Rule 80. Preservation of Primary Agricultural Soils Revised and approved by the Land Use Panel during its public meeting on January 31, 2006. (A) Purpose. In accordance with 10 V.S.A. Sections 6025(b) and 6086(c), the land use panel of the natural resources board hereby adopts rules to define and implement the provisions of 10 V.S.A. Section 6086(a)(9)(B), the applicable provisions of Vermont s Municipal and Regional Planning and Development Law, and Vermont s Capability and Development plan relating to the protection of primary agricultural soils. The primary goal of this rule is to facilitate and place emphasis on the protection of primary agricultural soils in geographical areas that are likely to remain in viable agricultural use for the long term. This shall be accomplished through the payment of mitigation fees for projects located in designated growth centers in order to contribute toward the purchase of development rights, permanent conservation rights or easements on productive farmland by the State of Vermont through the Vermont Housing and Conservation Board. This rule also promotes the wise use of cluster planning and new community planning on tracts of land located outside of designated growth centers thus ensuring that the maximum amount of primary agricultural soils will be protected on those tracts. Fundamentally, the rule will promote Vermont s historic settlement pattern of compact village, town and urban centers separated by rural countryside in concert with the statutory goals of Chapter 117 of Title 24. (B) Definitions: (1) Primary agricultural soils is defined at 10 V.S.A. Section 6001(15). Unless clearly contradicted by the qualifications stated in the statutory definition, primary agricultural soils shall include important farmland soils with a rating of prime or statewide as defined by the Natural Resources Conservation Service (N.R.C.S.) of the United States Department of Agriculture (U.S.D.A.). (2) Significant reduction means the cumulative loss or impairment of three or more acres of the primary agricultural soils on the tract or tracts of land subject to development or subdivision. However, the district commission shall rule that a significant reduction will not occur if suitable mitigation has been approved pursuant to the provisions of 80(D) or 80(E). (3) Cluster planning and new community planning means the use of innovative or creative land use design strategies that use compact development patterns, minimizing or eliminating the impact on or fragmentation of primary agricultural soils on the project tract, thus preserving the maximum amount of contiguous acreage of primary agricultural soils on the project tract consistent with the mitigation ratios of this rule. 1
(4) Reasonable return on the fair market value of the land, pursuant to the requirements of 10 V.S.A. Section 6086(a)(9)(B)(i), means the return that a person can reasonably expect from owning and using the project tract. In reviewing projects under subcriterion (i) of criterion 9(B), the district commission should focus primarily on the review of alternative land use designs, rather than potential agricultural uses of the tract, provided such alternative designs will achieve the preservation of a higher percentage of the primary agricultural soils on the project tract while providing a reasonable return on the fair market value of the land. (5) Reasonable population densities means those densities of development or subdivision, if defined, as permitted by a municipality in a duly adopted municipal plan, approved by the regional planning commission pursuant to the requirements of Chapter 117 of Title 24, or in its implementing municipal bylaws. (6) Growth center means: (a) a downtown as defined in 24 V.S.A. 2791(3) and surrounding residential neighborhoods; (b) a village center and surrounding residential neighborhoods; (c) a new town center and surrounding residential neighborhoods; or, (d) existing or proposed commercial or industrial parks. A growth center must be included in a municipal plan duly adopted and approved pursuant to Chapter 117 of Title 24 and must accommodate the majority of growth anticipated within the municipality over a twenty year planning period. Growth centers, with the exception of certain commercial or industrial parks which are not strip development, must include the physical characteristics of an existing settlement. (7) Village center, as defined in 24 V.S.A. 2791(10), means a traditional center of the community, typically comprised of a cohesive core of residential, civic, religious, and commercial buildings, arranged along a main street and intersecting streets. Industrial uses may be found within or immediately adjacent to these centers. (8) New town center, as defined in 24 V.S.A. 2791(11), means the area planned for or developing as a community s central business district, composed of compact, pedestrian-friendly, multi-story, and mixed use development that is characteristic of a traditional downtown, supported by planned or existing urban infrastructure, including curbed streets with sidewalks and on-street parking, stormwater treatment, sanitary sewers and public water supply. (9) Existing settlement means an extant village or urban community center similar to the traditional Vermont center in that: (1) it is compact in size; (2) it contains a mixture of uses, including commercial and industrial uses, and a significant residential component; (3) it is a place in which 2
people may live and work and in which the uses largely are within walking distance of each other; and (4) it is separated from other existing settlements by rural countryside. This term specifically excludes strip development. (10) Surrounding Residential neighborhoods means existing surrounding neighborhoods or surrounding areas planned for intensive residential development or subdivision at densities which are significantly greater than other areas within the municipality. (11) Strip development means any development oriented in a linear pattern along a highway with buildings separated by large lots each with its own parking lot and access and few, if any, pedestrian facilities between buildings. (C) Preservation of Primary Agricultural Soils on the Project Tract: Following a finding of significant reduction of the primary agricultural soils on a project tract located outside of a growth center, the district commission shall require the applicant to comply with the subcriteria of criterion 9(B) and, pursuant to subcriterion (iii), shall require the preservation of primary agricultural soils on the project tract for present and future agricultural use, with special emphasis on preserving prime agricultural soils as defined by the U.S.D.A. Such preservation of primary agricultural soils shall be accomplished through cluster planning and new community planning resulting in compact development patterns and reasonable population densities. The number of acres of primary agricultural soils to be preserved on the project tract shall be derived by: (1) determining the number of acres of primary agricultural soils impacted by the development or subdivision; and (2) multiplying this acreage figure by a factor based on the quality of those primary agricultural soils, and other factors as the secretary of agriculture, foods and markets may deem relevant, including the soil s location; accessibility; tract size; existing agricultural operations; water sources; drainage; slope; the presence of ledge or protected wetlands; and the infrastructure of the existing farm or municipality in which the soils are located; and the N.R.C.S. rating system for Vermont soils. This factor shall result in a ratio of no less than 2:1, but no more than 3:1, protected acres to acres of impacted primary agricultural soils. (D) Preservation of Primary Agricultural Soils through the Purchase of Development Rights: (1) Notwithstanding any provision of this rule to the contrary, a district commission shall find that a significant reduction of the primary agricultural soils on a project tract located within a growth center will not occur if the district commission approves a suitable purchase of development rights agreement as described herein. The district commission must also find that the applicant owns no lands other than primary agricultural soils reasonably suited to the purpose of the development or subdivision, the 3
project is designed to achieve reasonable population densities on the project tract, and it will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their potential for such uses. If the district environmental commission approves a suitable mitigation agreement providing for the purchase of development rights, all acreage of primary agricultural soils impacted by a development or subdivision on the project tract shall be subject to a purchase of development rights fee which shall be derived by: (a) determining the number of acres of primary agricultural soils impacted by the development or subdivision; (b) multiplying this acreage figure by a factor resulting in a 1:1 ratio; and (c) multiplying the resulting product by a price per acre value that shall be based on the amount that the secretary of agriculture, food, and markets has determined to be the recent, per-acre cost to acquire development rights or conservation easements on primary agricultural soils in the same geographic region as the proposed development or subdivision. (2) As determined above, the fee to purchase development rights shall be deposited into the Vermont Housing and Conservation Trust Fund established under section 312 of Title 10 for the purpose of preserving primary agricultural soils of equal or greater value with the highest priority given to preserving prime agricultural soils as defined by U.S.D.A. within the municipality or the geographic area of the district commission. (E) Preservation of Primary Agricultural Soils on other Lands Owned or Controlled by the Applicant through a Transfer of Development Rights. If a development or a subdivision is proposed in a growth center, the applicant may offer to preserve other primary agricultural soils in perpetuity within the municipality or within the geographic area of the district commission in compliance with an acreage ratio of 1 to 1, resulting in the preservation of primary agricultural soils of equal or greater value with the highest priority given to preserving prime agricultural soils as defined by the U.S.D.A. All permanent conservation easements (grant of development rights or conservation restrictions) purchased or obtained by the applicant shall be conveyed to a qualified holder, as defined in section 821 of Title 10, with the ability to monitor and enforce easements in perpetuity. Upon approval of such preservation of primary agricultural soils, the commission shall find that the project will not result in a significant reduction. (F) Regulatory flexibility. Notwithstanding any other provision of this rule and regardless of the location of the project tract, the district environmental commission, in order to further the goals of this rule, may approve preservation of primary agricultural soils on the project tract, preservation of other primary agricultural soils, a purchase of development rights fee, or some combination of 4
these measures, if that action is deemed consistent with the agricultural elements of duly adopted municipal and regional plans, and the goals of section 4302 of Title 24. Ratios governing preservation of primary agricultural soils shall be 1:1 in growth centers and 2:1 to 3:1 in all other areas. In appropriate circumstances, the secretary of agriculture, food, and markets may recommend to the district environmental commission and the commission may require that specified primary agricultural soils be preserved, with special emphasis on preserving prime agricultural soils, notwithstanding the fact that they are located within a designated growth center. Those circumstances may include the appropriate need to preserve primary agricultural soils on an active working farm in a designated growth center provided that such protection is provided for in a duly adopted municipal or regional plan. (G) Preliminary Agreement with Agency of Agriculture. An applicant may enter into a preliminary agreement with the secretary of agriculture, food, and markets that addresses the identification of primary agricultural soils on the tract or tracts of land and the proposed preservation primary agricultural soils. Any such agreement shall serve as evidence that the soils have been adequately identified and the proposed preservation of primary agricultural soils meets the requirements of this rule, subject to final approval of the district environmental commission. (H) General Requirements and Conditions to Protect Primary Agricultural Soils: (1) In order to approve the purchase or transfer of development rights, a district commission shall impose conditions to ensure: (a) the perpetual preservation of primary agricultural soils of equal or greater value in the community or in the same geographic area of the district commission through the payment of a fee to the Vermont Housing and Conservation Board; or, (b) the perpetual preservation of primary agricultural soils of equal or greater value on other lands owned or controlled by the applicant in the community or in the same geographic area of the district commission provided that the perpetual easements are conveyed to a qualified holder, as defined in section 821 of Title 10, with the ability to monitor and enforce easements in perpetuity. (2) Protecting primary agricultural soils by permit conditions and conservation easements. All primary agricultural soils preserved for agricultural use on the project tract pursuant to Rule 80(C) shall, at a minimum, be protected by permit conditions issued by the district environmental commissions. All primary agricultural soils preserved for agricultural use by the Vermont Housing and Conservation Board pursuant to Rule 80(D) or the applicant pursuant to Rule 80 (E) shall be protected by permanent conservation easements (grant of development rights or conservation restrictions). Such rights shall be conveyed to a qualified holder, as defined in section 821 of this title, with the ability to monitor and enforce easements in perpetuity. 5
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