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HomeMy WebLinkAboutMINUTES - 09282004 - D4 TO: BOARD OF SUPERVISORS =. Contra FROM: Supervisor Mark DeSaulnier, District IV � Costa Supervisor John Gioia, District I County DATE: September 28, 2004 1x4 SUBJECT: Economic Impact of Large_Commercial Development Projects SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION: DIRECT the Community Development Department staff to require an economic impact analysis and report as part of any development application resulting in commercial uses of 60,000 square feet or more. FISCAL IMPACT: The cost of an economic impact analysis and report will be borne by project applicants. BA+CKGR ?UNDIREASONS FOR RECOMMENDATIONS: Public agencies are currently required to perform an environmental analysis of proposed projects that may affect the environment, however, detailed economic analyses are not required every though many large projects will have significant economic impacts. CONTINUED ON ATTACHMENT: YES L1 NO SIGNATURE RECt'3ItI11i1111ENDATION OF COUNTY ADMINISTRATOR REGEN ON OF BOARD COMMITTEE APPROVIE R u -bef AU N GI0IA S SIGNATURE : 7 ACTION OF BOARD ON,-- 64' , � ,i;.. APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND UNANIMOUS(ABSENT 9�1 CORRECT COPY OF AN ACTION TAKEN AND YES: NOES: ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVIS S ON THE DATE SHOWN. Contact: Dennis M. Barry, AAI'CP (9251335-1276) ATTESTED r ; cc: Community Development Department(CDD) O SWEETEN, CLERK OF THE BOARD OF SUPERVISORS AND OUNTY ADMINISTRATOR dldmb5\D-4—Econ Impact Std Coram Proj.E§b B ' .� `_. y"" , DEPUTY Over the past several years, the economic costs and benefits of large commercial projects have been discussed and debated. The results of an Internet-based inquiry on economic and community impact assessment are attached to this Board Order. In many cities and counties, land use decisions are linked to fiscal policy because governments receive a share of sales tax revenues generated within their borders. As a result, many jurisdictions seek large sales tax revenue sources without taking into account all of the external economic effects (both costs and benefits) of that project. In order to ensure that the County is fully informed before making a decision on whether to approve large commercial development projects,the Community Development Department shall require an economic impact analysis and report on commercial development projects resulting in uses of 60,000 square feet or more. The required study would analyze the economic impacts and costs of projects as well as potential benefits. The analysis would include, but not be limited to, the following: (1) projection of the costs of public services and public facilities and infrastructure resulting from the construction and operation of the project (2) projection of the public revenues resulting from the construction and operation of the project (3) an assessment of the effect that the construction and operation of the project will have on retail/commercial operations in the same market area including an assessment of the market share of retail sales which the project will capture (4) an assessment of the effect that the construction and operation of the project will have on the ability of the county to implement the goals contained in its general plan (such as standards that apply to land use patterns, traffic circulation, affordable housing, natural resources, open-space lands, noise, and safety risks) The economic impact analysis and report would include the fiscal impacts to the County and nearby cities in terms of revenue created and the costs for servicing the project, both for infrastructure and service requirements. The term of the analysis shall not be less than 20 years. By requiring such an economic impact analysis and report prior to deeming the application complete, staff and the decision making body will be in a better position to judge the ultimate costs and benefits, both public and private, of approval of a project. CONSEQUENCE OF NEGATIVE ACTION: The decision making body of the County's planning agency will not be as well equipped to judge the value of commercial projects without the economic impact analysis and report. ADDENDUM DA September 28,2004 On this Clay, the Board considered directing the Community Development Department to require an economic impact analysis and report as part of any development application resulting in commercial uses of 60,000 square feet or more. Supervisors Gioia and DeSaulnier introduced the item for Board discussion. Supervisor DeSaulnier stated that the matter at hand was not directed at any particular company or agency, but rather at the need to have the greatest amount of information possible for local government to make wise decisions when considering the approval of development projects. He suggested that in past experience the financial costs/benefits did not occur as predicted. He further noted that this action could be added as applications were considered,but would prefer to implement as a policy, for the applicant to bear the cost of a third-party cost-benefit analysis ,with staff to act as oversight. Supervisor Gioia observed that the decisions asked of the Board of Supervisors are very complex, requiring consideration of both environmental and economic factors. Objective information regarding the economic impacts is of great importance in making those decisions. It was further noted that examining economic impact information on large development projects is a common practice. Supervisor Uilkerna voiced concern regarding whether a small business could afford the cost of the analysis, and the legality of placing differing requirements on applicants based upon their size. She further noted the Board's receipt of a letter with many questions, and requested the letter be forwarded to the Committee this matter would be referred to, for review and response. The letter should additionally be provided to County Counsel. Supervisor Gioia expressed concern over the practice of a company obtaining subsidies from the cities to develop in a particular area,and subsequently developing in a nearby area as well,creating more competition and negating the expected tax revenue in the initial area. Supervisor Glover noted that Senator Torlakson(former Assemblyman)had dealt with a portion of the issue of commercial enterprises moving from one location to another. It was agreed that loopholes remain. Supervisor Greenberg suggested that when the matter is reviewed by Committee,that there be an identification of the range of costs for an economic analysis,there be a discussion of whether the analysis should be mandatory vs.discretionary, whether a case-by-case approach should be used,and examination of whether a 60,000 square foot was the desirable threshold. She also indicated an interest in knowing if the zoning ordinance listed the documents necessary for a complete application, and a desire that the analysis include information of the number of,jobs created, with the applicable salary ranges. She further stated the Committee should consider whether this matter,after refinement, should go to the Planning Commission. Supervisor Glover concurred with Supervisor Greenberg and noted that a consensus of the Board was to refer the matter to Committee and requested the authors offer a motion. Supervisor DeSaulnier moved to refer the matter with the comments of the Supervisors to the Finance Committee,to return to the Board with a report within 90 days. Supervisor Gioia seconded,the vote was unanimous with all Supervisors present. New Rules Project - Retail -'Economic and Community Impact Assessment Pagel of 3 WWWArmules,org —SECTO i Economic & Community Impact Assessments A number of communities now require that new retail stores undergo a special review and permitting process. The review is triggered when the development reaches a certain size. In Greenfield, Massachusetts, for example, all y new stores that either exceed 20,000 square feet or are expected to generate more than 500 vehicle trips per day are required to submit to a review before being granted a permit. In order to pass, the new development must Report&and meet criteria established by the community Other Resources and demonstrate that its overall impact will be positive. Criteria may include impact on the environment, public revenue streams, historic What's New on the preservation, traffic, the local economy, Site!` existing business districts, and community character. SEARCH In most cases, reviews include a public hearing and can be a good way to ensure that citizens have an opportunity to participate in planning and economic development decisions. Advanced search Impact reviews can be required by a single municipality or by an entire region. Many corporate retailers are large enough to have an economic impact beyond municipal borders. Many communities have difficulty rejecting unwanted retail development for fear that the development will simply locate in a adjacent town. The community will forgo the tax revenue and its local businesses may suffer anyway, as retail sales "leak„ to the adjacent town. Regional cooperation offers a solution to this problem. A handful of regions have taken this approach, creating joint planning agencies charged with reviewing applications for developments that exceed a certain size, or developments of regional impact (DRIs).. RULES: The Home Town LOCAL -- -� Advantage provides strategies for reviving • Cape Code Commission independent Cod Commi ' as established in 1990 by voters concerned businesses and Main about the impact of rapid growth on the character of their communities. http://www.newrules.org/retail/impact.html 7/1/2004 New Rules Project- Retail - Economic and Community Impact Assessment Page 2 of 3 Streets. By Stacy This regional planning agency has the authority to approve or reject Mitchell. proposals for new construction larger than 10,000 square feet and changes Corder(Online nowl of use for commercial sites that exceed 40,000 square feet. The review $14 process ' blic hearing and focuses on the project's impact on the , traffic, c munity character, and local economy. More... The Horne Town a Carbondale,Colorado Advantage (2In #November ,, after three years of debate and a voter referendum that e-Bulletin s rated strong opposition to sprawling shopping centers, Carbondale, The Home Town Colorado, enacted an ordinance that requires the town's planning staff and Advantage;e- Board of Trustees to weigh the community and fiscal impacts of a large- bulletin -is a bi- scale retail propesal rg� eciding whether to approve or deny the project. monthly electronic ... newsletter reporting a Greenfield, Massachusetts on efforts nationwide Greenfield Ma 5"requires new retail stores to undergo a special pstop chain store review if they exceed 20,000 square feet or generate more than 500 vehicle proliferation and trips per day. Impact studies are paid for by the developer and consider the support nlocally project's impact on traffic, municipal services, public revenue, the owned, independent environment, the local economy, and the community. The community retail businesses. component includes potential impact on historic and scenic sites, the character of the town, and the downtown business district. More... It's Freell Click Here to a Horner, Alaska Subscribe In July 2003, the town of Homer, Alaska, a community of 4,700 people on the breathtaking Kenai Peninsula, has capped retail store sizes at no more Columns &Articles than 20,000 square feet in its central business district and 40,000 square feet in other commercial areas. The measure will remain in effect until the Planning Commission implements permanent regulations setting impact New Rules for the standards and size limits for large-scale retail, expected within six months. New Localism: More... Favoring Communities, a Mamaroneck, New York Deterring Corporate The town of Mamaroneck not only requires large development proposals Chains -An within its borders to undergo review, but also those just beyond its borders. Interview with Stacy Under a local law enacted on June 24, 2000, the town requires all major Mitchell, Multinational developments that abut, adjoin or are adjacent to the town to obtain a Monitor, October- permit from the Mamaroneck Town Board. The purpose of the law is to November 2002 ensure that the town has the right to reject or alter development projects that would have a substantial adverse impact on the community. More... Local Retailers ■ Middletown, Rhode Island Can't Grow in the In determining whether to approve or deny proposals for large-scale Shadows of development, the Middletown Planning Board evaluates the project's impact Supercenters - by on traffic, municipal services, the environment, and the character of the Stacy Mitchell, community. The town requires that developers submit detailed impact November 17, 2002 statements and pay a fee to cover the town's cost of hiring consultants to review the impact statements and offer independent analyses. For shopping Chain Reaction - centers and other commercial development, the fee is $100 per 1,000 Stacy Mitchell square feet of gross floor space. More... interviewed on a Santa Cruz, California Working Assets Radio, In October 2000, the Santa Cruz City Council voted unanimously to adopt August 20, 2002 an ordinance requiring new retail stores over 16,000 square feet to obtain a special permit. Only stores that add to a balanced and diverse mix of Homegrown downtown businesses are allowed. "The continued establishment of large Economics: How square footage retail businesses in the Downtown, if not monitored and Boulder Businesses regulated, may frustrate the Downtown recover Plan goal of establishing are Staying Ahead and maintaining a diverse retail base with a 'unique retailing personality,"` of the Chains- http://www.newr,ules.org/retail/impact.html 7/1/2004 New Rules Project-Retail -Economic and Community Impact Assessment Page 3 of 3 Autumn 2001 e o inance stat More... ■ Stoughton, WI Belfast votes in , he city of Stoughton, Wisconsin, a community of 13,000 self-defense -July people about 20 miles southeast of Madison, adopted the following 8, 2001 ordinance, which bans stores over 110,000 square feet, requires retail developments over 20,000 square feet to meet building and site design Red wing Gets standards, and requires those over 40,000 square feet to undergo Boxed In -June 20, independent economic, fiscal (tax), and traffic assessments before being 2001 granted a permit to proceed. More... Midway Horne STATE Depot dismantles w — - concept of quality ■ Vermont's Act 250 of life -June 5, 2001 Vermont pion cooperative approach to large-scale development on a ewide level in 1970 with Act 250, which arose in response to the arrival When a Giant of Vermont's first interstate highway in the late 1960s. Residents feared Retailer Moves on, that the highway would lead to rapid, uncontrolled growth and ultimately It leaves its 'Big the destruction of the state's rural character and picturesque towns. More... Box' Rehind - Januray 8, 2001 FEDERAL Bucking the Chain Store Trend - March ■ Post Office Community Partnership Act 17, 2000 In 1999 this act was introduced in both houses of Congress. The bill requires that the Postal Service offer a public hearing and comment period Fighting the chains for local residents before closing or relocating a post office. It requires that - 2000 the Postal Service consider the impact on the community of closing the post office, including whether the post office is part of a core downtown business area. More... The New Rules Project http://www.newruies.org/ http://www.newrules.org/retail/impact.html 7/1/2004 New Rules Project - Retail Community Impact Assessment- Carbondale, CO Page I of o wvwrw.rirvwulot.or CTO Community Impact Assessment - Carbondaie, CO 0'rITI In November 2003, after three years of debate and a voter referendum that �--ni demonstrated strong opposition to sprawling shopping centers, Carbondale, Colorado, enacted an ordinance that requires the town's planning staff and Board of Trustees to weigh the community and fiscal impacts of a large-scale retail proposal before deciding whether to approve or deny the project. The ordinance applies to any retail development larger than 15,000 square feet in neighborhood business districts and those larger than 30,000 square feet in other areas. Carbondale, a community of 5,200 people in the Roaring Fork Valley between Glenwood Springs and Aspen, has a lively downtown of locally owned businesses, In 2000, a developer proposed building a 252,000-square-foot Reports and shopping center anchored by a Target superstore on the edge of town. The Other Resources center would have been about the size of all of the town's existing retailers combined. What's New on the Citizens and local businesses fought the development. A grassroots group, site!! Mountain Folks for Global Justice (MFGJ), urged the Board of Trustees (equivalent to a city council) to reject the project and proposed two ordinances- SEARCH --a size cap of 60,000 square feet and a set of impact assessment standards and criteria for proposed stores over 20,000 square feet. The Trustees eventually approved the shopping center, but their decision was overturned by a citizen ballot initiative. The Trustees then passed a modified Advanced search version of the impact assessment ordinance proposed by MFGJ. The ordinance requires developers to submit information and meet criteria in five areas (called "elements" in the ordinance): environment, traffic, community, utility, and fiscal impact. The fiscal analysis will be performed by a consultant selected by the city. Developers pay a $4,500 fee to cover costs. Under the standards, retail developments may not place more demand on public services than they generate in tax revenue, negatively impact water quality, create excessive traffic congestion, or over-burden utilities and infrastructure. The assessment also consider how the project would affect the availability of affordable housing (i.e., whether new low-wage retail jobs would YY create a shortage of affordable units) and whether the project's design reflects Carbondale's character. The standards are less stringent that the ones originally proposed MFG]. For The Home Town example, MFGYs proposal called for the city to consider how a development Advantage provides would impact employees at existing businesses and whether there would be a independentt strategies freviving net increase in the number of jobs. businesses and gain Streets. By Stacy The text of the ordinance is below. The standards for the five elements are Mitchell. contained in separate documents. contact us if you would like more information Order online now! on the standards or a copy of MFGJ's original proposal. http://www.newrules.org/rctail/carbondale.html 7/1/2004 New Rules Project- Retail - Community Impact Assessment- Carbondale, CO Page 2 of 6 $14 The Home Town Carbondale, Colorado - Ordinance 27, Series 2003 - Amending Advantage Muni Cade - Community Impact Assessment e-Bulletin The Home Town AN ORDINANCE OF THE BOARD OF TRUSTEES OF THE TOWN OF CARBONDALE, Advantage e- COLORADO, AMENDING CERTAIN SECTIONS OF AND ADDING CERTAIN bulletin - is a bi- SECTIONS TO THE CARBONDALE MUNICIPAL ZONING CODE TO PROVIDE FOR monthly electronic A COMMUNITY IMPACT ASSESSMENT FOR CERTAIN TYPES OF DEVELOPMENT newsletter reporting WITHIN THE TOWN OF CARBONDALE on efforts nationwide to stop chain store WHEREAS, the Beard of Trustees has considered whether it is appropriate to proliferation and adopt an ordinance providing for a Community Impact Assessment to be made support locally in connection with certain types of development within the Town of Carbondale, owned, independent retail businesses. Colorado; and It's Free!! WHEREAS, the Planning and Zoning Commission of the Town of Carbondale Click Hare to considered this issue at public meetings held on April 12, June 21 and 28, July Subscribe 12, September 13 and 27, and October 11 and 25, 2001, and at a public hearing held on November 29, 2001, and recommended adoption of certain Zoning Cade amendments; and WHEREAS, the Board of Trustees of the Town of Carbondale considered this issue at public meetings held on February 19, March 5 and 19, and May 21, 2002, and August 12, 19 and 26, and September 2, 9, and 16, 2003, and at public hearings held on January 22, 2002 and February 12, 2002, during which public hearings, the Board of Trustees heard and considered the statements of Town staff, members of the public, and reviewed and considered all other relevant documents and information presented at such hearing, all as required by law; and WHEREAS, the Board of Trustees of the Town of Carbondale finds that it is appropriate to amend the Zoning Code as set forth below; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF CARBONDALE, COLORADO, that the Carbondale Municipal Zoning Code shall be amended by the additions and amendments as set forth in Exhibit A, attached hereto and incorporated herein by this reference. INTRODUCED, READ, AND PASSED this 25th day of November, 2003. THE TOWN OF CARBONDALE By: Michael Hassig, Mayor ATTEST: Suzanne Cerise, Town Clerk EXHIBIT A Section 18.20.015(E) shall be added as follows: E. Community Impact Assessment. Any residential development which shall generate more than 500 ADT (Average Daily Trips) shall be subject to a Community Impact Assessment review process and approval criteria are outlined in Section 18.55.0190 of the Carbondale Municipal Code. For mixed use http://www.newrules.org/retail/carbondale.html 7/1/2004 New Rules Project-Retail - Community Impact Assessment - Carbondale, CO Page 3 of 6 projects (commercial and residential), 1,000 ADT is required in order to have a development subject to Community Impact Assessment process. Section 18.25.015(I) shall be added as follows: I. Community Impact Assessment. Any proposed development in the following commercial zone districts which exceeds the minimum threshold square footage size requirements indicated below is subject to a Community Impact Assessment. Review procedures and criteria for the Community Impact are outlined in Section 18.55.090 of the Carbondale Municipal Code. Zone district HCC CT PCC CRW A C Minimum Threshold (sf) 30,000 15,000 30,000 30,000 30,000 15,000 1. Application. The minimum threshold criteria shall apply to all square footage under roof within the proposed project boundaries with the exception of square footage devoted to parking requirements. 2. ADT threshold. Any development proposed for a Commercial Zone District which exceeds 500 Average Daily Trips (ADT) shall be subject to a Community Impact Assessment. Review process and approval criteria are contained in Section 18.55.090. Any mixed use project (residential and commercial uses) which exceeds 1,000 ADT shall also be subject to a Community Impact Assessment. 3. Waivers. At the direction of the Board of Trustees, any grocery store, medical establishment, or educational facility which exceeds the square foot minimum specified in Section I.1 above is not subject to the Community Impact Assessment procedures, Medical establishments include medical clinics, health facility related offices and wellness centers. Section 18.30.015(E) shall be added as follows: E. Community Impact Assessment: Any proposed development to be located in any Industrial Zone District which generates more than 500 ADT (average daily trips) shall be subject to a Community Impact Assessment. Review process and approval criteria for a Community Impact Assessment as outlined in Section 18.55.090 of the Carbondale Municipal Code. Section 18.35.020(I) shall be added as follows: I. Community Impact Assessment. Any proposed PUD application which generates more than 500 Average Gaily Trips (ADT) for a residential only project or more than 1,000 ADT for a commercial only or mixed-use project shall be subject to a Community Impact Assessment. Review process and approval criteria for a Community Impact Assessment as outlined in Section 18,55.090 of the Carbondale Municipal Code. Section 18,55.090 shall be added as follows: Community Impact Assessment. Any development that is larger than a minimum threshold building size or which generates a certain amount of traffic in terms of ADT is subject to review by the Town Planning and Zoning Commission and approval by the Carbondale Board of Trustees. The purpose of the review is to ensure that the Town has the ability to address and mitigate any adverse impacts or consequences that may result from construction of such http://www.newrules.org/retail/carbondale.html 7/l/2004 New Rules Project-Retail - Community Impact Assessment- Carbondale, CO Page 4 of 6 a project. A. Who must apply. The owner or an authorized representative of the proposed project shall apply for a Community Impact Assessment. B. Process. The following process shall be followed in the application for and processing of a Community Impact Assessment: 1. Step 1-- Pre-application meeting. The applicant or an authorized representative is required to meet with the Town Planning Director in order to become familiar with the Town's requirements, criteria and regulations. At this pre-application meeting, the Town Planning Director shall preliminarily review the project and determine if such proposed project meets minimum square footage threshold or ADT requirements for review. If the proposed project is subject to a Community Impact Assessment (CIA), the Planning Director shall initially determine which individual study elements within the five subject areas need to be addressed in the CIA.AII application requirements, fees, and other related information are included in the companion document titled Carbondale Community Impact Assessment Guidelines and review Criteria, dated November 25, 2003, and as may be amended from time to time. The Town Planning Director shall check any required information to be submitted in the five matrix study areas identified in the Carbondale Community Impact Assessment Guidelines and Review Criteria. 2. Step 2 -- Advisory meeting with Board of Trustees. The Planning Director shall present an overview of the project and the individual study menu items deemed suitable or appropriate by Staff at a regular meeting of the Carbondale Board of Trustees within (22) days of the formal pre-application meeting. Applicant may appeal any study requirements indicated by Staff. The Board of Trustees may affirm Staff study requirements, grant waivers for good cause, or add other individual items to be included in the study area matrices of the CIA review. 3. Step 3 Submittal application. A completed application for a CIA shall be submitted by the applicant to the Town Planning Director at least (30) days prior to the date when the application will be considered by the Planning and Zoning Commission at a public hearing. Application requirements are detailed in the Carbondale Community Impact Assessment Guidelines and Review Criteria. The application shall generally include: a. A letter requesting a review of the proposed plan for the building project. b. (20) sets of 11x17 plans showing site plan, utility plans, drainage plans and any other related documents that can be shown in graphic format. c. (3) sets of the above mentioned plans in a 24x36 format. d. (20) sets of a narrative explanation of the project as well as any other narrative outline in which the applicant describes the project, outlines any required issues or potential impacts of the project, outlines the mitigation of any impacts, why the project meets the development standards of the appropriate Zone District, and sets forth why the Applicant believes the project should be approved by the Carbondale Board of Trustees. Note: For the Traffic & Fiscal Impact dements, the applicant shall provide background information to the Town and the Town retained consultant, at the expense of the applicant, shall perform the study and provide the results to the http://www.newrules.org/retail/carbondale.html 7/1/2004 New Rules Project - Retail- Community Impact Assessment - Carbondale, CO Page 5 of 6 Town Staff and Board of Trustees. e. Background information regarding the Applicant, including detailed information about prior development experience, references, and financing for the project. 4. Step 4 -- Public Notice. Public notice regarding the hearings of the planning and Zoning Commission and the Board of Trustees shall be provided as described in Section 18.55.040. 5. Step 5 -- Planning and Zoning Commission Public 1-fearing. The Planning and Zoning Commission shall conduct a public hearing on the application. After the public hearing, the Planning and Zoning Commission shall recommend that the Boardof Trustees either approve the application as submitted; approve the application with conditions as may be necessary to fulfill the applicable purposes set forth for the Zone District and in the Carbondale Municipal Code and to protect public health, safety and general welfare; to deny the application for a specific reason, or to continue the public hearing to a specific date, time and location for the purpose of obtaining and considering further Information. 6. Step 6 -- Board of Trustees Public Nearing. The Board of Trustees shall conduct a public hearing after notice as required by Chapter 1.20 of the Carbondale Municipal Code and outlined in Section 18.55.040. At the hearing, the Board of Trustees in its discretion may approve, approve with conditions or deny the application, or may continue the hearing to a specific date, time and location for the purpose of obtaining additional information. a. Approval of a CIA review. In the event the Board of Trustees chooses to approve an application, the Board shall make findings that the following land use regulations and criteria are met by the application; I. The proposed site, building or development plan meets the regulations for development standards as specified for the use and Zone District in which the use is proposed. ii. The site, building or development plan will not have an adverse impact on the traffic on State Highway 133, or any other street within the Town of Carbondale, or that the Board finds such impacts are sufficiently mitigated and are acceptable. III. The proposed project meets all of the standards and criteria submitted in each individual study area of the CIA. iv. The proposed project is compatible with the character of Town. v. The proposed project generally meets the guidelines of and is consistent with the Town Comprehensive Plan. C. Standards and criteria for Community Impact Assessment. The Board of Trustees may review any one or more of the individual elements within any of the five defined study areas. These items shall have been determined in Steps 1 and 2 above of this section. The Board of Trustees will use the standards and criteria to help evaluate whether a project should be approved, denied, or approved with conditions which are intended to help mitigate potential adverse impacts to the community, neighborhoods, Town streets and highways, and Town infrastructure. http://www.newrules.org/retail/carbondale.html 7/1/2004 New Rules Project- Retail o Community Impact Assessment- Carbondale, CO Page 6 of 6 D. Duration of approved plan. A Community Impact Assessment approval shall remain in full force and effect for a period of three years from the effective date of the ordinance of approval. Approval shall lapse if construction of at least 50% of the total square footage of the approved project is not initiated within the three year period. Applicant/owner may request that the Board of Trustees extend this time period, which request may be granted at the discretion of the Board of Trustees. E. Development of project. Construction of the project shall be stopped if there is any deviation from the plans upon which approval of the Community Impact Assessment was granted, unless such change was previously approved by the Board of Trustees. F. Variances and concurrent development applications. An applicant may request, concurrently with the Community Impact Assessment application, a variance from the applicable Zone District development standards, standards contained in the Carbondale Community Impact Assessment Guidelines and Review Criteria or.any other applicable development standard or guideline by including the variance request in the application and by complying with the appropriate public hearing notification requirements. The applicant may also request that any other land use application processes be held concurrently with public hearings for a Community impact Assessment (e.g., Special Use Permit). Section 1.30.010 shall be amended by the addition of the following: Type of Application Fee Community Impact Assessment $4,500.00 The New Rules Project http://www.newrules.org/ http://www.newrules,org/retail/carbondale.html 7/1/2004 New Rules Project - Retail - Size Caps - Stoughton, WI Page I of k A1 �4& S EC TORS Retail Busing Size Caps - Stoughton, W1 In February 2004, the city of Stoughton, Wisconsin, a community of 18,000 people about 20 miles southeast of Madison, adopted the following ordinance, which bans stores over 110,000 square feet, requires retail developments over 20,000 square feet to meet building and site design standards, and requires those over 40,000 square feet to undergo independent economic, fiscal (tax), and traffic assessments before being granted a permit to proceed. A citizens group called Uff-da Wal-Mart led the effort to enact the ordinance. The group formed after Wal-Mart announced plans to close its 40,000-square-foot Stoughton outlet to build a 183,000- squarefoot supercenter on undeveloped land. Uff-da Wal-Mart Reports and argued that giant superstores would destroy the town's local O hef Res oumes businesses and lively Main Street, exacerbate traffic and storm water run-off, and lead to higher property taxes due to the burden on roads and public services. What's New on the Site!! Uff-da Wal-Mart sought a smaller size limit, but the City Council ultimately compromised at 110,000 square feet (slightly smaller SEARCH than a typical Home Depot). The ordinance also requires proposed stores over 40,000 square Y feet to undergo a traffic analysis and an economic and fiscal impact analysis. The studies are to be paid for by the developer Advanced search and conducted by consultants selected by the city. The economic and fiscal analysis must consider the store's impact on jobs, commercial vacancy rates in Stoughton and nearby communities, public services costs, residential and commercial property values, and short and long-term impacts on city tax revenue. The analysis must also: n ■ evaluate whether the development will create an over-supply of retail space in the city (defined as more than one acre of commercial land for every 150 residents), ■ estimate to what extent it would "reduce the diversity of the city's economic base by eliminating smaller businesses", and ■ "estimate the difference between how much of the revenue Advanta The Home Town generated by the proposed project will be retained and re-directed Advantage provides back into the economy of the City of Stoughton compared to other strategies for reviving chain stores and locally-owned, independent retailers in the city of independent Stoughton." businesses and Main http://www.newrules.org/retail/sizestoughton.html 7/7/2004 New Rules Project-Retail - Size Caps- Stoughton, W1 Page 2 of 3 Streets. By Secy Developers are also required to provide a estimate of the lifespan Mitchell. of the building. The ordinance prohibits a retailer that vacates a Order online now! building from placing restrictions (through a lease or sale $14 agreement) on what type of user may occupy the building. The Home Town More: Advantage: e-Bulletin a Full Text of the Stoughton,WI Ordinance The Home Town Advantage e- bulletin - is a bi- monthly electronic newsletter reporting The New Rules Project on efforts nationwide http://www.newruies.org/ to stop Chain stare proliferation and support locally owned, independent retail businesses. It's Free!! Click Here to Subscribe Columns &Articles New Rules for the New Localism: Favoring Communities, Deterring Corporate Chains -An Interview with Stacy Mitchell, Multinational Monitor, October- November 2002 Local Retailers Can't Grow in the Shadows of Supercenters- by Stacy Mitchell, November 17, 20102 Chain Reaction - Stacy Mitchell Interviewed on Working Assets Radio, August 20, 20012 Homegrown Economics: How Boulder Businesses are Staying Ahead of the Chains- http://www.newrules.org/retail/sizestoughton.html 7/7/2004 New Rules Project-Retail - Size Caps - Stoughton, WI Page 3 of 3 Autumn 2001 Belfast vote in self-defense -July 8, 2001 Iced Wing Gets Boxed In -June 20, 2001 Midway Home Depot dismantles concept of quality of life -June 5, 2001 When a Giant Retailer Moves on, It Leaves Its `Big Box' Behind - Januray 8, 2001 Bucking the Chain Store Trend - March 17, 2000 Fighting the Chains - 2000 http://www.newrules.org/retail/sizestoughton.html 7/7/2004 Q - 2 - 04 AN ORDINANCE TO CREATE SECTION 78467 RETAIL AND SERVICE BUILDINGS IN EXCESS OF 20,000 SQUARE FEET The Common Council of Stoughton, Wisconsin, do ordain as follows: 1. Section 78-467 of the Stoughton Municipal Code its hereby created as follows: Sec.76-467. Retail and Commercial Service Buildings in excess of 20,000 square feet. Retail and Commercial Service Buildings in Excess of 20,000 Square Feet of Area. The following requirements are applicable to all new retail and commercial service buildings in excess of twenty thousand(20,000)gross square feet and shall be conditional uses in the zoning districts in which they are allowed. A separate Conditional Use Permit is not required where such buildings are part of a PUD District. All additions to existing retail and commercial service buildings built either before or after the adoption of this Ordinance,which bring the total building size to over twenty thousand(20,000)gross square feet shall also require a Conditional Use Permit and become subject to the requirements of this ordinance. The following standards are intended to ensure that large retail and commercial service buildings are properly located. They are also intended to ensure that such buildings are compatible with the surrounding area and the overall community character of the city. Such projects shall also be subject to the more general standards for the approval of Conditional Use Permits or PUD districts. 1. Compatibility with City Plans. The applicant shall provide,through a written Compatibility Report submitted with the petition for a Conditional Use Permit or rezoning application for the PUD Districts,adequate evidence that the proposed building and overall development project shall be compatible with the City's Comprehensive Pian and any Detailed Neighborhood Plan for the area. The Compatibility Report shall specifically address the following items. a. A description of how the proposed development is compatible with adopted City Plans, including the Comprehensive Plan,Detailed Neighborhood Plans,and other plans officially adopted by the City; b. A completed Large Development Questionnaire form; c. A completed Community Impact Analysis; i) For development totaling over 40,000 square feet of gross floor area,a completed Transportation and Traffic impact Analysis in a format acceptable to the State of Wisconsin WisDOT District 1; ii) A detailed Economic and Fiscal impact Analysis. Prior to development approval of developments over 40,000 square feet,the applicant shall provide adequate funding to the City to hire a consultant of their choice-with appropriate experience to complete and present an Economic and Fiscal Impact Analysis. The impact statement shall include the following elements: 1.) Identification and assessment of the impacts of proposed project, including positive,negative,and indirect impacts. 2.) Proposed measures to mitigate adverse impacts and/or maximize positive impacts including provision of infrastructure or public services improvements sufficient to support the project. Any adverse impacts that cannot be mitigated shall be identified. Mitigation measures to be implemented by the applicant shall be ldentified. 1 The impact statement shall assess the following areas of potential impact: 1.) For the project estimate the following using the table format below. a. types of jobs created b. number of full-time (40 hrs/wk)and part time (less than 40 hrs/wk)jobs created Type of Jab Number of Number of Other Full-Time Part-Time Information Positions Positions (4p+ brs/wk) 1. 2. 1 3, I 4. 5. 2.) Estimate the amount of local labor to be used in the construction of the project and in employment. Local is defined as city or county residents or businesses. 3.) Evaluate the market and financial feasibility of the project. Include a Trade Area analysis indicating the market proposed for the project and the area from which patrons will be attracted,and any plans for phased construction. Include any further market studies prepared for the project by the applicant. 4.) Evaluate if the proposed project creates an over-supply of retail space in the City of Stoughton,i.e. more than one acre of commercial land for every 150 residents. 5.) Evaluate the impact of the proposed project on commercial vacancy rates in the City of Stoughton and nearby sites. 6.) Estimate to what extent would the proposed project reduce the diversity of the city's economic base by eliminating smaller businesses. 7.) Compare and evaluate the projected costs and benefits to the community resulting from the project including: a. projected casts arising from increased demand for and required improvements to public services and infrastructure, b. value of improvements to public services and infrastructure to be provided by the project, c. projected tax revenues to the G#a� ht 4o be generated by the project, d. projected impact of the project on land values(both residential and commercial)and potential loss or increase in tax revenues to the City of ...�- "' Stoughton, e. short-term and long term projection of increased revenues to the City of Stoughton, and costs resulting from the proposed project, f. estimate the difference between how much of the revenue generated by the proposed project will be retained and re-directed back into the economy of the City of Stoughton compared to other chain stores and locally-owned, independent retailers in the City of Stoughton. g. estimate to what extent the proposed project would preclude higher value development on the site. 2 8.)Projected lifespan of building. 9.)Provide the written policies on corporate giving and volunteer participation in the community. 2. Building Location. Where buildings are proposed to be distant from a public street,as determined by the Plan Commission, the overall development design shall include smaller buildings on pads or out lots closer to the street. Placement and orientation must facilitate appropriate land use transitions and appropriate traffic flow to adjoining roads and neighboring commercial areas, and neighborhoods, and must forward community character objectives as described in the City's Comprehensive Plan. In the absence of an adopted Detailed Neighborhood Plan for the subject property,the conditional use or planned unit development application for development exceeding 801,000 square feet in total gross floor area of all combined buildings within the development shall be accompanied or preceded by a new City-approved detailed Neighborhood Plan for all areas within one thousand five hundred(1,500)feet of the subject property, as measured from the outer perimeter of the subject property or group of properties proposed for development,and other nearby lands as determined by the Plan Commission and Common Council to be part of the neighborhood. The Detailed Neighborhood Plan shall clearly demonstrate the provision of land use, multi- modal transportation, utility, stormwater management and community character components, and patterns that clearly forward the objectives of the City's Comprehensive Plan,as determined by the Plan Commission and Common Council,The Detailed Neighborhood Plan shall contain the following specific elements at a scale of not less than 1 inch equals 400 feet; a. Land Use with specific zoning districts and/or land uses; b. Transitional treatments such as berms and/or landscaping between areas with differing land uses or character; c. Complete public road network; d. Pedestrian and bicycle network; e. Transit routes and stops,where applicable; f. Conceptual stormwater management network; g. Public facility sites including parks, schools,conservation areas, public safety facilities and public utility facilities; h. Recommendations for community character themes including building materials, landscaping, streetscaping and signage. 1 Building Materials. Exterior building materials shall be of comparable aesthetic quality on all sides. Building materials such as glass,brick,tinted and decorative concrete block,wood, stucco,and exterior insulation and finish systems (FIFS)shall be used, as determined appropriate by the Plan Commission. Decorative architectural metal with concealed fasteners or decorative tilt-up concrete panels may be approved if incorporated into the overall design of the building. 4. Building resign. The building exterior shall complement other buildings in the vicinity, and shall be of a design determined appropriate by the Plan Commission: a. The building shall employ varying setbacks, heights, roof treatments, doorways,window openings,and other structural or decorative elements to reduce apparent size and scale of the building. b. A minimum of twenty(20)percent of the structure's fagades that are visible from a public street shall employ actual protrusions or recesses with a depth of at least six feet. No uninterrupted fagade shall extend more than 100 feet. c. A minimum of twenty(20)percent of all of the combined linear roof eave or parapet lines of the structure shall employ differences in height,with such differences being six(6)feet or more as measured eave to eave or parapet to parapet. d. Roofs with particular slopes may be required by the city to complement existing buildings or otherwise establish a particular aesthetic objective. 3 e. Ground floor facades that face public streets shall have arcades(a series of outdoor spaces located under a roof or overhang and supported by columns or arches),display windows, entry areas,awnings,or other such features along no less than fifty(50) percent of their horizontal length. The integration of windows into building design is required, and shall be transparent,clear glass(not tinted)between three(3)to eight(8) feet above the walkway along any fagades facing a public street. The use of blinds shall be acceptable where there is a desire for opacity. f. Building facades shall include a repeating pattern that includes no less than three(3)of the following elements: (i)color change,(i€)texture change, (111)material modular change, (iv)expression of architectural or structural bay through a change in plane no less than twenty four(24)inches in width,such as an offset,reveal or projecting rib. At least one of these elements shall repeat horizontally. All elements shall repeat at intervals of no more than thirty(30)feet,either horizontally or vertically. 5. Building Entrances. Public building entryways shall be clearly defined and highly visible on the building's exterior design, and shall be emphasized by on-site traffic flaw patterns. Two (2)or more of the following design features shall be incorporated into all public building entryways:canopies or porticos,overhangs, projections,arcades,peaked roof forms,arches, outdoor patios, display windows, distinct architectural details.Where additional stores will be located in the principal building, each such store shall have at least one exterior customer entrance that shall conform to the above requirements. 8. Building Color. Building facade colors shall be non-reflective, subtle, neutral,or earth tone. The use of high intensity colors,metallic colors,fluorescent colors or black on facades shall be prohibited. Building trim and architectural accent elements may feature bright colors or black, but such colors shall be muted, not metallic,not fluorescent,and not specific to particular uses or tenants. Standard corporate and trademark colors shall be permitted only on signage, subject to the limitations in Chapter 10,Article V. 7. Screening. a. All ground-mounted and wall-mounted mechanical equipment, refuse containers and any permitted outdoor storage shall be fully concealed from on-site and off-site ground level views,with materials identical to those used on the building exterior. b. All rooftop mechanical equipment shall be screened by parapets, upper stories,or other areas of exterior walls or roofs so as to not be visible from public streets adjacent or within one thousand(1,000)feet of the subject property. Fences or similar rooftop screening devices may not be used to meet this requirement. c. Loading docks shall be completely screened from surrounding roads and properties. Said screening may be accomplished through loading areas internal to buildings, screen walls,which match the building exterior in materials and design,fully opaque landscaping at time of planting,or combinations of the above. d. Cates and fencing may be used for security and access, but not for screening,and they shall be of high aesthetic quality. Decorative metal picket fencing and screening is acceptable. Chain link, wire mesh or wood fencing is unacceptable. Decorative, heavy- duty wood gates may be used. 8. Traffic Impact. a. All projects shall have direct access to an arterial street,or to a collector level street deemed appropriate by the Plan Commission. b. Vehicle access shall be designed to accommodate peak on-site traffic volumes without disrupting traffic on public streets or impairing pedestrian safety. This shall be accomplished through adequate parking lot design and capacity;access drive entry throat length,width,design, location,and number,and traffic control devices;and sidewalks. c. The site design shall provide direct connections to adjacent land uses if required by the City. Prior to development approval of developments over 40,000 square feet,the 4 applicant shall provide adequate funding to the City to hire a traffic engineer of the City's choice to complete and present a Traffic Impact Analysis following Wisconsin Department of Transportation District One guidelines. The Traffic Impact Analysis shall consider the parking lot 100%full for levet of service analysis. Where the project will cause off-site public roads,intersections,or interchanges to function below Level of Service C,as defined by the Institute of Transportation Engineers,the City may deny the application, require a size reduction in the proposed development,or require that the developer construct and/or pay for required off-site improvements. 9. Parking. a. Parking lots in which the number of spaces significantly exceeds the minimum number of parking spaces required in Section 78-453,this Ordinance shall be allowed only with specific and reasonable justification b. Parking lot design shall employ interior, curbed landscaped islands at all parking aisle ends. In addition,the project shall provide landscaped islands within each parking aisle spaced at intervals no greater than one island per every twenty(20)spaces in that aisle. Islands at the ends of aisles shall count toward meeting this requirement. Each required landscaped island shall be a minimum of three hundred sixty(380)square feet in landscaped area. c. Landscaped and curbed medians, a minimum of ten (10)feet in width from back-of-curb to back-of-curb, shall be used to create distinct parking areas of no more than 1201 parking stalls. 10. Bicycle and Pedestrian Facilities. a. The entire development shall provide for safe pedestrian and bicycle access to all uses within the development,connections to existing and planned public pedestrian and bicycle facilities,and connections to adjacent properties. b. Pedestrian walkways shall be provided from all building entrances to existing or planned public sidewalks or pedestrian/bike facilities.The minimum width for sidewalks adjacent to buildings shall be ten (10)feet; and the minimum width for sidewalks elsewhere in the development shall be five(5)feet. c. Sidewalks other than street sidewalks or building aprons shall have adjoining landscaping along at least fifty(50)percent of their length. Such landscape shall match the landscaping used for the street frontages. d. Crosswalks shall be distinguished from driving surfaces to enhance pedestrian safety by using different pavement materials, pavement color, pavement textures,and signage. e. The development shall provide secure,integrated bicycle parking at a rate of one bicycle rack space for every fifty(50)vehicle parking spaces. f. The development shall provide exterior pedestrian furniture in appropriate locations at a minimum rate of one seat for every 20,000 square feet of gross floor area. g. The development shall provide interior pedestrian furniture in appropriate locations at a minimum rate of one(1)bench seat for every 103,000 square feet of gross floor area. Seating in food service areas, or other areas where food or merchandise purchasing activities occur shall not count toward this requirement.A minimum of four(4)seats shall be located within the store,with a clear view through exit doors to a passenger pick-up or drop-off area. 11. Central Areas and Features. Each development exceeding eighty thousand(80,000) square feet in total gross floor area shall provide central area(s)or feature(s)such as a patio/seating area,pedestrian plaza with benches,outdoor playground area,water feature, and/or other such deliberately designated areas or fecal points that adequately enhance the development or community. All such areas shall be openly accessible to the public, connected to the public and private sidewalk system,designed with materials compatible with the building and remainder of the site,and shall be maintained over the life of the building project. 5 12. Cert Returns. A minimum of one(1)two hundred(200)square foot cart return area shall be provided for every one hundred(100)parking spaces. Cart corrals shall be of durable,non- rusting,all season construction, and shall be designed and colored to be compatible with the building and parking lot light standards. There shall be no exterior cart return or cart storage areas located within twenty-five (25)feet of the building. 13. Outdoor Display Areas.Exterior display areas shall be permitted only where clearly depicted on the approved site plan. All exterior display areas shall be separated from motor vehicle routes by a physical barrier visible to drivers and pedestrians,and by a minimum of ten (10)feet. display areas on building aprons must maintain a minimum walkway width of ten(10)feet between the display items and any vehicle drives. 14. Outdoor Storage lues and Areas. Exterior storage structures or uses,including the parking or storage of service vehicles, trailers, equipment, containers, crates, pallets, merchandise, materials,fork lifts,trash,recyclables, and all other items shall be permitted only where clearly depicted and labeled on the approved site plan,such outdoor storage uses and areas shall be appropriately screened as required by Section 7.a. using techniques as found in Section 7. c. 15. Landscaping. On-site landscaping shall be provided at time of building occupancy and maintained per following landscaping requirements: i) Landscaping plan shall be submitted to the Planning Commission for approval,as part of the site plan. 11) Building foundation landscaping is required for all building frontages in order to provide visual breaks in the mass of the building. Such foundation landscaping shall be placed along thirty (30)percent of the building's total perimeter,predominately near and along customer facades and entrances facing public streets. One(1) ornamental tree with a minimum 1.5"caliper or one(1)minimum 6-foot tall tree ("whips"not permitted),and four(4)shrubs at a minimum height of 18"tall shall be planted for every 10 linear feet of building foundation planter area. Appropriate trees and shrubs include crabapple, birch,cherry, hawthorne,service berry,arborvitae, dogwood, lilac,vibemum, cotoneaster,forsythia, hazelnut,barberry,spires,juniper, yew,or similar species and varieties approved by the City. iii) One (1)street tree at a minimum of 2.0"caliper shall be planted at fifty(50)feet centers along, and within ten(10)feet of, all public and private streets and drives, including parking lot connections and circulation drives,and loading areas. Such tree plantings shall be planted in tree wells along the circulation drives adjacent to the sides of the store that face a public or private street,along both sides of internal drives,and along the outside edge of loading areas.Appropriate trees include sugar maple, pin oak, ginkgo,or similar species and varieties approved by the City. iv) One(1)shade tree at a minimum of 2.0"caliper shall be planted on each parking lot peninsula and island. Appropriate trees include honey locust,green or white ash, linden,sugar maple, red maple, or similar species and varieties approved by the City. v) All landscaped areas shall be at least ten (10)feet wide in their smallest dimension, except that tree wells may be a minimum of thirty-six(36)square feet. vi) For development exceeding forty thousand(40,000)square feet in total gross floor area, and where the subject property abuts an area zoned or planned for residential, institutional, or office use, a minimum six(6)foot high berm shall be provided. The berm shall be planted with a double row of white,green or blue spruce plantings,or similar species and varieties approved by the City,spaced fifteen(15)feet on center. 6 16. Lighting. 4n-site exterior lighting shall meet all the standards of Section 78-453(5)f of the Zoning Ordinance,except that in addition: i) Total cut-off luminaries with angles of less than ninety(90)degrees shall be required for all pole and building security lighting to ensure no fugitive up lighting occurs. ii) At a minimum,as measured over ambient lighting conditions on a clear night,exterior lighting shall not exceed more than 0.5 foot-candies above ambient levels along all property lines, and shall not exceed an average illumination level of 3.6 foot-candies nor provide below a minimum of 0.9 foot-candles in public parking and pedestrian areas. iii) The color and design of pole lighting standards shall be compatible with the building and the city's public lighting in the area, and shall be uniform throughout the entire development site.The maximum height for all poles shall be twenty(20)feet. 17. Signage. The plan for exterior signage shall provide for modest,coordinated,and complimentary exterior sign locations, configurations,and color throughout the development, including outlots. All freestanding signage within the development shall complement on- building signage. Monument style ground signs are required, and shall not exceed a height of eight(8)feet. Consolidated signs for multiple users may be required instead of multiple individual signs. The City may require the use of muted corporate colors on signage if proposed colors are not compatible with the City's design objectives for the area.The use of logos,slogans, symbols, patterns,striping and other markings,and colors associated with a franchise or chain is permitted, and shall be considered as contributing to the number and area of permitted signs. 18. Noise. Noise associated with activities at the site shall not create a nuisance to nearby properties,and shall comply with applicable City noise requirements. 19. Natural Resources Protection. Each project shall meet the Erosion Control and Stormwater Management Standards found in Sections 10-121 —10-135. In addition,post- development runoff rates shall not exceed pre-settlement rates. In general,existing natural features shall be integrated into the site design as a site and community amenity. Maintenance of any storm water detention or conveyance features are solely borne by the developer/owner unless dedicated and accepted by the City. 20. Policy on Vacation of Existing Sites. Where such a building is proposed as a replacement location for a business already located within the City,the City shall prohibit any privately imposed limits on the type or reuse of the previously occupied building through conditions of sale or lease. 21. Developer's Agreement. The Developer shall enter into a Development Agreement with the City,which shall include the payment of all utilities including but not limited to storm water, sanitary sewer, and street infrastructure,and the commitment to adhere to the policy on vacation of existing sites per Item 20,above. Off-site improvements may also be required. 22. Absolute Building Area Cap. No individual building shall exceed a total of 110,000 square feet in gross floor area.This cap may not be exceeded by the granting of a Planned Development permit. 23. Outlots. All buildings on outlots shall be of architectural quality comparable to the primary structure as determined by the Planning Commission. 7 Section 2. This ordinance shall take effect after passage and publications as required by law. Adapted on roll call at a regular meeting of the Common Council of the City of Stoughton held on the 27h day of January, 2004. VOTE: APPROVED: Ayes: 9 Noes: 3 Helen J.Johnson,Mayor Adopted: 1-27-04 Published: 2-5-04 Luann J. Alme,City Clerk S:/common/ljalord&res/section76-467_big box New Rules Project-Retail - Community Impact Assessment- Greenfield.,MA Wage 1 of 10 wwwA# utos.org Community Impact Assessment Greenfield, Massachusetts Greenfield, Massachusetts requires new retail stores to undergo a special review if they exceed 20,000 square feet or generate more than 500 vehicle trips per day. Impact studies are paid for by the developer and consider the project's impact on traffic, municipal services, public revenue, the environment, the local economy, and the community. The community component includes potential impact on historic and scenic sites, the character of the town, and the downtown business district. These studies typically quantify the net loss or gain in sales to existing businesses, total retail space, jobs, and tax revenue expected to result from the new development. Findings of adverse impact may result in rejection of the development. Reports and Other Resources Greenfield Panning Board MA30R DEVELOPMENT REVIEW MULES & REGULATIONS FOR IMPACT STATEMENTS What's New on the Adopted 3une 17, 1991 Shell SECTION 1 SEARCH -° PurDose ri14 The purpose of an impact statement is to provide the Special Permit Granting Authority with sufficient information to conduct a detailed review of uses which Advanced Search have the potential for significant impact on the Town. The impact review process is intended to promote and protect the natural resources an aesthetic qualities of the Town and to mitigate any adverse impact to the Town services, traffic patterns, abutting properties, the economy of the Town, the character of the Town, or the public health, safety, and welfare of Town residents. SECTION 2 Appiicability-And Procedure 2.1 These Rules and Regulations are applicable to impact statements required and submitted in accordance with the Greenfield Zoning Bylaw and the Greenfield Subdivision Regulations. The Home Town 2.2 The most recent edition of the Institute of Transportation Engineers (ITE), Advantage provides Trip Generation Manual shall be used to determine if the proposed project strategies for reviving meets the 500 vehicle trips per day threshold requiring Major Development independent Review under Section 7.12.2.1. of the Greenfield Zoning Bylaw. If the ITE Trip businesses and Main Generation rates are not applicable or the use is not included in the manual, the Streets. By stag estimated vehicle trips per day shall be verified by the Greenfield Department Mitchell. of Public Works. Order Online now! http://www.newrules.org/retail/greenfield.htl 7/l/2004 New Rules Project-Retail- Community Impact Assessment- Greenfield,MA Page 2 of 10 2.3 Ten (10) copies of the impact statement shall be submitted along with all other forms, plans and information required for special permit applications under Major Development Review, Section 7,12. of the Greenfield Zoning Bylaw The Nome Town and for subdivision applications under section 3.5 of the Greenfield Subdivision Advantage Regulations. a-Bulletin The Norrie Town 2.4 The Special Permit Granting Authority may waive strict compliance with the Advantage e- submittal requirements of these Rules and Regulations by a majority vete of bulletin - Is a bi- the Board if, in its opinion, the information required is deemed unnecessary or monthly electronic inapplicable to the review of the project. Request for waivers shall be made in newsletter reporting writing to the Board and shall state the reasons and supporting justifications for on efforts nationwide granting the waiver. Applicants are encourage to discuss the requirements of to stop chain store the impact statement with the Board or Planning Department staff prior to proliferation and preparation of the statement. support locally owned, Independent 2.5 The impact statement shall be prepared by an interdisciplinary team of retail businesses. professionals qualified to evaluate all facets of the proposed project which may include but is not limited to engineers, architects, landscape architects, Clickk Here to it's environmental scientists, and planners. Subscribe SECTION 3 Columns&Articles Contents of the Impact Statements New Rules for the New RuleLocas f or 3.1 The impact statement shall include the following elements: Favoring Communities, 1. A detailed description of the proposed project and its design features, Deterring Corporate including existing conditions on the site and in the vicinity of the project. Chains - An Interview with Stacy 2. Identification and assessment of the impacts of proposed project, including Mitchell, Multinational positive, negative, and indirect impacts. Monitor, October- November 2002 3. An evaluation of how the project will meet the design standards required in these Rules and Regulations. Local Retailers Can't Grow in the 4. proposed measures to mitigate adverse impacts and/or maximize positive Shadows of impact including design modifications and provision of infrastructure or public Supercenters- by service improvements sufficient to support the project. Any adverse impacts Stacy Mitchell, which cannot be mitigated shall be Identified. Mitigation measures to be November 17, 2002 implemented by the applicant shall be identified. Chain Reaction - 3.2-Imp aGt Assessment Stacy Mitchell interviewed on The Impact Statement shall assess the following areas of potential impact. Working Assets Radia, August 20, 2002 3.2.1 Traffic Impact Homegrown 1. Existing Traffic Conditions: Economics: Now Average daily and peak hour volumes, sight distances, street capacity, level of Boulder Businesses service, physical characteristics of the streets, number and location of are staying Ahead driveways and intersections, average and peak speeds, accident data, of the Chains - pedestrian movement, and public transportation and traffic controls for streets Autumn 2001 and intersections adjacent to the project and for streets and intersections which will experience a 10% increase in peak hour traffic as a result of the project or Belfast votes in which will experience a reduction in the level of service as a result of the 8, 200l self-defense -July project, and for failing streets and intersections which will experience an a, tooincrease in traffic as required by the Board. http://www.newt-ules.org/retail/greenfield.html 7/1/2004 New Rules Project- Retail - Community Impact Assessment- Greenfield, MA Page 3 of 10 Red Wing Gets 2. Pro9ected T ffic Condit!oris: Boxed In -June 20, Average daily and peak hour traffic projections and directional distribution of 2001 site generated traffic, sight distances at proposed driveway intersections with streets, on-site traffic circulation and parking layout, pedestrian movement and Midway Home background traffic conditions for the design year including any planned Depot dismantles roadway/ traffic improvements and other proposed projects in the vicinity of concept of quality the site. of life -June 5, 2001 3. Projected Traffic fmpact When a dant Evaluate how the proposed project will affect traffic conditions an streets and Retailer Moves on, intersections adjacent to and those likely to be affected by the proposed project It Leaves its '819 including level of service, traffic flow, turning movements, sight distances, Box` Behind - traffic controls, pedestrian movement, and public transportation. 3anuray 8, 2001 3.2.2 I_mp ct..to Municipal 1JtilitieslServices Bucking the Chain Store Trend - March 1. Water Sunoly: Describe the proposed water supply system including average 17, 2000 daily and peak water demand; location, sizing, and accessibility to municipal water mains; and water pressure and flows available at the site. Evaluate the Fighting the Chains capacity of the Town's water supply and distribution system to adequately - 2000 service the projected water and fire flow needs of the project, the need for pumping stations, standpipes, or improvements to the water system required to service the project. Estimate the cost and discuss the responsibility for construction of improvements and on-going maintenance. Consultation with the Department of Public Works is required. 2. Sewage DisposalL Describe the proposed sewage disposal system including average daily and peak wastewater discharges to the municipal sewer system; composition and concentration of wastewater; location, sizing, and pumping stations, forced mains or other system improvements required to adequately service the project. Evaluate the capacity of the swage treatment plant and the sewerage system to accommodate the wastewater flows. Evaluate the need for pre-treatment of wastewater to achieve compliance with the Greenfield Sewer Use Regulations. Estimate the cast and discuss the responsibility for construction of system improvements and on-going maintenance. Consultation with the Department of Public Works and the Department of Environmental Protection is required. 3. Storm Drains: Describe the proposed surface drainage system including pre and post runoff calculations; the location, sizing, accessibility, and proposed discharges to the municipal storm drains. Evaluate the capacity of the existing storm drains to accommodate projected storm water runoff. Estimate the cost and discuss the responsibility for construction of storm drain improvements and on-going maintenance. Consultation with the Department of Public Works is required. 4. Solid Waste Disposal: Describe the quantity and composition of projected solid wastes to be generated by the project including average weekly volume in cubic yards of refuse generated; recycling potential; method of on-site storage and collection. Evaluate the impact to the municipal landfill, recycling facility, and transfer station including available landfill capacity and costs of collection and disposal. Consultation with the Department of Public Works is required. 5. Emergency Se t.e : Describe the anticipated fire and police protection needs including time and demand on municipal personnel; provision for alarms or warning devices; on-site fire fighting and security capabilities; need for increased municipal personnel or equipment. Estimate the cost and discuss the responsibility for providing emergency protection to the project. Consultation http://www.newrules.org/retail/greenfield.html 7/1/2004 New Rales Project- Retail - Community Impact Assessment- Greenfield, MA Page 4 of 10 with the police and Eire department is required. 6. Schools: Describe the projected impact to the public school system including kindergarten, primary, and secondary levels. Identify the schools to be affected; projected number of students by housing type (i.e. single- family, apartments, townhouses) and number of bedrooms (i.e. one-bedroom two- bedroom etc.); the ability of the schools to absorb the additional enrollment including impact on classroom size, school bus routing changes, and the annual cost per student to the school system. Projected number of students shall be based on relevant data for the region, Massachusetts, or the northeast. Consultation with the School Department is required. 3.2.3 Environmental Impact 1. Describe the existing physical and ecological characteristics of the site and in relation to surrounding land including topography, slope, soils, wetlands, surface water, vernal pools, flood plains, depth to groundwater, drainage patterns, type and coverage of vegetation, wildlife and wildlife habitat, identification of any rare or endangered plant or animal species, relationships to public or private water supply wells and recharge areas or public water supply reservoirs, Consultation with the Conservation Commission, department of Public Works, and the Massachusetts Natural Heritage Program is required. 2. Identify and evaluate the potential Impacts of the project on air quality, surface water, wetlands, groundwater, plant and wildlife species, temperature, wind, and noise levels on-site and. off-site which will be affected by the project. 3. Specifically evaluate the impact of storm water, runoff, flooding, erosion, sedimentation, grading changes, increased impervious surface, discharges to groundwater, pumping of groundwater, wetlands disruption, and changes to vegetative cover. Provide the location and results of any test pits, sail borings, and percolation tests performed on the site. 4. Describe the types, quantities, use and storage methods for hazardous materials and wastes to be used or generated by the project. What measures will be taken to prevent a release into the environment? 5. De crl mit€gation measures for impacts identified above. Z3.2.4 Community Impacts 1. Describe the surrounding neighborhood and any scenic, unique geological, historical, or archeological features and recreational areas on the site or in the vicinity of the site which could be affected by the project. 2. Describe the layout of the proposed project In detail (site plans may be used) including scale, placement, and design of buildings and structures; lighting; parking areas; open space; relationship to scenic views from the site; views of the project from distant vantage points and from adjacent properties and public ways. 3, Evaluate the proposed architectural design in relationship to surrounding land uses and prevailing architectural style including major design elements such as scale, materials, color, setbacks, roof lines. 4, Identify the Impacts to historic properties, districts, or areas, and any archaeological sites on the property or in the vicinity of the project. http://www.newrules.org/retail/greenfield.html 7/1/2004 New Rules Project-Retail- Community Impact Assessment- Greenfield,MA Page 5 of 10 Consultation with the Historic Commission is required. 5. Describe any recreational facilities proposed for the site and provision of public recreational or open spaces. Estimate the off-site recreational demands of the proposed project and its impact to municipal recreational facilities and programs. Consultation with the Recreation Commission is required. 6, Residential projects should be evaluated in relationship to the type and scale of surrounding residential uses. Evaluate the prefect in meeting the housing needs of Greenfield and discuss any provision far affordable housing. Consultation with the Greenfield Housing Partnership and the Office of Planning & Community Development is required. 7. Non-residential projects should estimate the number and types of jobs to be created by the project, estimate the amount of local labor to be used, and evaluate the impact of the project on existing employers in the community. 8. Estimate the amount, type, and location of spin-off development resulting from construction of the project and its likely impact on the community including changing land use patterns, development pressure on surrounding neighborhoods, impact to the downtown business district, impact to important natural resources, traffic, and Town services. 9, Identify and evaluate the potential impacts to neighboring communities resulting from the project. 3.2.5 Fiscal impact 1. Evaluate the projected costs and benefits to the community resulting from the project including: a) Projected costs arising from increased demand for and required improvements to public services and infrastructure. b) Value of improvements to public services and infrastructure to be provided by the project. c) Projected tax revenues to be generated by the project. d) Projected impact of the project on surrounding land values and any potential loss or increase in tax revenues to the Town. e) Short-term and long-term projection of increased Town revenues and costs resulting from the proposed project. 2. Evaluate the market and financial feasibility of the project. Include any market studies prepared for the project and any plans for phased construction. SECTION 4 Development Impact Statements The Special Permit Granting Authority shall consider the following standards when reviewing development impacts in addition to the special Permit and Site Plan criteria required in Sections 8.3 and 8.4 of the Greenfield Zoning Bylaw. http://www.newrules.org/retail/greenfield.html 7/1/2004 New Rules Project- Retail - Community Impact Assessment- Greenfield.,MA Page 6 of 10 4.1 Traffic standards 1. The Level of Service (LCIS) of all streets and intersections evaluated under Section 3.2.1 shall not be reduced. Leven of Service shall be determined in accordance with the most recant edition of the Highway Capacity Manual, Highway Research Board, National Academy of Science a National Research Council. See attached appendix for summary description of LOS. 2. The design goal for all streets, signalized intersections, and turning movements at unsignalized intersections shall be LOS C or better. For streets and intersections currently functioning at LCIS C or better, mitigation measures shall be provided to maintain or improve the existing LOS. Where the existing LOS is D, mitigation measures shall at a minimum, maintain the existing conditions or upgrade the LOS to C or better. 3. For all streets and intersections which are currently failing (LCIS E or worse), the goal of mitigation measures is to provide a LOS D or better. At a minimum, existing conditions at failing streets and Intersecting shall not be further degraded as a result of the project. 4. Driveways shall be located to limit conflict points with existing driveways and intersections and shall meet intersection design standards for secondary roads required in the Greenfield Subdivision Regulations. 5. Shared driveways and service roads shall be used to control access onto existing streets. 6. The impact of increased turning movements shall be mitigated. 7. The project shall be sited and driveways located to prevent routing of non- residential traffic to and through residential streets. 8. Pedestrian and bicycle circulation shall be separated from motor vehicle circulation as far as practicable. 4.2 Munici al Utilities Services Standards 1. The public water, sewer, and drainage systems in the vicinity of the site shall be adequate to serve the proposed project. If public utilities are not adequate to serve the project, the reviewing authority may require, as a condition of approval, off-site improvements to increase the capacity of such utilities sufficient to serve the project. 2. All utilities shall be placed under ground where physically feasible. 3. All commercial and industrial discharges to the sewage treatment plant shall be pretreated if required by the Water Department of Public Works to prevent overloading of the treatment plant. All discharges shall be in compliance with the Greenfield Sewer Use Regulations. 4. Can-site storm water management measures shall be required to ensure that the rate of runoff from the site to the municipal storm sewer is not increased. Provision shall be made for on-going maintenance of on-site storm water management facilities connected to the public storm drain. 5. The Town may require recycling and/or commercial refuse disposal to prevent overloading of the municipal landfill and transfer station. http://www.newrules.org/retail/greenfield.html 7/1/2004 New Rules Project- Retail- Community Impact Assessment- Greenfield, MA Page 7 of 10 6. Municipal police and fire services shall not be strained by the proposed project. Adequate fire flows shall be available at the site. Improvements to the water system may be required to provide adequate service or on-site alternatives owned and maintained by the landowner may be required. 7. Provision of school bus service shall not require additional routes or buses at the expense of the Town. Phasing of residential bevel developments may be required to ensure that the public school system can meet the increased enrollment resulting from the project. 4.3 Environmental Standards 1. The project shall not create any significant emission of noise, dust, fumes, noxious gases, radiation, water pollutants, or any similar significant adverse environmental impact. 2. The project shall not cause erosion, flooding, sedimentation, or increase the rate of runoff from the site, provision shall be made far attenuation of runoff pollutants. Groundwater recharge shall be provided where the Town deems it important. 3. The project shall be designed to minimize the destruction of wetlands, unique natural features, wildlife habitat, and rare or endangered species. Special effort shall be made to maintain wetlands, wetland buffer zones and corridors between wetlands and wooded uplands; wildlife travel corridors; existing diversity at plant communities; and to avoid alteration of areas most difficult to replicate. 4. The project shall not result in a reduction of groundwater recharge, deteriorate surface or groundwater, or negatively impact any public water supply recharge area or watershed. Commercial and industrial discharges of process waste water to the ground shall not be permitted. 5. Best available measures shall be used to prevent a discharge or spill of hazardous materials or wastes into the environment. 6. Buffers, setbacks, landscaping, and traffic circulation patterns shall be used to mitigate noise and air pollution impacts. 4.4 Cp=unity Standards 1. Provision shall be made for preserving historical features of the site. The project shall be compatible with the character and scale of neighboring properties especially historic structures or areas. 2. Building materials, architecture, and building placement shall minimize the visibility of buildings from distant vantage points, minimize obstruction of scenic views visible from public ways, and ensure compatibility with neighboring properties. 3. On-site recreation areas shall be provided for residential developments in areas where public recreational facilities are not available or if the capacity of nearby recreational facilities would be overburdened by the project, 4. Project siting and design shall be consistent with existing local plans and policies adopted by the Planning Board, Recreation Commission, Conservation Commission, Board of Selectmen or Town Council. http://www.newrules.org/retail/greenfield.html 7/1/2004 New Rules Project- Retail - Community Impact Assessment - Greenfield,MA Page 8 of 10 5. Adverse impact to the downtown business district shall be minimized through the use of joint marketing, hours of operation, products offered, and other measures to collaborate with downtown businesses, 4.5 Fiscal Impact Standards 1. The proposed project shall not have a significant adverse impact on the Town in terms of balancing as near as possible the cost of public services and public revenue provided through taxes and other income. The reviewing authority may require phasing of the project to minimize negative fiscal impacts to the Town over the short term. 2. The project shall be designed to minimize any negative impacts to adjoining property values. 3. The applicant shall demonstrate the financial ability to complete the prefect and to achieve long-term financial stability. Zoning Bylaw Amendment Adopted March 20, 1991 7.12 MA R DEVELQPMENT REVIEW 7.12.1 Purpose The purpose of reviewing major developments is to provide for detailed review and approval of certain uses which have the potential for significant impact to the environment, abutting properties, Town services, traffic patterns, the economy of the Town, the character of the Town, or the public health, safety, and welfare of Town residents. 7.12.2 Application The provisions of this section shall apply to the following uses: 1. All uses that generate 500 vehicle trips per day or more. 2. All uses that create 40 or more dwelling units. 3. All subdivisions of land into 40 or more lots. 4. All non-residential uses of 100,000 square feet of gross floor area or more in the Planned Industry District and 20,000 square feet or more of gross floor area in all other districts. 5. Any expansion of an existing use in which either the expansion or the expansion combined with the existing use meets or exceeds the above thresholds, and the expansion also exceeds twenty percent (20%) of the existing vehicle trips per day, or dwelling units, or lots, or gross floor area or 5,000 square feet whichever is more. 7.12.3 ReviewProcedures Uses subject to this section shall require a permit and site plan approval in accordance with Sections 8.3 and. 8.4 of this Bylaw. The Special Permit http://www.newrules,org/retail/greenfield.html 7/1/2004 New Rules Project- Retail o Community Impact.Assessment- Greenfield,MA Page 9 of 10 Granting Authority shall be as follows: 1. For all uses which require a special permit in accordance with other sections of this Bylaw, the Special Permit Granting Authority (SPGR) for major developments shall be the same as the SPCA already designated. 2. For all uses which do not require e a special permit in other sections of this Bylaw, the Special Permit Granting Authority shall he the Planning Board. 7.12.4 Submittal Requirements In addition to the submittal requirements for special permits and site plans in Sections 8.3 and 8.4 of this Bylaw, the following information shall also be submitted: 1. Facade elevations of any new construction and/or alteration to any existing building or structure. 2. Photographs showing the proposed building site and surrounding property. 3. An impact statement prepared in accordance with the Major Development Review Rules and Regulations for Impact Statements. The Special Permit Granting Authority may waive strict compliance with the submittal requirements if, in its opinion, the information required is deemed unnecessary or inapplicable to the review of the projects. 7.12.5 Criteria for ��val of a Major Dev to meet The Special Permit Granting Authority may issue a special permit for a major development only after finding that the proposed project will not adversely impact adjacent properties, the neighborhood, the Town or the environment. The following criteria shall be considered: 1. The special permit criteria in Section 8.3.6 of this Bylaw. 2. The site plan approval guidelines in Section 8.4.5 of this Bylaw. 3. The standards for evaluating the impacts of a project set forth in the Major Development Review Rules and Regulations for Impact Statements. 7.12.6 Conditions Safe wards Lmita ions for a Major Developm to In granting a special permit for a major development, the Special Permit Granting Authority may impose conditions, safeguards, and limitations. Such conditions, safeguards, and limitations shall be in writing and may include but are not limited to the following: 1. Roadway construction improvements, bridge improvements, access and traffic controls, integration of public transportation, or other measure to mitigate adverse impacts. 2. Additional or alternative means of pedestrian movement within the site and leading to the site. 3. Provision for privately owned utilities, emergency services, or improvements http://www,newrules.org/retail/greenfield.html 7/l/2004 New Rules Project- Retail - Community Impact Assessment- Greenfield, MA Page 10 of 10 to Town services required to adequately serve the needs of the proposed project, such as drainage, water, and sewer improvements. 4. Requirements for pre-treatment of wastes and management of storm water runoff on-site to mitigate impact to the Town's sewers and storm drains. 5. Additional buffer zones, screening, and set-backs. 6. Provision for open space or preservation of views. 7. Alterations or restrictions in the appearance of structures or landscaping to preserve property values, preserve aesthetic or historic features, maintain compatibility with existing uses, and promote the attractiveness of the Town. 8. Provision for phasing construction of the development. 9. Provision for measures to mitigate impact to existing commercial areas particularly the downtown Central Commercial District. 10. Provisions for mitigating any other adverse impacts identified in the impact statement or by the Special Permit Granting Authority. The New Rules Project http://www.newruies.org/ http://www.newrules.ort;/retail/greenfield.html 7/1/2004 The Vermont Environmental Board: Main Welcome Page 1 of 3 a OM 0 The Vertnom trmronmernt-al BsoaH Main Welcome HEW, 'E.'n-v'i..r.an,mo-.n"t,a.I 59rd...An-nual Ropprt ACT 250 BROCHURE APPLICATION FORMS E-NOTE INDEX 1 AND 10 ACRE TOWN APPLICATION.................................._FORMS..............- ­.­­­ .......... TOWN LIST Now= Photo by Louis Sorie Welcome to our web site We hope this interface is user-friendly and provides answers to the most fre gentjyqs1��d e rts. Please contact Board staff with feedback - - _q4_,gti!q_ concerning this site. Our Mission The mission of the Environmental Board is to provide a public, quasi-judicial process for reviewing and managing the environmental, social and fiscal consequences of major subdivisions and developments in Vermont. Specific program objectives of Act 250 include: 1) assuring thorough review of each Act 250 permit application under the requirements of the statuto"ry,"cr'i"t'er'a! ' ; 2) performing ,jurisdictional. l determ inAt(ons and permit reviews as expeditiously as possible; 3) providing assistance to applicants and other parties in preparation for their participation in A. .ct250 .................---------pro pim4tng ; 4) providing an appellate forum for decisions by dstrfct carttmysslans and issuing decisions and declaratory http://www.state.vt.us/envboard/ 7/7/2004 New Rules Project-'Retail - Community Impact Assessment- Cape Cod Commission Page l oft RET AIL SECTO. Cape Cod Commission The Cape Cod Commission was established in 1990 by Cape Cod voters concerned about the impact of rapid growth on the character of their communities, This regional planning agency has the authority to approve or reject proposals for new construction larger than 10,000 square feet and changes of use for commercial sites that exceed 40,000 square feet.. The review process involves a public hearing and focuses on the project's impact on the environment, traffic, community character, and local economy. Applicants bear the burden of demonstrating that the project's benefits outweigh its detriments, and that the development is consistent with the goals of regional and local comprehensive plans. Reports and Cape Cod's Regional Policy Plan, which provides the Commission with guidelines Other Resources for reviewing development applications, states that, when reviewing a project, the Commission "should take into account any negative impacts that the project would have on the Cape Cod economy and should encourage businesses What's New on the that are locally-owned and that employ Cape Cod residents." Site!! Armed with a regional land use plan and careful review of large scale SEARCH Armed Cape Cod residents have given a number of corporate retailers the cold shoulder, including Wal-Mart, Sam's Club, Costco, and Home Depot. More; Advanced Search ■ Cape Cod Commission Act s Regional governance in Cape Cod - by Lisa Schneiderman, Center for Urban and Regional Policy at Northeastern University In a state where strong local government is a proud tradition and counties are almost irrelevant, Cape Cosi has successfully managed to preserve local autonomy while employing a powerful regional government aimed at overseeing - and potentially halting - development in the region. ■ Regional Land Use Planning and Regulations on Cape Cod. Reconciling Local and Regional Control - by Robert W. Smith, Department of City and Regional Planning at the University of California, Berkeley This report examines the key components of this remarkable partnership between fifteen towns and the regional government in Cape Cod that coordinates all fifteen planning efforts. The Home frown Advantage provides strategies for reviving independent The New Mules Project businesses and Main http•//www.newruies.org/ Streets. By Stacy Mitchell. Order Online now! http://www.newrules.org/retail/capecod.html 7/l/2004 The'Vermont Environmental Board: Main Welcome Page 2 of 3 rulings; 5) assisting permittees in maintaining compliance with permit terms and conditions; 6) enforcing the requirements of Act 250 permits and the statute. The Waste Facility Panel is a panel of the Vermont Environmental Board. It is authorized to decide appeals from determinations by the Secretary of the Aggmy_..of Natural..„Resources_(ANR.) which relate to solid and hazardous waste management facilities. The Waste Facility Panel also decides Act 250 appeals from the district environmental commissions which involve solid waste management facilities. When there is an appeal of both an AMR determination and an Act 250 decision, the appeals are consolidated before the Waste Facility Panel. Contact Information The Environmental Board's offices are open Monday through Friday from 7:45 a.m. to 4:30 p.m. OggN..mnembers ond._staff or Con.Mission..merbers ard..staff. may be ruched by telephone or email as listed on the appropriate page. The Board's Chair may be contacted by telephone or email through the Board's Montpelier office. The Chair should not be contacted directly by parties who are currently involved in contested case proceedings before the Board. General questions about other environmental permits, such as subdivision and wastewater permits issued by the Vermont Agency of Natural Resources, should be directed to the emit specialist for your area. Telephonic (802) 828-3309 Postal address National Life Records Center Building, Drawer 20 Montpelier, VT 05620-3201 Electronic mail Executive Director-Michael zahner michael.zahner@state.vt.us) Business Manager,-Denise Wheeler (denisg,wheeler@state.vt.us) General Counsel:John Hasen Gohn.hasenOstate.vt.us) Chief Coordinator-Louis Sorie Qc§ori e@s,tote vt..ys) Enforcement Attorney:Thomas Walsh torn wolshQstate.vt.us ( Nome ] [ Chair's Greeting[ Schedule I [ Nuts & Announcements ] [ Statute ] ( Rules [ Board €Jecision.s_ 3 ( bmstrict._Commission.Cases: ] [ Publ�cattom�s � [ Board.Members & Staff j [ Comrrmrssismn,Members.,A Staff 1!eed0ac c ] [ Refaced Links � http://www.state.vt.us/envboard/ 7/7/2004 The Vermont Environmental Board: Main Welcome Page 3 of 3 F-ma's!4q. .Horse with any questions or comments about this web site. Please keep in mind that although we do our best to keep the information presented current, this is not meant to be a definitive resource.Please refer to the official published material, or call us if you need further information. Vermont Environmental Board National Life Records Center Building Lost modified*March 5,2003 Drawer 20 Montpelier,Vermont 05620-3201 (802)828-3309 http://www.state.vt.us/envboard/ 7/7/2004 New Rules Project- Retail - Community Impact Assessment- Cape Cod Commission Page 2 of 2 $14 The Home Town Advantage e-Bulletin The Home Town Advantage e- bulietin - is a bi- monthly electronic newsletter reporting on efforts nationwide to stop chain store proliferation and support locally owned, Independent retail businesses. It's Freell Click Here to Subscribe http://www.newrules.org/retail/capecod.html 7/1/2004 CAPE COD COMMISSION ACT page 1 of 28 THE COMMONWEALTH OF MASSACHUSETTS In the Year One Thousand Nine Hundred and Eighty-nine AN ACTESTABLISHING THE CAPE COD COMMISSION. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: SECTION I.The general court hereby finds and declares that: (a)The region commonly known as Cape Cod, comprised of Barnstable county, including all geographic areas to the jurisdictional limit of the common-wealth,possesses unique natural, coastal, scientific, historical, cultural, architectural, archaeological,recreational, and other values; there is a regional, state and national interest in protecting,preserving and enhancing these values; and these values are being threatened and may be irreparably damaged by uncoordinated or inappropriate uses of the region's land and other resources. (b)In order to protect these values and promote the public health, safety and general welfare,to maintain and enhance sound local and regional economies, and to ensure balanced economic development,this act creates the Cape Cod commission as the regional planning and land use commission with authority to prepare and oversee the implementation of a regional land-use policy plan for all of Cape Cod,to recommend for designation specific areas of Cape Cod as districts of critical planning concern, and to review and regulate developments of regional impact. (c)The purpose of the Cape Cod commission shall be to further: the conservation and preservation of natural undeveloped areas, wildlife, flora and habitats for endangered species;the preservation of coastal resources including aquaculture; the protection of groundwater, surface water and ocean water quality, as well as the other natural resources of Cape Cod; balanced economic growth;the provision of adequate capital facilities, including transportation, water supply, and solid, sanitary and hazardous waste disposal facilities; the coordination of the provision of adequate capital facilities with the achievement of other goals; the development of an adequate supply of fair affordable housing; and the preservation of historical, cultural, archaeological, architectural, and recreational values. (d)The commission shall: anticipate, guide and coordinate the rate and location of development with the capital facilities necessary to support such development;review developments which will have impacts beyond their local community and determine the comparative benefits and detriments of those projects and their consistency with the regional policy plan and local comprehensive plans and goals; identify and protect areas whose characteristics make them particularly vulnerable to adverse effects of development;preserve the social diversity of Cape Cod by promoting fair affordable housing for low- income and moderate-income persons; promote the expansion of employment opportunities; and implement a balanced and sustainable economic development strategy for Cape Cod capable of absorbing the effects of seasonal fluctuations in economic activity. SECTION 2.As used in this act, the following words shall,unless the context requires otherwise,have the following meanings:- (a)"Applicant", any person who has made application for a development permit or whose proposed development is subject to review as a development of regional impact. (b)"Assembly of delegates", the legislative body for Barnstable county established by chapter one http://www.capecodcommission.org/act.ht 7/7/2004 CAPE COD COMMISSION ACT Page 2 of 28 hundred and sixty-three of the acts of nineteen hundred and eighty-eight. (c)"Capitalfacilities",public facilities and services necessary to support development,including but not limited to reads,water, sewers,waste disposal, affordable housing, schools,police and fire protection facilities. (d)"Commission", the Cape Cod commission created by section three. (e)"Development", any of the following undertaken by any person. any building, construction, renovation,'mining, extraction,dredging, filling, excavation, or drilling activity or operation; any material change in the use or appearance of any structure or in the land itself; the division of land into parcels; any change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or a change to a commercial or industrial use from a less intensive use; any activity which alters a shore,beach, seacoast,river, stream, lake,pond, canal,marsh, dune area, woodland, wetland, endangered species habitat, aquifer, or other resource area, including coastal construction or other activity in Barnstable county within the jurisdictional limits of Barnstable county; demolition of a structure; the clearing of land as an adjunct of construction; or the deposit of refuse, solid or liquid waste or fill on a parcel of land or in any water area. (f)"Development agreement", a contract entered into between the Commission and or a unit of a municipality or municipalities and a holder of property development rights, the principal purpose of which is to negotiate and to establish the development regulations that will apply to the subject property during the term of the agreement and to establish the conditions to which the development will be subject including, without limitation, a schedule of impact fees. (g)"Development by-law", any by-law, ordinance,rule or regulation adopted by a municipality or municipal agency for the control or regulation of activities related to development affecting any buildings, land, water area or other resources within the boundaries of said municipality. (h)"Development of regional impact", a development which,because of its magnitude or the magnitude of its impact on the natural or built environment, is likely to present development issues significant to or affecting more than one municipality, and which conforms to the criteria established in the applicable standards and criteria for developments of regional impact pursuant to section twelve. (i)"Development permit", any permit, license, authority, order, approval, certificate, endorsement,or permission required from a municipal agency prior to the commencement or completion of any development,but not including any municipal dump permit issued to a household. (j)"District of critical planning concern", a geographic area of Cape Cod identified by the commission as requiring special protection and designated by the assembly of delegates in accordance with the criteria, procedures and requirements set forth in sections ten and eleven. (k)"Floor area", includes total enclosed floor area of all floors. For additions or auxiliary buildings, the floor area includes only the floor area of the addition or of the auxiliary building. (1)"Governor's committee", a committee composed of the secretaries of the executive offices of environmental affairs;transportation and construction; economic affairs; labor; and communities and development; and any other state official designated as a member by the governor. (m)"Impact fees",a contribution paid by a person undertaking a development to a municipality or http://www.capecodcommission.org/act.htm 7/7/2404 CAPE COD COMMISSION ACT Page 3 of 28 municipalities pursuant to the provisions of section fifteen,designed to offset the impacts of a development. Impact fees may include,but are not limited to, creation or improvement of streets, sewers,water supplies,parks, schools, affordable housing and similar capital facilities. (n)"Focal comprehensive plan",the plan which may be prepared or adopted by a local planning committee with the consultation and assistance of the commission staff and adopted by a town meeting, as described in section nine. (o)"Local planning committee", the committee established in each municipality to develop and manage the local comprehensive plan, as described in section eight. (p)"Implementing regulations", the regulations adopted by municipalities or municipal agencies or the assembly of delegates to implement guidelines established by the commission for districts of critical planning concern. (q)"Municipal agency", any municipal agency,board, commission, department, office, or official that has authority to approve or grant a development permit. (r)"Municipality", any of the following municipalities on Barnstable county: Barnstable, Bourne, Brewster, Chatham,Dennis,Eastham, Falmouth,Harwich,Mashpee,Orleans,Provincetown, Sandwich, Truro, Wellfleet and Yarmouth. (s)"Person", an individual, corporation, municipality, governmental agency or authority,business trust, estate, trust,partnership, association,joint venture,two or more persons having a joint or common interest, or any legal entity. A state agency or authority shall not be deemed a person within the meaning of this act. (t)"Regional policy plan", the plan prepared as described in sections seven and eight. (u)"The regional policy plan advisory board", a board comprised of a designee of the following: the Association for the Preservation of Cape Cod, the Barnstable County Bar Association, the Cape Cod board of realtors, the Cape Cod Homebuilders' Association,The Compact of Cape Cod Conservation Trusts, the Cape Cod chamber of commerce, and a member of a town planning board, town board of health, town conservation commission and town housing authority to be appointed by the county commissioners and one member of a local housing partnership committee, one member of the Barnstable County Health and Human Services Advisory Council, and five representatives of the Barnstable County minority community to be appointed by the county commissioners. The five minority community representatives shall include at least one person of (1) Asian or Pacific Island ancestry; (2) Black ancestry; (3) Cape Verdean ancestry; (4)Hispanic ancestry; and(S)Native American ancestry. The county commissioners shall solicit, accept and consider nominations for these positions from minority community associations including,but not limited to, the Cape Cod Chapter of the National Associationfor the Advancement of Colored People; the Cape Verdean Club; the Martin Luther King Center; and the Wampanoag Tribal Council. The commission shall exercise its best efforts in soliciting, accepting and considering such nominations. In the event that no nominations are received for the representative position for a particular minority group or that every candidate nominated or considered for the representative position for a particular minority group refuses to serve, the commission shall appoint a representative from another minority group. http://www.capecodcommission.org/act.htm 7/7/.2004 CAPE COD COMMISSION ACT Page 4 of 28 (v)"Board of Selectmen", the board of selectmen in any municipality or the chief executive officer for any municipality that does not have a board of selectmen. (w)"Ordinance", any ordinance adopted pursuant to section 2-8 and section 7-4 of chapter one hundred and sixty-three of the acts of nineteen hundred and eighty-eight by the assembly of delegates and approved by the county commissioners. Every such ordinance shall be effective immediately upon approval, notwithstanding paragraph(i) of section 2-8, unless a later day is specified in the ordinance. (x)"Fair affordable housing", any residential housing unit which meets affordability standards promulgated by the executive office of communities and development and which prohibits discrimination because of the race, color, religious creed,national origin, sex, ancestry, sexual orientation or handicap of any person. (y)"Minority", (a)Asian or Pacific Islander, a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands; (b) Black, a person having origins in any of the Black racial groups of Africa, the Middle East or the West Indies; (c) Cape Verdean, a person having origins in any of the original peoples of the Cape Verde Islands; (d)Hispanic, a person having origins in any of the original peoples of Mexico, Puerto Rico, Cuba, the Dominican Republic, Central America or South America; or(e)Native American, a person having origins in any of the originalpeoples of North America. SECTION 3. (a) There is hereby created the Cape Cod commission which shall be the regional planning and land use commission for Cape Cod and shall have the responsibilities, duties, and powers established herein in Barnstable county. The commission shall be the regional planning agency for Cape Cod in accordance with applicable laws and regulations as provided in this act. The commission shall be an agency within the structure of Barnstable county government pursuant to this act, and shall operate in accordance with Barnstable county administrative and budgetary procedures and in accordance with the provisions of section eighteen. (b)The commission shall have nineteen members as follows: fifteen shall be representatives of each of the fifteen municipalities, appointed by each municipality's board of selectmen; one county commissioner for Barnstable county appointed by the board of the county commissioners; one Native American appointed by the board of county commissioners; one minority appointed by the board of county commissioners; one minority appointed by the governor. Each member of the commission must be a resident and a registered voter of one of the towns of Barnstable county. Each member shall have one vote except the governor's appointee, whose function shall be advisory except in the event of a tie vote. (c)Each member of the commission appointed by each municipality shall serve a term of three years; provided, however, that among the initial members of the commission, six shall serve for a term of three years, five shall serve for a term of two years, and five shall serve for a term of one year. The governor's appointee shall serve coterminous with the governor. The county commissioners shall appoint or reappoint their representatives annually. The commission shall determine the length of each initial member's term by lottery at the first meeting of the commission. Any commission member may, at the end of his terra, be reappointed. (d)Each municipality's board of selectmen shall appoint a replacement to fill the term of its representative in the event that the position becomes vacant. (e)The commission members shall annually elect a chairperson, vice chairperson and secretary. The first http.//www,capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 5 of 28 set of officers shall be elected at the commission's initial organizational meeting,which shall be conducted within thirty days of the effective date of this act. (f)The provisions of sections twenty-three A to twenty-three G of chapter thirty-nine of the General Laws shall apply to the commission. (g)At any meeting of the commission, a majority of its voting members shall constitute a quorum. Unless a greater majority is otherwise explicitly required by this act, where a quorum is present, the commission may act upon a vote by a simple majority of the voting members present. (h)The commission shall have an executive director, a fair, affordable housing specialist, a chief planner, an economic development officer and a chief regulatory officer, each of whom shall have education and experience in land use planning or regulation. The executive director shall be responsible for overall management of the commission's operations. The chief planner shall supervise planning matters including the preparation and amendment of the regional policy plan, the assistance to municipalities in their completion of local comprehensive plans, and the development of guidelines and regulations for districts of critical planning concerning. The chief regulatory officer shall supervise the development of regional impact review process. The commission shall also have a clerk whose duties shall include the keeping of the commission's official records. All appointments to the staff of the commission shall be made by the county commissioners upon the recommendation of the commission subject to the Barnstable county administrative,personnel and budgeting procedures. The affordable housing specialist shall (1) assist each municipality in developing the low and moderate income housing component of its local comprehensive plan; (2) evaluate the adequacy and fairness of the low and moderate income housing component of each local comprehensive plan submitted to the commission for certification; (3)monitor the progress of each municipality in implementing the low and moderate income housing component of it local comprehensive plan; and(4)report to the commission on the progress of each municipality in implementing the low and moderate income housing component of its local comprehensive plan. SECTION 4. (a) The commission shall have those powers necessary convenient to carry out the purposes and provisions of this act, including but not limited to the following powers, in addition to the regulatory and planning powers contained in this act: (1)to assist local governments in developing local comprehensive plans and,when requested, to assist local governments in carrying out their local planning and regulatory responsibilities; (2)to review and comment upon local comprehensive plans; (3)to sue and be sued; (4)to make use of alternate dispute resolution mechanisms such as negotiation, mediation or arbitration; (5)to retain, employ and remove employees, consultants, agents and attorneys, consistent with Barnstable county administrative,personnel and budgetary procedures, subject to Barnstable County's compliance with the affirmative action requirements set forth in Chapter 151 B of the General Laws, as needed to carry out its responsibilities under this act; (6)to apply for and receive state, federal and private grants and loans and to expend such funds with the approval of the county commissioners; http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COIF COMMISSION'ACT Page b of 28 (7)to hold public bearings; (8)to appoint hearing officers and, where it deems appropriate, to delegate to such hearing officers the responsibility to hold public hearings under this act and to assemble and report the record for decision by the commission or its designee and recommend decisions to the commission or its designee; however, any applicant or party aggrieved, following a hearing by a hearing officer, shall have the right to a public hearing before the commission in accordance with the provisions of Section Five (H) of this Act. (9)to enter into contracts with the approval of the county commissioners; (I 0.)to recommend to state agencies appropriate regulations for consistency with the regional policy plan; (I I)to promulgate and amend rules and regulations as appropriate to carry out its responsibilities under this act; (I 2)to appoint advisory boards, commissions, subcommittees and panels as it deems appropriate to carry out its responsibilities under this act; (13)to recommend public acquisition of specified land areas for preservation or recreational purposes; (14)to make use of the services of federal, state, county and local employees as may be available to the commission to carry out its responsibilities under this act; (I5)to coordinate its regulatory functions with local, state and federal authorities and, where possible and appropriate, to conduct joint hearings with those authorities; (1 6)to acquire funds as described in section eighteen and to manage such funds; (I7)to make grants with the approval of the county commissioners and provide technical assistance to municipalities for use in local planning activities; (I8)to assist municipalities in the study of local land use concerns; (19)to adopt plans, maps and studies as appropriate to carry out its responsibilities under this act; (20)to negotiate and enter into development agreements as described in section fourteen; (21)to conduct public education; (22)to conduct an annual public conference on land use on Cape Cod and to invite to such conference any private, local, state or federal governmental representatives it deems appropriate; (23)to produce an annual report which will be included in the annual Barnstable county report; (24)to require impact fees from persons in accordance with section fifteen; (25)to utilize land-use management tools lawful under the Constitutions of the United States and Commonwealth of Massachusetts and under the General Laws; http://www.capecodcommission.org/act.htm 7/7/2004 _ _ __ CAPE COD COMMISSION ACT Page 7 of 28 (26)to reimburse commission members for reasonable expenses incurred in connection with their service on the commission consistently with Barnstable county administrative and budgetary procedures; (27)to establish a process and procedures for siting and developing capital facilities and developments of regional impact which are necessary to ensure balanced growth. SECTION 5. (a) Whenever the commission is required to provide notice of a public hearing pursuant to the provisions of this act, the commission shall give notice by publication in a newspaper of general circulation throughout Barnstable county once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing. Notice shall also be posted in a conspicuous place in the commission's offices not less than fourteen days before the day of the hearing. Copies of all documents subject to notice and hearing shall be available for public inspection at the commission's office during normal business hours. (b)In addition to the requirements of subsection(a), notice of public hearings regarding the adaption of the Commission's regulations in accordance with section six shall be: (1)mailed at least fourteen days before the day of the hearing to the Assembly of Delegates, County Commissioners, board of selectmen, town clerk,building inspector,planning board,board of appeals and conservation commission of each municipality in Barnstable county, to any other municipal agency which makes a written request for such notice, and to the governor's committee; (2)published in a newspaper of general circulation in each of the municipalities in Barnstable county, once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing. (c)ln addition to the requirements of subsection(a), notice of public hearings regarding districts of critical planning concern as required in section ten shall be: (1)mailed at least fourteen days before the day of the hearing to the assembly of delegates, county commissioners, board of selectmen, town clerk,building inspector,planning board,board of appeals and conservation commission of each municipality in which the proposed district of critical planning concern or a portion thereof is located, to any other municipal agency which makes a written request for such notice, and to the governor's committee; (2)published in a newspaper of general circulation in each of the municipalities in which the proposed district of critical planning concern or a portion thereof is located, once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing. (3)mailed at least fourteen days before the day of the hearing to any person who makes a written request for notification relating to specific geographic areas of Barnstable county,provided such written request has been received by the commission at least twenty days but not more than two years before the mailing of such notice. (d)In addition to the requirements of subsection(a), notice of public hearings regarding the developments of regional impact as required in section thirteen shall be: (1)mailed at least fourteen days before the day of the hearing to the assembly of delegates, county commissioners,board of selectmen, town clerk, building inspector,planning board,board of appeals and conservation commission of each municipality in which the proposed development of regional impact or http://www.capecodcommission.org/act.htm 7/7/2004 CAFE COIF COMMISSION ACT Page 8 of 28 a portion thereof is located,to any other town agency which makes a written request for such notice and to the governor's committee; (2)mailed at least fourteen clays before the day of the hearing to the applicant and to each abutter to the proposed development of regional impact,based on a list of abutters provided by the applicant and certified by the tax assessor of the municipality or municipalities in which the development of regional impact or aportion thereof is located. For purposes of this Section, abutters shall include owners of land directly opposite on any public or private street or way and owners of land located within three hundred feet of any boundary of the proposed development of regional impact. (3)published in a newspaper of general circulation in each of the municipalities in which the proposed development of regional impact or a portion thereof is located, once in each of two successive weeks, the first publication to be not less than fourteen clays before the clay of the hearing. (4)mailed at least fourteen days before the day of the hearing to any person who makes a written request for notification relating to specific geographic areas of Barnstable county,provided such written request has been received by the commission at least twenty days but not more than two years before the mailing of such notice. (e)Each notice of a public hearing shall contain a brief description of the subject matter and the date, time and place of the public hearing and,where applicable,where an application including a map showing the location of the subject property may be viewed. Notice for public hearings concerning developments of regional impact shall also include the name of the development permit applicant. (f)Public hearings regarding designation of districts of critical planning concern shall be held within the municipality or one of the municipalities within which the district of critical planning concern or a portion thereof is located. (g)At least one public hearing regarding review of developments of regional impact shall be held in one of the municipalities within the area of Barnstable county in which the proposed development of regional impact is located. (h)Whenever the commission holds a public hearing in accordance with the provisions of this act, it shall afford interested persons an opportunity to present data,views or arguments in regard to the subject matter of the hearing orally or in writing. (i)The commission shall establish a periodic publication which publication shall contain all notices and written decisions required by this act or summaries thereof and such other information the commission deems relevant and of interest to the public. Such a publication shall be provided by subscription or by individual copy to any person requesting such for a fee reasonably calculated to recover the costs of such publication. SECTION 6. (a)The commission shall prepare proposed regulations of general application to enable it to fulfill its duties under this act, including,but not limited to, regulations concerning the process of designating districts of critical planning concern; the review of developments of regional impact, and the imposition of impact fees in accordance with Section 15 of this Act, The commission shall submit these proposed regulations for adoption by ordinance to the assembly of delegates. The assembly of delegates shall then hold at least one public hearing to consider the proposed regulations. Within sixty days after the receipt of the proposed regulations,the assembly of delegates shall either adopt the proposed regulations by ordinance or return the proposed regulations to the commission for restudy and http://www.capecodcommission.org/act.htm 7/7/20{}4 CAPE CCD COMMISSION ACT Page 9 of 28 redrafting. In the event the assembly of delegates has objections to the proposed regulations,the assembly shall return the proposed regulations to the commission, together with a written report identifying the elements to which the assembly has objections and a request for changes. After such restudy and redrafting, the commission shall again submit the proposed regulations to the assembly in accordance with the provisions of this section. Prior to adopting such regulations,the commission shall hold a public hearing in a convenient place of its choosing in Barnstable county after providing notice thereof. The commission shall also promulgate regulations, consistent with this act,which will govern the administration of its duties under this Act. Regulations duly adopted by the commission shall be valid and enforceable after they have been filed with the clerk of the commission and recorded with the Barnstable county registry of deeds. Such regulations shall also be mailed to the town clerk of each municipality in Barnstable county, and to the governor's committee. (b)The Commission may amend Regulations adopted under this Section through the same procedures provided in subsection (a) for adoption of regulations. (c)No claim of invalidity of any regulation adopted or amended under this Section by reason of any defect in the procedure of adoption or amendment shall be made in any legal proceedings and no state, regional, county or municipal officer shall refuse, deny or revoke any permit, approval or certificate because of any such claim of invalidity unless legal action is commenced within ninety days of the effective date of such regulation or amendment and notice specifying the court, parties, invalidity claimed and date of filing is filed, together with a copy of the petition with the commission within seven days after commencement of the action. (d)Reasonable fees as imposed by the commission pursuant to this act shall be uniform in relation to the type of relief sought. Fees shall be directly related to the administrative and technical costs required for the commission to carry out its responsibilities under the law. No fee shall be charged unless and until a schedule of fees is adopted as a regulation pursuant to this section. Fees may be waived by a majority vote of the commission.No fees may be imposed upon a municipality,municipal agency or a state agency. SECTION 7.(a)The commission shall in consultation with local planning committees, the regional policy plan advisory board and the governor's committee prepare a regional policy plan for Barnstable county which shall be designed to present a coherent set of regional planning policies and objectives to guide development throughout said Barnstable county and to protect the region's resources, and which shall reflect and reinforce the goals and purposes set out in section one. (b)The regional policy plan shall include but not be limited to: (1)identification of Barnstable county's critical resources and management needs, including its natural, scientific, coastal, historical,recreational, cultural, architectural, aesthetic, and economic resources, groundwater and surface water supplies, available open space, and available regions for agricultural, aquacultural and development activity; (2)a growth policy for Barnstable county including guidelines for the protection of Barnstable county's resources and the provision of capital facilities necessary to meet current and anticipated needs; (3)regional goals for the provision of fair, affordable housing,job creation, waste disposal, open space, recreation, crustal resources, capital facilities, economic development, historic preservation, and any other goals deemed appropriate and important by the commission; and http://www.capecodcommission.org/act.htm 7/7/2044 CAPE COD COMMISSION ACT Page 10 of 28 (4)a policy for coordinating regional and local planning efforts, including coordinating Planning activities of private parties and local, state or federal governmental authorities. SECTION'8,(a)The commission shall prepare a draft regional policy plan within twelve months of the effective date of this act. Such draft regional policy plan shall be deemed complete upon the commission mailing it to each municipality's local planning committee, the assembly of delegates, the county commissioners,beards of selectmen and to the governor's committee. To assist the commission in developing the draft regional policy plan, the commission or a subcommittee thereof shall hold at least one public hearing in each of the three areas commonly known as the Upper, Lower and Mid-Cape regions of Cape Cod. (b)The boards of selectmen of each municipality in Barnstable county are hereby authorized to establish and may appoint a local planning committee. The local planning committee shall elect its own chairperson. If a municipality already has an established planning board or committee,that board, or committee may act as the municipality's local planning committee should the municipality's board of selectmen so decide. (c)During the sixty day period following the completion of the draft regional policy plan the commission shall hold at least one public hearing in each of three areas of Cape Cod described above, and shall accept oral and written comments on the draft regional policy plan.. (d)During the same sixty day period, each local planning committee, the regional policy plan advisory board and the governor's committee shall submit written comments to the commission. (e)Within thirty days after the close of the sixty day comment period,the commission shall complete its final regional policy plan. The commission shall submit its final regional policy plan to the county commissioners and to the members of the assembly of delegates, with a request that an ordinance be introduced for its adoption as the Cape Cod regional policy plan. The assembly of delegates shall then hold at least one public hearing to consider the final regional policy plan. Within forty-five days after receipt of the final regional policy plan from the commission, the assembly of delegates shall either adapt the final regional policy plan by ordinance as proposed or return the final regional policy plan to the commission for restudy and redrafting in accordance subsection(f). (f)ln the event the assembly of delegates has substantive objections to the final regional policy plan as submitted by the commission, the assembly of delegates shall return the final regional policy plan to the commission for restudy and redrafting, together with a written report identifying those elements of the final regional policy plan to which the assembly of delegates has objections and a detailed request for changes. After such restudy and redrafting,the commission shall again submit the final regional policy plan to the assembly of delegates in accordance with subsection(e). (g)Upon the assembly of delegates' adoption by ordinance of the final regional policy plan, the commissionshall submit the final regional policy plan to the governor and the secretary of state and publish notice of its availability in the Massachusetts Register, the Environmental Monitor, a newspaper of general circulation in Barnstable county, and newspapers regularly published in each municipality. The final regional policy plan shall be recorded by the commission with the Barnstable county registry of deeds and shall become effective upon the later of the thirty days following the adoption date of the ordinance or on such recording. Copies of the final regional policy plan shall also be filed with the town clerk of each municipality in Barnstable county and with the governor's committee. (h)The assembly of delegates shall, by ordinance establish a process for a thorough review and http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 11 of 28 amendment of the regional policy plan, at intervals not to exceed five years. Notwithstanding the foregoing, the commission may initiate review of the regional policy plan on its own initiative at any time. All proposed amendments of the regional policy plan shall be submitted to the county commissioners and to the assembly of delegates in accordance with subsection(e). The review process shall include a prevision for notice and public hearing in accordance with subsection(b)of section five and section,six. Any amendments to the regional policy plan shall be submitted and filed in accordance with subsection(g). SECTION 9.(a)After the assembly of delegates has adopted the final regional policy plan pursuant to the provisions of section eight, each municipality may by a vote of its town meeting or legislative body adopt a local comprehensive plan which is consistent with the regional policy plan and the goals of the act. Each municipality's local comprehensive plan shall include a plan for the capital facilities which will be necessary in that municipality to accommodate growth and development both in the municipality and throughout Barnstable county. (b)The commission shall adopt regulations establishing minimum criteria for local comprehensive plans, which shall include a plan to provide for the development of fair low and moderate income housing consistent with local needs, and which may be certified by the commission as consistent with the regional policy plan. The local planning committee may develop a local comprehensive plan for submission to town meeting or the town legislative body for adoption. The commission staff may provide consultation and assistance to local planning committees. If a municipality has already adopted a comprehensive plan, the town meeting or other legislative body may adopt its existing plan as the municipality's local comprehensive plan, to the extent that it is consistent with the regional policy plan and with the guidelines established by the commission pursuant to subsection(b). After adoption of a local comprehensive plan by town meeting or other legislative body, the town clerk shall submit its local comprehensive plan to the commission for certification that it is consistent with the regional policy plan. (c)lf a municipality adopts a local comprehensive plan and it is certified by the commission,the municipality shall,within two years or such further time as the commission may allow, insure that its development by-laws are consistent with its local comprehensive plan.The commission may revoke the certificationof a municipality's local comprehensive plan if the municipality fails to make its development by-laws consistent with said plan within the time allowed under this section. In modifying their development by-laws pursuant to this section, municipalities may not alter the rights of property owners under section six of chapter forty A. section eighty-one P of chapter forty-one and section one hundred and twenty-seven P of chapter one hundred and eleven of the General Laws. The commission shall revoke the certification of a municipality's local comprehensive plan if the municipality fails to implement that portion of the local comprehensive plan which provides for the development of low and moderate income housing consistent with local needs within a reasonable period of time following certification of the local comprehensive plan. (d)Municipalities which have local comprehensive plans certified by the commission may enter into development agreements with persons proposing developments and with the commission,other municipalities and state agencies in accordance with section fourteen,and may impose impact fees on proposed developments in accordance with section fifteen. (e)The regulations referred to in subsection(b) shall not prohibit a municipality from proposing for certification or the commission from certifying a comprehensive plan which is more specific,detailed, or comprehensive, or which covers additional subject areas than the regulations require. This act and these regulations shall not prohibit a municipality from considering, adopting, enforcing or in any other way administering a comprehensive plan which does not comply with the regulations established by the http://www.capecodcommission.org/act.htm 7/7/2404 CAPE CCD COMMISSION ACT Wage 12 of 28 commission, so long as it is not administered or enforced in a manner which otherwise violates this act. (f)Each municipality may request financial and technical assistance from the commission in preparing local comprehensive plan and in implementing land use regulations. (g)In the event that the final regional policy plan is amended pursuant to subsection(h)of section eight any municipality having a certified local comprehensive plan shall conform said plan to the regional policy plan as amended pursuant to subsections(a)to(f) of section nine. SECTION 10.(a)The commission may propose the designation of certain areas which are of critical value to Barnstable county as districts of critical planning concern that must be preserved and maintaineddue to one or more of the following factors: (I)the presence of significant natural, coastal,scientific, cultural, architectural, archaeological,historic, economic or recreational resources or values of regional, statewide or national significance, or (2)the presence of substantial areas of sensitive ecological conditions which render the area unsuitable for development; or (3)the presence or proposed establishment of a major capital public facility or area of public investment. (b)The commission shall submit its proposed designation of a district of critical planning concern to the assembly of delegates for adoption by ordinance. The assembly of delegates shall then hold at least one public hearing to consider said proposed designation. Within sixty days after receipt of said proposed designation, the assembly of delegates shall either approve said proposed designation by ordinance or return said proposed designation to the commission for restudy and redrafting. In the event the assembly of delegates has objections to said proposed designation, the assembly shall return said proposed designation to the commission together with a written report identifying those elements to which the assembly has objections and a request for changes. After restudy and redrafting, the commission shall within forty-five days again submit said proposed designation to the assembly in accordance with the provisions of this section. If a proposed designation is not approved within sixty days of a second submission by the commission to the assembly of delegates, it shall be deemed denied. The designation shall take effect upon the effective date of the ordinance. (c)Districts of'critical planning concern may cover areas located in more than one municipality. Similar resources in different areas of Barnstable county should be treated similarly unless the commission makes a written finding that there are valid reasons based upon local differences and characteristics to justify treating them differently. (d)Nomination of areas for consideration for designation as districts of critical planning concern may be made by the commission; or by the county commissioners or the assembly of delegates; or by a board of selectmen,historic commission,planning board,board of health or conservation commission of any municipality for any areas within the municipal boundaries of the nominating municipal board or a contiguous municipality. Whenever an historic commission,planning board,board of health or conservation commission makes such a nomination, it must forward notice to the board of selectmen. The board of selectmen shall forward comments, if any to the commission on any nomination made by the historic commission,planning board,board of health or conservation commission. (e)Nominations shall contain information explaining why the subject area should be designated a district of critical planning concern and shall fully describe the area nominated. http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 13 of 28 (f)Upon receipt of a nomination the commission shall accept or reject the nomination for consideration within forty-five days. The acceptance of a nomination for consideration for designation shall be accompanied by a general statement of purpose, describing the reasons for acceptance and shall certify the types or classes of proposed development not substantially detrimental to the protection of the public health, safety and welfare and will not contravene the purposes of this act. Nominations which are not accepted for consideration shall be returned to their sponsors with a written explanation of the commission's reasons for not accepting the nomination for designation. (g)No nominations shall be filed with the commission until after six months from the effective date of this act. Within five months from the effective date of this act, the commission shall promulgate regulationsgoverning the form and content of nominations and procedures for the review of nominations. (h)The commission may consolidate nominations for consideration if it determines that multiple nominations relate to substantially similar resources, substantially similar geographic areas,contiguous or overlapping areas. (i)Except as provided in subsection(g), the commission shall render a decision within sixty days of accepting a nomination for consideration, unless the commission provides written explanation for a delay. The commission may not take longer than one hundred and twenty days from acceptance of a nomination for consideration to render its decision, The commission shall provide notice to the town clerk of all municipalities which are included within the boundaries of any part of the nominated area and shall hold one or more public hearings in locations appropriate and convenient to the nominated area. The chairperson of the commission may, at his discretion, appoint subcommittees of commission members to conduct public hearings on district of critical planning concern nominations. Any such subcommittee shall report to the full commission and the full commission shall render the final decision on the proposed designation. O)The commission's final decision on a proposed designation shall specify in writing the reasons for designation or refusal to designate. If the commission decides to propose a district of critical planning concern, its decision shall include a description of the area's critical concern to the region, the problems of uncontrolled or inappropriate development in the area, and the advantages anticipated from development of the area in a controlled manner. The commission shall also specify guidelines for development in the district based upon its findings relating to the critical concerns in the area. (k)Nominations for the same geographic area and for the same concerns which have been made to the commission but not recommended by the commission to the assembly of delegates for designation shall not be considered for acceptance for nomination within two years following the commission's decision not to designate or inaction unless the commission votes to accept them for nomination by a four-fifths vote of the members present, so long as a quorum exists. (1)The commission's proposed designation decision shall include a written description and a map of the land area to be included in the designation sufficient to identify the areas affected by the district of critical planning concern designation. All district of critical planning concern designation decisions that have been approved pursuant to subsection(b) shall be recorded by the commission in the Barnstable county registry of deeds and shall become effective upon such recording. Copies of such decisions shall also be filed with the town clerk of each municipality in which the district of critical planning concern or a portion thereof is located. Notice of the designation shall be published in a newspaper of general circulation in Barnstable county and in newspapers of general circulation in each of the municipalities in which the district of critical planning concern or a portion thereof is located. For the purposes of sections twenty to twenty-three, inclusive, of chapter forty B of the General Laws, the commission shall be http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COIF COMMISSION ACT Page 14 of 28 considered a local board. (m)District'of critical planning concern designations may be amended or rescinded by the same procedures as are set out in this section for designation. SECTION 11.(a)Upon receipt of a nomination of an area as a district of critical planning concern,the commission shall provide notice of such nomination as follows: (1)by mail to the assembly of delegates,county commissioners,board of selectmen,town clerk,building inspector,planning board,board of appeals, conservation commission and board of health of each municipality in which the nominated district of critical planning concern or a portion thereof is located; to any other municipal agency which makes a written request for such notice, and to the governor's committee; and (2)by publication in a newspaper of general circulation in Barnstable county and in a newspaper of general circulation in each of the municipalities in which the proposed district of critical planning concern or a portion thereof is located. (b)After the first publication of notice of the nomination of an area as a district of critical planning concern pursuant to subsection(a), no municipal agency may grant a development permit within the nominated district until the commission has decided not to accept the nomination or has denied a designation or the assembly of delegates and the county commissioners have rendered a final decision on designation. This subsection shall not apply to nominations for the same geographic area and for the same concerns which have been nominated within the previous two years but have not been accepted by the commission for nomination. (c)The acceptance of a nomination for consideration for designation as a district of critical planning concern shall continue to suspend the power of a municipality to grant development permits for development within the nominated district;provided, however,that until regulations adopted pursuant to subsection (e) and (f) of section eleven have become effective, a municipality may grant development permits for development within the district if. (I)the commission has certified in its acceptance of the nomination that the type or class of proposed development is not substantially detrimental to public health, safety or general welfare and does not contravene the purposes of this act and a development by-law or by-laws had been in effect immediately prior to the nomination of such area and development permits could have been granted under the by- laws; or (2)a development has received approval as a development of regional impact within the seven year period next preceding the nomination of the geographic area in which said development is located, in whole or in part and such approval is still valid; or (3)a development of regional impact has been referred to the commission for review prior to the first published notice of the nomination of a district of critical planning concern in which said development is located, in whole or in part, and subsequently is approved; or (4)a development is authorized by a development agreement which has been approved by the commission and the relevant municipality or municipalities;or (S)the commission has not expressly found in accepting a nomination that the issuance of development http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 15 of 28 permits for,a single-family house or houses on lots held in common ownership or on lots in separate ownership may be substantially detrimental to the protection of the public health, safety and welfare or in light of the factors specified in clauses(1) and(2)of subsection(a)of section ten,might contravene the purposes of this act. (d)After the adoption of an ordinance approving the designation of a district of critical planning concern, a municipality whose boundaries include all or part of that district shall propose implementing regulations;which are consistent with the guidelines for the development of the district as set forth in the assembly of delegates' designation. Proposed implementing regulations shall be submitted to the commission by the municipality after consideration by the municipal planning board,board of health, board of selectmen and conservation commission. The proposed implementing regulations shall also be submitted to the governor's committee. The commission, after notice to all municipalities in the district of critical planning concern and one or more public hearings, shall determine whether the municipality's proposed implementing regulations conform to the commission's guidelines. If the commission determinesthat the proposed implementing regulations do not conform to the commission's guidelines, such decision shall include specific reasons why the proposed implementing regulations do not conform and an opportunity for the municipality to amend its proposed implementing regulations. If the commission determines that the proposed implementing regulations do conform to the commission's guidelines, the commission shall so inform the municipality. (e)Once approved by the commission,the municipality's regulations for the district of critical planning concern shill be incorporated by the municipality into the official by-laws, regulations and maps of the municipality and shall not be effective prior thereto. In accordance with section thirty-two of chapter forty ofthe'General haws,by-laws shall be submitted to the attorney general for approval. Implementing regulations shall be administered by the municipality as part of its development by-laws. If such regulation requires enforcement by an administrative office or body which has not been constituted by a municipality, the board of selectmen of the municipality shall enforce such regulation. (f)lf a municipality fails within twelve months after the enactment of an ordinance by the assembly of delegates designating a district of critical planning concern to adopt implementing regulations which are consistent with the commission's guidelines,the commission shall propose and the assembly of delegates shall adopt by ordinance implementing regulations applicable to that municipality's portion of the district of critical planning concern after notice and public hearing;provided, however,that the commission may grant an additional ninety days to a municipality to adopt and incorporate implementing regulations. Within two weeks following the expiration of said twelve months or ninety day extension thereof the commission shall notify the assembly of delegates of the municipality's failure to adopt and incorporate the implementing regulations and the commission shall provide the assembly with its own proposed implementing regulations. In the event that the assembly of delegates and county commissioners fail to adopt by ordinance implementing regulations for the municipality in question within seventy-five days of such submission and notification, the implementing regulations proposed by the commission shall be deemed to have been validly adopted.. (g)No municipal agency may grant a development permit for a development in a district of critical planning concern unless the proposed development is consistent with the municipality's approved implementing regulations or implementing regulations adopted by the assembly of delegates for the district of critical planning concern. (h)Notwithstanding the provisions of this section, the commission shall permit a municipality to grant a development permit for a development in a district of critical planning concern or in an area which has been nominated and accepted for consideration for designation as a district of critical planning concern where an applicant demonstrates that to deny the development permit would constitute a taking of http.//www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 16 of 28 property in violation of the Massachusetts and United States Constitutions; provided, however, that no reasonably foreseeable danger to the public health or safety will arise from such approval or approval with conditions. (i)A municipality may amend or rescind its implementing regulations through the same procedure that it uses to adopt the implementing regulations, subject to review and approval by the commission. 6)If implementing regulations applicable to the entirety of a district of critical planning concern have not been approved by the commission or the assembly of delegates within eighteen months after the enactment of the designation of such a district, the designation of such part of such district for which the implementing regulations have not been approved or adopted shall terminate. (k)For the purposes of sections twenty to twenty-three, inclusive, of chapter forty B of the General Laws, the commission shall be considered a local board. (1)The provisions of this section shall not apply to any project for which a nonprofit educational institution has applied for or has received funds for the design and construction of said project on or before July first, nineteen hundred and eighty-nine, from an appropriation of the United States government. SECTION 12.(a)The commission may propose standards and criteria specifying the types of development which are likely to present development issues significant to more than one municipality in Barnstable county. The commission shall submit these proposed standards and criteria for adoption by ordinance to the assembly of delegates. The assembly of delegates shall then hold at least one public hearing to consider the proposed standards and criteria. Within sixty days after the receipt of the proposed standards and criteria, the assembly of delegates shall either adopt the proposed standards and criteria by ordinance or return the proposed standards and criteria to the commission for restudy and redrafting. In the event the assembly of delegates has objections to the proposed standards and criteria, the assembly shall return the proposed standards and criteria to the commission, together with a written report identifying the elements to which the assembly has objections and a request for changes. After such restudy and redrafting, the commission shall again submit the proposed standards and criteria to the assembly in accordance with the provisions of this section. Developments which meet the standards and criteria may termed developments of regional impact, and shall be subject to review by the commission lin accordance with the provisions of this section and section thirteen. The commission may propose and the assembly of delegates may adopt different standards and criteria for developments of regional impact for different areas in Barnstable county. (b)The standards and criteria for developments of regional impact shall be based on the following factors: (1)the impact of the development on the environment and natural resources, including but not limited to air, ground and surface water supply and quality; ecological, coastal, historical, cultural, architectural, archaeological, and recreational resources, endangered species habitats, open space, agriculture and aquaculture; (2)the impact of the development on existing capital facilities, including but not limited to transportation and infrastructure, sewage,waste disposal,water supply, fair affordable housing, and meaningful employment, (3)the physical size of the development and the site to be developed; http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COI?COMMISSION ACT Page 17 of 28 (4)the amount of pedestrian and vehicular traffic which the development would produce; (5)the anticipated number of new residents or employees generated by development; (o)the location of the development near a waterway,public land or municipal boundary; (7)the extent of waste disposal,water supply, sewage treatment,parking,tourist services and public education facilities required for the development; (8)the importance of the development to economic development in the region; (q)the effect of the development on resources of the surrounding municipalities; (10)other factors of regional concern as they may arise. (c)Until the assembly of delegates has approved different standards and criteria under this section,the following developments shall be presumed to be developments of regional impact: (Please note that these standards and criteria have been superseded by Barnstable County Ordinance 0-12, as amended. Clerk of the Commission,) (1)Any proposed demolition or substantial alteration of an historic structure listed with the National Register of Historic Places or Massachusetts Register of Historic Places, outside a municipal historic district or outside the Old Dings Highway Historic District. (2)The development of any bridge, road or driveway providing direct vehicular access to the coast or a great pond. (3)Any development which proposes to divide land of fifty acres or more which was in common ownership as of January first, nineteen hundred and eighty-eight. (4)Any development which proposes to divide land of fifteen acres or more which was in common ownership as of January first, nineteen hundred and eighty-eight and which was the result of an earlier subdivision within the last seven years. (5)Any development which proposes to divide land in common ownership into thirty or more residential dwelling units or ten or more business, office or industrial premises. (t)Any proposed retail or wholesale business, office or industrial development, as well as any private, health,recreational or educational development which has a floor area as follows: new construction: greater than ten thousand square feet; addition or auxiliary buildings: greater than five thousand square feet; or outdoor commercial space greater than forty thousand square feet. Use changes which have a floor area greater than ten thousand square feet. (7)Any proposed development, including the expansion of existing developments, that is planned to create or accommodate more than thirty dwelling units. (8)Any development the proposed construction or expansion of which will provide facilities for transportation to or from Barnstable county. http://www.capecodcommission.org/act.htm 7/7/2404 CAPE COD COMMISSION ACT Wage 18 of 28 (d)The commission may compile and circulate to municipal agencies a list of proposed municipal projects throughout Barnstable county. (e)A proposed development which does not exceed one of the specific thresholds in the interim standards and criteria set forth in subsection C of this section may be referred to the commission by a municipal agency, in the municipality where the development is located, or by the county commissioners or by the board of selectmen in any other municipality provided that the commission accepts the referral as a development which may have regional impacts and which presents one or more of the concerns listed in subsection(b). (f)Afler notice and pubic hearing, the commission may, at the time it publishes the final regional policy plan or at any time thereafter,propose amendments or modifications to the standards and criteria for developments of regional impact subject to the approval by ordinance of the assembly of delegates. For the purposes of sections twenty to twenty-three of chapter forty B of the General Laws,the commission shall be considered a local board. (g)The commission shall adopt regulations establishing an application procedure for development approval, and may require payment of reasonable fees by persons to cover the cost of the commission review pursuant to subsection(b)of section eighteen. Such regulations shall include a list of data and analysis which the applicants must submit to facilitate commission review. The commission may, however, require the submission of additional data and analysis from an applicant if it considers such additional information necessary to asses the impact of the proposed development, and may establish a schedule for the submission and review of such data and analysis. (h)Municipal agencies shall refer any proposed development which meets the standards and criteria set out by the commission for developments of regional impact to the commission for review, at which point the municipal agency's review shall be suspended until the commission has reviewed the proposed development. The commission shall invite municipal agencies to participate in all hearings. The commissionmay also review proposed developments that have not been referred by municipal agencies if, in the commission's judgment, the proposed developments meet the standards and criteria for developments of regional impact. If the commission determines that it should review a project that has not been referred to it by a municipal agency, it shall notify the municipal agency,the applicant, and the town clerk:of the municipality in which the project is located of its intent to review the project by certified mail. Upon receipt of said notice, the municipal agency shall suspend its review of the application. The suspension of municipal agency review shall extend all constructive grant periods for municipal agencies for a period equal to the duration of commission review, such periods to resume running after a final commission decision is rendered. (i)Notwithstanding the foregoing, any proposed development for which an environmental notification form must be filed under the provisions of sections sixty-one to sixty-two H, inclusive, of chapter thirty of the General Laws may be deemed a development of regional impact if the commission determines that the proposed development presents one or more of the concerns listed in subsection(b). Any proposed development project for which the secretary of environmental affairs requires the preparation of an environmental impact report in accordance with the provisions of sections sixty-one to sixty-two H, inclusive,'of chapter thirty of the General Laws shall be deemed a development of regional impact. O)Any applicant for a development permit,whose application has not been referred to the commission by a municipal agency or taken up by the commission for review under subsection(h), or any municipal agency may apply to the commission for a jurisdictional determination as to whether a development is a development of regional impact under the applicable standards and criteria established in and pursuant to subsections(a) and(e) of section twelve. The commission shall adopt regulations establishing a http://www.capecodcommission.org/act.htm 7/7/2044 CAPE COD COMMISSION ACT Page 19 of 28 procedure for jurisdictional determinations hereunder, prescribing the form and content of applications therefor, and requiring the payment of reasonable fees by persons to cover the cost of commission review. The commission shall held a public hearing and issue a determination as to applicability within twenty-one days after receipt of a fully completed application for a jurisdictional determination. The commission shall determine whether a proposed development meets the jurisdictional thresholds of the applicable standards and criteria governing developments of regional impact. The issuance of a determination of nonapplicability shall be final, as applied for, unless,within sixty days of issuance,the commission's review of a development as a development of regional impact is initiated under subsection (e)of section twelve and provided that the secretary of environmental affairs has determined that no environmental impact report is required. (k)Any applicant may apply to the commission for an exemption from commission review because the location, character and environmental effects of the development will prevent its having any significant impacts on the values and purposes protected by this act outside of the municipality in which the development is to be located. The commission shall adopt regulations establishing a procedure for exemptions hereunder, prescribing the form and content of applications therefor, and requiring the payment of reasonable fees by applicants to cover the cost of commission review,provided that such fees shall not apply to any state agency. Each application for an exemption shall be noticed pursuant to subsections(a) and(d)of section five. The commission shall hold and complete a public hearing within forty-five days after receipt of a fully completed application for an exemption,provided that the certified list of abutters required by clause (2) of subsection (d)of section five is filed therewith. The commission shall make a finding whether a proposed development which literally qualifies as a development of regional impact may nonetheless be exempted from commission review because it will have no significant impacts on the values and purposes specified in section one outside of the municipality in which it is proposed due to its particular location, character and environmental effects. The commission shall issue a written finding as to significant impacts within twenty-one days of the close of the public hearing. Any exemption granted under this subsection shall expire three years from the date of its issuance and its scope shall be strictly construed. (1)The commission shall compile a list of all municipally owned land which might be appropriate for multi-family housing development and circulate the same to state and municipal affordable housing agencies. (m)The provisions of this section shall not apply to any project for which a non-profit educational institution has applied for or has received funds for the design and construction of said project on or before July 1, 1989, from an appropriation of the United Stated government. SECTION 13.(a) After receipt of a referral of a proposed development of regional impact or after taking up a project for review on its own initiative in accordance with subsection(h)of section twelve, the commission,shall, within sixty days, hold a public hearing upon proper notice which shall include written notice to each owner and all abutters of property whose development is found to be of regional impact. Such hearing shall be closed within ninety days following its opening date, and the commission shall,within sixty days after such hearing is closed, render a decision on the proposed development; provided, however, that any referral received by the commission under section twelve prior to the first meeting of the commission shall be deemed to have been received at the first meeting of the commission! Failure of the commission to issue a written decision sixty days after the close of the hearing shall cause a development of regional impact to be deemed granted;provided, however,that this time limit may be extended by mutual agreement with the applicant. All of the commission's written decisions shall be filed with the clerk of the commission and notices of such decisions shall be published in a newspaper of general circulation in the municipality or municipalities in which the proposed development is located. http.//www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 20 of 28 (b)Notwithstanding the foregoing, for any development subject to the provisions of sections sixty-one to sixty-two H, inclusive, of chapter thirty of the General Laws,the commission shall conduct the public hearing referred to in subsection(a) within ninety days of the secretary of environmental affairs certification that no environmental impact report is required,or, if an environmental impact report is required, within forty-five days after the secretary of environmental affairs certifies the adequacy of the final environmental impact report. (c)The chairman of the commission may at his or her discretion establish subcommittees to review specific developments of regional impact and report to the full commission. Such a panel or subcommittee shall be composed of at least five commission members and shall make decisions by a majority vote. (d)The commission shall review proposed developments of regional impact for their consistency with the act, and, when available, with the regional policy plan and local comprehensive plans. The commission shall approve or approve with conditions a development of regional impact and shall permit a municipal,agency to grant a development permit for a proposed development of regional impact if the commission finds after public hearing that: (1)the probable benefit from the proposed development is greater than the probable detriment, (2)after a regional policy plan has been adopted in accordance with section eight, the proposed development is consistent with the regional policy plan and the local comprehensive plan of the municipality in which it is located if the municipality has adopted a local comprehensive plan which has been certified by the commission as consistent with the regional policy plan; (3)the proposed development is consistent with municipal development bylaws, or if it is inconsistent, the inconsistency is necessary to enable a substantial segment of the population.to secure adequate opportunities for housing, conservation, environmental protection, education, recreation or balanced economic growth; and (4)if the proposed development is located in whole or in part within a designated district of critical planning concern, it is consistent with the regulations approved or adopted by the commission pursuant to section eleven. (e)The commission may approve, approve with conditions, or disapprove the development of regional impact. If the commission disapproves the development of regional impact no farther work may be done on the development. A development of regional impact which has been approved, or approved with conditions shall be valid and effective, and municipal development permits may be issued pursuant thereto for seven years following the date of the written decision;provided,however, that in the event of any appeal from the decision,the seven year period specified herein shall begin only after the final disposition of any appeal. Upon the expiration of said seven year period, or said seven years as extended, no municipality may issue development permits pursuant to the original development of regional impact decision. (f)Notwithstanding the provisions of subsection(d) of section thirteen, the commission shall approve or approve with conditions a development of regional impact where an applicant demonstrates that to disapprove the development of regional impact would constitute a taking of property in violation of the Massachusetts and United States Constitutions;provided,however, that no reasonably foreseeable danger to the public health or safety will arise from such approval or approval with conditions. http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 21 of 28 (g)Subject to the provisions of subsection(h),the commission may impose conditions on any development of regional impact as required to offset or mitigate impacts of the development on the interests protected by this act. A development of regional impact decision may require that the applicant receive certificates of compliance from the commission or its designee at specified stages of the project. If such a condition is imposed upon the project, a certificate of compliance shall be obtained from the commission or its designee before the local official responsible for issuing certificates of occupancy may issue a certificate of occupancy for the development. (h)In any case where a municipality's by-laws, ordinances, rules or regulations would be more restrictive than the conditions imposed by the commission on a development or regional impact, nothing in this act shall prevent the municipality from enforcing its by-laws, rules or regulations. In any case where the commission's conditions for a development of regional impact relate to a development subject to municipal historic district or the Old Kings Highway Historic District regulations, the commission shall conform its conditions to those regulations. (i)The commission may bring suit in the superior court for Barnstable county or the land court to enforce its decisions under this section or to preserve its jurisdiction. (j)For the purposes of sections twenty to twenty-three, inclusive, of chapter forty B of the General Laws, the commission shall be considered a local board. (k)The provisions of this section shall not apply to a project for which a non-profit educational institution has applied for or has received funds for the design and construction of said project on or before July 1, 1989, from an appropriation of the United States government. SECTION 14.(a)An applicant may choose to participate with the commission and/or a municipality or municipalities, pursuant to subsection(d) of section nine, within which the development is located in a development agreement process. A development agreement is a contract between the applicant and the commission and a municipality or municipalities under which the applicant may agree to contribute public capital facilities to serve the proposed development and the municipality or both, to build fair affordable housing either on-site or off-site, to dedicate or reserve land for open-space community facilities or recreational use or to contribute funds for any of these purposes. The development agreement shall establish the permitted uses, densities, and traffic within the development, the duration of the agreement, and any other terms or conditions mutually agreed upon between the applicant and the commission. A development agreement shall vest land use development rights in the property for the duration of the agreement, and such rights shall not be subject to subsequent changes in development by-laws or commission regulations and designations. (b)The commission shall adopt regulations setting out the requirements for parties entering into development agreements in accordance with this act. (c)Where appropriate, the commission shall encourage development agreements among multiple parties, including multiple municipalities, the commission and state agencies. (d)A municipality may undertake such other measures as it deems necessary to carry out a development agreement. SECTION 1'5.(a)The commission shall adopt regulations governing the procedure by which a municipality or municipalities pursuant to subsection(d)of section nine or the commission may calculate, assess and impose impact fees on proposed developments, including procedures for waiving http.//www.capecodcommission.org/act.htm 7/7/2404 _...... ......... 1.111 ..... ......... ........ _. - _ ... .. . CAPE COD COMMISSION ACT Page 22 of 28 or offsetting impact fees for affordable housing developments. (b)Any impact fee assessed under this section shall be paid to and held in a separate account in the municipality in which the proposed development is located or, in the event that the proposed development is located in more than one municipality, the impact fee shall be apportioned among the municipalities in accordance with the land area of the proposed development in each municipality or in such other allocation as the commission may approve. (c)Any impact fee imposed or permitted under subsection(a) shall comply with the following: (1)it shall have a rational nexus to an impact created by the development; (2)it shall reasonably benefit the proposed development; (3)it shall be used for the development or improvement of capital facilities in accordance with the agency or municipality's capital facilities planning element of the local comprehensive plan; and (4)it shall be spent or used within a reasonable period of time or, any portion not spent or used within a reasonable period of time, shall be refunded to the applicant or party legally entitled to it as a result of an assignment from the applicant. (d)Nothing in this section shall prevent a municipality from imposing fees which it may otherwise impose under applicable laws and constitutional provisions but under no circumstances may a municipality impose a fee more than once for the same impact. SECTION 16.(a)Development in Barnstable county subject to commission review or located within a district of critical planning concern shall be consistent with the regional policy plan, local comprehensive plans, district of critical planning concern guidelines, local implementing regulations and conditions imposed by the commission on developments of regional impact. (b)All developments in Barnstable county requiring any state agency activity requiring the filing of an environmental notification form or environmental impact report pursuant to sections sixty-one to section sixty-two II, inclusive, of chapter thirty of the General Laws shall be reviewed by the commission. Any person filing an environmental notification form or an environmental impact report for a proposed development in Barnstable county shall at the same time send a copy of such environmental notification form or environmental impact report to the commission. The commission shall then have thirty days in which to submit its written comments to the secretary of environmental affairs. The secretary of environmental affairs shall, in making a decision with respect to either an environmental notification form or an environmental impact report, give due consideration to, and respond in writing to any comments submitted by the commission. (c)The regional policy plan,the standards and criteria for developments of regional impact and local comprehensive plans shall be taken into consideration by the coastal zone management office of the executive office of environmental affairs as part of its regulatory policies. Coastal zone management shall refer all coastal zone management consistency certifications for proposed activities in Barnstable county to the commission for review of consistency with the regional policy plan and local comprehensive plans. The commission shall notify coastal zone management of any objections to a consistency certification where it finds proposed activities are inconsistent with the regional policy plan and local comprehensive plans. Any conflict between coastal zone management and the commission regarding the matters contained in this subparagraph shall be referred to and resolved by the secretary of http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 23 of 28 the executive office of environmental affairs. SECTION 17.(a)The commission shall, in the event of a dispute, encourage all parties to engage in available dispute resolution mechanisms, including,but not limited to,negotiation,mediation or arbitration. (b)Any party aggrieved by a commission decision on a development of regional impact may appeal the commission's decision to the Barnstable county superior court or the land court. Any appeal of a development of regional impact decision shall be filed within thirty days after the commission has sent the applicant written notice,by certified mail, of its decision and has filed a copy of its decision with the town clerk of any municipality in which the proposed development is located. Notice of such appeal shall be served within such thirty days on the town clerk for the municipality in which the proposed development is located and the commission. (c)No claim of a procedural defect in the proceedings for designation of a district of critical planning concern shall be made in any legal proceedings and no state,regional, county or municipal officer shall refuse, deny or revoke any permit, approval or certificate because of any such claim of invalidity unless action is commenced within ninety days of the designation and notice specifying the court, parties, procedural defects claimed and date of filing is filed, together with a copy of the petition, with the commission within seven days after commencement of the action. (d)The court shall, on appeal, hear all evidence pertinent to the authority of the commission and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of said commission or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive. All issues in any proceeding under this section shall have precedence over all other civil actions and proceedings. (e)Upon the filing of any action challenging the validity or constitutionality of any provision of this act or its application, the commission, if not named as a defendant, shall be notified and permitted to intervene as a party in interest. Such notification shall be given by the party filing the action. SECTION 1'8.(a)The commission shall be funded in accordance with the procedures established by the Barnstable county home rule charter, and in accordance with this section. (b)A budget proposal reflecting anticipated revenues and expenses for the following fiscal year shall be submitted annually in accordance with Barnstable county administrative and budgetary procedures. (c)Subject to the terms and conditions of the Barnstable county home rule charter, the commission may levy reasonable fees for the recovery of its regulatory activities and services that it provides and it may accept grants from public or private persons or entities. Such receipts shall be applied to the cost of operation of the commission. (d)(i)To the extent that the amounts for the commission's budget exceed revenues derived under subsection(c) such excess amounts may be raised in accordance with sections thirty and thirty-one of chapter thirty-five of the General Laws, in an amount of not more than two million dollars, which shall not increase annually beyond the amount of two million dollars by more than two and one-half percent except as increased by those amounts approved by the voters pursuant to paragraph(ii). Any such excess amounts shall be exempt from the provisions of section twenty A of chapter.fifty-nine of the General http.//www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 24 of 28 Laws and amounts so assessed by the county or any municipality shall not be included in calculating the total taxes assessed under subsection(a) or the maximum levy limit under subsection(f) for such municipality under section twenty-one C of chapter fifty-nine of the General Laws. Any such assessmentmade upon the municipalities of Barnstable county in accordance with sections thirty and thirty-one of chapter thirty-five of the General Laws shall be indicated separately from all other county taxes within the assessments made by the assessors thereof. Any amounts received under the assessments made pursuant to this subsection or pursuant to paragraph(ii) shall be deposited into an account to be known as The Cape Cod Environmental Protection Fund which shall be used only to fund the approved budget of the Cape Cod commission. (ii)The assembly of delegates shall seek voter approval in order to assess an amount in excess of the two million dollars, increasing annually by not more than two and one-half percent, referred to in paragraph (i) as follows: after appropriation and assessment as described in said paragraph(i)the county commissioners shall either cause each municipality to place a question on the next biennial state ballot or shall fix la date for a county-wide election which shall be at least sixty days prior to the first day of the next fiscal year. Otherwise, each municipality shall conduct a special election on a date so fixed by the county commissioners, or on the date of the annual municipal election if said annual election is not more than thirty days after or not more than thirty days prior to said date fixed by the county commissioners. Each municipality shall certify the results of any such election to the county commissioners and the state secretary. The town clerk of each municipality shall place upon the ballot at such election the following question: "Shall the municipalities of Barnstable County be allowed to assess an additional $ of which$ shall be assessed to the town of for the purpose of funding the budget for the regulatory powers, duties, responsibilities and obligations of the Cape Cod Commission, the region's land use and planning agency? Yes No Amounts approved by the voters under this question shall not be included in calculating the "total taxes assessed" in paragraph(a) or the maximum levy limit in paragraph(f) of section twenty-one C of chapter fifty-nine of the General Laws." Any such question shall be deemed approved if a majority of the persons voting thereon in Barnstable county vote'yes. SECTION 19. (a)The governor shall appoint a governor's committee for the purpose of ensuring that, to the greatest extent feasible, state agency planning is coordinated with and implemented in conjunction with the duties, responsibilities, plans and policies of the Cape Cod commission and the purposes of this act. (b)The governor shall appoint the chair of the committee. The governor's committee shall meet with the commission at least once quarterly for the first two years of the commission's existence and at least annually thereafter. (c)The governor's committee and any state agency may also engage in joint planning programs with the commission. SECTION 20.(a)The powers, duties, responsibilities and obligations of the Cape Cod planning and economic development commission, established under chapter four hundred and fifty-three of the acts of http://wwww.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 25 of 28 nineteen hundred and sixty-five, shall be transferred to the Cape Cod commission immediately upon its creation under this act. All contracts, employee rights and pension benefits held by or guaranteed by the Cape Cod planning and economic development commission or by Barnstable county on its behalf shall be preserved and retained by Barnstable county on behalf of the Cape Cool commission. (b)All petitions,hearings and other procedures duly brought before, and all prosecutions and legal and other proceedings duly begun by, any person,municipal agency, local board or official or the Cape Cod planning and economic development commission, which arise from or relate to the exercise of its powers or the performance of duties, and which are pending or incomplete immediately prior to the effective date of this act, shall continue unabated and remain in full force and effect notwithstanding the passage of this act, and shall thereafter be completed in accordance with this act. (c)Ail orders, actions, guidelines, standards, criteria, designations,procedures, by-laws, regulations, conditions, modifications, and decisions duly made and all licenses,permits, authorities,permissions, certificates, approvals and endorsements duly granted,by any municipality, municipal agency, local board, or an official of the Cape Cad planning and economic commission, which arise from or relate to the exercise'of its powers or the performance of duties, and which are in effect immediately prior to the effective date of this act, shall continue in full force and effect and provisions thereof shall thereafter be enforced until superseded,revised, rescinded or cancelled in accordance with this act and any other applicable law. (d)All books,papers,records, documents, equipment, lands, interests in land,buildings, facilities, and other property both personal and real which immediately prior to the effective date of this act are in the custody of the Cape Cod planning and economic commission or are in the custody of Barnstable county on its behalf,which relate to or are maintained for the purpose of the exercise of its powers or the performance of duties, shall be held by the Cape Cod commission established under the provisions of this act, or may beheld by Barnstable county on its behalf. (e)All assessments made by the Cape Cod planning and economic development commission and all monies heretofore receivers or to be received from any source by said commission for the performance of its duties and which remain unexpended on the effective date of this act shall immediately be transferred to Barnstable county on behalf of the Cape Cod commission established under the provisions of this act. SECTION 21.T e county commissioners shall fix a date for a county wide election not sooner than sixty days nor later than one hundred and fifty days after the date of passage of this act. Each municipality shall conduct a special election pursuant hereto on the date so fixed and shall certify the results thereof to the county commissioners and the state secretary. The town clerk of each municipality shall place upon the ballot at such election, the following question: Shall the provisions of chapter (here insert chapter number) of the Acts of 198_(here insert year)which would authorize (1)the establishment of the Cape Cod Commission which will be funded by the Barnstable County Assembly of Delegates, in accordance with Barnstable County administrative and budgetary procedures;and (2) the possible assessment by the County Assembly of Delegates of up to but not more than $2 million per year, which amount shall be placed into an account to be known as "The Cape Cod Environmental Protection Fund" to be used only to fund the approved budget of the Cape Cod Commission and which amount would, at most, result in an increase in the property tax rate in the municipality of (here insert name of municipality) of no more than (here insert amount), be accepted in Barnstable County? http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 26 of 28 This act shall take effect only after all of the municipalities in Barnstable County have voted on the question and if it has been approved by a majority of all votes cast on the question. The effective date of the act shall be the date of such election. Within thirty days from the date of passage the state secretary shall provide copies of this act to the town clerks for distribution to those voters who may request copies. The attorney general shall prepare a fair and concise summary of this chapter which he shall provide to the town clerks of the municipalities within thirty days after the effective date of this act. The town clerks of the municipalities shall mail a copy of the summary to each registered voter no later than ten days prior to the election together with a notice that full copies of this act are available from the town clerk upon request. SECTION 22.(a) This act shall not apply to any development constructed in accordance with a building permit issued prior to the effective date of this act. (b)This act shall not apply to any development which prior to July first, nineteen hundred and eighty- nine has received any one of the following: an order of conditions under section forty of chapter one hundred thirty-one of the General Laws; a special permit or variance under chapter forty A; a comprehensive permit under chapter forty B; or a statement of the secretary of environmental affairs that the environmental impact report adequately complies with sections sixty-two to sixty-two H, inclusive, of chapter thirty, and which development is constructed or is thereafter constructed in substantial compliance therewith. (c)The provisions of this act shall not apply to the grant of a development permit by a municipality or state agency for the repair, upgrade, change, alteration or extension of a single family dwelling or an accessory structure, septic system or water well relative thereto, if such dwelling existed prior to July first, nineteen hundred and eighty-nine, unless such upgrade, change, alteration or extension is greater than twenty-five percent of the floor area of the dwelling. (d)The provisions of this act shall not apply to a development which, as of July first, nineteen hundred and eighty-nine, had applied for and was entitled to one of the permits or approvals listed in subsections (a) and(b) of this section but said approval or permit did not issue due to: (1) the existence of a development moratorium imposed by a town meeting prior to July first, nineteen hundred and eighty- nine, so long as such moratorium is terminated and the permit or approval actually issues as originally applied for and so long as the development is constructed in accordance with said permit or approval; (2)because the grant or denial of such a permit or approval was the subject of judicial review entered prior to July first,nineteen hundred and eighty-nine, and said judicial review is concluded in the applicant's favor and so long as the development is constructed thereafter in accordance with said permit or approval;or(3)because of negotiations with the planning board, as long as the planning board and the applicant have mutually agreed to extend any applicable deadline or because of ongoing administrative or appeals process, and said approval is thereafter received by July first, nineteen hundred and ninety, and is thereafter approved by the local board of selectmen by August first, nineteen hundred and ninety, and so long as the development is constructed in accordance with said permit or approval as originally applied for. (e)This act shall not apply to a lot or lots shown on a subdivision plan endorsed by a planning board prior to July first, nineteen hundred and eighty-nine, in accordance with section eighty-one V of chapter forty-one of the General Laws, if the planning board has released the security held by it to ensure completion of construction of ways and the installation of municipal services, as required by section eighty-one U of said chapter forty-one,prior to the effective date of this act. http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 27 of 28 SECTION 23.The commission shall have the power after holding a public hearing pursuant to section five to grant an exemption, in whole or in part and with appropriate conditions, to any applicant from the terms and provisions of this act where the commission specifically finds that a literal enforcement of the provisions of the act would involve substantial hardship, financial or otherwise,to the applicant and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the act. SECTION 24.(a)When a municipality or state agency makes a determination that an emergency exists and that a development is necessary for the immediate protection of the health or safety of the public, the municipality or state agency may issue a development permit to conduct such emergency work notwithstanding that ordinarily such work would require a referral to the commission as a development of regional impact. (b)A municipality or state agency shall make a site inspection prior to issuing a determination that work on a development is of an emergency nature and requires a development permit without a development of regional impact approval. The determination regarding an emergency development shall include a description of the work which is allowed on an emergency basis,but shall not include any work beyond that which is necessary to abate the emergency. (c)Work on a development to abate an emergency shall not extend more than thirty days after the occurrence of the emergency unless written approval from the commission has been obtained, by the municipality, the state agency or by the owner of the development. (d)A copy of the determination of the emergency and of the development permits issued by the municipality or by the state agency shall be sent to the commission immediately upon issuance. (e)The commission may, on its own motion or at the request of any person,review an emergency determination and the work authorized thereunder. Such review shall not operate to stay the work permitted by the municipality or the state agency unless the commission specifically so orders. The commission shall adopt regulations for an expedited review of emergency determinations under this section. SECTION 25.Section 7-4 of Article 7 of chapter 163 of the acts of 1988 is hereby amended by striking out, in line 6, the word "or,", - and by inserting after the word "obligation", in line 7, the words .- or, (6) any ordinance adopted pursuant to the Cape Cod Commission Act unless otherwise specified;provided, however, that any ordinance resulting in the reorganization, consolidation, abolition, merger, division or alteration of the terms of office, the manner of selection,number of members or prescription of the functions, powers, duties and responsibilities of the Cape Cod Commission shall be subject to the citizen referendum provisions of section 7-3; and provided, further, that any such action ultimately approved by the assembly of delegates or by the Barnstable county voters shall be reported to the senate and house clerks of the general court and be transmitted by them to the joint committee on local affairs. House of Representatives, January 2, 1990. Passed to be enacted„ Speaker. In Senate, January 2, 1990. Passed to be enacted„President. http://www.capecodcommission.org/act.htm 7/7/2004 CAPE COD COMMISSION ACT Page 28 of 28 January 12, 1990. Approved, Governor. [bac-k-to_Hoe Pae http://www.capecodcommission.org/act.htm 7/7/2004 _.. New RulesProject - Retail - Impact Assessment- VT Act 250 Page I of 3 Vermont's Act 250 Vermont pioneered a cooperative approach to large-scale development on a statewide level in 1970 with Act 250, which arose in response to the arrival of Vermont's first interstate highway in the late 1960s. Residents feared that the highway would lead to rapid, uncontrolled growth and ultimately the destruction of the state's rural character and picturesque towns. Act 250 requires developments of regional impact to obtain a land use permit from the one of the state's District Environmental Commissions. in most cases, commercial developments require Act 250 review when they encompass ten or more acres of land, a threshold substantially higher than under Cape Cod's rules. Act Reports and 2:50 approval depends on meeting several conditions that focus on Other Resources the project's environmental and economic impact. decisions by the state's nine District Environmental Commissions may be appealed to the state Environmental Board and ultimately the Vermont What's New on the supreme Court. Members of both the district commissions and the Site!! state board are appointed by the governor. SEARCH In addition to the law's environmental criteria concerning water and air pollution, energy conservation, and soil erosion, Act 254 specifies that developments must not place unreasonable fiscal burdens on the ability of local governments to provide ed !on 'J� services, must not exhaust the town's ability to Advanced'Search accommodate growth, and must be consistent with local land use policies. Act 250 discourages scattered development by requiring a project to be contiguous to existing settlements unless the tax revenue generated by the development exceeds the additional cost of public services required by the project. Act 250 also considers a development's impact on scenic and historic sites. Act 250 has limited the number of large-scale retailers in Vermont. The state was the last U.S. frontier for Wal-Mart, which built its first store there in 1995. Vermont now has four Wal-Mart stares, but as a result of Act 250, three of these are about half the size of a typical Wal-Mart and were located in existing buildings. In Bennington, Wal-Mart opened a 52,000 square foot store in a former Woolworth's building, and, in Rutland, a 75,000 square foot store was located downtown. Most recently, Wal-Mart opened a The Home Town 66,000 square foot stare in Berlin. The store occupies a building Advantage provides that previously housed another department store. strategies for reviving independent More: businesses and Main http://www.newrules.org/retail/verTnont.html 7/7/2004 New RulesProject -Retail - Impact Assessment - VT Act 250 Page 2 of 3 Streets. By Stacy ■ Vermont's State Environmental Board Mitchell. Order Online now! $14 The New Rules Project The Homs"Gown http://www.newrules.org/ Advantage e-Bulletin The Home Town Advantage e- bulletin - is a bi- monthly electronic newsletter reporting on efforts nationwide to stop chain store proliferation and support locally owned, independent retail businesses. It's Free!l Click Here to Subscribe Columns&Articles New Rules for the New Localism: Favoring Communities, Deterring Corporate Chains -An Interview with Stacy Mitchell, Multinational Monitor, October- November 2002 Local Retailers Can't Grow in the Shadows of Supercenters - by Stacy Mitchell, November 17, 2002 Chain Reaction - Stacy Mitchell Interviewed on Working Assets Radio, August 20, 2002 Homegrown Economics: How Boulder Businesses are Staying Ahead of the Chains- http://www.newrules.org/retail/vermont.html 7/7/2004 New Rules Project- Retail - Impact Assessment- VT Act 250 Page 3 of 3 Autumn 2001 Belfast votes in self-defense -July 8, 2001 Red Wing Gets Boxed In - June 20, 2001 Midway game Depot dismantles concept of quality of life -June 5, 2001 When a Giant Retailer Moves on, It Leaves its 'Big Box' Behind - Januray 8, 2001 Bucking the Chain Store Trend - March 17, 2000 Fighting the Chains - 2000 http://www.newrules.org/retail/vermont.html 7/7/2004 Vermont Enviromnental Board: Statute Authority Page 1 of 65 The Vermont Environmental Boats Environmental Board Statutory Authority ACT 250 Vermont's Land Use and Development Law Title 10, Chapter 151 Including all Legislative Amendments Effective July 1, 2003 PART 5. LAND USE AND DEVELOPMENT Chapter 151. State Land Use and Development Plans findings and_ Declaration of Intent ...........I __­.............. SUBCHAPTER 1. GENERAL PROVISIONS 6.0.0.1. Definitions. 6001a. Public auctions. 61_b. Low-level radioactive waste disposal facility. 6001c. Jurisdiction over broadcast and communication support structures and related improvements 6.0.0.2. Procedures. .60.0.3. Penalties. 6.0.04.. *[Repealed.]* 6005. *[Repealed.]* _111----------- .6.0-06. *[Repealed.]* 6007. Act 250 disclosure statement, jurisdictional determination. SUBCHAPTER 2. ADMINISTRATION 6021. Board; vacancy; removal. 60-2.2. Personnel. 6023, Grants. http://www.state.vt.us/envboard/statute.htm 7/7/2004 .......... .... . Vermont Environmental Board: Statute Authority Page 2 of 65 60.24. Intragovernmental cooperation. 6025. Rules. 602-6.. District commissioners, 602.7. Powers. 00-2-8.. Compensation. 60.29. Act 250 permit fund. 6030. Map of Wireless Telecommunications Facilities. SUBCHAPTER 3. USE AND DEVELOPMENT PLANS 6041. *[Omitted.]* 6042.. Capability and development plan. 6043. *[Repealed.]* 6.044. Public hearings. 6045. *[Repealed.]* 6-04.6. Approval of governor and legislature. 6.04.7. Changes in the capability and development plan. SUBCHAPTER 4. PERMITS .6018.1, Permits required; exemptions. 6082. Approval by local governments and state agencies. .6.0813. Applications. 6083a. Fees. *See 4 V5A, Ch 27. 10 VSA Ch. 201, 211 .6.08.4. Notice. 60.85.. Hearings. .00-85.0. Pilot Project: appeals on the record. .6.08,6.. Issuance of permit: conditions and criteria. OQW. Generators of radioactive waste. OR. Denial of application. 6.08-8., Burden of proof. 6089. Appeals. .6.090. Recording; duration and revocation of permits. 6091. Renewals and nonuse. 6092. Construction, SUBCHAPTER 5. WASTE FACILITY PANEL http://www.state-vt.us/envboard/statute.b-tm 7/7/2004 Vermont Environmental Board: Statute Authority Page 3 of 65 6.10..1'_. Waste Facility Panel; Jurisdiction; Rules; Fees. 610 . Parties. 16103. Review of Provisional Certifications. 6-1.00a. Review certificates of need. 6104. Review of Agency Determinations. .6 l...0,5.. Appeals of District Commission Decisions. 6106. Consolidation of Act 250 and Agency Review Proceedings, 6.1.07. Appeals to the Supreme Court. 6108. Transition Authority. FINDINGS AND DECLARATION OF INTENT Whereas, the unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont; and Whereas, a comprehensive state capability and development plan and land use plan are necessary to provide guidelines for utilization of the lands and environment of the state of Vermont and to define the goals to be achieved through land environmental use, planning and control; and Whereas, it is necessary to establish an environmental board and district environmental commissions and vest them with the authority to regulate the use of the lands and the environment of the state according to the guidelines and goals set forth in the state comprehensive capability and development plan and to give these commissions the authority to enforce the regulations and controls; and Whereas, it is necessary to regulate and control the utilization and usages of lands and the environment to insure that, hereafter, the only usages which will be permitted are not unduly detrimental to the environment, will promote the general welfare through orderly growth and development and are suitable to the demands and needs of the people of this state; Now, therefore, the legislature declares that in order to protect and conserve the lands and the environment of the state and to insure that these lands and environment are devoted to uses which are not detrimental to the public welfare and interests, the state shall, in the interest of the public http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board. Statute Authority Page 4 of 65 health, safety and welfare, exercise its power by creating a state environmental board and district environmental commissions conferring upon them the power to regulate the use of lands and to establish comprehensive state capability, development and land use plans as hereinafter provided. --1969, No. 250 (Adj. Sess.), 5 1, eff. April 4, 1970. 10 V.S. A. § 6001 S 6001. Definitions When used in this chapter: (1) "Board" means the environmental board. (2) "Capability and development plan" means the plan prepared pursuant to section 6042 of this title. (3)(A') "Development" means: (i) The construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five utiles of any point on any involved land, for commercial or industrial purposes in a municipality that has adopted permanent zoning and subdivision bylaws. (ii) The construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws. (iii) The construction of improvements for commercial or industrial purposes on a tract or tracts of land, owned or controlled by a person, involving more than one acre of land within a municipality that has adopted permanent zoning and subdivision bylaws, if the municipality in which the proposed project is located has elected by ordinance, adopted under chapter 59 of Title 24, to have this jurisdiction apply. (iv) The construction of housing projects such as cooperatives, condominiums, or dwellings, or construction or maintenance of mobile homes or trailer parks, with 10 or more units, constructed or maintained on a tract or tracts of land, owned or controlled by a person, within a radius of five miles of any point on any involved land, and within any continuous period of five years. (v) The construction of improvements on a tract of land involving more than 10 http://www.state.vt.us/envboard/statute.htm 7/7/2044 Vermont Environmental Board. Statute Authority Page 5 of 65 acres that is to be used for municipal, county or state purposes. In computing the amount of land involved, land shall be included that is incident to the use such as lawns, parking areas, roadways, leaching fields and accessory buildings. (vi) The construction of improvements for commercial, industrial or residential use above the elevation of 2,500 feet. (vii) Exploration for fissionable source materials beyond the reconnaissance phase or the extraction or processing of fissionable source material. (viii) The drilling of an oil and gas well. (B) Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a downtown development district designated pursuant to 24 V.S.A. 9 2793, "development" means: (i) Construction of mixed income housing with 100 or more housing units or a mixed use project with 100 or more housing units, in a municipality with a population of 20,000 or more. (ii) Construction of mixed income housing with 50 or more housing units or a mixed use project with 50 or more housing units, in a municipality with a population of 10,000 or more but less than 20,000. (iii) Construction of mixed income housing with 30 or more housing units or a mixed use project with 30 or more housing units, in a municipality with a population of 5,000 or more and less than 10,000. (iv) Construction of mixed income housing with 20 or more housing units or a mixed use project with 20 or more housing units, in a municipality of less than 5,000. (v) Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national registers of historic places. Added 2002, No. 114 (Ad j. Sess.), § 6, eff. May 28, 2002. (C) For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(8) of this section: (i) Housing units constructed by a person partially or completely outside a designated downtown development district shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district. (ii) Within any continuous period of five years, housing units constructed by a person entirely within a designated downtown district shall be counted together with housing units constructed by a person partially or completely outside a designated downtown development district to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district and within a five-mile radius. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 6 of 65 (iii) All housing units constructed by a person within a designated downtown development district within any continuous period of five years, commencing on or after the effective date of this subdivision, shall be counted together. _- Added 2002, No. 114 (Ad j. Sess.), § b, eff. May 28, 2002. (iv) In the case of a project undertaken by a railroad, no portion of a railroad line or railroad right-of-way that will not be physically altered as part of the project shall be included in computing the amount of land involved. In the case of a project undertaken by a person to construct a rail line or rail siding to connect to a railroad's line or right-of-way, only the land used for the rail line or rail siding that will be physically altered as part of the project shall be included in computing the amount of land involved. (b) The word "development" does not include: (i) The construction of improvements for farming, logging or forestry purposes below the elevation of 2,500 feet. (ii) The construction of improvements for an electric generation or transmission facility that requires a certificate of public good under section 30 V.S.A. S 248 or a natural gas facility as defined in subdivision 30 V.S.A. S 248(x)(3). --Amended 1993, No. 200 (Ad j. Sess.), §1, eff. June 17, 1994, amended 1997, No. 48, § 1, eff. July 1, 1997. (iii) The construction of, improvements to, or maintenance of any portion of a statewide trail system on a tract of land not currently under the jurisdiction of this chapter and located below the elevation of 2,500 feet, including construction and maintenance of unpaved trailhead parking facilities of two acres or less, provided that construction and maintenance take place in a manner that meets or exceeds acceptable management practices for maintaining water quality on logging jobs in Vermont, as adopted by the commissioner of forests, parks and recreation; and in the case of snowmobile trails, provided that construction and maintenance also take place in a manner that meets or exceeds practices established in the guide for the development of snowmobile trails, dated 2001-2002, as published by the Vermont Association of Snow Travelers, Inc. Jurisdiction under this chapter shall not continue to exist after a trail has been discontinued, stabilized, and suitably rehabilitated, in the determination of the district commission, or the board on appeal. The exemption created under this subdivision shall not apply to trails for motorized recreational vehicles other than snowmobiles. This subdivision (3) (0)(iii) shall be repealed on July 1, 2005. The secretary of natural resources shall evaluate and report on the experience derived under this exemption in reports to the house and senate committees on natural resources and energy, to be submitted by January 15, 2005 and by January 15, 2006. Added 2003, No. 66 9 217c, eff. July 1, 2003. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 7 of 65 (iv) The construction of improvements for agricultural fairs that are open to the public for 60 days per year, or fewer, provided that any improvements constructed do not include one or more buildings. Added 2003, No. 66 5 217c, eff. July 1, 2003. (v) The construction of improvements for the exhibition or showing of equines at events that are open to the public for 60 days per year, or fewer, provided that any improvements constructed do not include one or more buildings. Added 2003, No. 66 § 217c, eff. July 1, 2003. (4) "District commission" means the district environmental commission. (b) "Endangered species" means those species the taking of which is prohibited under rules adopted under chapter 123 of this title. (6) "Floodway" means the channel of a watercourse which is expected to flood on an average of at least once every 100 years and the adjacent land areas which are required to carry and discharge the flood of the watercourse, as determined by the secretary of natural resources with full consideration given to upstream impoundments and flood control projects. (7) "Fioodway fringe" means an area which is outside a floodway and is flooded with an average frequency of once or more in each 100 years as determined by the secretary of natural resources with full consideration given to upstream impoundments and flood control projects. (8) "Forest and secondary agricultural soils" means soils which are not primary agricultural soils but which have reasonable potential for commercial forestry or commercial agriculture, and which have not yet been developed. In order to qualify as forest or secondary agricultural soils the land containing such soils shall be characterized by location, natural conditions and ownership patterns capable of supporting or contributing to present or potential commercial forestry or commercial agriculture. If a tract of land includes other than forest or secondary agricultural soils only the forest or secondary agricultural soils shall be affected by criteria relating specifically to such soils. (9) "Historic site" means any site, structure, district or archeological landmark which has been officially included in the National Register of Historic Places and/or the state register of historic places or which is established by testimony of the Vermont Advisory Council on Historic Preservation as being historically significant. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 8 of 65 (10) "Land use plan" means the plan prepared pursuant to section 6043 of this title. (11) "Lot" means any undivided interest in land, whether freehold or leasehold, including but not limited to interests created by trusts, partnerships, corporations, cotenancies and contracts. (12) "Necessary wildlife habitat" means concentrated habitat which is identifiable and is demonstrated as being decisive to the survival of a species of wildlife at any period in its life including breeding and migratory periods. (13) "Plat" means a map or chart of a subdivision with surveyed lot lines and dimensions. (14)(A) "Person": (i) shall mean an individual, partnership, corporation, association, unincorporated organization, trust or other legal or commercial entity, including a joint venture or affiliated ownership, (ii) means a municipality or state agency; (iii) includes individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from the partition or division of land, (iv) includes an individual's parents and children, natural and adoptive, and spouse, unless the individual establishes that he or she will derive no profit or consideration, or acquire any other beneficial interest from the partition or division of land by the parent, child or spouse; (B) The following individuals and entities shall be presumed not to be affiliated for the purpose of profit, consideration, or other beneficial interest within the meaning of this chapter, unless there is substantial evidence of an intent to evade the purposes of this chapter: (i) a stockholder in a corporation shall be presumed not to be affiliated with others, solely on the basis of being a stockholder, if the stockholder and the stockholder's spouse, and natural or adoptive parents, children, and siblings own, control or have a beneficial interest in less than five percent of the outstanding shares in the corporation; (ii) an individual shall be presumed not to be affiliated with others, solely for actions taken as an agent of another within the normal scope of duties of a court appointed guardian, a licensed attorney, real estate broker or salesperson, engineer or land surveyor, unless the http://www.state.vt.us/envboard/statute.htm 7/7/2044 Vermont Environmental Board: Statute Authority Page 9 of 65 compensation received or beneficial interest obtained as a result of these duties indicates more than an agency relationship, (iii) a seller or chartered lending institution shall be presumed not to be affiliated with others, solely for financing all or a portion of the purchase price at rates not substantially higher than prevailing lending rates in the community, and subsequently granting a partial release of the security when the buyer partitions or divides the land. (15) "Primary agricultural soils" means soils which have a potential for growing food and forage crops, are sufficiently well drained to allow sowing and harvesting with mechanized equipment, are well supplied with plant nutrients or highly responsive to the use of fertilizer, and have few limitations for cultivation or limitations which may be easily overcome. In order to qualify as primary agricultural soils, the average slope of the land containing such soils does not exceed 15 percent, and such land is of a size capable of supporting or contributing to an economic agricultural operation. If a tract of land includes other than primary agricultural soils, only the primary agricultural soils shall be affected by criteria relating specifically to such soils. (16) "Rural growth areas" means lands which are not natural resources referred to in section 6086(a)(1)(A) through (F), section 6086(a)(8)(A) and section 6086 (a)(9)(8), (C), (0), (E) and (K) of this title. (17) "Shoreline" means the land adjacent to the waters of lakes, ponds, reservoirs and rivers. Shorelines shall include the land between the mean high water mark and the mean low water mark of such surface waters. (18) "Stream" means a current of water which is above an elevation of 1,500 feet above sea level or which flows at any time at a rate of less than 1.5 cubic feet per second. (19) "'Subdivision" means a tract or tracts of land, owned or controlled by a person, which the person has partitioned or divided for the purpose of resale into 10 or more lots within a radius of five miles of any point on any lot, or within the jurisdictional area of the same district commission, within any continuous period of five years. In determining the number of lots, a lot shall be counted if any portion is within five miles or within the jurisdictional area of the same district commission. The word "subdivision" shall not include a lot or lets created for the purpose of conveyance to the state or to a qualified organization, as defined under section 6301a of this title, if the land to be http://www.state.vt.us/envboard/statute.htm 7/7/2404 Vermont Environmental Board: Statute Authority Page 10 of 65 transferred includes and will preserve a segment of the Long Frail. The word "subdivision" shall not include a lot or lots created for the purpose of conveyance to the state or to a "qualified holder" of "conservation rights and interest," as those terms are defined in section 821 of this title. "Subdivision" shall also mean a tract or tracts of land, owned or controlled by a person, which the person has partitioned or divided for the purpose of resale into six or more lots, within a continuous period of five years, in a municipality which does not have duly adopted permanent zoning and subdivision bylaws. Amended 1995, No. 10 (Adj. Sess.) 5 1, eff. April 4, 1995; amended 2001, No. 40 S 1, eff. July 1, 2001. (20) "Fissionable source material" means mineral ore which (A) is extracted or processed with the intention of permitting the product to become or to be further processed into fuel for nuclear fission reactors or weapons; or (B) contains uranium or thorium in concentrations which might reasonably be expected to permit economically profitable conversion or processing into fuel for nuclear reactors or weapons. (21) "Reconnaissance" means: (A) a geologic and mineral resource appraisal of a region by searching and analyzing published literature, aerial photography and geologic maps; or (B) use of geophysical, geochemical, and remote sensing techniques that do not involve road building, land clearing, the use of explosives, or the introduction of chemicals to a land or water area; or (C) surface geologic, topographic or other mapping and property surveying; or (b) sample collections which do not involve excavation or drilling equipment, the use of explosives or the introduction of chemicals to the land or water area. (22) "f=arming" means: (A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; or (B) the raising, feeding or management of livestock, poultry, equines, fish or bees; or (C) the operation of greenhouses; or (b) the production of maple syrup; or (E) the on-site storage, preparation and sale of agricultural products principally produced on a farm; or (E) the on-site production of fuel or power from agricultural products or wastes produced on the farm. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 12 of 65 (23) "adjoining property Owner" means a person who owns land in fee simple, if that'land: (A) shares a property boundary with a tract of land where a proposed or actual development or subdivision is located; or (8) is adjacent to a tract of land where a proposed or actual development or subdivision is located and the two properties are separated only by a river, stream, or public highway. (24) ";olid waste management district" means a solid waste management district formed pursuant to section 2202a and chapter 121 of Title 24, or by charter adopted by the general assembly. (25) "Slate quarry" means a quarry pit or hole from which slate has been extracted or removed for the purpose of commercial production of building material, roofing, tile or other dimensional stone products. "Dimensional stone" refers to slate that is processed into regularly shaped blocks, according to specifications. The words "slate quarry" shall not include pits or holes from which slate is extracted primarily for purposes of crushed stone products, unless, as of June 1, 1970, slate had been extracted from those pits or holes primarily for those purposes. (26) "Telecommunication 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. (27) "Mixed income housing" means a housing project in which at least 15 percent of the total housing units are affordable housing units. (28) "Mixed use" means construction of both mixed income housing and construction of space for any combination of retail, office, services, artisan, and recreational and community facilities, provided at least 40 percent of the gross floor area of the buildings involved is mixed income housing. "Mixed use" does not include industrial use. (29) "Affordable housing" means either of the following: (A) Owner-occupied housing in which the owner's gross annual household income does not exceed 80 percent of the county median household income, and for which the annual housing costs, which include payment of principal, interest, http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 12 of 65 taxes, and insurance, are not more than 30 percent of the gross annual household income. (B) Rental housing in which the renter's gross annual household income does not exceed 80 percent of the county median household income, and for which the annual housing costs, which include rent and utilities expenses, are not more than 30 percent of the gross annual household income. --1969, No. 250 (Adj. Sess.), § 2, eff. April 4, 1970; Amended 1973, No. 85, 8; 1979, No. 123 (Adj. Sess.), 55 1-3, eff. April 14, 1980; 1981, No. 240 (Adj. Secs'.), S 6, eff. April 28, 1982; 1983, No. 114 (Adj. Sess.), § 1; 1985, No. 64; 1987, No.64, 5 2; 1987, No. 273 (Adj. Sess.), 5 2, eff. June 21, 1988; 1989, No. 154 (Adj. Bess.); No. 231 (Ad j. Sess.), 5 1, eff. July 1, 1991; No. 234 (Adj. Secs'.), 5 4, 1993, No. 200 (Adj. Sess.), 5 1; No. 232 (Adj. Sess.), 5 24, eff. March 15, 1995; 1995, No. 10, S 1; No. 30, 8 1 eff. April 13, 1995, Amended 1998, Act No. 94 (Adj. Sess.), S 5 eff. April 15,1998. Subdivisions (27), (28), and (29) Added 2002, No. 114 (Adj. Sess.), 5 7, eff. May 28, 2002. 10 V.S.A. §6001a S 6001a. Public auctions As used in this chapter "development" shall also mean the sale of any interest in a tract or tracts of land, owned or controlled by a person, which have been partitioned or divided for the purpose of resale into five or more separate parcels of any size within a radius of five miles of any point on any such parcel, and within any period of ten years, by public auction; and "public auction" means any auction advertised or publicized in any manner, or to which more than ten persons have been invited. -Added 1973, No. 256 (Adj. Sess.), eff. April 11, 1974. However, if the sales described under this section are of interests that, when sold by means other than public auction, are exempt from the provisions of this chapter under the provisions of subsection 6081(b) of this title, the fact that these interests are sold by means of a public action shall not, in itself, create a requirement for a permit under this chapter. -199'1, No. 111, 5 4, eff. July 1, 1991. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 13 of 65 10 V.S.A. §6001b S 6041b. Low-level radioactive waste disprosal facility Any low-level radioactive waste disposal facility proposed for construction under chapter 161 of this title shall be a development, for purposes of this chapter, independent of the acreage involved. Any construction of improvements which is likely to generate low-level radioactive waste is a development, for purposes of this chapter, independent of the acreage involved. The criteria and procedures for obtaining a permit shall be the same as for any other development. --Added 1989, No. 296 (Ad j. Sess.), S 6, eff. June 29, 1990. 10 V.S.A. §6001c 8 6001c. Jurisdiction Over Broadcast and Communication Support Structures and. _Related ImpEr+avements In addition to other applicable law, any support structure proposed for construction, 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, shall be a development under this chapter, independent of the acreage involved. If jurisdiction is triggered for such a support structure, then jurisdiction will also extend to the construction of improvements ancillary to the support structure, including buildings, broadcast or communication equipment, foundation pads, cables, wires, antennas or hardware, and all means of ingress and egress to the support structure. To the extent that future improvements are not ancillary to the support structure and do not involve an additional support structure, those improvements shall not be considered a development, unless they would be considered a development under this chapter in the absence of this section. The criteria and procedures for obtaining a permit under this section shall be the same as for any other development. -- Added 1997, No. 48, g 2, eff. July 1, 1997. http://www.state.vt.us/envboard/statute.htm 7/7/2044 Vermont Environmental Board: Statute Authority Page 14 of 65 10 V.S.A. 56002 S 6002. Procedures The provisions of chapter 25 of Title 3 shall apply unless otherwise specifically stated. --1969, No. 250 (Adj. Sess.), 3 26, eff. April 4, 1970. 10 V. S.A. §6003 9 6003. Penalties A violation of any provision of this chapter or the rules promulgated hereunder is punishable by a fine of not more than $500.00 for each day of the violation or imprisonment for not more than two years, or both. A person who completely transfers ownership and control of property that is the subject of a permit under this chapter shall not be liable for later violations of that permit by another person. --1969, No. 250 (Adj. Sess.), § 28, eff. April 4, 1970, amended 2001, No. 40 52, eff. July 1, 2001. 6004. Repealed. 1989, No. 98 (Adj. Sess.) 6005. Repealed. 1989, No. 98 (Adj. Sess.) 6006. Repealed. 1989, No. 98 (Adj. Sess.) http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 15 of 65 10 V.S.A. §6007 § 60017. Act 250 disclosure statement; jurisdictional determination (a) Prior to the division or partition of land, the seller or other person dividing or partitioning the land shall prepare an "Act 250 bisclosure Statement." A person who is dividing or partitioning land, but is not selling it, shall file a copy of the statement with the town clerk, who shall record it in the land records. The seller who is dividing or partitioning land as part of the sale shall provide the buyer with the statement within 10 days of entering into a purchase and sale agreement for the sale or exchange of land, or at the time of transfer of title, if no purchase and sale agreement was executed, and shall file a copy of the statement with the town clerk, who shall record it in the land records. Failure to provide the statement as required shall, at the buyer's option, render the purchase and sales agreement unenforceable. If the disclosure statement establishes that the transfer is or may be subject to 10 V.S.A. chapter 151, and that information had not been disclosed previously, then at the buyer's option the contract may be rendered unenforceable. The statement shall include the following, on forms determined jointly by the board and the commission of the department of taxes: (1) the name and tax identification number of the seller's or divider or partitioner's spouse, and parents and children, natural or adoptive, and whether or not any of the individuals named will derive profit or consideration, or acquire any other beneficial interest from the partition or division of the land in question. However, this information will be required only to the extent that: (A) the individuals in question have been seller or buyer of record with respect to the partition or division of other land within the previous five years, and (8) that other land is located within five miles of any part of the land currently being divided or partitioned, or is located within the jurisdictional area of the same district environmental commission; (2) the name and tax identification number of all individuals and entities affiliated with the seller or divider or partitioner for the purpose of deriving profit or consideration, or acquiring any other beneficial interest from the partition or division of the land, as that affiliation is conditioned and limited according to the definition of "person" in section 6001(14) of this title, (3) a statement identifying any partition or division of land which has been completed: http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 16 of 65 (A) within the preceding five years; (8) by any of the entities or individuals identified under subdivisions (a)(1) or (2) of this section as deriving prof it or consideration or acquiring any other beneficial interest from the partition or division of the land,• (C) within five miles of any part of the land being divided or partitioned, or within the jurisdictional area of the district environmental commission in which the land is located; and (4) notice that a permit may be required under this chapter. --1991, No. 111, S 7. (Note: effective October 1, 1991.) (b) If, before the transfer of title, facts contained in the disclosure statement change, the seller shall provide the buyer with an amended statement in a timely manner. (c) With respect to the partition or division of land, or with respect to an activity which might or might not constitute development, any person may submit to the district coordinator an "Act 254 Disclosure Statement" and other information required by the board, and may request a jurisdictional opinion from the district coordinator concerning the applicability of this chapter. If a requestor wishes a final determination to be rendered on the question, the district coordinator, at the expense of the requestor and in accordance with rules of the board, shall serve the opinion on individuals or entities who may be affected by the outcome of the opinion, and on parties that would be entitled to notice under section 6484, if jurisdiction were determined to exist. A jurisdictional opinion of a district coordinator shall be subject to a request for reconsideration and may be appealed to the board by the applicant, by individuals or entities who may be affected by the outcome of the opinion, or by parties that would be entitled to notice under section 6484, if jurisdiction were determined to exist. An appeal from a jurisdictional opinion of a district coordinator must be filed within 34 days of the mailing of the opinion to the person appealing. Failure to appeal within the prescribed period shall render the jurisdictional opinion the final determination with respect to jurisdiction under this chapter unless the opinion has not been properly served on parties that would be entitled to notice under section 6484, if jurisdiction were determined to exist, and on persons and entities which may be affected by the outcome of the decision, according to rules of the board. Any appeal shall be by means of a petition for declaratory ruling and must be accompanied by a fee authorized by section 6483a of this title. Such petition shall be treated as a contested case. The chair may issue preliminary rulings subject to timely objection of any party in interest, in which event the matter shall be http.//www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 17 of 65 considered by the board. The board shall provide due notice of the filing of a petition for declaratory ruling to each party entitled to service pursuant to section 6084 of this title. --Added 1987, No. 64, 5 3 and 1991, No. 111, 8 3, eff. July 1, 1991. Amended 1993, No. 232 (Ad j. Sess.), 6 25, eff. March 15, 1995. Amended 1999, No. 49, S 155, eff. July 1, 1999. Legislative f indings. 1987, No. 64, S 1, provides: "It is the finding of the general assembly that the state of Vermont is experiencing a significant increase in the number of land subdivisions which are made for speculative purposes; that some of these subdivisions are eroding the natural resource base upon which Vermont's agricultural, forestry, mineral and recreational industries depend, that some of these subdivisions have the potential of imposing significant financial burdens upon local communities providing municipal and educational services; that it is the policy of the state of Vermont to ensure that major subdivision activity within the state comply with the criteria of Vermont's land Use and Development Law (Act 250), in order to protect the public health, safety and general welfare; and that in order to ensure appropriate Act 250 review, it is necessary to treat persons with an affiliation for profit, consideration, or some other beneficial interest derived from the partition or division of land as a single person for the purpose of determining whether a particular conveyance is subject to Act 250 jurisdiction." Basis for determination of number of lots. 1987, No. 65, S 10, provided: "Any lot, all portions of which are greater than five miles apart, but any portion of which are within the jurisdictional area of a district commission, shall not be counted as a lot, solely on the basis of that distinction, if it was conveyed before the effective date of this act." The provisions of the act affecting Title 10 became effective on July 1, 1987. 10 V.S.A. § 6021 S 6021. Booed: vacancy, removal (a) An environmental board is created. The board shall consist of nine members appointed in the month of February by the governor, with the advice and consent of the senate, so that five appointments expire in each odd numbered year. The members shall be appointed for terms of four years. The governor http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 18 of 65 shal lappoint up to five persons, who shall be former board or district commission members, with the advice and consent of the senate, to serve as alternates for board members. Alternates shall be appointed for terms of four years, with initial appointments being staggered. The board chair may assign alternates to sit on specific cases before the board, in situations where fewer than nine board members are available to serve. --1991, No. 111, § 1, eff. July 1, 1991; Amended 1993, No. 82, 5 1, eff. July 1, 1993. Amended 1993, No. 232 (Adj. Sess.), § 26, eff. March 15, 1995. (b) Any vacancy occurring in the membership of the board shall be filled by the governor for the unexpired portion of the term. (c) Notwithstanding the provisions of 3 V.S.A. § 2004, members shall be removable for cause only, except the chair, who shall serve at the pleasure of the governor. --1969, No. 250 (Ad j. Sess.), § 3, eff. April 4, 1970. Amended 1993, No. 232 (Adj. Sess.), § 26, eff. March 15, 1995. (d) The board chair, upon request of the chair of a district commission, may appoint and assign former commission members to sit on specific commission cases when some or all of the regular members and alternates are disqualified or otherwise unable to serve. --1989, No. 234 (Ad j. Sess.), § 2. 10 V.S.A. § 6022 S 6022. Personnel The board may appoint legal counsel and administrative personnel, as it finds necessary in carrying out its duties, unless the governor shall otherwise provide. --1969, No. 250 (Adj. Sess.), § 4, April 4, 1970; Amended 1993, No. 82, § 2, eff. July 1, 1993. 10 V.S.A. § 6023 http://www.state.vt.us/envboard/statute,htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 19 of 65 S 6023. Grants The board may apply for and receive grants from the federal government and from other sources. --1969, No. 250 (Ad j. Sess.), § 4, eff. April 4, 1970. 10 V.S.A. § 6024 S 6024. Zntragovernmental cooperation Other departments and agencies of state government shall cooperate with the board and make available to it data, facilities, and personnel 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 this chapter, shall endeavor to assist all applicants regardless of the size and value of the projects involved. --1969, No. 250 (Adj. Sess.), S 4, eff. April 4, 1970; amended 2001, No. 40 5 3, eff. July 1, 2001. 10 V.S.A. § 6025 § 6025. Rules (a) The board shall adopt rules under and only to the extent of the authority granted to agencies by 3 V.S.A., chapter 25, the Vermont Administrative Procedure Act, to interpret and carry out the provisions of this chapter; however, the board may not adopt emergency rules. (b) The rules may 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 section 6036(a) of this chapter. In accordance with that classification the rules may: http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 20 of 65 (1) provide for simplified or less stringent procedures than are otherwise required under sections 6083, 6084 and 6085 of this chapter; and (2) provide for the filing of notices instead of applications for the permits that would otherwise be required under section 6081 of this chapter; and (3) 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. --1969, No. 250 (Adj. Sess.), g 25, eff. April 4, 1970; amended 1973, No. 85, 8 2; 1979, No. 123 (Adj. Sess.), S 4, eff. April 14, 1980; 1985, No. 52, S 3, eff. May 15, 1985; 1987, No. 186 (Adj. Sess.), eff. May 5, 1988. (c)(1) This subsection shall apply to lots within a subdivision: (A) that were created as part of a subdivision owned or controlled by a person who may have been required to obtain a permit under this chapter, and (8) with respect to which a determination has been made that a permit was needed under this chapter, and (C) that were sold to a purchaser prior to January 1, 1991 without a required permit. (2) The rules shall provide for a modified process by which the sole purchaser, or the group of purchasers, of one or more lots to which this subsection applies may apply for and obtain a permit under this chapter that shall be issued in light of the existing improvements, facts, and circumstances that pertain to the lots; provided, however, that the requirements of this chapter shall be modified only to the extent needed to issue those permits. For purposes of these rules, a purchaser eligible for relief under this subsection must not have been involved in creating the lots, must not be a person who owned or controlled the land when it was divided or partitioned, as a person is defined in this chapter, and must not have known at the time of purchase that the transfer was subject to a permit requirement that had not been met. (3) Notwithstanding the provisions of subsection (a) of this section, the board may adopt emergency rules under this subsection. Notwithstanding the provisions of 3 V.S.A. chapter 25, these emergency rules may remain in effect for 180 days, before they must be replaced by permanent rules. --1991, No. 111, S 5, eff. July 1, 1991. 10 V.S.A. S 6026 S 6026. District commissioners http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 21 of 65 (a) For the purposes of the administration of this chapter, the state is divided into nine districts. (1) District No. 1, comprising administrative district 1 as provided in section 4001of Title 3. (2) District No. 2, comprising administrative district 2 as provided in section 4001 of Title 3. (3) District No. 3, comprising administrative district 3 as provided in section 4001 of Title 3. (4) District No. 4, comprising administrative district 4 as provided in section 4001' of Title 3, excluding the towns of Addison, Bridport, Bristol, Cornwall, Ferrisburg, Goshen, Leicester, Lincoln, Middlebury, Monkton, New Haven, Orwell, Wanton, Ripton, Salisbury, Shoreham, Starksboro, Vergennes, Waltham, Weybridge and Whiting. (5) District No. 5, comprising administrative district 5 as provided in section 4001 of Title 3. (b) District No. 6, comprising administrative district 6 as provided in section 4001' of Title 3. (7) District No. 7, comprising administrative district 7 as provided in section 4001 of Title 3. (8) District No. 8, comprising administrative district 8 as provided in section 4001 of Title 3. (9) District No. 9, comprising the towns of Addison, Bridport, Bristol, Cornwall, Ferrsburg, Goshen, Leicester, Lincoln, Middlebury, Monkton, New Haven, Orwell, Wanton, Ripton, Salisbury, Shoreham, Starksboro, Vergennes, Waltham, Weybridge, and Whiting. (b) A district environmental commission is created for each district. Each district commission shall consist of three members from that district appointed in the month of February by the governor so that two appointments expire in each odd numbered year. Two of the members shall be appointed for a term of four years, and the chair (third member) of each district shall be appointed for a two-year term. In any district, the governor may appoint not more than four alternate members from that district whose terms shall not exceed two years, who may hear any case when a regular member is disqualified or otherwise unable to serve. (c) Members shall be removable for cause only, except the chairman who shall serve at the pleasure of the governor. (d) Any vacancy shall be filled by the governor for the unexpired period of the http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Enviromnental Board: Statute Authority Page 22 of 65 term. --1969, No. 254 (Ad j. 5ess.), S 5, eff. April 4, 1970; amended 1971, No. 74, 8 1; 1973, No. 54; 1985, No. 147 (Ad j. 5ess.), eff. March 14, 1986. Amended 1993, No. 232 (Ad j. Sess.), 5 27, eff. March 15, 1995. 10 V.S.A. § 6027 S 6027. Powers (a) The board and district commissions shall have the power to compel the attendance of witnesses, and require the production of evidence. (b) The powers granted to the board under this chapter are additional to any other powers which may be granted to it by other legislation. (c) The board may designate or establish such regional offices as it deems necessary to implement the provisions of this chapter and the rules adopted hereunder. The board may designate or require a regional planning commission to receive applications, provide administrative assistance, investigations, and make recommendations. (d) The board, when it determines the workload in any district is such that unreasonable delays will result, may at the request of an overloaded district authorize the district commission of another district to sit in that district to consider applications. (e) The board may by rule allow joint hearings to be conducted with specified state agencies or specified municipalities. (f) [Repealed.] --1969, No. 254 (Ad j. Sess.), 5 25, eff. April 4, 1970; amended 1973, No. 85, 5 3; 1979, No. 123 (Adj. Sess.), S 8, eff. April 14, 1984. (f) The board may publish or contract to publish annotations and indices of its decisions, and the text of its decisions. The published product shall be available at a reasonable rate to the general public and at a reduced rate to libraries and governmental bodies within the state. --1991, No. 111, S 6, eff. July 1, 1991. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 23 of 65 (g) Unless the board, acting on a motion of a party or on its own motion, directs the chair otherwise with respect to a particular appeal or petition, the chair may appoint a hearing officer or a subcommittee of the board to hear any appeal or petition before the board. Board members may be appointed as hearing officers, as may alternates. Any hearing officer or subcommittee shall report findings of fact and conclusions of law in writing to the board. A copy of the proposed decision shall be served on the parties pursuant to 3 V.S.A. 5 811, but shall be subject to a final decision by the board. The parties shall have 15 days to request oral argument before the board. Added 1993, No. 232 (Ad j. Sess), 5 28, eff. March 15, 1995. 10 V.S.A. § 6028 S 6028. Compensation Members of the board and district commissions shall receive per diem pay and all necessary and actual expenses in accordance with 32 V.S.A. 5 1010. --1969, No. 250 (Ad j. Sess.), 5 31, eff. April 4, 1970; Amended 1993, No. 82 5 3, eff. July 1, 1993. 14 V.S.A. § 6029 8 6029. Act 250 permit fund Ther; 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. Revenues to the fund shall be those fees collected in accordance with rules adopted under 10 V.S.A. 55 6025(a), 6083(a)(3) and 6089(x), gifts, appropriations, and copying and distribution fees. The environmental beard 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. bisbursements 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 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 24 of 65 the agency that directly or indirectly assist in the review of Act 250 applications. The secretary of natural resources shall account for expenditures of the agency of natural resources from appropriations against the fund. An unencumbered fund balance in excess of $100,000.00 at the close of a fiscal year shall revert to the general fund. This fund shall be administered as provided in subchapter 5 of chapter 7 of Title 32, as a special program fund. -Added 1989, No. 279 (Adj. Sess.), 5 2, eff. June 30, 1990; amended and reauthorized, 1993, No. 70, 9 1, and 1995, No. 47, S 17. (10 V.S.A. § 6029 expires on June 30, 1997 unless reauthorized). 10 V.S.A. § 6030 S 6030. Map of Wireless Telecommunications Facilities The board shall maintain a map that shows the location of all wireless telecommunication facilities in the state. --Added 1998, No. 94 (Adj. Sess.), 5 1, eff. April 15, 1998. 10 V.S.A. 6041 Omitted 10 V.S.A. 6042 S 6042. Capability and development plan The board shall adopt a capability and development plan consistent with the interim land capability plan which shall be made with the general purpose of guiding and accomplishing a coordinated, efficient and economic development of the state, which will, in accordance with present and future needs and resources, best promote the health, safety, order, convenience, prosperity and welfare of the inhabitants, as well as efficiency and economy in the process of development, including but not limited to, such distribution of population and the uses of the land for urbanization, trade, industry habitation, recreation, http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 25 of 65 agriculture, forestry and other uses as will tend to create conditions favorable to transportation, health, safety, civic activities and educational and cultural opportunities, reduce the wastes of financial and human resources which result from either excessive congestion or excessive scattering of population and tend toward an efficient and economic utilization of drainage, sanitary and other facilities and resources and the conservation and production of the supply of food, water and minerals. In addition, the plan may accomplish the purposes set forth in section 4302 of Title 24. --1969, No. 250 (Ad j. Sess.), 8 19, eff. April 4, 197©. "PLANNING FOR LANE) USE AND ECONOMIC DEVELOPMENT" "(1) THE CAPABILITY OF THE LAND "The capability of land to support development or subdivision provides a foundation for judgment of whether a proposal of development or subdivision is consistent with policies designed to make reasonable use of the state's resources and to minimize waste or destruction of irreplaceable values, Accordingly, such information regarding the physical characteristics of land as is found in the interim land capability and development plan adopted under section 6041 of Title 10, and as may hereafter be adopted as a rule of the environmental board, shall be considered a part of this capability and development plan. "(2) UTILIZATION OF NATURAL RESOURCES "Products of the land and the stone and minerals under the land, as well as the beauty of our landscape are principal natural resources of the state. Preservation of the agricultural and forest productivity of the land, and the economic viability of agricultural units, conservation of the recreational opportunity afforded by the state's hills, forests, streams and lakes, wise use of the state's non-renewable earth and mineral reserves, and protection of the beauty of the landscape are matters of public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefitted thereby. "(3) PUBLIC AND PRIVATE CAPITAL INVESTMENT "(A) A balance of public and private capital investment determines the economic well-being of a town or region. An area of industrial, recreational, or residential growth requires highways, schools, utilities, and services the cost of which is borne in large part by others. A settled area, with a full complement of public services, needs continuing private capital investment to create a tax base to pay for the services. Increased demands for and costs of public services, such http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vennont Environmental Board: Statute Authority Page 26 of 65 as schools, road maintenance, and fire and police protection must be considered in relation to available tax revenues and reasonable public and private capital investment. The location and rate of development must be considered, so that the revenue and capital resources of the town, region or state are not diverted from necessary and reasonably anticipated increased governmental services. Accordingly, conditions may be imposed upon the rate and location of development in order to control its impact upon the community. "(g) Consideration must be given to the consequences of growth and development for the region and the state as well as for the community in which it takes place. An activity or project that imposes burdens or deprivations on other communities or the state as a whole cannot be justified on the basis of local benefit alone. "(4) PLANNING FOR GROWTH "(A) Strip development along highways and scattered residential development not related to community centers cause increased cost of government, congestion of highways, the loss of prime agricultural lands, overtaxing of town roads and services and economic or social decline in the traditional community center. "(9) Provision should be made for the renovation of village and town centers for commercial and industrial development, where feasible, and location of residential and other development off the main highways near the village center on land which is other than primary agricultural soil. "(C) Planning at all levels should provide for the development and allocation of lands and resources of existing cities, towns, and villages generally in proportion to their existing sizes as related to distribution state-wide and a projection of the reasonably expected population increase and economic growth, unless a community, through duly adopted plans, makes the determination that it desires and has the ability to accommodate more rapid growth. "(b) Consistent with all other policies and criteria set forth in this act, development as defined in section 6001 of this chapter in areas which are not natural resources as referred to in paragraph (9) of this section should be permitted at reasonable population densities and reasonable rates of growth, with emphasis on cluster planning and new community planning designed to economize on the costs of roads, utilities and land usage. "(5) SEASONAL HOME DEVELOPMENT "Seasonal homes not only are convertible to permanent homes but are often so converted and may require increased municipal and public services. There http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Beard: Statute Authority Page 27 of 65 should, therefore, be imposed such conditions upon a seasonal home development or subdivision as should be imposed upon a permanent residential development or subdivision. "(b) GENERAL POLICIES FOR ECONOMIC DEVELOPMENT "(A) In order to achieve a strong economy that provides satisfying and rewarding job and investment opportunities and sufficient income to meet the needs and aspirations of the citizens of Vermont, economic development should be pursued selectively so as to provide maximum economic benefit with minimal environmental impact. "(B) Any effect which directly or indirectly accelerates economic growth should be consistent with local, regional and state objectives. "(C) One of the long-range benefits to the community of commercial and industrial development should be to provide stable employment opportunities at all economic levels, particularly for Vermont's unemployed and underemployed. "(7) SPECIFIC AREAS FOR RESOURCE DEVELOPMENT "The flow of cash into Vermont to pay for goods manufactured in the state, grown in the state, or mined and quarried in the state, and to pay for services offered in the state to out-of-staters is of primary importance to the state's economy. Enterprises adding the greatest value by conversion of native raw materials or the products of the land are particularly beneficial to the public interest. "(8) PLANNING EOR MOUSING "(A) Opportunity for decent housing is a basic need of all Vermont's citizens. A decent home in a suitable living environment is a necessary element for protecting the health, safety, and general welfare of the public. The housing requirement for Vermont's expanding resident population, particularly for those citizens of low or moderate income, must be met by the construction of new housing units and the rehabilitation of existing substandard dwellings. It is in the public interest that new or rehabilitated housing should be: safe and sanitary; available in adequate supply to meet the requirements of all Vermont's residents; located conveniently to employment and commercial centers; and, coordinated with the provision of necessary public facilities and utilities and consistent with municipal and regional plans. "(8) Sites for multi-family and manufactured housing should be readily available in locations not inferior to those generally used for single-family conventional dwellings. "(C) There should be a reasonable diversity of housing types and choice http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 28 of 65 between rental and ownership for all citizens in a variety of locations suitable for residential development and convenient to employment and commercial centers. "RESOURCE USE AND CONSERVATION" 11(9) NATURAL RESOURCES SPECIFICALLY PROVIDED FOR "Those natural resources referred to in section 6086(a)(1)(A) 'headwaters', (B) 'Waste disposal', (C) 'Water conservation', (b) 'Floodplains', (E) 'Watercourses', and (F) 'Shorelines', and section 6086(a)(8)(A) 'Wildlife habitat and endangered species', and section 6086(a)(9)(B) 'Primary agricultural soils', (C) 'Forests and secondary agricultural soils', (D) 'Earth resources', (E) 'Extraction of earth resources', and (K) 'Development affecting public investments' should be planned for development and use under the principles of environmental conservation set forth in those sections. "(10) RECREATIONAL RESOURCES "(A) The use and development of land and waters should occur in such a way as not to significantly diminish the value and availability of outdoor recreational activities to the people of Vermont, including hunting, fishing, hiking, canoeing and boating, skiing, horseback riding, snowmobiling, and other outdoor recreational activities. "(8) The effects of development and subdivision on availability of and access to landswhich provide opportunities for outdoor recreation should be considered, and such availability of access should be provided for where feasible. "(11) SPECIAL AREAS "Lands that include or are adjacent to sites or areas of historical, educational, cultural, scientific, architectural or archeological value, including those designated by the rules of the environmental board, should only be developed in a mariner that will not significantly reduce that value of the site or area. Sites or areas which are in danger of destruction should be placed in whatever form of public or private ownership that would best maintain and utilize their value to the public. "(12) SCENIC RESOURCES "The use and development of lands and waters should not significantly detract from recognized scenic resources including river corridors, scenic highways and roads,and scenic views. Accordingly conditions may be imposed on development in order to control unreasonable or unnecessary adverse effects upon scenic resources. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 29 of 65 "(13) CONSERVATION OF ENERGY "Energy conversion and utilization depletes a limited resource, and produces wastes harmful to the environment, while facilitating our economy and satisfying human needs essential to life. Energy conservation should be actively encouraged and wasteful practices discouraged. "(14) TAXATION OF LAND "Land should be appraised and assessed for tax purposes on the use of the land consistent with this act and any other state or local law or regulation affecting current or prospective use of land. "GOVERNMENT FACILITIES AND PUBLIC UTILITIES "(15) PLANNING FOR GROWTH "The development and provision of governmental and public utility facilities and services should be based upon a projection of reasonably expected population increase and economic growth, and should recognize the limits of the state's human, financial, and natural resources. "(16) PUBLIC FACILITIES OR SERVICES ADJOINING AGRICULTURAL OR FORESTRY LANDS "The construction, expansion or provision of public facilities and services should not significantly reduce the resource value of adjoining agricultural or forestry lands unless there is no feasible and prudent alternative, and the facility or service has been planned to minimize its effect on the adjoining lands. "(17) PLANNING FOR TRANSPORTATION AND UTILITY CORRIDORS "The development and expansion of governmental and public utility facilities and services should occur within highway or public utility rights-of-way corridors in order to reduce adverse physical and visual impact on the landscape and achieve greater efficiency in the expenditure of public funds. "(18) TRANSPORTATION SYSTEMS "Safe, convenient and economical transportation is essential to the people and economy of Vermont and should be planned so as to conform to and further the purposes of this act. Highway, air, rail and other means of transportation should be mutually supportive, balanced and integrated. The transportation system should provide convenience and service which are commensurate with need and should respect the integrity of the natural environment. New construction or major reconstruction of roads and highways should provide http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 30 of 65 paths, tracks or areas solely for use by pedestrian or other non-motorized means of transportation when economically feasible and in the public interest. "(19) PLANNING FOR WASTE DISPOSAL "Development which is responsible for unique or large amounts of waste should be permitted only if it can be demonstrated that available methods will allow the environment to satisfactorily assimilate the waste and that the public can finance the disposal method without assuming an unreasonable economic burden." 10 V.S.A. § 6043 167, 6043. Repealed. 1983. No. 114 (Adj. Sess.). S 5 10 V.S.A. 6044 S 6044. Public hearings (a) The board shall hold public hearings for the purpose of collecting information to be used in establishing the capability and development plan, and interim land capability plan. The public hearings may be held in an appropriate area or areas of the state and shall be conducted according to rules to be established and published by the board. (b) The board may, on its own motion or on petition of an interested agency of the state or any regional or local planning commission, hold such other hearings as it may deem necessary from time to time for the purpose of obtaining information necessary or helpful in the determination of its policies, and carrying out of its duties, or the formulation of its rules and regulations. (c) At least one public hearing shall be held in each district prior to adoption of a plan pursuant to section 6042 of this title. Notice of a hearing shall be furnished each municipality, and municipal and regional planning commission in the district where the hearing is to be held not less than fifteen days prior to http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Wage 31 of 65 the hearing. (d) The provisions of chapter 25 of Title 3 shall not apply to the hearings under this section. --1969, No. 250 (Adj. Sess.), S 21, eff. April 4, 1970; amended 1983, No. 114 (Adj. Sess.), § 2. 10 V.S.A. § 6045 9 6045. Repealed. 1983, No. 114 (Adj. Sess.), § 5. 10 V.S.A. § 6046 8 6046. Approval of governor and legislature (a) Upon approval of a capability and development or interim land capability plan by the board, it shall submit the plan to the governor for approval. The governor shall approve the plan, or disapprove the plan or any portion of a plan, within 30 days of receipt. If the governor fails to act, the plan shall be deemed approved by the governor. This section shall also apply to any amendment of a plan. (b) After approval by the governor, plans pursuant to section 6042 of this title shall be submitted to the general assembly when next in session for approval. A plan shall be considered adopted for the purposes of section 6086(x)(9) of this title when adopted by the act of the general assembly. No permit shall be issued or denied by a district commission or environmental board which is contrary to or inconsistent with a local plan, capital program or municipal bylaw governing land use unless it is shown and specifically found that the proposed use will have substantial impact or effect on surrounding towns, the region or an overriding interest of the state and the health, safety and welfare of the citizens and residents #hereof requires otherwise. --1969, No. 250 (Adj. Sess.), 5 23, eff. April 4, 1970: amended 1973, No, 85, 8 5; 1983, No. 114 (Adj. Sess.), S 3. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 32 of 65 10 V.S.A. § 6047 6047 Changes in the capability and development plan (a) After final adaption, any department or agency of the state or a municipality, or any property owner or lessee may petition the board for a change in the capability and development plan. (b) Within 10 days of receipt, the board shall forward a copy of the petition to the district commission and regional planning agency for comments and recommendations. If no regional planning commission exists, the copy shall be sent to the affected municipal planning commissions and municipalities. (c) After 60 days but within 120 days of the original receipt of a petition, the board shall advertise a public hearing to be held in the appropriate county. The board shall notify the persons and agencies that have an interest in the change of the time and place of the hearing and the procedures established for initial adaption of a plan shall apply. (d)-(f) [Repealed.] --1969, No. 250 (Adj. Sess.), § 24, eff. April 4, 1970; amended 1983, No. 114 (Ad j. Sess), 6 4. 10 V.S.A. § 6081 S 6381. permits required; exemptions (a) No person shall sell or offer for sale any interest in any subdivision located in this state, or commence construction on a subdivision or development, or commence development without a permit. This section shall not prohibit the sale, mortgage or transfer of all, or an undivided interest in all, of a subdivision unless the sale, mortgage or transfer is accomplished to circumvent the purposes of this chapter. http://www.state.vt.us/envboard/statute.ht 7/7/2004 Vermont Environmental Board: Statute Authority Page 33 of 65 (b) Subsection (a) of this section shall not apply to a subdivision exempt under the regulations of the department of health in effect on January 21, 1970 or any subdivision which has a permit issued prior to June 1, 1970 under the board of health regulations, or has pending a bona fide application for a permit under the regulations of the board of health on June 1, 1970, with respect to plats on file as of June 1, 1970 provided such permit is granted prior to August 1, 1970. Subsection (a) of this section shall not apply to development which is not also a subdivision, which has been commenced prior to June 1, 1970, if the construction will be completed by March 1, 1971. Subsection (a) of this section shall not apply to a state highway on which a hearing pursuant to section 222 of Title 19 has been held prior to June 1, 1970. Subsection (a) of this section shall apply to any substantial change in such excepted subdivision or development. Subsection (a) of this section shall not apply to any telecommunications facility in existence prior to July 1, 1997, unless that facility is a "development" as defined in subdivision 6001(3) of this title. --1969, No. 250 (Ad j. Sess.), §§ 6, 7. Amended 2000, No 93 (Ad j. Sess.), Sec. 2, eff. July 1, 2000. (c) No permit or permit amendment is required for activities at a solid waste management facility authorized by a provisional certification issued under 10 V.S.A. § 6605d; however, development at such a facility that is beyond the scope of that provisional certification is not exempt from the provisions of this chapter. --1990, No. 218 (Ad j. Sess.), 5 2. (d) For purposes of this section, the following municipal projects shall not be considered to be substantial changes, regardless of the acreage involved, and shall not require a permit as provided under subsection (a) of this section: (1) essential municipal wastewater treatment facility enhancements that do not expand the capacity of the facility by more than 10 percent. (2) essential municipal waterworks enhancements that do not expand the capacity of the facility by more than 10 percent. (3) essential public school reconstruction or expansion that does not expand the student capacity of the school by more than 10 percent. (4) essential municipal building reconstruction or expansion that does not expand the floor space of the building by more than 10 percent. --1990, No. 276 (Ad j. Sess.), § 17a. (e) For purposes of this section, the replacement of water and sewer lines, as part of a municipality's regular maintenance or replacement of existing http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 34 of 65 facilities, shall not be considered to be substantial changes and shall not require a permit as provided under subsection (a) of this section, provided that the replacement does not expand the capacity of the relevant facility by more than',10 percent. --1990, No. 276 (Ad j. Sess.), § 17b. (f) A permit application for a development for which a certificate of need pursuant to section 6606a of this title is required shall be accompanied by such certificate. --Amended 1989, No. 218 (Ad j. Sess.), § 2„ No. 276 (Ad j. Sess.), §5 17a, 17b, eff. June 20, 1990; No. 282 (Ad j. Sess.), § 7, eff. June 22, 1990. (g) The owners or operators of earth removal sites associated with a landfill closing, other than the landfill site itself, shall obtain a municipal zoning permit in lien of a permit under this chapter, unless the municipality chooses to refer the matter to the district environmental commission having jurisdiction. At the district commission level, the matter will be treated as a minor application. If municipal zoning bylaws do not exist, the excavation application shall be subject to the provisions of this chapter as a minor application. --Added 1992, No. 256 (Ad j. Sess.) § 30, eff. June 9, 1992. (h) No permit or permit amendment is required for closure operations at an unlined landfill which began disposal operations prior to July 1, 1992 and which has been ordered closed under section 6610a or chapter 201 of this title. Closure and post-closure operations covered by this provision are limited to the following on-site operations: final landfill cover system construction and related maintenance operations, water quality monitoring, landfill gas control systems installation and maintenance, erosion control measures, site remediation and general maintenance. Prior to issuing a final order for closure for landfills qualifying for this exemption, a public informational meeting shall be noticed and held by the secretary with public comment accepted on the draft order. The public comment period shall extend no less than seven days before the public meeting and 14 days after the meeting. Public comment related to the public health, water pollution, air pollution, traffic, noise, litter, erosion and visual conditions shall be considered. Landfills with permits in effect under this chapter as of July 1, 1994, shall not qualify for an exemption as described under this section. --Added 1994, No. 232 (Ad j. Sess.), § 4, eff. June 17, 1994. (i) The repair or replacement of railroad facilities used for transportation http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 35 of 65 purposes, as part of a railroad's maintenance, shall not be considered to be substantial changes and shall not require a permit as provided under subsection (a) of this section, provided that the replacement or repair does not result in the physical expansion of the railroad's facilities. -_Added 1994, No. 200 (Ad j. Sess.), 5 2, eff. June 17, 1994. (j) With respect to the extraction of slate from a slate quarry that is included in final slate quarry registration documents, if it were removed from a site prior to June 1, 1970, the site from which slate was actually removed, if lying unused at any time after those operations commenced, shall be deemed to be held in reserve, and shall not be deemed to be abandoned. (k)(1) With respect to the commercial extraction of slate from a slate quarry, activities that are not ancillary to slate mining operations may constitute substantial changes, and be subject to permitting requirements under this chapter. "Ancillary activities" include the following activities that pertain to slate and that take place within a registered parcel that contains a slate quarry: drilling, crushing, grinding, sizing, washing, drying, sawing and cutting stone, blasting, trimming, punching, splitting and guaging, and use of buildings and use and construction of equipment exclusively to carry out the above activities. Buildings that existed on April 1, 1995, or any replacements to those buildings, shall be considered ancillary. (2) Activities that are ancillary activities that involve crushing, may constitute substantial changes if they may result in significant impact with respect to any of the criteria specified in subdivisions 6086(a)(1) through (10) of this title. (1)(1) By no later than January 1, 1997, any owner of land or mineral rights or any owner of slate quarry leasehold rights on a parcel of land on which a slate quarry was located as of June 1, 1970, may register the existence of the slate quarry with the district commission and with the clerk of the municipality in which the slate quarry is located, while also providing each with a map which indicates the boundaries of the parcel which contains the slate quarry. (2) Slate quarry registration shall state the name and address of the owner of the land, mineral rights or leasehold right: whether that person holds mineral rights, or leasehold rights or is the owner in fee simple; the physical location of the same: the physical location and size of ancillary buildings: and the boob; and page of the recorded deed or other instrument by which the owner holds title to the land or rights. (3) Slate quarry registration documents shall be submitted to the district commission together with a request, under The provisions of subsection 6007 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 36 of 65 (c) of this title, for a final determination regarding the applicability of this chapter. (4) The final determination regarding a slate quarry registration under subsection 6007(c) of this title shall be recorded in the municipal land records at the expense of the registrant along with an accurate site plan of the parcel depicting the site specific information contained in the registration documents. (5) With respect to a slate quarry located on a particular registered parcel of land, ancillary activities on the parcel related to the extraction and processing of slate into products that are primarily other than crushed stone products shall not be deemed to be substantial changes as long as the activities do not involve the creation of one or more new slate quarry holes that are not related to an existing slate quarry hole. (m) No permit is required for the replacement of a preexisting telecommunications facility, in existence prior to July 1, 1997, provided the facility is not a development as defined in subdivision 6001(3) of this title, unless the replacement would constitute a substantial change to the telecommunications facility being replaced, or to improvements ancillary to the telecommunications facility, or both. No permit is required for repair or routine maintenance of a preexisting telecommunications facility or of those ancillary improvements associated with the telecommunications facility. -- Added 2000, No. 93 (Adj. Sess.), § 2, eff. July 1, 2000. (n) No permit amendment is required for the replacement of a permitted telecommunications facility unless the replacement would constitute a material or substantial change to the permitted telecommunications facility to be replaced, or to improvements ancillary to the telecommunications facility, or both. No permit is required for repair or routine maintenance of a permitted telecommunications facility or of those ancillary improvements associated with the telecommunications facility. -- Added 2000, No. 93 Adj. Sess.), S 2, eff. July 1, 2000. (o) If a downtown development district designation pursuant to 24 V.S.A. 2793 is removed, subsection (a) of this section shall apply to any subsequent substantial change to a project that was originally exempt pursuant to subdivision 6001(3)(8) of this title. -- Added 2002, No. 114 (Ad j. Sess.), § 7c, eff. May 28, 2002. (p) No permit or permit amendment is required for any change to a project that is located entirely within a downtown development district designated pursuant http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board. Statute Authority Page 37 of 65 to 24 V.S.A. 9 2793, if the change consists exclusively of any combination of mixed use and mixed income housing, and the cumulative changes within any continuous period of five years, commencing on or after the effective date of this subsection, remain below the jurisdictional threshold specified in subdivision 6001(3)(8) of this title. -- Added 2002, No. 114 (Ad j. Sess.), 5 7c, eff. May 28, 2002. 10 V.S.A. 5 6082 S 6082. Approval by local governments and state agencies The permit required under section 6081 of this title shall not supersede or replace the requirements for a permit of any other state agency or municipal government. --1969, No. 250 (Ad j. Sess.), 9 27, eff. April 4, 1970. 10 V.S.A. § 6083 S_ 6083. Applications (a) An application for a permit shall be filed with the district commissioner as prescribed by the rules of the board and shall contain at least the following documents and information: (1) The applicant's name, address, and the address of each of the applicant's offices in this state, and, where the applicant is not an individual, municipality or state agency, the form, date and place of formation of the applicant. (2) Five copies of a plan of the proposed development or subdivision showing the intended use of the land, the proposed improvements, the details of the project, and any other information required by this chapter, or the rules promulgated thereunder. (3) The fee prescribed by section 6083a of this title. Amended, 1998, No. 155, (Ad j. Sess.) , S 26 eff. July 1, 1998. (4) Certification of filing of notice as set forth in 5 6084 of this title. http://www.state.vt.us/envboard/statutc.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 38 of 65 (b) The board and district commission may conduct such investigations, examinations, tests and site evaluations as they deem necessary to verify. information contained in the application. An applicant shall grant the board or district commission, or their agents, permission to enter upon his land for these purposes. (c) Where an application concerns the extraction or processing of fissionable source material, before the application is considered the district commission shallobtain the express approval of the general assembly by act of legislation stating that extraction or processing of fissionable source material will promote the general welfare. The district commission shall advise the general assembly of any application for extraction or processing of fissionable source material by delivering written notice to the speaker of the house of representatives and to the president of the senate, and shall make available all relevant material. The procedural requirements and deadlines applicable to permit applications under this chapter shall be suspended until the approval is granted. Approval by the general assembly under this subsection shall not be construed as approval of any particular application or proposal for development. (d) The board and commissions shall make all practical efforts to process permits in a prompt manner. The board shall establish time limits for permit processing as well as procedures and time periods within which to notify applicants whether an application is complete. The board shall report annually by February 15 to the house and senate committees on natural resources and energy and government operations. The annual report shall assess the performance of the board and commissions in meeting the limits, identify areas which hinder effective performance, list fees collected for each permit; summarize changes made by the board 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. —1969, No. 250 (Adj. Sess.), §5 8, 15, eff. April 4, 1970; amended 1979, No. 123 ('Adj. Sess.), § 6, eff. April 14, 1980; 1987, No. 76, S 10; 1989, No. 276 (Adj. Sess.), 5 17, eff. dune 20, 1990; No. 279 (Adj. Sess.) 5 3. (e) The district commissions shall give priority to municipal projects that have been mandated by the state through a permit, enforcement order, court order, enforcement settlement agreement, statute, rule or policy. --Amended 1987, No. 76, S 10; 1989, No. 276 (Adj. Sess.), S 17, eff. June 20, 1990; No. 279 (Adj. Sess.), 8 3. http://www.state.vt.us/envboard/statute,htm 7/7/2404 Vermont Environmental Board: Statute Authority Page 39 of 65 (f) In situations where the party seeking to file an application is a municipality or a solid waste management district empowered to condemn the involved land or an interest in it, then the application need only be signed by that party. Amended 1991, Act 109, § 7, eff. June 28, 1991. (9)(1) A district commission, pending resolution of noncompliance, may stay the issuance of a permit or amendment if it finds, by clear and convincing evidence, that a person who is an applicant: (A) is not in compliance with a court order, an administrative order, or an assurance of discontinuance with respect to a violation that is directly related to the activity which is the subject of the application; or (B) has one or more current violations of this chapter, or any rules, permits, assurances of discontinuance, court order, or administrative orders related to this chapter, which, when viewed together, constitute substantial noncompliance. (2) Any decision under this subsection to issue a stay may be subject to an interlocutory appeal to the board. (3) If the same violation is the subject of an enforcement action under chapter 201 of this title, then jurisdiction over the issuance of a stay shall remain with the environmental court and shall not reside with the district commission. Added 2001, No.40 Section 4, eff. July 1, 2001. 10 V.S.A. § 6083a 9 6083a. Fees (a) All applicants shall be directly responsible for the costs involved in the publication of notice in a newspaper of general circulation in the area of the proposed development or subdivision and the costs incurred in recording any permit or permit amendment in the land records. In addition, applicants shall be subject to the following fees for the purpose of compensating the state of Vermont for the direct and indirect costs incurred with respect to the administration of the Act 250 program: (1) For projects involving construction, $4.25 for each $1,000.00 of the first $15,000,000.00 of construction costs, and $2.00 for each $1,000.00 of construction costs above $15,000.000.00. (2) For projects involving the creation of lots, $50.00 for each lot. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board; Statute Authority Page 40 of 65 (3) For projects involving exploration for or removal of oil, gas and fissionable source materials, a fee as determined under subdivision (1) of this subsection or $1,000.00 for each day of commission and board hearings required for such projects, whichever is greater. (4) For projects involving the extraction of earth resources, including but not limited to sand, gravel, peat, topsoil, crushed stone or quarried material, a fee as determined under subdivision (1) of this subsection or a fee equivalent to the rate of $0.10 per cubic yard of maximum estimated annual extraction, whichever is greater. (5) For projects involving the review of a master plan, a fee equivalent to $0.10 per $1,000.00 of total estimated construction costs in current dollars in addition to the fee established in subdivision (1) of this subsection for any portion of the project seeking construction approval. (6) In no event shall a permit application fee exceed $135,000.00. (b) Notwithstanding the provisions of subsection (a) of this section, there shall be a minimum fee of $100.00 for original applications and $25.00 for amendment applications, in addition to publication and recording costs. These costs shall be in addition to any other fee established by statute, unless otherwise expressly stated. (c) Fees shall not be required for projects undertaken by municipal agencies or by state governmental agencies, except for publication and recording costs. (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. (e) A 'written request for an application fee refund shall be submitted to the district commission to which the fee was paid within 90 days of the withdrawal of the application. (1) In the event that an application is withdrawn prior to the convening of a hearing, the district commission shall, upon request of the applicant, refund 50 percent of the fee paid between $100.00 and $5,000.00, and all of that portion of the fee paid in excess of $5,000.00 except that the district commission may decrease the amount of the refund if the direct and indirect costs incurred by the state of Vermont with respect to the administration of the Act 250 program clearly and unreasonably exceed the fee that would otherwise be retained by the district commission. (2) In the event that an application is withdrawn after a hearing, the district http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 41 of 65 commission shall, upon request of the applicant, refund 25 percent of the fee paid between $100.00 and $10,000.00 and all of that portion of the fee paid in excess of $10,000.00 except that the district commission may decrease the amount of the refund if the direct and indirect costs incurred by the state of Vermont with respect to the administration of the Act 250 program clearly and unreasonably exceed the fee that would otherwise be retained by the district commission. (3) The district commission shall, upon request of the applicant, increase the amount of the refund if the application of subdivisions (1) and (2) of this subsection clearly would result in a fee that unreasonably exceeds the direct and indirect costs incurred by the state of Vermont with respect to the administration of the Act 250 program. (4) District commission decisions regarding application fee refunds may be appealed to the board in accordance with board rules. (5) For the purposes of this section, a "hearing" is a duly warned meeting concerning an application convened by a quorum of the board or district commission, or a hearing officer or panel of the board, at which parties may be present. However, a hearing does not include a prehearing conference. (6) In no event may an application fee or a portion thereof be refunded after a district commission has issued a final decision on the merits of an application. (7) In no event may an application fee refund include the payment of interest on the application fee. (f) In the event that an application involves a project or project impacts that previously have been reviewed, the applicant may petition the chair of the district commission to waive all or part of the application fee. If an application fee was paid previously in accordance with subdivisions (a)(1) through (4) of this section, the chair may waive all or part of the fee for a new or revised project if the chair finds that the impacts of the project have been reviewed in an applicable master permit application, or that the project is not significantly altered from a project previously reviewed, or that there will be substantial savings in the review process due to the scope of review of the previous applications. (g) A commission or the board may require any permittee to file a certification of actual construction costs and may direct the payment of a supplemental fee in the event that an application understated a project's construction costs. Failure to file a certification or to pay a supplemental fee shall be grounds for permit revocation. http://www,state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 42 of 65 (h) The costs of republishing a notice due to a scheduling change requested by a party shall be borne by the party requesting the change. --Added, 1998, No. 155, (Ad j. Sess.), 5 26 eff. July 1, 1998. 10 V.S.A. § 6084 S 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; 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. Amended 1991, Act 109, 5 2, eff. June 28, 1991. Amended 1993, No. 232 (Ad j. Sess.), 5 29, eff. March 15, 1995. (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. Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 days after receipt of the application. --1969, No. 250 (Adj. Sess.), S 9, eff. April 4, 1970. Amended 1993, No. 232 (Ad j. Sess.), 5 29, eff. March 15, 1995. 10 V.S.A. 9 6085 S 6085. Hearings (a) Anyone required to receive notice by section 6084 of this title and any http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 43 of 65 adjoining property owner may request a hearing by filing a request within 15 daysof receipt of notice. Upon receipt of notice the district commission shall treat the application pursuant to seton. $14„of.._T'itle...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. Amended 1993, No. 82, § 4, eff. July 1, 1993. (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 is or her property under sectrn..6,0.6b (a)(1) through (a)(10) of this title. (2) 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 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 obtained 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. Added, 1993, No. 232 (Ad j. Sess.), § 30, eff. March 15, 1995. (d) If no hearing has been requested or ordered within the prescribed period no hearing need be held by the district commission. In such an event a permit shall be granted or denied within 60 days of receipt; otherwise, it shall be deemed approved and a permit shall be issued. --1969, No. 250 (Adj. Sess.), §§ 10, 11, eff. April 4, 1970; 1973, No. 85, § 9, http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority rage 44 of 65 1991, No. 109, S 3, eff. June 28, 1991. (e) The board and any district commission, acting through one or more duly authorized representatives at any prehearing conference or at any other times deemed appropriate by the board or by the district commission, shall promote expeditious, informal and nonadversarial resolution of issues, require the timely exchange of information concerning the application, and encourage participants to settle differences. No board member or district commissioner who is participating as a decisionmaker in a particular case may act as a duly authorized representative for the purposes of this subsection. These efforts at dispute resolution shall not affect the burden of proof on issues before a commission or the board, nor shall they affect the requirement that a permit may be issued only after the issuance of affirmative findings under the criteria established in section___-0..8.6. of this title. Added, 1993, No. 232 (Ad j. Sess.), § 31, eff. March 15, 1995. (f) A hearing shall not be closed until a commission or the board provides an opportunity to all parties to respond to the last permit or evidence submitted. Once a hearing has been closed, a commission or the board shall conclude deliberations as soon as is reasonably practicable. A decision of a commission or the board shall be issued within 20 days of the completion of deliberations. Added, 2993, No. 232 (Ad j. Sess.) 5 31, eff. March 15, 1995. 10 V.S.A. § 6085a S 6085a. Pilot Pro'ect Regarding Appeals on the Record 1=rom District Environmental Commission Determinations (a) At the time of application, the applicant may file a motion for recorded hearings which provides that any appeal to the board will consist of a review on that record. (b) In the absence of a motion for recorded hearings properly filed by an applicant with the filing of a complete application and, within ten calendar days of the date that a district commission provides notice of a hearing under section 6084 of this title, any statutory party or any prospective party may file a motion for recorded hearings which provides that any appeal to the board will consist of a review on that record. (c) Within ten calendar days of its receipt of a motion for recorded hearings http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Beard: Statute Authority Page 45 of 65 properly filed by an applicant or a prospective party and the receipt of a complete application, the commission shall provide notice of the motion. If necessary, the commission shall cancel any previously scheduled hearings, and the commission shall schedule a prehearing conference. The purpose of the prehearing conference includes, but need not be limited to, determining party status and affording an opportunity to object to the motion for recorded hearings. (d) After a final determination of preliminary party status is made, in determining whether to grant a motion for recorded hearings, the district commission shall consider the public interest, including, but not limited to: the cost of recorded hearings, the efficiency of the application process, the anticipated value of the particular proceeding in evaluating the recorded hearing pilot project, relative costs or cost savings to the parties, and whether recorded hearings will likely result in providing more complete or less complete information for the commission's consideration. If it is clear that the public interest would be served, the commission may grant such motions for recorded hearings, with the consent of all parties. The commission's decision on this issue shall not be subject to appeal. (e) Motions under this section for recorded hearings before the district commission may be granted no more than 12 times throughout the state, without further legislative authority, and no more than three motions for recorded hearings may be granted by the same district commission. (f) In situations in which recorded hearings are convened, the district commission shall extend the hearing schedule or take other appropriate action as necessary to provide a fair and reasonable opportunity for the parties to prepare, present, and respond to evidence presented, while preventing undue delay. Parties may prefile testimony and exhibits. If prefiled testimony is used, the applicant shall file its prefiled testimony, and then other parties shall be given the opportunity to file their prefiled testimony. Any rebuttal testimony shalI be filed in similar sequence. (g) Recorded hearings before the commission shall maintain the procedural and evidentiary flexibility and informality characteristic of administrative proceedings. Those standards shall be construed with particular flexibility in allowing the introduction of evidence. (h) The commission hearing shall be recorded on videotape, at the expense of the board, to preserve the words and identity of the speakers, and to allow for the ready recovery of the testimony on the videotape by the parties and the board, if necessary to clarify the written record. In the event that an appeal is taken to the board, the commission shall provide the board with the original videotape of the hearing and the complete commission written record. The http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statue Authority Page 46 of 65 commission shall make and preserve a copy of the original tape for access and subsequent use by the parties and the board. (i) The board shall adopt emergency rules following one or more public hearings and a written comment period to guide the implementation of this section throughout the state. In this adoption process, the board need not believe that there exists an imminent peril to public health, safety, and welfare. Review of these emergency rules by the legislative committee on administrative rules shall not include the issue of whether or not the rules are necessitated by an imminent peril to public health, safety, or welfare. These emergency rules shall remain in effect until the pilot project is terminated or the rules are amended through the normal rulemaking process. Upon receipt of a request from a commission for additional assistance in managing a recorded hearing, the board shall provide temporary additional resources as necessary. (j) In the case of appeals taken on the record under this section, notwithstanding provisions to the contrary in section 6089 of this title, the following shall apply: (1) Parties to the appeal shall conform with the filing and procedural requirements in the board rules adopted in accordance with emergency rulemaking authority granted to the board under this section. (2) The beard may require that additional evidence be presented, and may receive and consider evidence offered beyond that which was presented before the commission. (3) The board shall remand the case to the district commission if it is persuaded that the district commission improperly excluded evidence, did not provide adequate notice or opportunity to prepare or to be heard, or otherwise failed to comply with the requirements of 3 V.S.A. chapter 25 pertaining to contested cases. The board need not remand for harmless error. Party status disputes shall be resolved through interlocutory appeal to the board prior to the district commission's convening hearings on the merits. (4) The board may, in its discretion, substitute its judgment for the judgment of the commission without finding that the commission erroneously applied the law. (k) The board shall provide interim reports on implementation of the recorded hearing pilot project to the general assembly, by no later than March 15, 2002 and January 15, 2003. The executive director of the board shall present to the legislative committees on natural resources and energy those interim reports, which shall detail the range of projects for which there were recorded hearings, the districts where the recorded hearings took place, the time required and the outcome of completed commission hearings, whether appeals were taken, and if so, by which party, and the time required for and the http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 47 of 65 outcome of appellate proceedings before the board. The reports shall indicate the number of instances in which requests for recorded hearings were duly filed', but consent of all the parties was not obtained, and shall describe the nature of the projects involved, what were the concerns of the parties that refused to consent, and other circumstances regarding each case. In addition, the reports shall address the following, both from the perspective of the board and from the perspective of the commissions: the timeliness of the process, manageability of the process, any perceived effects on public participation, and any additional resource demands or resource efficiencies. The board shall provide the general assembly with a final report on the implementation of this section following the date for sunset and after all proceedings before the board are completed. (1) This section shall be repealed on September 1, 2044, although proceedings pursuant to a motion for recorded hearings that is filed prior to that date shall continue under those sections until all of these proceedings before the board are completed. Added 2001, No.40 5 b eff. July 1, 2001. 10 V.S.A. § 6086 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 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Beard: Statute Authority Page 48 of 65 (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; or (v) areas supplying significant amounts of recharge waters to aquifers (8) 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. (b) Floodways. A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria: (i) the development or subdivision of lands within a floodway will not restrict or divert the flow of flood waters, and endanger the health, safety and welfare of the public or of riparian owners during flooding; and (ii) the development or subdivision of lands within a floodway fringe will not significantly increase the peak discharge of the river or stream within or downstream from the area of development and endanger the health, safety, or welfare of the public or 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 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 49 of 65 development or subdivision from the waters, and (iv) stabilize the bank from erosion, as necessary, with vegetation cover. (6) 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. (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) 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. (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. (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 willdestroy 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'reasonable acceptable alternative site is owned or controlled by the http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Bnviromnental Board: Statute Authority Page 50 of 65 applicant which would allow the development or subdivision to fulfill its intended purpose. (9) Is in conformance with a duly adopted capability and development plan, and land use plan when adopted. However, the legislative findings of sections 7(a)(1) through 7(x)(19) of this act shall not be used as criteria in the consideration of applications by a district commission or the environmental board. (A) Impact of growth. In considering an application, the district commission or the board 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 or the board 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. (8) 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 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 and new community planning designed to economize on the cost of roads, utilities and land usage; http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 51 of 55 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, 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 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 and new community planning designed to economize on the cost of roads, utilities and land usage. (b) 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 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 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority 'age 52 of 65 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, 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 and incorporate the best available technology for efficient use or recovery of energy. (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. (W) Costs of scattered development. The district commission or board 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 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Beard: Statute.Authority Page 53 of 65 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, but not limited to, 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) Rural growth areas. A permit will be granted for the development or subdivision of rural growth areas when it is demonstrated by the applicant that in addition to all other applicable criteria provision will be made in accordance with 'subdivisions (9)(A) "impact of growth," (G) "private utility service," (H) "costs of scattered development" and (J) "public utility services" of subsection (a) of this section for reasonable population densities, reasonable rates of growth, and the use of cluster planning and new community planning designed to economize on the cost of roads, utilities and land usage. (10) Is in conformance with any duly adopted local or regional plan or capital program under chapter 117 of Tittle 24. In making this finding, if the board or district commission finds applicable provisions of the town plan to be ambiguous, the board or 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. Amended 2001, No.40 56, eff. July 1, 2001. (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 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 54 of 65 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 within the proper exercise of the police power and which are appropriate with respect to (1) through (10) of subsection (a), including but not limited to those set forth in section 44"),_.(8) ar►d_._(9), 441.11(a)(2), 4415, 4426.and 4417 of Title24, 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) or a permit or permits of a specified municipal government with respect to (1) through (7) and (9)and (10) of subsection (a), or a combination of such permits or approvals, in lieu of evidence by the applicant. The board shall accept determinations issued by a development review board under the provisions of Z4 V.S.A. _8.4449, 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. The acceptance of negative determinations issued by a development review board under the provisions of 4.V.S.__ A..._6 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. 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. Any determinations, positive or negative, under the provisions of 24 V. _...._ _, 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 board shall not approve the acceptance of a permit or approval of such an agency or a http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 55 of 65 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 shallbe 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 seven 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 board. 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 board pursuant to board rules. A district commission shall not stay construction authorized by a permit processed under the board's minor application procedures. --1969, No. 250 (Adj. Sess.), 5 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, 8 4, eff. May 15, 1985; 1985, No. 188 (Adj. Sess.), S 5; 1987,'No. 76, § 18; 1989, No. 234 (Adj. Sess.), § 1, No. 280 (Adj. Sess.), § 13. Amended 1993, No. 232 (Adj. Sess.), 32, eff. March 15, 1995; Amended 2001, No. 40 S 7, eff. July 1, 2001; No. 40 8, eff. July 1, 2001; Amended 2001, No. 40 § 9, eff. July 1, 2001. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Burd: Statute Authority Page 56 of 65 10 V.S.A. § 6086a S 6086a. Generators of radioactive waste No land use permit will be issued for a development which generates low-level radioactive waste unless it shows that it will have access to a low--level radioactive waste disposal facility and that the facility is expected to have sufficient capacity for the waste. --Added 1989, No. 296 (Ad j. Sess.), S 7, eff. June 29, 1990. 10 V.S.A. § 6087 5_6087. Denial_off a l ication (a) No application shall be denied by the board or district commission unless it findsthe proposed subdivision or development detrimental to the public health, safety or general welfare. (b) A'permit may not be denied solely for the reasons set forth in subdivisions (5), (6) and (7) of section 6086(a) of this title. However, reasonable conditions and requirements allowable in section 6086(c) of this title may be attached to alleviate the burdens created. (c) A'denial of a permit shall contain the specific reasons for denial. A person may, within 6 months, apply for reconsideration of his permit which application shall include an affidavit to the district commission and all parties of record that the deficiencies have been corrected. The district commission shall hold a new hearing upon 25 days notice to the parties. The hearing shall be held within 40 days of receipt of the request for reconsideration. --1969, No. 250 (Adj. Sess.), 5 12, eff. April 4, 19 '0. 10 V.S.A. § 6088 http://www.state.vt.us/envboard/statute.htm 7/7/2404 Vermont Environmental Board: Statute Authority Page 57 of 65 § 6088. Burden of proof (a) The burden shall be on the applicant with respect to subdivisions (1), (2), (3), (4), (9) and (10) of section 6086(a) of this title. (b) The burden shall be on any party opposing the applicant with respect to subdivisions (5) through (8) of section 6086(a) of this title to show an unreasonable or adverse effect. --1969, No. 250 (Adj. Sess.), 5 13, eff. April 4, 1970. 10 V.S.A. § 6089 S 60 9. 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. -- Amended 1998, No. 155 (Adj. Sess.) S 28, eff. July 1, 1998. (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 whale, shall be conclusive. http://www.state.vt.us/envboard/statute.htm 7/7/2044 Vermont Environmental Board: Statute.Authority Page 58 of 65 (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. --1969, No. 250 (Adj. Sess.), § 14, eff. April 4, 1970; amended 1973, No. 85, § 12; 1973, No. 193 (Adj. Sess.), 5 3, eff. April 9, 1974; 1985, No. 52, 8 1, eff. May 15, 1985; 1987, No. 76, S 10a. Amended 1993, No. 232 (Adj. Sess.), S 34, eff. March 15, 1995. 10 V.S.A. 5 6090 S 6090. Recording duration and revocation of pgrmits (a) In order to afford adequate notice of the terms and conditions of land use permits, permit amendments and revocations of permits, they shall be recorded in local land records. Recordings under this chapter shall be indexed as though the permittee were the grantor of a deed. (b)(1) Any permit granted under this chapter for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet, shall be for a specified period determined by the board in accordance with the rules adopted under this chapter as a reasonable projection of the time during which the land will remain suitable for use if developed or subdivided as contemplated in the application, and with due regard for the economic considerations attending the proposed development or subdivision. Other permits issued under this chapter shall be for an indefinite term, as long as there is compliance with the conditions of the permit. —Amended 1993, No. 232 (Adj. Sess.), 5 35, eff. June 21, 1994. (b)(2) Expiration dates contained in permits issued before July 1, 1994 (involving developments that are not for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet) are extended for an indefinite term, as long as there is compliance with the conditions of the permits. Added 1993, No. 232 (Adj. Sess.), 5 35, eff. June 21, 1994. (c) A permit may be revoked by the board in the event of violation of any conditions attached to any permit or the terms of any application, or violation http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 59 of 65 of any rules of the board. --1969, No. 250 (Ad j. Sess.), § 16, eff. April 4, 1970; amended 1985, No. 32. 10 V. .A. § 6091 S 6091. Renewals and nonuse (a) Renewal. At the expiration of each permit, it may be renewed under the same procedure herein specified for an original application. (b) Nonuse of permit. Nonuse of a permit for a period of three years following the date of issuance shall constitute an abandonment of the development or subdivision and the permit shall be considered expired. For purposes of this section, for a permit to be considered "used," construction must have commenced and substantial progress towards completion must have occurred within the three-year period, unless construction is delayed by litigation or proceedings to secure other permits or to secure title through foreclosure, or unless, at the time the permit is issued or in a subsequent proceeding, the district commission or board provides that substantial construction may be commenced more than three years f rom the date the permit is issued. --1991, No.111, S 2, eff. June 28, 1991; Amended, 1993, ,No. 232 (Ad j. Sess) S 36, eff. June 21, 1994. (c) Extensions. If the application is made for an extension prior to expiration the district commission may grant an extension and may waive the necessity of a hearing. --1969, No. 250 (Ad j. Sess.), S 7, eff. April 14, 1970. (d) Completion dates for developments and subdivisions. Permits shall include dates by which there shall be full or phased completion. The board, by rule, shall'establish requirements for review of those portions of developments and subdivisions that fail to meet their completion dates, giving due consideration to fairness to the parties involved, competing land use demands, and cumulative impacts on the resources involved. If completion has been delayed by litigation, proceedings to secure other permits, proceedings to secure title through foreclosure, or because of market conditions, the district commission or board shall 'provide that the completion dates be extended for a reasonable period of time. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 60 of 65 -- Added, 1993, No. 232 (Ad j. Sess), S 36, eff. June 21, 1994. 10 V.S.A. § 6092 S 6492. Construction In the event that the federal government preempts part of the activity regulated by this chapter, this chapter shall be construed to regulate activity that has not been preempted. ---Added 1979, No. 123 (Ad j. Sess.), § 7, eff. April 14, 1980. 10 V.S.A. § 6101 9 6101. Waste facility panel, jurisdiction: rules, fees (a) Awaste facility panel of the environmental board is created. The panel shall consist of the chair of the environmental board, who shall also be chair of the panel, and four members appointed by the governor and confirmed by the senate. The four members other than the chair shall include at least one current or past member of the water resources board and at least one current or past member of the environmental beard. Members other than the chair shall be appointed for terms of four years and shall be entitled to per diem and reimbursement for all necessary and actual expenses. A vacancy shall be filled for the unexpired term in the same manner as the initial appointment. (b) The waste facility panel shall have exclusive jurisdiction to review decisions and hear and determine appeals as provided in this subchapter. (c) The waste facility panel shall operate under the rules of the environmental board to the extent the board's rules are consistent with this subchapter. The panel may adopt additional rules necessary to carry out this subchapter. (d) A request for review or an appeal shall be filed with the waste facility panel within 30 days of the secretary's determination or the district commission's decision. The filing shall be accompanied by a fee. The amount shall be as http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 61 of 65 provided for fees assessed for appeals to the environmental board and shall be deposited in the solid waste management assistance account of the waste management assistance fund, established by subsection 6618(a) of this title. --Amended 1998, No. 155 (Ad j. Sess.), § 27, eff. July 1, 1998. (e) In cases involving an appeal from a decision of a district commission or the agency of natural resources pursuant to this subchapter, the chair may assign current or alternate members of the environmental board to sit on cases when fewer than five panel members are available to serve. Added 1993, No. 82, 5 5, eff. July 1, 1993. 10 V.S.A. §6102 8 6102. Parties (a) The applicant, the landowner if the applicant is not the landowner, the state, the solid waste management district, the municipality and municipal and regional planning commissions in which the waste facility is located and any adjacent solid waste management district, municipality and municipal and regional planning commissions if the waste facility is located on a boundary shall be parties in any proceeding before the waste facility panel. (b) An owner or resident of adjoining property may participate in hearings and present evidence to the extent the waste facility would have a direct effect on that property. (c) In addition to parties under subsections (a) and (b) of this section, in respect to proceedings involving a provisional certification or a determination of the secretary of natural resources, a person shall be entitled to participate as a party under the standards for party status in Rule 24 of the Vermont Rules of Civil Procedure. (d) In addition to parties under subsections (a) and (b) of this section, in respect to proceedings involving a decision of a district environmental commission, a person shall be entitled to participate as a party as provided in the statutes and rules applicable to the environmental board. http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 62 of 65 --Added 1989, No. 218 (Ad j. Sess.), § 3; No. 282 (Ad j. Sess.), S 8, eff. June 22, 1990; Amended 1991, No. 109, § 4, eff. June 28, 1991. 10 V.S.A. § 6103 6 6103. Review of rovision+ l certifications (a) The panel shall have jurisdiction to review a determination of the secretary with respect to a provisional certification under section 6605d of this title. A review under this section shall take precedence over all other matters before the panel. (b) If the panel finds that any party has established by clear and convincing evidence that the basis for the secretary's determination is not supported, the panel shall deny the provisional certification or issue a provisional certification with conditions, requirements or restrictions consistent with subdivision 66o.5d (c)(a)of this title. (c) The panel shall hold a hearing or pre-hearing conference within 20 days of the request for review and shall issue its decision within 20 days of the date the hearing on the matter is adjourned. (d) A request for review may, but shall not automatically stay the determination of the secretary. An application for a stay shall be acted upon within three days of its receipt. --Added 1989, No. 218 (Ad j. Sess.) § 3. 10 V.S.A. § 6103a S 6103a. Review certificates of need (a) The panel shall have jurisdiction to review a determination of the secretary with respect to a certificate of need issued under section 6606a of this title. (b) The findings, and the conditions, requirements or restrictions in the http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 63 of 65 certificate of need shall be presumed to be valid, but may be rebutted by clear and convincing evidence. If rebutted, the panel shall make its own findings, and establish conditions, requirements or restrictions, with respect to the criteria set forth in sectJon._._bb06a of this title. --Added 1389, No. 282 (Adj. Sess.), § 8, eff. June 22, 1990. 10 V.S.A. § 6104 8 6104. Review of agency determinations (a) The panel shall have jurisdiction to review a determination of the secretary of natural resources with respect to a permit, certification, classification action, or endangered species variance for a solid waste management facility. Amended 1993, No. 92, 6 11, eff. July 1, 1993. (b) Review under this section shall be de novo. (c) A request for review may, but shall not automatically stay the determination of the secretary. (d) This section shall not apply to provisional certifications issued under section 6605d of this title. --Added 1989, No. 218 (Adj. Sess.), § 3; No. 282 (Adj. Sess.), S 8, eff. June 22, 1990. 10 V.S.A. 5 6105 8 6105. Appeals of district commission decisions Appeals of a decision of a district environmental commission in respect to a waste management facility shall be to the panel. Such appeals shall be governed by the provisions and procedures applicable to appeals to the environmental board. --Added 1989, No. 218 (Adj. Sess.), 8 3; No. 282 (Adj. Sess.), 5 8, eff. June 22, 1990 http://www.state.vt.us/envboard/statute.htm 7/7/2004 Vermont Environmental Board: Statute Authority Page 64 of 65 10 V.S.A. § 6106 S 6106 Consolidation of act 250 and agency review proceedings (a) If the panel is requested to review a determination of the secretary with respect to a permit, certification, air pollution order, classification action, or endangered species variance for a waste management facility which is also a development under this chapter, the panel shall not commence its review until the district commission has issued its final decision. (b) If a decision of a district commission is appealed and the panel is requested to review a determination of the secretary with respect to the same waste management facility, the panel shall consolidate the proceedings. (c) If requested by a party, a district commission shall first consider all criteria under subsection 6086(a) of this title, other than those for which a permit f rom the secretary of natural resources creates a presumption of a positive f inding. --Added 1989, No. 218 (Ad j. Sess.), 5 3; No. 282 (Ad j. Sess.), § 8, eff. June 22, 1990. 10 V.S.A. § 6107 S 6107. Appeals to the supreme court Appeals from decisions of the waste facility panel shall be to the supreme court: (1) pursuant to section 6089 of this title and the applicable rules of the environmental board, with respect to parties under subsections 6102(a), (b) and (d) of this title, (2) pursuant to the Vermont rules of appellate procedure, with respect to all http://www.state.vt.us/envboard/statute.htm 1/7/2004 Vermont Environmental Board: Statute Authority Page 65 of 65 other parties. --Added 1989, No. 213 (Ad j. Sess.), § 3, No. 282 (Ad j. Sess.), 8, eff. June 22, 1990. 10 V.S.A. S 6108 S 6108. Transition authgr(ty The waste facility panel may transfer and take jurisdiction over any appeal concerning a waste management facility that is pending, on the effective date of this subchapter, before the water resources board or the environmental board upon motion of any party when transfer would serve the public interest and not impose undue hardship; except that the panel may not take jurisdiction over any appeal to the environmental board that was filed before January 1, 1990. -_Added 1989, No. 218 (Ad j. Sess.), § 3. 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