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Conservation Tools

 

Town Plan & other legal tools

This page describes a number of techniques, from adopting town plans to participating in Act 250 reviews, that citizens and town officials can use to implement their conservation strategies. Use this page (and the rest of the toolbox) in conjunction with the Elements pages to find sample language to include in the town plan or other town documents, protecting a variety of levels of natural heritage elements.

This page includes the following topics:

The Town Plan as a Tool

Vermont state law lists numerous elements that must be included in a town plan. These include:

  • a statement of objectives to guide future growth and to protect the environment;

  • a land use map that indicates areas proposed for forests, recreation, agriculture and residential, commercial, or industrial development;

  • a transportation plan that includes scenic routes, recreation paths in addition to parking, main roads, and mass transit;

  • a utility and facility plan; and

  • a statement of policies on the preservation of rare and irreplaceable natural areas, scenic and historic features, and resources (24 V.S.A. § 4382(a) (1), (2), (3), (4) and (5))

            These are just five of the 10 elements that must be included in a town plan. Clearly the provision related to policies on preserving rare and irreplaceable natural areas speaks directly to the issue of natural resource protection and conservation. However, the other less specific provisions cited above relate to natural resource protection and conservation as well. For example, in adopting objectives to guide future growth, a municipality may state that protection of wetlands, significant wildlife habitat, and water quality is a priority that should be reflected in how development occurs in the community. Similarly, a land use map could reflect forest or agricultural areas that contain natural resources that the municipality intends to protect, while residential, commercial, and industrial areas could be located where the town planners have determined there will be the least detrimental effect on the natural resources and associated public interests.

            Studies have demonstrated that growth will occur where a community chooses to construct and maintain roads, facilities, and utilities. Accordingly, town officials may decide to not plan such infrastructure for areas in the town that are rich in the natural resources the community wishes to protect. Likewise  a town may decide to direct its financial resources toward providing amenities (such as wastewater treatment facilities and upgraded roads with sidewalks) in those areas where the plan envisions development taking place. Planning groups may want to investigate the Designated Downtown and Village Centers Program. This program is under the Vermont Agency of Commerce and Community Affairs and supports such areas as traditional downtowns, emerging downtowns, and village centers.

            In many ways, developing a comprehensive plan is the most important action that a municipality can take to protect and conserve fish and wildlife resources and associated public interests. The planning process may include the following:

  • undertaking studies to gather data about important natural resources;

  • convening groups of citizens to assess and incorporate their visions for future land use, as well as inform them of the importance of their town's natural resources;

  • staying involved with watershed planning efforts that take place on a more regional level than municipal planning;

  • meeting with state agencies such as the Vermont Agency of Transportation and Vermont Agency of Commerce and Community Development, or Vermont Public Service Department (regarding windmills and other generation facilities) to evaluate their plans for infrastructure development; and

  • addressing needs of projected populations in ways that ensure conservation of important natural assets.

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Regulatory Effect of a Municipal Plan

             Generally speaking, town plans are not regulatory in nature. The plan is the vision for growth expressed by the town and is the underpinning for any local regulation that a municipality decides to implement (see subsection (d) below). However, under Vermont law, a town plan does have a role in some regulatory processes that may be used to protect natural resources.

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Act 250

            The best known process in which the town plan has regulatory effect is Act 250, Vermont's state land use and development law.  Act 250 is a complex statute that entire books have been written about. See the Natural Resource Board for more Act 250 information. For the purposes of this document, it is sufficient to say that Act 250 is a statewide land use review process for large development projects. In municipalities that have both zoning and subdivision rules in place, Act 250 regulates commercial developments on more than 10 acres of land or construction of housing projects 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 and within a continuous period of five years. In municipalities without both zoning and subdivision in place, Act 250 regulates development on more than one acre of land (10 V.S.A. § 6001).

            Act 250 includes 10 main criteria and numerous sub-criteria that a developer must meet to obtain a permit from a regional District Commission. Criterion 10 of Act 250 states that to obtain a permit, an applicant must demonstrate that a project meets the following:

Is in conformance with any duly adopted local or regional plan or capital program under Chapter 117 of Title 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 plan provisions, and need not consider any other evidence (10 V.S.A. § 6086(a)(10)).

            This powerful provision means that if language in a town plan specifically indicates that certain fish, wildlife, and natural resources are important and should be protected or otherwise conserved, projects that fall under Act 250 will likely be found to violate criterion 10. In this sense, a town plan can have a regulatory effect in the Act 250 process.

            Both the municipality (the legislative body) and the local planning commission are "statutory parties" to each and every Act 250 application filed in a town. This means both the select board or city council and the planning commission have the right to request an Act 250 hearing if one has not been scheduled, present evidence at Act 250 hearings, and cross-examine or question other parties participating in the Act 250 process. It is as a legal party to the proceeding that the municipality must make its case to the District Commission in terms of whether a project conforms to a town plan or not.

            Both the legislative body and the planning commission may participate in the Act 250 process independently, but it is strongly recommended that the municipality develop a single position on whether or not a project conforms to the town plan and present that position to the District Commission through one representative. Failure to do so will create confusion for the District Commission, may create divisions within a municipality, and may give the District Commission the opportunity to ignore the municipal positions.

            It is also extremely important to note that a town plan will not be considered in the Act 250 process if it is not in effect and duly adopted. This means that the plan must be approved by both the municipal planning commission and the local legislative body, and that the plan has not expired (plans expire every five years)(24 V.S.A. §§ 4385 and 4387).

            Finally, municipalities (through the select board and/or the planning commission as statutory parties) may address all of the Act 250 criteria and subcriteria, not just criterion 10. Many of the Act 250 criteria relate directly to natural resources. For example, Act 250 criteria address the effects of a project on lakes, ponds, streams, headwaters, wetlands, shorelines, wildlife habitat, rare and irreplaceable natural areas, and endangered species (10 V.S.A. § 6086(a)). The municipality may present evidence with regard to the impact of a project on any of these resources. Several municipalities around the state have incorporated all the Act 250 criteria in their local bylaws. See the Natural Resource Board Website for more Act 250 information.

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Vermont Wetland Rules

            Under the Vermont Wetland Rules (VWRs), citizens may petition the Vermont Water Resources Panel, the state body responsible for promulgating and administering the VWRs, to reclassify wetlands. Under current state law, all wetlands mapped on the National Wetland Inventory maps (the wetlands that are identified on most available maps for planning purposes) are considered Class II wetlands unless otherwise classified. This means that they are protected by the standards set forth in the VWRs. There are very few wetlands in Vermont that are classified as Class I wetlands, the highest classification representing the state's most significant wetlands.

            Communities, conservation commissions, and related organizations can choose to evaluate the wetlands in an area and decide whether some of them warrant reclassification to properly recognize their values to the community and ecosystems and to afford them further protection. This process has been streamlined and the necessary forms are available from the Vermont Water Resources Panel or the Vermont Agency of Natural Resources, Department of Environmental Conservation, Water Quality Division. Evaluating wetlands for reclassification is a great way to learn more about the wetlands in a community. Assistance for reclassification may be available from the Agency's Water Quality Division or the Department of Fish and Wildlife. See the Vermont Wetland Rules (2002).

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Access Permits (Curb cut)

            Under Vermont law, a permit is required to do any work within the town or state highway right-of-way (19 V.S.A. § 1111). The most common request for a permit under this law is for approval to create access from the public right-of-way onto private property.

            The municipal legislative body is responsible for reviewing these access or curb cut requests for town highways. The Vermont Agency of Transportation (VTRANS) is responsible for issuing access permits on state highways. The access permit review process has traditionally involved ensuring that turns made from the public highway to private property are safe. For example, permits may not be granted if the town or state finds that there is inadequate sight distance to allow vehicles to make safe turns in and out of the private property onto the town highway. See the VTRANS website on Access Management.

            In addition to safety issues, 19 V.S.A. § 1111 also recognizes that creating access from public highways may lead to development and that any such development should be consistent with planning efforts. This statute provides that the state or town may not deny reasonable access from a public highway "except as necessary to be consistent with the planning goals of 24 V.S.A. § 4302 and to be compatible with any regional plan, state agency plan or approved municipal plan."

            A close reading of 19 V.S.A. § 1111(b)indicates if a town plan identifies a parcel of property as part of a significant natural resource area, the municipal legislative body or VTRANS may deny or restrict access if it is established that granting access will lead to development that is inconsistent with the plan. As with the use of a town plan in Act 250, a municipality's ability to alter proposed development based on the effect access will have on natural resources will depend upon the specificity and strength of the language in the town plan. In light of this provision, municipalities should carefully consider how it characterizes the importance of natural resources in its town plan and work with the municipal legislative body and property owners to ensure that it is understood that provisions of the town plan may affect the ability of landowners to gain access to property from town and state highways. See the VTRANS website on Access Management.

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Town Plan as the Basis for Regulation

            The main purpose of the town plan is to provide the vision for the future of the community and enable the community to take the next step beyond planning - implementation through zoning and/or subdivision regulations. Zoning and subdivision bylaws are probably the most direct and effective tools that municipalities have to regulate development to protect natural resources.

            The authority to adopt zoning and/or subdivision bylaws is found in 24 V.S.A. § 4401. This provision states that "any municipality which has adopted and has in effect a plan and has created a planning commission under this chapter, may implement the plan by adopting, amending, and enforcing any or all of the regulatory and non-regulatory tools provided for in this chapter." This means that according to Vermont law, a municipality may only enact or amend bylaws to protect natural resources (or do anything else) if it has adopted a town plan and created a planning commission. Moreover, any bylaws adopted must implement the plan. Thus, the natural resources important to your community must be discussed and identified in the town plan to legally justify enacting local laws to protect these resources.

            In effect, the town plan lays the foundation for the regulation of development in your community. The sections that follow discuss specific bylaws that municipalities are authorized to adopt that can be used to address the impact of development on natural resources. See our pages on Zoning & Subdivision and Non-regulatory Tools

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