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 »

Infrastructure development, such as telecom towers, can pose aesthetic and safety threats to local communities and as such development in Vermont is often met with vehement opposition. All municipal land use decisions go directly to the Environmental Division of the Vermont Superior Court. Decisions by the environmental court are directly appealable to the Vermont Supreme Court.

If citizen groups do not win at the local level (i.e. a project is permitted) and the environmental court affirms the decision, citizens can appeal to the Vermont Supreme Court. The success of such an appeal hinges on the standard of review the Vermont Supreme Court uses to evaluate the legal reasoning of the environmental court. When the supreme court reviews the environmental court, the supreme court’s standard of review is the amount of deference it affords the environmental court in its decision making.

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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. Continue Reading »

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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