, except that under appropriate circumstances, fees may be provided to the Housing and Conservation Trust for the purchase of conservation rights for other primary agricultural lands located in the area. Development located within industrial parks that are permitted and in existence as of January 1, 2006, and certain expansion of industrial parks shall be entitled to mitigation ratios of 1:1. Industrial park infill and expansion are exempted from clustering requirements.

The act also extends to 2012 the deadline for applications to the brownfields program. It also requires the secretary of agriculture, food and markets to establish guidelines required by existing law to assist towns and regions in identifying valuable agricultural lands, and it requires the secretary to compile a list of conserved lands. It also requires the secretary to present the general assembly with a work plan and budget estimate for: completion of soils mapping of Essex and Caledonia counties and certification of the soils mapping of Chittenden County; the creation of a soils inventory that includes the location of undeveloped primary agricultural soils; and an analysis of options and recommendations regarding how best to treat primary agricultural soils that are not developed, and how to put these soils to productive use and give a higher priority to their conservation. These latter recommendations are to be developed by a working group composed as established in the act. The working group is also directed to take a long-term perspective with regard to a range of growth and development scenarios, and identify and evaluate options by which the state might best establish long-range agricultural lands conservation goals and maximize resources to achieve these goals. This working group also is directed to develop recommendations on how to balance long-term agricultural land conservation with local land use preferences and local development needs.

The act requires that a budget estimate be developed by affected state agencies with regard to the resources needed to implement the act, and it requires submission of a report detailing the effect of school construction on the loss of primary agricultural lands and addressing the financial effect of agricultural lands mitigation on school spending. The act establishes a transition period during which municipalities that are planning to apply for growth center designation may receive temporary agricultural lands mitigation benefits before the entire program is in effect.

Finally, the act makes a number of amendments to consolidate and revise the existing benefits that are available under the downtown program.

Effective Date: July 1, 2006

Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont