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Archive for the ‘Local Permitting’ Category

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. (more…)

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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). (more…)

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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… (more…)

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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”). (more…)

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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… (more…)

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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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The Sheffield Wind Project (also known as the UPC or Vermont Wind Project) has had a long history and is well known among Vermont land use professionals. The responsible company is currently known as “First Wind.” The downsides of wind power are visual blight and noise pollution, and projects are often opposed by local communities. On the other side, the benefits of wind power are numerous—decreased reliance on fossil fuels decreases global warming and energy dependence, and green energy brings jobs to the local economy, as well as profit for the responsible company. This complicated case makes for a fun study of the permitting process for such projects. (more…)

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The In Re Pierce[i] and JAM Golf[ii] cases, decided within a month of each other, come to different conclusions on whether standards in bylaws provide enough guidance, issues of substantive due process. This blog post provides a summary of each.

In Re Pierce was decided first, in August 2008. The Ferrisburgh Planning Commission approved six waivers for a proposed development and subdivision of a 113-acre parcel. The development would be 21 lots of residences and one lot of common space, with a total of 76% of the land planned to be protected by perpetual easements. The development was opposed by a neighbor, who appealed to the Environmental Court and then to the Vermont Supreme Court. Among other arguments, the neighbor contended that sections 5.21(C) & (D) of the Ferrisburgh bylaws (governing approval of PRDs) provided insufficient standards to guide the Environmental Court’s discretion.  Section (C) provided some general standards (such as conformance with the municipal plan), and some specific standards (such as standard (2), which provided that the overall density of units may not exceed the number which could be permitted if developed in accordance with the bylaws). Section (D) also contained standards, including one requiring 60% of the total parcel to remain undeveloped.

 

 

 

 

 

 

 

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I’ve been thinking a lot about takings recently, in various contexts, and I have been surprised in my research about how few takings cases there have been in Vermont. The federal case-law on Fifth and Fourteenth Amendment takings, on the other hand, has been fairly broad (after all, it is a federal issue). Two takings cases in Vermont have captured my attention―Chioffi v. City of Winooski* and Killington, Ltd. v. State**

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