Vermont § 6086 - Issuance of permit; conditions and criteria.

§ 6086. Issuance of permit; conditions and criteria.

• (a) Before granting a permit, the 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 Agency of Natural Resources;
  or (v) areas supplying significant amounts of recharge waters to aquifers. (B) Waste disposal. 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 regulations regarding the disposal
  of wastes, and will not involve the injection of waste materials or any harmful or
  toxic substances into ground water or wells. (C) Water conservation. A permit will be granted whenever it is demonstrated by the applicant that, in addition
  to all other applicable criteria, the design has considered water conservation, incorporates
  multiple use or recycling where technically and economically practical, utilizes the
  best available technology for such applications, and provides for continued efficient
  operation of these systems. (D) Flood hazard areas; river corridors. A permit will be granted whenever it is demonstrated by the applicant that, in addition
  to all other applicable criteria, the development or subdivision of lands within a
  flood hazard area or river corridor will not restrict or divert the flow of floodwaters;
  cause or contribute to fluvial erosion; and endanger the health, safety, and welfare
  of the public or of riparian owners during flooding. (E) Streams. A permit will be granted whenever it is demonstrated by the applicant that, in addition
  to all other applicable criteria, the development or subdivision of lands on or adjacent
  to the banks of a stream will, whenever feasible, maintain the natural condition of
  the stream, and will not endanger the health, safety, or welfare of the public or
  of adjoining landowners. (F) Shorelines. A permit will be granted whenever it is demonstrated by the applicant that, in addition
  to all other criteria, the development or subdivision of shorelines must of necessity
  be located on a shoreline in order to fulfill the purpose of the development or subdivision,
  and the development or subdivision will, insofar as possible and reasonable in light
  of its purpose: (i) retain the shoreline and the waters in their natural condition; (ii) allow continued access to the waters and the recreational opportunities provided by
  the waters; (iii) retain or provide vegetation which will screen the development or subdivision from
  the waters; and (iv) stabilize the bank from erosion, as necessary, with vegetation cover. (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 Secretary of Natural Resources, as adopted under chapter 37 of this title,
  relating to significant wetlands. (2) Does have sufficient water available for the reasonably foreseeable needs of the subdivision
  or development. (3) Will not cause an unreasonable burden on an existing water supply, if one is to be
  utilized. (4) Will not cause unreasonable soil erosion or reduction in the capacity of the land
  to hold water so that a dangerous or unhealthy condition may result. (5)(A) Will not cause unreasonable congestion or unsafe conditions with respect to use of
  the highways, waterways, railways, airports and airways, and other means of transportation
  existing or proposed. (B) As appropriate, will incorporate transportation demand management strategies and provide
  safe access and connections to adjacent lands and facilities and to existing and planned
  pedestrian, bicycle, and transit networks and services. In determining appropriateness
  under this subdivision (B), the District Commission shall consider whether such a
  strategy, access, or connection constitutes a measure that a reasonable person would
  take given the type, scale, and transportation impacts of the proposed development
  or subdivision. (6) Will not cause an unreasonable burden on the ability of a municipality to provide
  educational services. (7) Will not place an unreasonable burden on the ability of the local governments to provide
  municipal or governmental services. [Subdivision (a)(8) effective until December 31, 2026; see also subdivision (a)(8)
  effective December 31, 2026 set out below.] (8) Will not have an undue adverse effect on the scenic or natural beauty of the area,
  aesthetics, historic sites, or rare and irreplaceable natural areas. (A) Necessary wildlife habitat and endangered species. A permit will not be granted if it is demonstrated by any party opposing the applicant
  that a development or subdivision will destroy or significantly imperil necessary
  wildlife habitat or any endangered species; and (i) the economic, social, cultural, recreational, or other benefit to the public from
  the development or subdivision will not outweigh the economic, environmental, or recreational
  loss to the public from the destruction or imperilment of the habitat or species;
  or (ii) all feasible and reasonable means of preventing or lessening the destruction, diminution,
  or imperilment of the habitat or species have not been or will not continue to be
  applied; or (iii) a reasonably acceptable alternative site is owned or controlled by the applicant which
  would allow the development or subdivision to fulfill its intended purpose. [Subdivision (a)(8) effective December 31, 2026; see also subdivision (a)(8) effective
  until December 31, 2026 set out above.] (8) Ecosystem protection; scenic beauty; historic sites. (A) Scenic beauty, historic sites, and rare and irreplaceable natural areas. Will not
  have an undue adverse effect on the scenic or natural beauty of the area, aesthetics,
  historic sites, or rare and irreplaceable natural areas. (B) Necessary wildlife habitat and endangered species. A permit will not be granted if
  it is demonstrated by any party opposing the applicant that a development or subdivision
  will destroy or significantly imperil necessary wildlife habitat or any endangered
  species: (i) the economic, social, cultural, recreational, or other benefit to the public from
  the development or subdivision will not outweigh the economic, environmental, or recreational
  loss to the public from the destruction or imperilment of the habitat or species; (ii) all feasible and reasonable means of preventing or lessening the destruction, diminution,
  or imperilment of the habitat or species have not been or will not continue to be
  applied; or (iii) a reasonably acceptable alternative site is owned or controlled by the applicant which
  would allow the development or subdivision to fulfill its intended purpose. (C) Forest blocks and habitat connectors. A permit will not be granted for a development
  or subdivision within or partially within a forest block or habitat connector unless
  the applicant demonstrates that a project will not result in an undue adverse impact
  on the forest block or habitat connector. If a project as proposed would result in
  an undue adverse impact, a permit may only be granted if effects are avoided, minimized,
  or mitigated as allowed in accordance with rules adopted by the Board. (9) Is in conformance with a duly adopted capability and development plan, and land use
  plan when adopted. However, the legislative findings of subdivisions 7(a)(1) through
  (19) of Act 85 of 1973 shall not be used as criteria in the consideration of applications
  by a District Commission. (A) Impact of growth. In considering an application, the District Commission shall take into consideration
  the growth in population experienced by the town and region in question and whether
  or not the proposed development would significantly affect their existing and potential
  financial capacity to reasonably accommodate both the total growth and the rate of
  growth otherwise expected for the town and region and the total growth and rate of
  growth which would result from the development if approved. After considering anticipated
  costs for education, highway access and maintenance, sewage disposal, water supply,
  police and fire services, and other factors relating to the public health, safety,
  and welfare, the District Commission shall impose conditions which prevent undue burden
  upon the town and region in accommodating growth caused by the proposed development
  or subdivision. Notwithstanding section 6088 of this title, the burden of proof that proposed development will significantly affect existing
  or potential financial capacity of the town and region to accommodate such growth
  is upon any party opposing an application, excepting however, where the town has a
  duly adopted capital improvement program the burden shall be on the applicant. (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 result in any
  reduction in the agricultural potential of the primary agricultural soils; or: (i) 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; (ii) except in the case of an application for a project located in a designated area listed
  in subdivision 6093(a)(1) of this title, there are no lands other than primary agricultural soils owned or controlled by
  the applicant which are reasonably suited to the purpose of the development or subdivision; (iii) except in the case of an application for a project located in a designated area listed
  in subdivision 6093(a)(1) of this title, the subdivision or development has been planned to minimize the reduction of agricultural
  potential of the primary agricultural soils through innovative land use design resulting
  in compact development patterns, so that the remaining primary agricultural soils
  on the project tract are capable of supporting or contributing to an economic or commercial
  agricultural operation; and (iv) suitable mitigation will be provided for any reduction in the agricultural potential
  of the primary agricultural soils caused by the development or subdivision, in accordance
  with section 6093 of this title and rules adopted by the Land Use Review Board. (C) Productive forest soils. A permit will be granted for the development or subdivision of productive forest soils
  only when it is demonstrated by the applicant that, in addition to all other applicable
  criteria, either, the subdivision or development will not result in any reduction
  in the potential of those soils for commercial forestry; or: (i) 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; and (ii) except in the case of an application for a project located in a designated growth
  center, there are no lands other than productive forest soils owned or controlled
  by the applicant which are reasonably suited to the purpose of the development or
  subdivision; and (iii) except in the case of an application for a project located in a designated growth
  center, the subdivision or development has been planned to minimize the reduction
  of the potential of those productive forest soils through innovative land use design
  resulting in compact development patterns, so that the remaining forest soils on the
  project tract may contribute to a commercial forestry operation. (D) Earth resources. A permit will be granted whenever it is demonstrated by the applicant, in addition
  to all other applicable criteria, that the development or subdivision of lands with
  high potential for extraction of mineral or earth resources, will not prevent or significantly
  interfere with the subsequent extraction or processing of the mineral or earth resources. (E) Extraction of earth resources. A permit will be granted for the extraction or processing of mineral and earth resources,
  including fissionable source material: (i) When it is demonstrated by the applicant that, in addition to all other applicable
  criteria, the extraction or processing operation and the disposal of waste will not
  have an unduly harmful impact upon the environment or surrounding land uses and development;
  and (ii) Upon approval by the District Commission of a site rehabilitation plan that ensures
  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 rules of the Agency of Natural Resources,
  and natural gas and oil may be removed pursuant to the rules of the Natural Gas and
  Oil Resources Board. (F) Energy conservation. A permit will be granted when it has been demonstrated by the applicant that, in addition
  to all other applicable criteria, the planning and design of the subdivision or development
  reflect the principles of energy conservation, including reduction of greenhouse gas
  emissions from the use of energy, and incorporate the best available technology for
  efficient use or recovery of energy. An applicant seeking an affirmative finding under
  this criterion shall provide evidence that the subdivision or development complies
  with the applicable building energy standards under 30 V.S.A. § 51 or 53. (G) Private utility services. A permit will be granted for a development or subdivision which relies on privately
  owned utility services or facilities, including central sewage or water facilities
  and roads, whenever it is demonstrated by the applicant that, in addition to all other
  applicable criteria, the privately owned utility services or facilities are in conformity
  with a capital program or plan of the municipality involved, or adequate surety is
  provided to the municipality and conditioned to protect the municipality in the event
  that the municipality is required to assume the responsibility for the services or
  facilities. (H) Costs of scattered development. The District Commission will grant a permit for a development or subdivision which
  is not physically contiguous to an existing settlement whenever it is demonstrated
  that, in addition to all other applicable criteria, the additional costs of public
  services and facilities caused directly or indirectly by the proposed development
  or subdivision do not outweigh the tax revenue and other public benefits of the development
  or subdivision such as increased employment opportunities or the provision of needed
  and balanced housing accessible to existing or planned employment centers. (J) Public utility services. A permit will be granted for a development or subdivision whenever it is demonstrated
  that, in addition to all other applicable criteria, necessary supportive governmental
  and public utility facilities and services are available or will be available when
  the development is completed under a duly adopted capital program or plan, an excessive
  or uneconomic demand will not be placed on such facilities and services, and the provision
  of such facilities and services has been planned on the basis of a projection of reasonable
  population increase and economic growth. (K) Development affecting public investments. A permit will be granted for the development or subdivision of lands adjacent to governmental
  and public utility facilities, services, and lands, including highways, airports,
  waste disposal facilities, office and maintenance buildings, fire and police stations,
  universities, schools, hospitals, prisons, jails, electric generating and transmission
  facilities, oil and gas pipe lines, parks, hiking trails and forest and game lands,
  when it is demonstrated that, in addition to all other applicable criteria, the development
  or subdivision will not unnecessarily or unreasonably endanger the public or quasi-public
  investment in the facility, service, or lands, or materially jeopardize or interfere
  with the function, efficiency, or safety of, or the public’s use or enjoyment of or
  access to the facility, service, or lands. (L) Settlement patterns. To promote Vermont’s historic settlement pattern of compact village and urban centers
  separated by rural countryside, a permit will be granted for a development or subdivision
  outside an existing settlement when it is demonstrated by the applicant that, in addition
  to all other applicable criteria, the development or subdivision: (i) will make efficient use of land, energy, roads, utilities, and other supporting infrastructure;
  and (ii)(I) will not contribute to a pattern of strip development along public highways; or (II) if the development or subdivision will be confined to an area that already constitutes
  strip development, will incorporate infill as defined in 24 V.S.A. § 2791 and is designed to reasonably minimize the characteristics listed in the definition
  of strip development under subdivision 6001(36) of this title. (10) Is in conformance with any duly adopted local or regional plan or capital program
  under 24 V.S.A. chapter 117. In making this finding, if the District Commission finds applicable provisions of
  the town plan to be ambiguous, the District Commission, for interpretive purposes,
  shall consider bylaws, but only to the extent that they implement and are consistent
  with those provisions, and need not consider any other evidence. (b) At the request of an applicant, or upon its own motion, the District Commission 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, 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. (c)(1) Permit conditions. A permit may contain such requirements and conditions as are allowable proper exercise
  of the police power and that are appropriate within the respect to subdivisions (a)(1)
  through (10) of this section, including those set forth in 24 V.S.A. §§ 4414(4), 4424(a)(2), 4414(1)(D)(i), 4463(b), and 4464, the dedication of lands for public use, and the filing of bonds to ensure 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 of the Land Use Review Board. (2) Permit conditions on a wood products manufacturer. (A) When issuing a permit with conditions on wood products manufacturing and delivery,
  the District Commission shall account for the seasonal, weather-dependent, land-dependent,
  and varied conditions unique to the industry. (B) A permit condition that sets hours of operation for a wood products manufacturer shall
  only be imposed to mitigate an impact under subdivision (a)(1), (5), or (8) of this
  section. If an adverse impact would result, a permit with conditions shall allow the
  manufacturer to operate while allowing for flexible timing of deliveries of wood products
  from forestry operations to the manufacturer outside permitted hours of operation,
  including nights, weekends, and holidays, for the number of days demonstrated by the
  manufacturer as necessary to enable deliveries, not to exceed 90 days per year. (C) Permit with conditions on the delivery of wood heat fuels. A permit with conditions issued to a wood products manufacturer that produces wood
  chips, pellets, cord wood, or other fuel wood used for heat shall allow for flexible
  delivery of that fuel wood from the manufacturer to the end user outside permitted
  hours of operation, including nights, weekends, and holidays, from October 1 through
  April 30 of each year. Permits with conditions shall mitigate the undue adverse impacts
  while enabling deliveries by the manufacturer. (D) Permit amendments. A wood products manufacturer holding a permit may request an amendment to existing
  permit conditions related to hours of operation and seasonal restrictions to be consistent
  with subdivisions (B) and (C) of this subsection (c). Requests for condition amendments
  under this subsection shall not be subject to Act 250 Rule 34(E). (d) The Land Use Review Board may by rule allow the acceptance of a permit or permits
  or approval of any State agency with respect to subdivisions (a)(1) through (5) of
  this section or a permit or permits of a specified municipal government with respect
  to subdivisions (a)(1) through (7) and (9) and (10) of this section, or a combination
  of such permits or approvals, in lieu of evidence by the applicant. A District Commission,
  in accordance with rules adopted by the Board, shall accept determinations issued
  by a development review board under the provisions of 24 V.S.A. § 4420, 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. The acceptance of negative
  determinations issued by a development review board under the provisions of 24 V.S.A. § 4420, 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. § 4420 shall create presumptions only to the extent that the impacts under the criteria
  are limited to the municipality issuing the decision. 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 rules adopted by 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. (e) This subsection shall apply with respect to a development that consists of the construction
  of temporary physical improvements for the purpose of producing films, television
  programs, or advertisements. These improvements shall be considered “temporary improvements”
  if they remain in place for less than one year, unless otherwise extended by the permit
  or a permit amendment, and will not cause a long-term adverse impact under any of
  the 10 criteria after completion of the project. In situations where this subsection
  applies, jurisdiction under this chapter shall not continue after the improvements
  are no longer in place and the conditions in the permit have been met, provided there
  is not a long-term adverse impact under any of the 10 criteria after completion of
  the project; except, however, if jurisdiction is otherwise established under this
  chapter, this subsection shall not remove jurisdiction. This termination of jurisdiction
  in these situations does not represent legislative intent with respect to continuing
  jurisdiction over other types of development not specified in this subsection. (f) Prior to any appeal of a permit issued by a District Commission, any aggrieved party
  may file a request for a stay of construction with the District Commission together
  with a declaration of intent to appeal the permit. The stay request shall be automatically
  granted for 14 days upon receipt and notice to all parties and pending a ruling on
  the merits of the stay request pursuant to Board rules. The automatic stay shall not
  extend beyond the 30-day appeal period unless a valid appeal has been filed with the
  Environmental Division. The automatic stay may be granted only once under this subsection
  during the 30-day appeal period. Following appeal of the District Commission decision,
  any stay request must be filed with the Environmental Division pursuant to the provisions
  of chapter 220 of this title. A District Commission shall not stay construction authorized
  by a permit processed under the Board’s minor application procedures. (g) If a municipality fails to respond to a request by the applicant within 90 days as
  to the impacts related to subdivision (a)(6) or (7) of this section, the application
  will be presumed not to have an unreasonable burden on educational, municipal, or
  governmental services. (h) Compliance self-certification. The District Commission may require that a person who receives a permit under this
  chapter report on a regular schedule to the District Commission on whether or not
  the person has complied with and is in compliance with the conditions required in
  that permit. The report shall be made on a form provided by the Board and contain
  a self-certification to the truth of statements. (Added 1969, No. 250 (Adj. Sess.), § 12, eff. April 4, 1970; amended 1973, No. 85, § 10; 1973, No. 195 (Adj. Sess.), § 3, eff. April 2, 1974; 1979, No. 123 (Adj. Sess.), § 5, eff. April 14, 1980; 1981, No. 240 (Adj. Sess.), § 7, eff. April 28, 1982; 1985, No. 52, § 4, eff. May 15, 1985; 1985, No. 188 (Adj. Sess.), § 5; 1987, No. 76, § 18; 1989, No. 234 (Adj. Sess.), § 1; 1989, No. 280 (Adj. Sess.), § 13; 1993, No. 232 (Adj. Sess.), § 32, eff. March 15, 1995; 2001, No. 40, §§ 6-9; 2003, No. 115 (Adj. Sess.), § 56, eff. Jan. 31, 2005; 2005, No. 183 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 138 (Adj. Sess.), §§ 16, 27, eff. May 14, 2012; 2013, No. 11, § 25; 2013, No. 89, §§ 10, 11; 2013, No. 147 (Adj. Sess.), § 2, eff. June 1, 2014; 2015, No. 51, § F.7; 2021, No. 170 (Adj. Sess.), § 22, eff. July 1, 2022; 2021, No. 182 (Adj. Sess.), §§ 33, 34, 36, eff. July 1, 2022; 2023, No. 181 (Adj. Sess.), § 8, eff. June 17, 2024; 2023, No. 181 (Adj. Sess.), § 13, eff. December 31, 2026.)