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BILL AS INTRODUCED 2007-2008

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S.317

Introduced by Senator Lyons of Chittenden District

Referred to Committee on

Date:

Subject:  Planning; administration

Statement of purpose:  The general purpose of this bill is to make technical, clarifying corrections to the planning and zoning enabling law.  This bill proposes to revise the chapter 117 housing goal with regard to dwelling units, in order to reflect the substance of the law contained in the chapter.   It proposes to make it clear that the definition of a municipal land use permit includes a wastewater program delegated under 10 V.S.A. chapter 64.  It clarifies the public hearing notices required, respectively, for the adoption of either a regional or a municipal plan.  It makes it more clear that planning commission proceedings must precede the readoption of a municipal plan.  It defines accessory dwelling units and amends the accessory dwelling provisions to clarify the meaning of “floor space.”  It clarifies requirements for adequate access for land development.  It proposes to clarify municipal authority to regulate nonconforming lots, structures, and uses.  It makes it clear that municipal authority to regulate the location of certain public uses includes the power to specify acceptable locations within the municipality, as well as the power to regulate siting on a particular property.  It proposes to clarify municipal authority to regulate educational institutions that have been recognized or approved by the department of education.  It proposes to allow municipalities to grant waivers from other than dimensional requirements.  It proposes to make it clear that certain reporting requirements apply when a bylaw is initially proposed, when it is amended, and when it is repealed.  It allows the selectboard the option of submitting to the voters, on a case-by-case basis, the question of whether to adopt a particular bylaw or amendment.  It proposes to clarify an optional municipal notice requirement.  It clarifies a provision that states that if an administrative officer fails to act within 30 days, a permit shall be deemed issued on the 31st day.  It addresses how the administrative officer is to process applications received during the period of time when a new bylaw has been warned but not yet adopted.  It proposes to provide that public hearings need not be held in order to make certain minor modifications to previously approved plats.  It proposes to update certain references to court rules relating to appeals to the environmental court.  It proposes to clarify provisions relating to the requirement that interested persons may appeal only if they have participated below.

AN ACT RELATING TO CLARIFYING AMENDMENTS TO THE PLANNING AND ZONING LAWS

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


Sec. 1.  24 V.S.A. § 4302(c) is amended to read:

(c)  In addition, this chapter shall be used to further the following specific goals:

* * *

(11)  To ensure the availability of safe and affordable housing for all Vermonters.

* * *

(D)  Accessory apartments within or attached  Dwelling units accessory to single family residences which provide affordable housing in close proximity to cost-effective care and supervision for relatives or disabled or elderly persons should be allowed.

Sec. 2.  24 V.S.A. § 4303(11) is amended and (33) is added to read:

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

* * *

(B)  A wastewater system permit issued under any municipal ordinance adopted pursuant to chapter 102 of this title or under authority delegated to the municipality pursuant to chapter 64 of Title 10.

* * *

(33)  “Accessory dwelling unit,” to the extent the term is used in the context of the conditional prohibition in subdivision 4412(1)(E) of this title with regard to certain municipal exclusions of these units, 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.

Sec. 3.  24 V.S.A. § 4348(b) is amended to read:

(b)  The regional planning commission shall hold two or more public hearings within the region after public notice on any proposed plan or amendment.  The minimum number of required public hearings may be specified within the bylaws of the regional planning commission.  Public hearing notice shall be given not less than 30 days prior to the date of the public hearing by publication of the date, place, and purpose of the hearing in a newspaper of general circulation in the region, by sending the notice to the municipalities and entities listed in subsection (c) of this section.   At a minimum, the public hearing notice shall include all of 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)  description of a place where the full text may be examined.

Sec. 4.  24 V.S.A. § 4385(a) is amended to read:

(a)  Not less than 30 nor more than 120 days after a proposed plan or amendment is submitted to the legislative body of a municipality under section 4384 of this title, the legislative body of a municipality with a population of 2,500 persons, or less shall hold the first of one or more public hearings, after public notice as required under section 4386 of this title, on the proposed plan or amendment, and shall make copies of the proposal and any written report by the planning commission available to the public on request.  A municipality with a population of more than 2,500 persons shall hold two or more such hearings.  Failure to hold a hearing within the 120 days shall not invalidate the adoption of the plan or amendment.  If a plan is proposed for readoption, the planning commission first shall provide notice and conduct a hearing process, as required under section 4386 and subsections 4387(b) and 4384(d) and (e) of this title.

Sec. 5.  24 V.S.A. § 4386 is added to read:  

§ 4386.  PUBLIC HEARING NOTICE FOR ADOPTION, AMENDMENT,

              OR REPEAL OF MUNICIPAL PLANS

(a)   Any public notice required for a public hearing relating to the adoption, amendment, or repeal of a municipal plan shall be provided in the same manner as is public notice for the adoption of municipal bylaws, as established in section 4444 of this title, except that this notice shall be provided not less than 30 days prior to the date of the first public hearing.

(b)  A copy of the finally adopted or amended municipal plan shall be available to the public during normal business hours in the office of the clerk of the municipality, and shall be provided to the regional planning commission, to any abutting regional planning commission, and to the department of housing and community affairs.  A copy should be posted on the municipal web site, if any.   

Sec. 6.  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:

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

* * *

(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 there is compliance with all the following:

* * *

(ii)  The unit does not exceed 30 percent of the total habitable floor area of the single-family dwelling as computed in the absence of the unit.

* * *

(3)  Required frontage on, or access to, public roads or public waters.  Land development may be permitted on preexisting, nonconforming interior lots that do not have adequate 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.

* * *

(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 bylaws, may:

* * *

(iv)  Regulate relocation or enlargement of a structure containing a nonconforming use, constituting a nonconforming structure, or located upon a nonconforming lot.

* * *

Sec. 7.  24 V.S.A. § 4413(a) is amended to read:

(a)  The following uses may be regulated only with respect to location within a municipality, size, height, building bulk, yards, courts, setbacks, density of buildings, off-street parking, loading facilities, traffic, noise, lighting, landscaping, and screening requirements, and only to the extent that 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 recognized, approved, or certified by the state department of education.

* * *

Sec. 8.  24 V.S.A. § 4414 is amended to read:

§ 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.

* * *

(8)  Waivers.

(A)  A bylaw may allow a municipality to grant waivers to reduce dimensional modify 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, adjustment of hours of operation, 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.

* * *

(13)  Wastewater and potable water supply systems.  A municipality may adopt bylaws that prohibit the initiation of construction land development under a zoning municipal land use permit unless and until a wastewater and potable water supply permit is issued under 10 V.S.A. chapter 64.


Sec. 9.  24 V.S.A. § 4424 is amended to read:

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

              FREESTANDING BYLAWS

Any Whether or not a municipality has adopted a municipal plan under section 4385 of this title or other municipal bylaws under section 4442 of this title, a municipality may adopt flood hazard area regulations as provided under subdivision (2) of this section.  In addition, 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 in accordance with the provisions of subdivision 4414(1)(D) of this title to regulate development and use along shorelands.

* * *

Sec. 10.  24 V.S.A. § 4441(c) is amended to read:

(c)  When considering a proposed bylaw, an amendment to a bylaw, or repeal of all or part of 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:

* * *

Sec. 11.  24 V.S.A. § 4442(c) is amended to read:

(c)  Routine adoption.

(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 unless, by action of the legislative body, the bylaw, amendment, or repeal is warned for adoption by the municipality by Australian ballot at a special or regular meeting of the municipality.

(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 bylaws, 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.

Sec. 12.  24 V.S.A. § 4444(c) is amended to read:

(c)  As an alternative to the publication and posting provisions established under subsection subsections (a) and (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.

Sec. 13.  24 V.S.A. § 4448(d) is amended to read:

(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 application, on appeal, shall be deemed issued approved on the 31st day.

Sec. 14.  24 V.S.A. § 4449(d) is amended to read:

(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 and issue a permit only to an application that complies with the review criteria of both proposed and adopted bylaws.  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.  Similarly, once a new or amended bylaw has been adopted, an application that was filed after the new proposed bylaw or amendment was noticed, but that was denied under applicable existing bylaws shall be reviewed again, at no cost, under the new bylaws, 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. 15.  24 V.S.A. § 4463 is amended to read:

§ 4463.  SUBDIVISION REVIEW

(a)  Approval of plats.

(1)  Before Except as otherwise provided under subdivision (2) of this subsection, 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.

(2)  Plats for boundary adjustments, minor subdivisions, or minor modifications to previously approved plats may be subject to administrative rather than municipal panel review, as specified in the bylaws.  No public hearing is required for plats that require only administrative review and approval.  Any decision by an administrative officer under this subdivision may be appealed as provided in section 4465 of this title.  Filing of the revised plat shall be in accordance with subsection (b) of this section.

(b)  Plat; record.  The approval of the appropriate municipal panel or administrative officer 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 90 180 days, or until 90 days after a final court ruling on the issue, or both, if final local or state permits or approvals are still pending.

* * *

Sec. 16.  24 V.S.A. § 4471 is amended to read:

§ 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 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 appropriate municipal panel, or from a decision of the municipal legislative body under subsection 4415(d) of this title, shall be by trial de novo, or on the record if permitted by subsection (b) of this section, and 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 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 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 panel, and has provided that the municipal administrative procedure act shall apply in these instances, then an appeal from such a decision of an appropriate municipal panel shall be taken on the record in accordance with the Vermont Rules of Civil Procedure.

(c)  Notice of the appeal shall be filed within 30 days 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 to the appellant within five working days a list of interested persons to the appellant within five working days who have participated in the proceeding from which the appeal is being taken.  Upon receipt of the list of interested persons who have participated in the proceeding from which the appeal is being taken, the appellant shall, by certified mail or other approved method of delivery, provide a copy of the notice of appeal to every participating interested person, 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.  In addition, an interested person who failed to participate in the proceeding may be granted leave to intervene as provided under 10 V.S.A. § 8504(b)(2) or (n).

* * *

Sec. 17.  24 V.S.A. § 4472(a) is amended to read:

(a)  Except as provided in subsections (b) and (c) 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 appropriate panel under section 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 the Vermont 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 shall be by trial de novo, or on the record if permitted by subsection (b) of section 4471 of this title, and shall be taken in such manner as the supreme court may by rule provide.

Sec. 18.  24 V.S.A. § 4474 is amended to read:

§ 4474.  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 and program or amendment thereof shall be presumptive evidence of the facts as they relate to the lawful adoption or amendment of said that plan, bylaw, or capital budget or and program or amendment thereof, so stated in any action or proceeding in court or before any board, commission, or other tribunal.

Sec. 19.  10 V.S.A. § 8504(b) is amended to read:

(b)  Planning and zoning chapter appeals.

(1)  Within 30 days of the date of the act or decision, an interested person, as defined in 24 V.S.A. § 4465, who has participated as defined in 24 V.S.A. § 4471 in the municipal regulatory proceeding under that chapter may appeal to the environmental court an act or decision made under that chapter by a board of adjustment, a planning commission, or a development review board; provided, however, that decisions of a development review board under 24 V.S.A. § 4420 with respect to local Act 250 review of municipal impacts are not subject to appeal but shall serve as presumptions under chapter 151 of this title.  Similarly, an interested person who has participated in the municipal proceeding may intervene in an appeal taken by another, if not already a party to the appeal.

(2)  Notwithstanding subdivision (1) of this subsection, an interested person may appeal or intervene in an appeal, relating to an act or decision under 24 V.S.A. chapter 117 if the environmental judge determines that:

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

(B)  the decision being appealed is the grant or denial of interested person status; or

(C)  some other condition exists which would result in manifest injustice if the person's right to appeal, to be entitled to notice of an appeal taken by another, or to intervene was disallowed.

Sec. 10.  REPEAL

24 V.S.A. § 4447 (clerk’s certificate) is repealed.




Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us