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BILL AS INTRODUCED 2007-2008

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H.549

Introduced by Committee on Fish, Wildlife and Water Resources

Date:

Subject:  Conservation; zoning; waterfront buffers

Statement of purpose:  This bill proposes to require, beginning July 1, 2010, the establishment of 15‑foot buffer zones adjacent to the public waters of the state.  The bill would also require the water resources panel of the natural resources board to adopt rules regarding the size and use of buffer zones.  The bill would also require municipalities to adopt bylaws requiring the establishment of buffer zones of at least 15 feet along public waters of the state.  In addition, the agency of natural resources would enforce the buffer zone requirements.

AN ACT RELATING TO ESTABLISHING WATERFRONT BUFFER ZONES

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

Sec. 1.  10 V.S.A. § 1421 is amended to read:

§ 1421.  POLICY

To aid in the fulfillment of the state’s role as trustee of its navigable waters and to promote public health, safety, convenience, and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans, make rules, require buffer zones along public waters, and authorize municipal shoreland zoning bylaws, all for the efficient use, conservation, development, and protection of the state’s water resources.  The purposes of the rules shall be to further the maintenance of safe and healthful conditions,; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures, and land uses,; preserve shore cover and natural beauty,; and provide for multiple use of the waters in a manner to provide for the best interests of the citizens of the state.

Sec. 2.  10 V.S.A. § 1422 is amended to read:

§ 1422.  DEFINITIONS

In this chapter, unless the context clearly requires otherwise:

(1)  “Agency” means the agency of natural resources;.

(2)  “Board” means water resources panel of the natural resources board;.

(3)  “Department” means department of environmental conservation;.

(4)  “Navigable water” or “navigable waters” means Lake Champlain, Lake Memphremagog, the Connecticut River, all natural inland lakes within Vermont, and all streams, ponds, flowages, and other waters within the territorial limits of Vermont, including the Vermont portion of boundary waters, which are boatable under the laws of this state;.

(5)  “Public shorelands” means state‑owned lands adjacent to navigable waters;.

(6)  “Public waters” means navigable waters excepting those waters in private ponds and private preserves as set forth in sections 5204, 5205, 5206, and 5210 of this title;.

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

(8)  “Shorelands” means the lands being between the normal mean water mark water level of a lake, pond, or impoundment exceeding twenty 20 acres and a line not less than five hundred 500 feet nor more than one thousand 1,000 feet from such mean water mark water level.

(9)  “Outstanding resource waters” mean waters of the state designated by the board as having exceptional natural, recreational, cultural, or scenic values.

(10)  “Buffer zone” means an area adjacent to public waters consisting of permanent, long‑lived vegetative cover which extends horizontally at least 15 feet from:

(A)  The mean water level, as determined by the secretary of natural resources, for lakes and ponds; and

(B)  The top of the bank or top of the slope, as determined by the secretary of natural resources, for rivers and streams.

(11)  “Existing use” means the established use, activity, or development occurring within a buffer zone prior to July 1, 2010. 

Sec. 3.  10 V.S.A. § 1425(c) is amended to read:

(c)  On or before January 15, 1975 and again on or before January 15, 1976 2009, the secretary shall make a complete and definitive report to the general assembly on the status of shoreland zoning in Vermont.  This report shall contain a municipality by municipality summary of the data collected and plans developed under section 1423 of this title and a

municipality-by-municipality analysis of which municipalities have received appropriate sample adopted shoreland bylaws or buffer zone requirements and what actions, if any, have been taken thereon by the agency recommends that the state or municipalities take regarding the regulation of the use of shorelands.  The secretary shall provide to the board a copy of the report required by this subsection.

Sec. 4.  10 V.S.A. § 1427 is added to read:

§ 1427.  MINIMUM WATERFRONT BUFFER ZONES

(a)  Beginning July 1, 2010, a buffer zone of at least 15 feet shall be established along public waters in which no development or use not approved under this section or the rules adopted under subsection (c) of this section shall occur. 

(b)  The following uses are exempt from the requirements of subsection (a) of this section:

(1)  Agricultural land, as that term is defined in section 3752 of Title 32;

(2)  Forestry conducted in compliance with accepted silvicultural practices as defined by the commissioner of forests, parks and recreation;

(3)  Existing uses and any change in use of an existing use; and

(4)  Development that requires a permit under chapter 151 of this title.

(c)  The board, after consultation with municipalities, municipal planners, the agency of natural resources, the agency of transportation, and other interested parties, shall adopt rules that:

(1)  Set the minimum standards for the establishment and composition of a buffer zone;

(2)  Authorize the uses, including development, that may be conducted in buffer zones; and

(3)  Exempt certain uses or activities from the requirements of subsection (a) of this section.  

(d)(1)  A person who owns or is in control of any property, building, or structure within a buffer zone may apply to the secretary for a waiver from the rules adopted under this chapter.  The secretary may grant a waiver if he or she finds that:

(A)  The waiver proposed will not violate the Vermont water quality standards or threaten the health, safety, and welfare of the public or other property owners; and

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

(2)  No waiver shall be granted pursuant to this section except after public notice and an opportunity for a public meeting and until the secretary has considered the relative interests of the applicant, other owners of property likely to be affected, and the general public.

(3)  Any waiver or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions that the secretary deems necessary to accomplish the purposes of this section.

Sec. 5.  10 V.S.A. § 6025(d) is amended to read:

(d)  The water resources panel may adopt rules, in accordance with the provisions of chapter 25 of Title 3, in the following areas:

* * *

(8)  Rules implementing 29 V.S.A. chapter 11, relating to management of lakes and ponds.

(9)  Rules implementing section 1427 of this title relating to the use and establishment of waterfront buffer zones.

Sec. 6.  10 V.S.A. § 8003(a) is amended to read:

(a)  The secretary may take action under this chapter to enforce the following statutes:

* * *

(17)  10 V.S.A. § 2625, relating to heavy cutting of timber; and

(18)  10 V.S.A. chapter 164, relating to comprehensive mercury management; and

(19)  10 V.S.A. § 1427, relating to minimum waterfront buffer zones.

Sec. 7.  10 V.S.A. § 8503(a) is amended to read:

(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 and under the rules adopted under those authorities:

(1)  The following provisions of this title:

* * *

(O)  10 V.S.A. § 1427, relating to minimum waterfront buffer zones.

Sec. 8.  24 V.S.A. § 4412 is amended to read:

§ 4412.  REQUIRED PROVISIONS AND PROHIBITED EFFECTS

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

* * *

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

* * *

(8)  Waterfront buffer zones.  On or before July 1, 2014, all bylaws shall, in accordance with section 1427 of Title 10, require:

(A)  establishment of waterfront buffer zones of at least 15 feet along public waters of the state; and

(B)  compliance with the rules adopted by the water resources panel regarding the establishment, composition, and use of riparian buffer zones.

Sec. 9.  24 V.S.A. § 4411 is amended to read:

§ 4411.  ZONING BYLAWS

(a)  A municipality may regulate land development in conformance with its adopted municipal plan and for the purposes set forth in section 4302 of this title to govern the use of land and the placement, spacing, and size of structures and other factors specified in the bylaws related to public health, safety, or welfare.  Zoning bylaws may permit, prohibit, restrict, regulate, and determine land development, including the following:

(1)  Specific uses of land and shoreland facilities, provided that such a bylaw conforms with section 1427 of Title 10 and any rules adopted thereunder;

* * *

(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:

* * *

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

* * *

(B)  Natural or artificial bodies of water, provided that such additional classifications conform with section 1427 of Title 10 and any rules adopted thereunder.

* * *

(G)  Flood or other hazard areas and other places having a special character or use affecting or affected by their surroundings, provided that such additional classifications conform with section 1427 of Title 10 and any rules adopted thereunder.

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

Sec. 10.  24 V.S.A. § 4414(1)(D) is amended to read:

(D)  Shorelands.

(i)  A municipality may, subject to the requirements of section 1427 of Title 10 and any rules adopted thereunder, 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, subject to the requirements of section 1427 of Title 10 and any rules adopted thereunder, 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.


Sec. 11.  24 V.S.A. § 4424 is amended to read:

§ 4424.  SHORELANDS; FLOOD OR HAZARD AREA; SPECIAL OR FREESTANDING BYLAWS

Any municipality may adopt freestanding bylaws under this chapter 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, provided that such bylaws conform with section 1427 of Title 10 and any rules adopted thereunder.

(2)  Bylaws to regulate development and use in flood or other hazard areas, provided that such bylaws conform with section 1427 of Title 10 and any rules adopted thereunder.  The following shall apply if flood or other hazard area bylaws are enacted:

* * *

Sec. 12.  24 V.S.A. § 4303(10) is amended to read:

(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, alteration or removal of vegetation or trees within riparian buffer zones, and any change in the use of any building or other structure, or land, or extension of use of land.

Sec. 13.  AGENCY OF NATURAL RESOURCES OUTREACH AND
   EDUCATION ON WATERFRONT BUFFER ZONES

(a)  Prior to January 15, 2009, the agency of natural resources, in consultation with the Vermont league of cities and towns, the Vermont planners association, and the Vermont planning information center, shall develop educational and training programs and conduct public hearings to inform municipalities and municipal planners of the environmental and planning benefits of waterfront buffer zones and the mandatory buffer zone requirements of this act.  In developing the education programs required by this section, the agency may utilize various types of media.

(b)  In addition to any other funds appropriated to the agency of natural resources in fiscal year 2009, there is appropriated from the general fund to the agency $50,000.00 in fiscal year 2009 to conduct the activities required under subsection (a) of this section.

Sec. 14.  REPORT OF NATURAL RESOURCES BOARD; BUFFER ZONE
   RULES

On or before January 15, 2009, the natural resources board shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy with a proposed rule establishing minimum standards for the establishment and use of buffer zones along public waters of the state as required by 10 V.S.A. § 1427.  The house committee on fish, wildlife and water resources and the senate committee on natural resources and energy shall review the proposed rules and recommend whether the proposed rules should be amended and whether a final proposal of the rules should be filed with the secretary of state and the legislative committee on administrative rules under sections 836 and 841 of Title 3.

Sec. 15.  EFFECTIVE DATES

(a)  This section and Secs. 1 (policy), 2 (definitions), 3 (shoreland zoning report), 4 (minimum waterfront buffer zones), 5 (water resources panel rulemaking authority), 13 (agency of natural resources outreach and education), and 14 (report of natural resources board buffer zone rules) of this act shall take effect July 1, 2007.

(b)  Secs. 6 (agency of natural resources enforcement authority), 7 (appeals from agency of natural resources decision), 8 (waterfront buffer zones), 9 municipal shoreland bylaws), 10 (municipal shoreland zoning), 11 (shoreland and flood zones), and 12 (definition of land development) of this act shall take effect July 1, 2010.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us