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For many of us, a house on a couple dozen acres in the woods is a dream property. As a result, there is significant residential demand for Vermont’s forestlands. As the value of forest products declines, owners of commercial forestlands are increasingly willing to enter the real estate market. But such land use choices wreak havoc on the ecological values of forests and ultimately undermine the forest products industry. Aware of these concerns, the drafters of Act 250 sought to preserve the environmental and economic benefits of primary forestry soils by limiting development on these finite resources. This post discusses how Act 250 protects primary forestry soils and reviews New England Land Associates,  a case concerning the subdivision of commercial forestlands. Continue Reading »

More often than not, someone is going to disagree with how a municipality administers and enforces their land use regulations. Zoning administrators are routinely called upon to pass judgment on controversial issues.  Because of the way land uses impact the character of our communities, these contentious government actions stir emotions and lead some citizens to pursue legal challenges. However, Vermont’s state statutes governing municipal and regional planning and development do not permit every tax-paying citizen to file an appeal. Rather, the availability of a challenge is limited to “interested persons.” But, what makes a person “interested” and what legal avenues are provided for this limited class of people? This post explores these questions and reviews the pertinent case of Garzo v. Stowe Bd. of Adjustment. 144 Vt. 298, (1984). Continue Reading »

At first glance, Southview Assoc., Ltd. v. Bongartz,  appears to be a fight between high-end ski homes and twenty deer. However, a closer examination reveals that it is not just about twenty deer. In Judge Oakes opinion, he eloquently and convincingly explains why protecting winter habitat for twenty deer will provide substantially more benefits for the people of Vermont in the long-run than an ill-suited vacation home subdivision. Let’s look at the details… Continue Reading »

St. Oswald's Church, Hooe UKTelecom infrastructure developers in Vermont must comply with Act 250, Vermont’s environmental conservation and development law. However, in some very specific situations, developers can avoid complying with Act 250’s requirements through careful siting of a project on preexisting structures. In In re Vermont RSA Ltd. Partnership, 181 Vt. 589, 925 A.2d 1006 (Vt. 2007), Verizon Wireless used the preexisting structure loophole to avoid complying with Act 250.

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A principal goal of Act 250 is the preservation of finite resources including “primary soils for agriculture” and “productive soils for forestry.”  Under 10 V.S.A. § 6086(a)(9)(B) and 9(C), development that threatens these soils may not qualify for an Act 250 Permit.  Yet, what is the standard for determining whether development on protected soils can move forward?  This blog entry provides an overview of the soils criteria of Act 250 and summarizes the seminal case on the application of Criteria 9(B), In re Spear Street Associates, 145 Vt. 496 (1985)(Spear Street”). Continue Reading »

It’s better to ask forgiveness than to ask permission, right? Maybe not, as Quechee Lakes found out in this famous Vermont case where Quechee Lakes received a permit to build a ridgetop condominium, but then made a number of changes to the condos without getting approval.

Image from vthouse.com

The Court upheld the Board’s decision to require Quechee Lakes to mitigate and remove the changes they had made to the condos even though people had already bought and were occupying some of the units. This case provides a warning to developers who try to develop in a way that is inconsistent with the permit conditions and then try to gain permission only after construction is completed and units are sold. A two-part test for determining whether a development will have an undue adverse impact emerges from this case, along with an assurance that Criterion 8 has real power – enough to allow the Environmental Board to condition, withhold and revoke permits… Continue Reading »

Maybe we can get through all ten Act 250 criteria in this blog. We already have posts on 8 and 9, and this post will be about criterion 10. 10 V.S.A. § 6086(a)(10) requires the district commission to find that the proposed development is “in conformance with any duly adopted local or regional plan or capital program under chapter 117 of Title 24.” The test for this criterion was laid out clearly in the Environmental Board’s 1995 opinion in Re: Manchester Commons Associates.[i]

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In 2009 the Vermont Journal of Environmental Law hosted a symposium entitled “Growing Green Communities: Infrastructure Development and the Environment.” Professor Timothy P. Duane delivered the keynote address, focusing on the challenges of green infrastructure development in Vermont and beyond. Professor Duane’s speech offered perspective on where green infrastructure development is today and where it could go in the future. As Professor Duane noted, infrastructure is inextricably linked with land use and a healthy environment, and so it is worthwhile to take a moment to theoretically explore the concept of infrastructure development.

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Steven Rattee wants to construct a house and a driveway on his property. 103 acres of Mr. Rattee’s 185 acres is subject to an easement called an agricultural preservation restriction (APR).  The purpose of the easement is “preserving the limited land suitable for agricultural production.”  Mr. Rattee’s property has productive agricultural soil.  The easement was granted to the state of New Hampshire by the previous landowner and is managed by the Agricultural Land Preservation Committee (ALPC).  Now, in addition to seeking a building permit, Mr. Rattee is required to get permission from ALPC before constructing certain types of structures.  However, ALPC did not adopt rules to establish how to apply for permission to construct on land with an APR.  Also, the ALPC has not previously enforced restrictions of APRs. Continue Reading »

In 2008 a landowner in Cabot applied to mount six AT&T cell phone towers on a silo located on their property. Fourteen  individuals, including neighbors and residents of Cabot, filed a petition with the Zoning Board of Adjustment challenging the infrastructure permit.

Originally, it was proposed that the equipment used to support the six AT&T panel antennas would be located entirely within the silo. However, the continued usefulness of the silo was called into question by the necessary adjustments (i.e. cutting a door in the bottom of the silo) that would accompany this proposal. It would be necessary for the support equipment to be outside of the silo in a storage shed. This triggered local Regulations, which required that the applicant plan to include a six-foot-high fence to surround the storage shed. See Town and Village of Cabot Zoning Regulations. The applicant still planned for the six AT&T panel antennas to be located on the outside of the silo. Continue Reading »