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Zoning & Subdivision



Zoning and Subdivision Bylaws

This page includes the following topics: 

            Statute 24 V.S.A. § 4402 provides that a "municipality may adopt regulatory tools including zoning, site plan review, subdivision and phasing. 24 V.S.A. § 4003 enables a municipality to use additional tools not specifically listed, in conformance with the municipal plan and statutory purposes."

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Zoning Districts

             State laws 24 V.S.A. § § 4411 (b) and 4421 authorizes municipalities to create a zoning map that divides the town into zoning districts within the municipality. Dividing the municipality into zoning districts allows local zoning authorities to regulate uses of land differently.

            Districting is both a simple and a powerful tool that a municipality can use to protect natural resources. For example, local planners can ensure that a town forest is part of a forest, recreation, and/ or conservation district where only low intensity uses (such as recreation, forestry, camps, etc.) are allowed. (See 24 V.S.A. § 4414.) Conversely, areas of the town that are limited in water resources, critical wildlife habitat, and other resources can be identified as districts where residential and/or commercial development is appropriate. In addition, village districts can recognize the traditional growth center of a community, and zoning bylaws may be structured to encourage development to in-fill and expand these existing developed areas while preserving natural resources in outlying parts of town.

            Similarly, municipalities can set different lot size and dimensional requirements in districts to minimize the effect of development on natural resources. For example, 24 V.S.A. § 4414 (1) (B) authorizes municipalities to create large lots in agriculture districts. Requiring large lots in agricultural and forest districts is a way to ensure that a dense population will not encroach on natural resources in the area. Moreover, dimensional and density requirements (closer set backs, smaller lot sizes, clustering development, etc.) can be allowed in existing growth centers to encourage development in areas that are not near intact forests and undeveloped open spaces.

            Two effective zoning tools are the creation of ridgeline districts and riparian protection zones. Although often enacted to address aesthetic concerns, precluding or limiting development above a certain elevation will have the effect of protecting habitat that exists at these elevations and water quality that is adversely affected by erosion often associated with ridgeline development. Keep in mind that much conserved land in Vermont is ridgeline or upper elevation land. Lands at lower elevations such as river valleys have far less conserved land, but greater conservation value in terms of diversity of plant and animal species and a greater diversity of landscapes and natural communities. In addition, these are the areas at greatest risk of being lost to development.

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Overlay Districts

            Municipalities may also create overlay districts that do just that "overlap" all zoning districts. Municipalities commonly take this approach to protect water resources. Several Vermont municipalities require development to occur outside of a stated buffer area from lakes, ponds, streams, and rivers. This buffer becomes a district that overlays all the other requirements for the municipality's various zoning districts. Similarly, district overlaps may be created through the prohibitions on development on steep slopes over a certain grade. Such prohibitions ensure that erosion will not occur as a result of development on hillsides or on steep grades.

            Municipalities may also use buffer requirements to protect a variety of natural resources. Municipalities may, for example, require a set back between development and all wetlands, significant wildlife habitat, habitat for rare, threatened or endangered species, and unique natural communities. Such bylaws would create overlay districts that must be observed to avoid affecting these resources.

            Overlay districts are commonly used to require additional review for what, in some cases, would otherwise constitute permitted uses. Most municipalities have opted not to take this approach to natural resource protection for three reasons. First, it is often difficult to properly define these resources; second, it is a somewhat daunting task to resolve disputes over whether such resources will be adversely affected to the point of prohibiting development; and third, it may be very difficult to convince voters in a rural town to support their adoption. (Note: Many of these challenges apply to many of the tools and strategies presented herein).

            These are all very legitimate concerns. Local planning and zoning officials are for the most part volunteers. Few Vermont towns have staff beyond the zoning administrator, who literally interprets and enforces the bylaws, to assist its boards and commissions to implement planning and zoning programs. Accordingly, taking on the responsibility of evaluating evidence submitted by experts regarding the value of natural resources and then deciding whether the proposed project will adversely affect those resources is significant. One of the purposes of this manual is to enable local officials to understand, identify, and define natural resources so that protection of these resource can be incorporated into zoning regulations.

            Creating overlay districts to protect natural resources may require hiring a planning consultant. Each year the Vermont Agency of Commerce and Community Development (ACCD) issues planning grants to numerous municipalities. The grants may be used to hire consultants to work with towns to update town plans and craft bylaws, including bylaws designed to protect natural resources. The Vermont Fish and Wildlife Department is also available to assist towns in developing appropriate regulations for establishing buffers to protect important natural resources and to interpret information in deciding whether a proposed development complies with such regulations. 

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Zoning Bylaws to Protect Natural Resources

             In addition to creating districts, municipalities have the authority under state law to enact a variety of zoning bylaws (24 V.S.A. § 4414). Below is a list of bylaws that municipalities may use to protect natural resources.

Conditional Use Review

            The review (24 V.S.A. § 4414 (3)) involves an evaluation of whether a use in a district may be permitted by the municipal zoning board of adjustment or development review board.18 For example, commercial development may be a conditional use in a rural residential district. This means that commercial development is not prohibited in this district. Rather, the development may proceed if it meets specific conditional use criteria established by the town. Municipalities may adopt criteria to add to the statutory criteria set forth in 24 V.S.A. § 4414 (3) (B) specifically to ensure that natural resources are protected. An example of such criteria "is the project will not have an undue adverse impact on streams, lakes, ponds, wetlands, significant wildlife habitat, rare, threatened, and endangered species".

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Site Plan Review

            Municipalities frequently use a site plan review (24 V.S.A. § § 4402 (2) and 4416). The purpose of site plan review is to minimize the effect of larger residential and commercial developments on the site.

            Parking and traffic circulation on-site is a common issue that arises during site plan review. Under Vermont law, however, municipalities are authorized to consider other on-site impacts, including those that would affect natural resources. Accordingly, municipalities may use criteria similar to the ones referred to under the section on conditional use review. These criteria address on-site effects on natural resources, such as distance from adjacent or nearby uses, and set performance standards that define acceptable levels of noise, vibration, smoke, dust, lighting and night sky visibility, or planting plans. One such bylaw requires that a landscape be preserved in its natural state insofar as is feasible by minimizing tree and soil removal and nonessential grading, as well as planting of hardy shade trees along a public way (Jericho Zoning Bylaws). The Manchester site plan review requires the applicant to show "...open space, open space linkages..." This same bylaw also designates a forestry and recreation district to delineate "areas where substantial development of the land in terms of buildings, structures, or other intensive uses are prohibited because of topography, shallow soils, because the use involves inefficient development of community facilities and infrastructure or protection of vital watersheds."

            When should a municipality use conditional use review, site plan review, or both to address the effects of development on natural resources? As with most choices regarding local planning and zoning, the answer depends on the municipality, the town plan, and the situation at hand.

            Generally speaking, however, it is fair to say that conditional use review is utilized when a municipality is concerned about whether a proposed use (residential, commercial, etc.) is appropriate in an area of town and whether that use will have an external effect, say on the character of a neighborhood. Site plan review typically comes into play when the use is not in question, but when municipalities still want to guard against adverse effects on the site. Deciding which tool to use goes beyond the issue of potential effects on natural resources and will depend on the patterns of development in each individual town. For instance, many municipalities review cell tower applications as conditional uses, uses that would be allowed in most if not all districts as long as they meet standards pertaining to issues such as setbacks, screening, height, parking, and density.

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Transfer of Development Rights

            Transfer of development rights (TDR) is a zoning tool that was created specifically to enable municipalities to protect natural resources and open space (24 V.S.A. § 4423). The TDR concept, in principle, is simple. The details of developing and implementing a TDR program, on the other hand, can be complicated but worth the effort.

            TDR programs allow a municipality to identify areas that it wishes to preserve for conservation and areas where it would like to encourage development. Once an area is identified, the municipality can begin to accept applications for zoning permits to purchase development rights in the conservation areas. Development rights must be purchased through a conservation easement or deed. A development rights agreement can include density bonuses as an incentive to conserve a natural resource. Density bonuses allow higher density development in areas that are not deemed environmentally sensitive, in return for conserving those areas that are sensitive. In this fashion, fairness is established among the private landowners in a community so that all landowners may realize a reasonable economic return on their  investments in property ownership. At the same time, the community's interests in land and natural resource conservation may be realized in a logical, thoughtful way by encouraging growth in sensible areas and encouraging conservation in areas where it makes the most sense.

            TDRs are obviously a powerful conservation tool. They allow conservation to occur by encouraging developers themselves to conserve land, and they allow municipalities to direct development to the areas it wants to see grow. TDRs are not used by many Vermont municipalities, although more towns are including them in their bylaws. As Vermont continues to grow, TDRs are conservation tools that more cities and towns should consider using. Contact your regional planning commission, the Vermont League of Cities and Towns, or consider hiring a consultant to assist you in developing a TDR program. Stowe and Jericho, both towns experiencing significant development pressure over time, have TDRs in their bylaws. Stowe was one of the first Vermont municipalities to use TDRs, and the results of those transactions continue to be discussed today in that community. TDRs have terrific merit for conservation if they are based on an accompanying land conservation or open space plan that identifies the proper areas for development and for conservation.

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Planned Unit Developments (PUD)

            Planned unit development (PUD) bylaws are designed to facilitate thoughtfully planned developments that maximize the use of land while preserving open space (24 V.S.A. § 4417). PUDs generally include a mix of residential and commercial uses in a single development.

            Like TDRs, PUD bylaws allow applicants to use more available space for building by providing density bonuses and even authorizing the town to waive set back and other dimensional zoning requirements. The idea is to create a more clustered development that preserves a large portion of the lot as open space. Typically PUD bylaws require 50% of the lot to be preserved as open space, recreation, and/or conservation areas in exchange for the ability to deviate from set back and density requirements. As with TDRs, the open space/recreation/conservation portion of the development is usually preserved through a conservation easement or deed restriction. Accordingly, PUD bylaws are another potential way of getting developers to become partners in conservation by proposing smart, well-planned developments that ensure that certain lands will be protected. The key to making conservation a successful part of this process is to identify the areas of land with the greatest conservation value, rather than the land that has the least development potential or that is most convenient for subdivision design. Too often PUDs provide open space that has little or no conservation value.

            Under Vermont law, PUD projects may only proceed simultaneously with the formal subdivision of land. To implement a PUD program, a municipality must adopt separate subdivision bylaws. Local officials may contact VLCT for sample PUD language or for a list of consultants.

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Subdivision Bylaws

            As previously noted, zoning and subdivision bylaws are completely separate. Many municipalities have zoning but not formal subdivision bylaws. In these towns, proposals to divide land require a simple zoning permit, but the project is not subject to a comprehensive subdivision review.

            The requirements for comprehensive subdivision review are set forth in 24 V.S.A. § 4418. This law enables municipalities to determine the size of a subdivision that will trigger a formal review (2, 3, 4, 5 lots, etc.). State law also requires that, at a minimum, the subdivision review include standards for the design of internal streets, lighting, utilities, water, and sewer. The purpose of the review is to allow towns to consider the effects of a project at the stage that land is being divided. As such, subdivision review is an excellent tool for addressing how natural resources will be affected.

            Municipalities may include in their subdivision regulations criteria related to natural resources. For example, the subdivision may be required to respect buffers around streams and critical wildlife habitat prior to obtaining subdivision approval. Such criteria ensure that any development that proceeds on the subdivided parcels will avoid harming these natural resources. Accordingly, local officials are strongly encouraged to explore the use of subdivision bylaws as a tool to protect natural resources. 

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