Vermont Bar Association Seminar Materials. 62nd Mid-Year Meeting

Transcription

1 Vermont Bar Association Seminar Materials 62nd Mid-Year Meeting Basic Skills Track 3: Land Use 101 Essentials of Land Use Law in VT as Act 250 Approaches its 50th Anniversary Speakers: March 22, 2019 Lake Morey Resort Fairlee, VT Greg Boulbol, Esq. Matt Chapman, Esq. Nick Low, Esq. Jim Porter, Esq. Gerry Tarrant, Esq.

2 Greg Boulbol Natural Resources Board General Counsel

3 AGENDA Quick Overview of Act 250/History Jurisdiction and Jurisdictional Opinions Participating in Act 250 and Party Status Act 250 Application Review Process The Ten Criteria (not today perhaps next time!) Taking an appeal Resources Questions? Answers??

4 BRIEF HISTORY OF ACT 250

5 In 1969 Gov. Deane Davis and others became concerned about impacts of new development in Vermont.

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7 History of Act 250 After hearings by the Gibb Commission and statewide debate the Vermont legislature passed a law to regulate certain kinds of development at the state level, in addition to any existing local review.

8 The Legislature created the former Environmental Board to administer Act 250: in order to protect and conserve the lands and the environment of the state and to insure that these lands and environment are devoted to uses which are not detrimental to the public welfare and interests. An Act to Create an Environmental Board and District Environmental Commissions, Pub.Act. No. 250, 1, 1969, Vt.Laws (Adj.Sess.) 237 (eff. Apr. 4, 1970).

9 9 Environmental Districts

10 ACT 250 JURISDICTION

11 Subdivisions of 10 lots or more, or 6 lots in towns without permanent zoning and subdivision regulations.

12 Commercial development on >1 or >10 acre

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14 Jurisdictional Opinions (is there Act 250 Jurisdiction over a particular project?) Any person may request (10 VSA 6007(c)) Issued by District Coordinator (Letter form or Project Review Sheet) Reconsideration by Coordinator within 30 days Appeal to Environmental Division, Superior Court, within 30 days.

15 PARTY STATUS 10 VSA 6085 and Act 250 Rule 14

16 The applicant The landowner Statutory Parties The municipality in which the project site is located, and the municipal and regional planning commissions for that municipality Municipalities and RPCs adjacent to the project State agencies affected by the proposed project

17 any person who has a particularized interest protected by this chapter that may be affected by an act or decision by a District Commission. 10 V.S.A Obtaining Party status (if not a statutory party) Standard = an aggrieved person need only show a reasonable possibility that a decision on the proposed project may affect a person s particularized interest The purpose is to determine whether a person has a sufficient stake in the matter to allow the person to present evidence on a criterion. Determining party status and making a determination under a criterion are separate inquiries.

18 ANY PERSON PARTY STATUS ELEMENTS PARTICULARIZED INTEREST THAT MAY BE AFFECTED BY THE PROJECT (AN ACT OR DECISION OF THE DISTRICT COMMISSION)

19 Individual Association 1. ANY PERSON Corporation Neighborhood association (whether or not incorporated) Partnership Non-profits with affected members

20 2. PARTICULARIZED INTEREST Something particular to that person rather than the general public The interest must be real not speculative: Can see it Can hear it Can smell it Affects an activity

21 3. AFFECTED BY THE PROJECT (act or decision) The person s concern or interest must be one that is protected by a criterion: Aesthetics Noise Odors Runoff/water pollution Etc. Persons concerned about business competition or other issues beyond act 250 are not parties.

22 Final Party Status Party status should be confirmed unless proof shows that there was no reasonable possibility of a particular interest being affected.

23 WHY is Party Status so important? IT IS THE LAW Act 250 is based on citizen participation before a citizen board. Act 250 s party status standard parallels federal standing law. PROPER PARTY STATUS Assures that commissions receive information Avoids delays, appeals, and remands.

24 THE ACT 250 PROCESS (AFTER JURISDICTION)

25 Citizen-Based Review Process

26 Three Types of Review At the District Commission ADMINISTRATIVE AMENDMENT MINOR PROCESS MAJOR PROCESS

27 What happens at a hearing? PRE-HEARING Site visit Chair opens hearing, explains process Applicant presents overview District Commission accepts petitions for party status; makes preliminary determinations Applicant presents information under the 10 Criteria, including any expert witnesses (civil engineer, traffic expert, etc.) District Commission asks questions Parties have opportunity to ask questions (crossexamine) Parties have opportunity to present their own evidence, including expert witnesses After hearing, commission issues recess memo listing outstanding items

28 Decisions and Permits Decisions applications are either approved with conditions or denied. Findings of Fact and Conclusions of Law are drafted and issued. Permits Granted and Conditions Attached when permits are granted they are subject to a wide range of conditions transportation, erosion control measures; energy efficiency; etc. Permits Denied if a commission finds that the project will be detrimental to the public health, safety or general welfare it will be denied. Permits may not be denied under Criteria 5, 6 and 7 but conditions can be applied under these criteria. Nature of Permits LUPs run with the land; they are transferrable; project completion; expiration dates; non-use (abandonment).

29 Findings, conclusions, conditions and Jurisdictional Opinions may lead to an appeal. Appeals Appeals of a District Commission and a District Coordinator are heard by the Environmental Court; ultimately the Supreme Court. Hearings on appeal are de novo Facts must be re-established. Party must have participated at District Commission level to appeal (unless the appeal is in the nature of a party status denial)

30 ACT 250 RESOURCES District Coordinator and Support Staff Natural Resources Board Administrative and Legal Staff (802) Training Manual : regulations/commission -manual E-NOTES Index: /documents/e-notes Environmental Board Decisions: /decisions/environment al-board Enforcement Page: /enforcement Web site: QUESTIONS??

31 Basic Skills; ANR Permits Matt Chapman, General Counsel Agency of Natural Resources

32 The Agency of Natural Resources and Permitting ANR is a statutory party in Act 250 and Section 248 permitting. The Department of Environmental Conservation administers approximately 90 different permit programs that address development and industrial activity in Vermont.

33 How do I know if my client needs a permit ANR permit specialists issue nonbinding reviews of what permit is required for a project. Review DEC Rules: Confirm with DEC programs that a permit is required and what type of permit may be appropriate for

34 Understanding the review process at ANR Jurisdiction established by statute and rule. Normally very fixed (e.g. one acre or more of impervious surface needs an operational stormwater permit). Process technically driven. ANR staff are generally engineers and scientists. Limited role for legal involvement in permit review process.

35 Administrative process for permit review ANR reviews an application for administrative completeness. ANR reviews an application for technical sufficiency. ANR issues a draft permit decision. The draft permit goes out for public comment for either 30 days (most permits) or 14 days (minor permits or authorizations under general permits). For most permits, a person can request a public informational meeting on the proposed project. Agency considers comments, modifies the permit, issues final decision.

36 Search Criteria Activity Name ENB ID Activity Type (Permit Type) Permit or Other ID # Street Address Activity Status Geographic Location

37 Search By Geographic Location

38 Activity Profile- Draft Decision Phase From this Page Users Can: Select to Follow an activity to receive status updates via Share the Link to the Activity Page Submit a Comment Request a Public Meeting View Related Documents

39 Why Comment on ANR permits 10 V.S.A. 8504(d)(2) requires a person to comment on an issue in order to raise that issue on appeal. The comment must be specific enough to allow the ANR to meaningfully respond to the comment. The purpose of this provision is to: Require interested persons to raise issues early in the permit process so that the ANR and applicant have an opportunity to address them; and Not creating an overly technical approach to issue preservation when interpreting whether a comment preserves an issue for appeal. See Sec. 5b of No. 150 of 2016.

40 Commenting on ANR permits Comments should explain why to specific conditions in a permit fail to meet requirements of a rule. Comments should include technical information and/or legal memorandum with respect to the aspects of the project under review. Materials do not need to be supported by witness affidavits or formal expert opinion. The standards for admissibility in the proceeding are significantly relaxed.

41 ANR Informational Meetings Not hearings no right to cross examine witnesses, provide direct testimony, or operate as a trial like hearing. Applicant and ANR will be present and available to answer questions about a proposed project. Meetings are recorded and the recording becomes a part of the final record.

42 Land Use 101 VBA Mid-year Meeting March 22, 2019 Nicholas Low APPEALS TO THE ENVIRONMENTAL DIVISION: WHO, WHAT, WHEN, WHERE, HOW, AND WHY? WHO can appeal? Act 250 and ANR appeals: any party by right or aggrieved person o Party by right (10 V.S.A. 8502(5), 8504(a)) Applicant Landowner, if the applicant is not the landowner Municipality, municipal and regional planning commissions If the project site is on a boundary, adjacent Vermont municipality, municipal and regional planning commissions Solid waste management district, if waste facility proposed Any affected State agency o Aggrieved person (10 V.S.A. 8502(5), 8504(a)) a person who alleges an injury to a particularized interest protected by the provisions of law [appealed from], attributable to an act or decision by a district coordinator, District Commission, the Secretary [of ANR] Municipal zoning: any interested person o Interested person (24 V.S.A. 4465) Property owner Municipality A person who: (1) owns or occupies property in the immediate neighborhood (2) can demonstrate a physical or environmental impact on the person's interest under the criteria reviewed, and (3) alleges the decision or act fails to conform with the bylaws Ten or more voters or property owners alleging the decision or act fails to conform with the bylaws Certain state agencies The appellant must have participated below o Municipal Decisions: 24 V.S.A. 4471(a) o Act 250: 10 V.S.A. 8504(d)(1) o ANR: 10 V.S.A. 8504(d)(2) WHAT can be appealed? ANR Act or Decision (10 V.S.A. 8503(a)) o E.g. approval / denial of wastewater permits, water discharge permits o Scope of appeal limited to scope of participation below Act 250 Act or Decision (10 V.S.A. 8503(b), 6089) o E.g. District Commission decision to grant or deny Act 250 permit o Scope of appeal limited to criteria under which appellant has party status o District Coordinator jurisdictional opinion 1

43 Land Use 101 VBA Mid-year Meeting March 22, 2019 Nicholas Low Municipal Land Use Decision (10 V.S.A. 8503(c), 24 V.S.A. 4471) o Appropriate municipal panel decisions o E.g. granting or denying zoning permit Agency of Agriculture Permit Decisions (6 V.S.A. 4855, 4861) o Small, medium, and large farm operations WHEN can an appeal be taken? Within 30 days of the act or decision (10 V.S.A. 8504(a), (b); V.R.E.C.P. 5(b)(1)) See In re Mahar Conditional Use Permit, 2018 VT 20, 183 A.3d 1136, for a discussion of when the appeal period runs and when extensions may be available WHERE is an appeal filed? Environmental Division (4 V.S.A. 34) Located in Costello Courthouse, Burlington Two judges with statewide jurisdiction and proceedings held in county where action arises (4 V.S.A. 1001) Vermont Rules for Environmental Court Proceedings (V.R.E.C.P.) apply; civil, appellate, and electronic filing rules also apply HOW is an appeal pursued? Notice of Appeal within 30 days (V.R.E.C.P. 5(b)) Statement of Question within the next 21 days (V.R.E.C.P. 5(f)) o Defines and gives notice to the parties and court of the issues on appeal Others may enter an appearance within 21 days (V.R.E.C.P. 5(c)) Standard of review: o Appeal on the record Limited to certain municipalities (24 V.S.A. 4471(b), V.R.E.C.P. 5(h)) Factual findings affirmed if supported by evidence; legal questions reviewed de novo o Trial de novo (10 V.S.A. 8504(h), V.R.E.C.P. 5(h)) Factual and legal questions reviewed de novo Scope of appeal: o The Court sits in the place of the municipal panel, ANR, or District Commission, and can do whatever those administrative bodies could do. In re Torres, 154 Vt. 233, 235, 575 A.2d 193. o But: ANR decisions: scope in appeal limited to scope of participation below Act 250 decisions: scope limited to criteria in which appellant has party status **Municipal: not limited to issues raised below** 2

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45 Jim Porter Presenter Land Use 101 Orderly Development VBA Mid-Year Meeting March 22, 2019 Outline ORDERLY DEVELOPMENT 30 V.S.A. 248(b)(1): (b) Before the Public Utility Commission issues a certificate of public good as required under subsection (a) of this section, it shall find that the purchase, investment, or construction: (1) With respect to an in-state facility, will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality. In re Rutland Renewable Energy, LLC, 202 Vt. 59 (2016) There was very little evidence of the project s regional impacts; virtually all the evidence and arguments concerned the impacts on and within the Town. Indeed, the Board found that the impacts are primarily localized in nature. It concluded that while in some instances localized impacts may be found to interfere with orderly regional development due to their character or severity, there is no credible evidence in the record that demonstrates that the localized impacts from this particular project would rise to such a level. Neighbors respond that the testimony of their expert witness, a landscape architect, was undisputed and showed the requisite regional impact. Essentially, the witness testified that when a project is incompatible with the land uses in its setting, it may propagate and have adverse regional impacts, explaining that no one of those projects will likely have a regional impact, but sprinkling those projects around a town or region without regard to their cumulative impact will certainly have such an impact. Therefore, aside from the prediction of future replication, there was no actual evidence of regional impact. The Board recited the testimony that no one project is likely to have a regional impact and acted well within its discretion in finding the assertion of regional impact inadequate and not persuasive. We affirm the Board s conclusion. Because of our resolution of this issue, we do not reach whether the Board gave due consideration to the recommendation of the Town as required by 248(b)(1).

46 Act 56 of 2015 (30 V.S.A. 248 (s)): (s) This subsection sets minimum setback requirements that shall apply to in-state ground-mounted solar electric generation facilities approved under this section, unless the facility is installed on a canopy constructed on an area primarily used for parking vehicles that is in existence or permitted on the date the application for the facility is filed. (1) The minimum setbacks shall be: (A) from a State or municipal highway, measured from the edge of the traveled way: (i) 100 feet for a facility with a plant capacity exceeding 150 kw; and (ii) 40 feet for a facility with a plant capacity less than or equal to 150 kw but greater than 15 kw. (B) From each property boundary that is not a State or municipal highway: (i) 50 feet for a facility with a plant capacity exceeding 150 kw; and (ii) 25 feet for a facility with a plant capacity less than or equal to 150 kw but greater than 15 kw. (2) This subsection does not require a setback for a facility with a plant capacity equal to or less than 15 kw. (3) On review of an application, the Commission may: (A) require a larger setback than this subsection requires; (B) approve an agreement to a smaller setback among the applicant, the municipal legislative body, and each owner of property adjoining the smaller setback 1 ; or (C) require a setback for a facility constructed on an area primarily used for parking vehicles, if the application concerns such a facility. (4) In this subsection: (A) "kw" and "plant capacity" shall have the same meaning as in section 8002 of this title. 1 Otter Creek Solar LLC and PLH LLC v. State of Vermont and Vermont Agency of Transportation, Docket No Cncv.

47 (B) "Setback" means the shortest distance between the nearest portion of a solar panel or support structure for a solar panel, at its point of attachment to the ground, and a property boundary or the edge of a highway's traveled way. (t) Notwithstanding any contrary provision of the law, primary agricultural soils as defined in 10 V.S.A located on the site of a solar electric generation facility approved under this section shall remain classified as such soils, and the review of any change in use of the site subsequent to the construction of the facility shall treat the soils as if the facility had never been constructed. Each certificate of public good issued by the Commission for a ground-mounted solar generation facility shall state the contents of this subsection. Act 174 of V.S.A. 248(C): (C) With respect to an in-state electric generation facility, the Commission shall give substantial deference to the land conservation measures and specific policies contained in a duly adopted regional and municipal plan that has received an affirmative determination of energy compliance under 24 V.S.A In this subdivision (C), "substantial deference" means that a land conservation measure or specific policy shall be applied in accordance with its terms unless there is a clear and convincing demonstration that other factors affecting the general good of the State outweigh the application of the measure or policy. The term shall not include consideration of whether the determination of energy compliance should or should not have been affirmative under 24 V.S.A Petition of Chelsea Solar, LLC Case No PET Section 248(b)(1) provides that, before the Commission may issue a CPG for an in-state facility, the Commission shall find that the facility: will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land

48 conservation measures contained in the plan of any affected municipality. The Department, through its aesthetics consultant, Mr. Raphael, argues that the Project would unduly interfere with orderly development. In his assessment, Mr. Raphael argues that orderly development is not just about whether or not the land can be conserved or has impacts to already conserved space. Instead he asserts that a review of the Project s impact on orderly development of the region must assess what the community and the neighbors envision for the Project site as reflected in the Town and Regional plans. And, in this case Mr. Raphael concludes that the Project site was envisioned by the Town and Regional plans as protected from developments like the Project: It is clear from the language of the older town plan that this project footprint and the intensely developed clustering of the arrays over that acreage was not what was envisioned in this district. The basic language set forth in the plan, which hasn t changed since 2010, makes it clear that distinctive rural character and very low density residential comprise the key qualities of the district. The maintenance of large blocks of productive forest lands also a town, and indeed state goal, is another principle which this project does not support. Therefore, from the Department s perspective, the Project would unduly interfere with orderly development. I am not persuaded by Mr. Raphael s conclusion regarding orderly development for two reasons. First, Mr. Raphael goes beyond the due consideration standard in Section 248(b)(1). Instead, he treats the language describing the Rural Conservation District of the Town Plan as embodying rigid standards that give the Town Plan a veto power over the Project. This overriding treatment is inconsistent with the latest Vermont Supreme Court guidance regarding the Commission s review under Section 248(b)(1), which Mr. Raphael acknowledged he was not familiar with Section 248(b)(1) requires that the Commission give due consideration to the Town Plan as well as to the statements of municipal officials, but the Commission is not restricted by the language of the Town Plan as Mr. Raphael asserts. Second, both the Department in its brief and Mr. Raphael in his testimony do not consider the lack of Town opposition to this Project or the Town s own more expansive interpretation of its Town Plan s restrictions in the Rural Conservation District. Specifically, Mr. Raphael stated only that the fact that the Town does not oppose this Project did not alter his orderly development conclusion. Further, Mr. Raphael stated that in developing his opinion he did not consider the fact that the

49 Town had approved several other commercial solar development projects in the Rural Conservation District.

50 Gerald R. Tarrant Presenter Land Use 101 (Zoning) Lake Morey March 22, 2019 IDEAS AND CONCEPTS OF VERMONT ZONING To understand zoning in Vermont, there are yards of statutes and leading cases to read and digest, but if you had to boil down the leading principles and ideas, they might include the following: 1. Zoning Permits. Within a municipality in which any bylaws have been adopted no land development may be commenced within the area affected by the bylaws without a permit issued by the administrative officer ( A.O. ). No permit may be issued by the A.O. except in conformance with the bylaws. What isn t permitted or conditionally permitted is forbidden. 2. Administrative Officer. The A.O. shall administer the bylaws literally and shall not have the power to permit any land development that is not in conformance with those bylaws. 24 V.S.A The Development Review Board or Zoning Board of Adjustment is equally bound by the bylaws but has discretion on how to apply the bylaws to specific projects. 3. Other permits. Although the applicant is responsible for identifying and obtaining all state permits, the A.O. should inform any person applying for municipal permits that he or she should contact the regional permit specialist employed by the agency of natural resources to assure proper applications. Id. 4. Construing a Zoning Ordinance. In construing a zoning ordinance courts employ ordinary rules of statutory construction. In re Jenness 185 Vt. 16, 11, citing In re Vt. Nat l Bank, 157 Vt. 306, 312 (1991). The courts consider the entire ordinance and strive to give effect to every part. Id. The Supreme Court will reverse the Environmental Division s construction of a zoning ordinance only if it is clearly erroneous, arbitrary and capricious. In re Weeks, 167 Vt. 551, 554 (1998). 5. Restrictions on the free use of real property are to be narrowly construed. Weeks, 167 Vt. 551, zoning ordinances are in derogation of common law property rights and that in construing land use regulations any uncertainty must be decided in favor of the property owner. In re Vitale, 151 Vt. 580, 584 (1989); also Secretary v. Handy Family Enters., 163 Vt. 476, (1995) ( [O]ur zoning decisions... have emphasized that ambiguity must be resolved for the property owner. ) However, the extension of non-conforming uses are recognized and allowed to continue, simply by virtue of their existence prior to the enactment of an ordinance. Their extension is carefully limited, since the ultimate goal of zoning is to gradually eliminate them. In re Gregoire, 170 Vt. 556 (1999). 6. Vested rights. A municipality can t change the rules after you ve submitted a complete application. You have vested rights in the bylaws in place at the time you apply. Smith 1

51 v. Winhall Planning Commission, 140 Vt. 178, 181 (1981). (O)nly filing a permit application vests a right in existing regulations, and it does so only in the regulations at the time of filing. Gould v. Town of Monkton, 2016 VT 84, 202 Vt. 535, 548, citing to Smith at Smith adopted the minority rule that filing permit application vests rights against future changes in zoning regulations because rule prevents legal maneuvering, increases certainty of administration, and is fair to applicants; see also In re Keystone Dev. Corp., 2009 VT 13, 5, 186 Vt. 523, 973 A.2d 1179 (mem.) (discussing Smith and describing that a permit applicant gains a vested right in the governing regulations in existence when a full and complete permit application is filed. ) 7. A subdivision permit provides a vested right only to the authority expressed in the subdivision permit, and not to the zoning bylaws in place at the time the subdivision permit is issued. In re Taft Corners Associates, Inc., 171 Vt. 134 (2000). In Taft Corners the developer was subject to the provisions of the interim zoning amendment in effect when it applied for a zoning permit eleven years after the subdivision permit was issued. 8. Deemed Approved. Zoning may be the only regulatory system where the failure of the municipality to act in a timely way has consequences beneficial to the landowner. By statute a complete application, once filed with the town A.O., must be approved or denied within 30 days. If no action is taken in that time, the permit is deemed approved. 24 V.S.A. 4448(d). If the bylaws or statutes provide that the permit must be issued by the zoning board or development review board, and the board fails to issue a written decision within 45 days, the application is deemed approved. 24 V.S.A. 4464(b)(1). 9. Final and unassailable. Once you have your permit, nobody can challenge it successfully on the grounds that it is inconsistent with the bylaws. Permits, even those issued by mistake, once the 30-day appeal period has passed, are unassailable. 24 V.S.A Non-Conforming Uses. There is a legislative and judicial commitment to eliminate non-conforming uses. 24 V.S.A. 4411(b)(2); In re Appeal of Jenness and Berrie, 2008 Vt. 117; In re Appeal of Richards, 2005 Vt. 23; In re Gregoire, 170 Vt. 556 (1999). 11. Nonconforming uses may stay but may not be changed to other nonconforming uses and if abandoned may lose their vested rights to continue. Town of Brighton v. Griffin, 148 Vt. 264 (1987). The goal of zoning is to make a town uniform and consistent with zoning bylaws. Uses that preexist zoning may continue in place, but once the use stops for some known period of time it can t subsequently be restored if the bylaws at that time do not allow it in that district or zone. In re Gregoire, 170 Vt. 556 (1999). 12. A conforming use can become nonconforming when bylaws change. A bylaw amendment increasing the minimum lot size can create a merger of lots by operation of law. In re Richards, 178 Vt. 478 (2005). 13. Standards. A bylaw without standards is unenforceable. In re Miserocchi, 170 Vt. 320 (2000). A statute without standards is also unenforceable. In re Handy, 171 Vt. 336 (2000). 2

52 14. Allowed Uses. A municipality cannot deny zoning permits to some uses, including: (A) state or community owned and operated institutions and facilities, (B) public and private schools certified by the Agency of Education, (C) churches and places of worship, convent and parish houses, (D) hospitals, (E) regional solid waste management facilities, and (F) hazardous waste management facilities for which a notice to construct has been received. These uses can only be regulated with respect to location, size, height, building bulk, yards, courts, setbacks, density of buildings, off-street parking, loading facilities, traffic, noise, lighting, landscaping, and screening requirements and only to the extent that regulations do not have the effect of interfering with the intended functional use. 24 V.S.A. 4413(a)(1). 15. Exemptions. Agricultural, silvicultural uses and forestry operations are generally exempt from zoning. 24 V.S.A. 4413(d)(1). The Secretary of Agriculture has adopted rules governing structures used in agriculture. But this section does not prevent an appropriate municipal panel, when issuing a decision on an application for land development over which it has jurisdiction, from imposing reasonable conditions under 24 V.S.A. 4464(b) to protect wildlife habitat, threatened or endangered species, or other natural, historic, or scenic resources and does not prevent the municipality from enforcing such conditions, provided the conditions do not restrict or regulate forestry operations unrelated to land development. 24 V.S.A. 4413(d)(4). 16. Enforcement. A municipality has an obligation to enforce its zoning, although the means by which enforcement is undertaken are within the discretion of the zoning administrator. Petition of Fairchild, 159 Vt. 125 (1992). 17. Violations. Any person who violates any bylaw after it has been adopted under this chapter or who violates a comparable ordinance or regulation adopted under prior enabling laws shall be fined not more than $ for each offense. No action may be brought unless the alleged offender has had at least seven days warning notice by certified mail. An action may be brought without the seven-day notice and opportunity to cure if the alleged offender repeats the violation of the bylaw or ordinance after the seven-day period and within the next succeeding 12 months. 24 V.S.A. 4451(a). 18. A bylaw enacted under Chapter 117 shall be subject to the restrictions created under section 2295 of Title 24, with respect to the limits on municipal power to regulate hunting, fishing, trapping, and other activities specified under that section. That is, no municipality may directly regulate hunting, fishing, and trapping or the possession, ownership, transportation, transfer, sale, purchase, carrying, licensing, or registration of traps, firearms, ammunition, or components of firearms or ammunition. Except, however, Section 2291(8) of Title 24 provides that for the purpose of promoting public health, safety, welfare, etc. a municipality has the power: (8) To regulate or prohibit the use or discharge, but not the possession of, firearms within the municipality or specified portions thereof, provided that an ordinance adopted under 3

53 this subdivision shall be consistent with section 2295 of this title and shall not prohibit, reduce or limit discharge at any existing sport shooting range, as that term is defined in 10 V.S.A Conditional Uses. In any district, certain uses may only be allowed by approval of the appropriate municipal panel, if general and specific standards to which each allowed use must confirm are prescribed in the appropriate bylaws and if the appropriate municipal panel determines that the proposed use will conform to those standards. 24 V.S.A. 4414(3)(A). The general standards shall require that the conditional use shall not result in an undue adverse effect on any of the following: (i) the capacity of existing or planned community facilities. (ii) the character of the area affected as defined by the purpose of the zoning district within which the project is located, and specifically stated policies and standards in the municipal plan. (iii) traffic in the vicinity. (iv) bylaws and ordinances then in effect. (v) utilization of renewable energy resources. 20. The general standards set forth above may be supplemented by more specific criteria under Section 4414(3)(B), including requirements with respect to any of the following: (i) minimum lot size. (ii) distance from adjacent or nearby uses. (iii) performance standards. (iv) criteria adopted relating to site plan review pursuant to 24 V.S.A. 4416; (v) any other standards and factors that the bylaws may include. 21. One or more of the review criteria found in Act 250 (10 V.S.A. 6086) may be adopted as standards for use in conditional use review. More Recent Decisions In Gould v. Town of Monkton, 2016 VT 84, 16, 202 Vt. 535, 543, 150 A.3d 1084, 1089 (2016), the Court held that a person can challenge a zoning regulation on constitutional grounds in the civil division, but that a challenge alleging that a zoning regulation was adopted in violation of statutory requirements must be brought in the environmental division. In Gould v. Monkton, Vtec (Vt. Super. Envtl. Div. Dec. 1, 2016), the Environmental Division held that it could not hear the challenge where no permit application was pending. The takeaway is that to challenge the validity of a zoning regulation, a party should first apply for a permit under that regulation and then challenge the regulation if and when the permit is denied. In In re Confluence Behavioral Health, LLC, 2017 VT 112, 180 A.3d 867 (Vt. 2017), the Supreme Court held that it will review the Environmental Division s interpretation of permit conditions and local zoning ordinances without deference, overruling a line of prior case law. 4

54 In In re Langlois/Novicki Variance Denial, 2017 VT 76, 175 A.3d 1222 (Vt. 2017), a divided court held that although a landlord built a structure that violates the zoning regulations, the Town was estopped from enforcing the regulations against him because the landowner built the structure in reliance on the Zoning Administrator s statement that the structure could be built without a permit. In In re Mahar Conditional Use Permit, 2018 VT 20, 183 A.3d 1136, 1139 (Vt. 2018), the Supreme Court (1) held that the 30-day appeal period for a DRB decision begins to run from the date of the decision, not the date that people receive notice of the decision, and (2) analyzed who qualifies as an interested person with standing to appeal a zoning decision. 5