2005 Vermont Code - § 4407. — Permitted types of regulations

§ 4407. Permitted types of regulations

Any municipality may adopt zoning regulations that may include, but shall not be limited to, any of the following provisions:

(1) Agricultural and rural residential, forest, and recreational districts. Where, for the purposes set forth in section 4302 of this title, it is deemed necessary to safeguard certain areas from urban or suburban development and to encourage such development in other areas of the municipality or region, the following districts may be created:

(A) Agricultural and rural residential districts, permitting all types of agricultural uses, and prohibiting all other land development except for residential lots of not less than twenty-five acres each;

(B) Forest districts, permitting commercial forestry and related uses, and prohibiting all other land development;

(C) Recreational districts, permitting camps, ski areas and related recreational facilities including lodging for transients, and seasonal residents, and prohibiting all other land development except for construction of residences for occupancy by caretakers and their families.

(2) Conditional uses. In any district, certain uses may be permitted only by approval of the board of adjustment or the development review board, if general and specific standards to which each permitted use must conform are prescribed in the appropriate bylaws and if the board of adjustment or development review board after public notice and public hearing determines that the proposed use will conform to such standards. Such general standards shall require that the proposed conditional use shall not adversely affect:

(A) The capacity of existing or planned community facilities;

(B) The character of the area affected;

(C) Traffic on roads and highways in the vicinity;

(D) Bylaws then in effect; or

(E) Utilization of renewable energy resources.

Such specific standards may include requirements with respect to:

(A) Minimum lot size;

(B) Distance from adjacent or nearby uses;

(C) Performance standards, as under subdivision (7) of this section;

(D) Minimum off-street parking and loading facilities;

(E) Landscaping and fencing;

(F) Design and location of structures and service areas;

(G) Size, location, and design of signs;

(H) Such other factors as the zoning regulations may include.

In granting such conditional use, the board of adjustment or the development review board may attach such additional reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the zoning regulations. The board of adjustment or the development review board shall act to approve or disapprove any such requested conditional use within sixty days after the date of the final public hearing held under this section, and failure to so act within such period shall be deemed approval.

(3) Planned residential development. Any municipality may adopt zoning regulations providing for planned residential development to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and to preserve the natural and scenic qualities of the open lands of this state. The modification of zoning regulations by the planning commission or the development review board may be permitted simultaneously with the approval of a subdivision plan, subject to the following conditions:

(A) The submission of a site plan to the planning commission or the development review board showing the location, height and spacing of buildings, open spaces and their landscaping, streets, driveways and off-street parking spaces and all other physical features, accompanied by a statement setting forth the nature of all proposed modifications, changes or supplementations of existing zoning regulations;

(B) If authorized in the bylaw the permitted number of dwelling units may include a density increase of as much as 25 percent, or 50 percent in the case of an affordable housing development, beyond the number which could be permitted in the planning commission's or the development review board's judgment, if the land were subdivided into lots in conformance with the zoning regulations for the districts in which such land is situated, giving due consideration to site conditions limiting development, such as shallow depth of soil, wetness and steep slopes. When a bylaw authorizes a density increase, no person shall be required to apply for or accept a density increase. In granting a density increase, the planning commission or the development review board shall consider the capacities of community facilities and services and the character of the area affected;

(C) The dwelling units permitted may, at the discretion of the planning commission or the development review board, be of varied types including one-family, two-family or multi-family construction;

(D) If the application of this procedure results in lands available for park, recreation, open space or other municipal purposes, the planning commission or the development review board as a condition of its approval may establish such conditions on the ownership, use and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes;

(E) Any modification of the zoning regulations approved under this section shall be specifically set forth in terms of standards and criteria for the design, bulk and spacing of buildings and the sizes of lots and open spaces which shall be required, and these shall be noted or appended to the plat.

(4) Parking and loading facilities. Provisions setting forth standards for permitted and required facilities for off-street parking and loading which may vary by district and by uses within each district. Such regulations may also include provisions covering the location, size, design, access, landscaping and screening of such facilities. In determining the number and size of parking spaces required under such regulations, the municipal planning commission may take into account the existence of "transit passes," and other evidence that employers will save parking spaces because employees commute to and from work in carpools, in van pools, by bicycle, or by foot. The actual number of parking spaces saved may be substituted for parking facilities on a one-for-one basis, provided the number of parking spaces saved becomes a condition of the permit that the employer receives from the municipal planning commission.

(5) Site plan approval. As prerequisite to the approval of any use other than one- and two-family dwellings, the approval of site plans by the planning commission or the development review board may be required. In reviewing site plans, the planning commission or the development review board may impose appropriate conditions and safeguards with respect to: the adequacy of traffic access, circulation and parking; landscaping and screening; the protection of the utilization of renewable energy resources; and other matters specified in the bylaws. The planning commission or the development review board shall act to approve or disapprove any such site plan within 60 days after the date upon which it receives the proposed plan, and failure to so act within such period shall be deemed approval. The zoning regulations shall specify the maps, data and other information to be presented with applications for site plan approval.

(6) Design control districts. Zoning regulations may contain provisions for the establishment of design control districts. Prior to the establishment of such a district, the planning commission shall prepare a report describing the particular planning and design problems of the proposed district and setting forth a design plan for the areas which shall include recommended planning and design criteria to guide future development. The planning commission shall hold a public hearing, after public notice, on such report. After such hearing, the planning commission may recommend to the legislative body such design control district. A design control district can be created for any area containing structures of historical, architectural or cultural merit, and other areas in which there is a concentration of community interest and participation such as a central business district, civic center or a similar grouping or focus of activities. Such areas may include townscape areas which resemble in important aspects the earliest permanent settlements, including a concentrated urban settlement with striking vistas, views extending across open fields and up to the forest edge, a central focal point and town green, and buildings of high architectural quality including styles of the early nineteenth century. Within such a designated design control district no structure may be erected, reconstructed, substantially altered, restored, moved, demolished or changed in use or type of occupancy without approval of the plans therefor by the planning commission or the development review board. A design review board may be appointed by the legislative body of the municipality to advise any development review board and the planning commission, which design review board shall have such term of office, and such procedural rules, as the legislative body determines.

(7) Performance standards. As an alternative or supplement to the listing of specific uses permitted in districts specifically in, but not limited to, manufacturing or industrial districts, zoning regulations may specify acceptable standards or levels of performance which will be required in connection with any use. Such regulations shall specifically describe the levels of operation which are acceptable and not likely to affect adversely the use of the surrounding area by the emission of such dangerous or objectionable elements as noise, vibration, smoke, dust, odor, or other form of air pollution, heat, cold, dampness, electromagnetic or other disturbance, glare, liquid or solid refuse or wastes; or create any dangerous, injurious, noxious, fire, explosive, or other hazard. The land planning policies and development regulations manual shall contain recommended forms of alternative performance standards, and the assistance of the agency of commerce and community development shall be available to any municipality which requests aid in the adoption or enforcement of such regulations.

(8) Bonds to assure restoration of sites. Regulations governing the operation of sand and gravel excavations or soil removal may contain provisions requiring the submission of an acceptable plan for the rehabilitation of the site at the conclusion of the operations and a bond, escrow account, or other surety acceptable to the legislative body of the municipality to assure the rehabilitation. However, this provision does not apply to mining or quarrying.

(9) Flood plain areas, special control. Within any area designated by the department of environmental conservation as subject to periodic flooding, the permitted uses, type of construction, and height of floor levels above ground may be regulated in order to lessen or avoid the hazards to persons and damage to property resulting from the accumulation of storm or flood waters.

(10) Airport hazard area. Any municipality may adopt special zoning regulations governing the use of land, location and size of buildings and density of population within a distance of two miles from the boundaries of an airport under an approach zone and for a distance of one mile from the boundaries of such airport elsewhere. The designation of such area and the zoning regulations therein shall be approved by the Vermont transportation board.

(11) [Repealed.]

(12) Planned unit development. Planned unit development. Any municipality may adopt zoning regulations providing for planned unit developments to encourage new communities, innovation in design and layout, and more efficient use of land. The modification of zoning regulations by the planning commission or the development review board may be permitted simultaneously with the approval of a subdivision plat subject to the conditions set forth in this subdivision. Any local zoning regulations containing provisions for planned unit development shall describe the standards and conditions by which a proposed planned unit development shall be evaluated. The planning commission or the development review board may prescribe, from time to time, rules and regulations to supplement the standards and conditions set forth in the zoning regulations, provided the rules and regulations are not inconsistent with the zoning regulations. The planning commission or the development review board shall hold a public hearing after public notice as required by section 4447 of this title, prior to the establishment of any supplementary rules and regulations. Permitted uses may include and shall be limited to:

(A) dwelling units in detached, semi-detached, or multi-storied structures, or any combination thereof, and may include for an affordable housing development a density increase of as much as 50 percent beyond the number which could be permitted in the judgment of the planning commission or the development review board if the land were subdivided into lots in conformance with the zoning regulations for the districts in which the land is situated, giving due consideration to site conditions that limit development, including shallow soil depth, wetness and steep slopes. When a bylaw authorizes a density increase, no person shall be required to apply for or accept a density increase. In granting a density increase, the planning commission or the development review board shall consider the capacities of community facilities and services and the character of the area affected;

(B) any nonresidential use;

(C) public and private educational facilities; and

(D) industrial uses and buildings.

The zoning regulations may authorize the planning commission or the development review board to allow for a greater concentration of density, of intensity of residential land use, within some section or sections of the development than upon others. The zoning regulations may require that the approval by the planning commission or the development review board of a greater concentration of density or intensity of residential land use for any section to be developed be offset by a lesser concentration in any other section or by an appropriate reservation of common open space on the remaining land by a grant of easement or by covenant to the municipality.

(13) Access to renewable energy resources. Any municipality may adopt zoning and subdivision regulations to encourage protection and access to renewable energy resources.

(14) Time-share projects.

(A) For purposes of this section a time-share project means a project involving real property containing an interest acquired by means of a time-share estate or a time-share license. A "time-share estate" is a right to occupy a unit or any of several units during separated time periods coupled with a freehold estate or an estate for years in a time-share property or a specified portion thereof. A "time-share license" means a right to occupy a unit or any of several units during separate time periods, including renewal options, not coupled with a freehold estate or an estate for years.

(B) A municipality may vote to declare projects consisting of five or more time-share estates or licenses to be subject to this chapter, and by so doing is authorized to provide for such projects in the municipal plan and zoning regulations in the same manner as other uses.

(15) Historic districts and landmarks.

(A) Zoning regulations may contain provisions for the establishment of historic districts and the designation of historic landmarks. Historic districts shall include structures and areas of historic or architectural significance and may include distinctive design or landscape characteristics, areas and structures with a particular relationship to the historic and cultural values of the surrounding area, and structures whose exterior architectural features bear a significant relationship to the remainder of the structures or to the surrounding area. A report prepared under section 4403(c) of this title with respect to the establishment of an historic district or the designation of an historic landmark should contain an analysis of and recommendations concerning the factors mentioned above that make the district or landmark significant.

(B) With respect to external appearances, and other than normal maintenance, no structure within a designated historic district may be rehabilitated, substantially altered, restored, moved, demolished or changed, and no new structure within an historic district may be erected, without approval of the plans therefor by the planning commission or the development review board. The commission or the board shall consider the following in its review of plans submitted:

(i) the historic or architectural significance of the structure, its distinctive characteristics, and its relationship to the historic significance of the surrounding area;

(ii) the relationship of the proposed changes in the exterior architectural features of the structure to the remainder of the structure and to the surrounding area;

(iii) the general compatibility of the proposed exterior design, arrangement, texture, and materials proposed to be used;

(iv) any other factors including the environmental setting and aesthetic factors which the commission or the board deems to be pertinent.

(C) When a commission or the development review board is reviewing an application relating to an historic district, the following shall apply:

(i) the commission or the board shall be strict in its judgment of plans for those structures deemed to be valuable under subdivision (15)(A) of this section. A commission or a board is not required to limit new construction, alteration, or repairs to the architectural style of any one period, but may encourage compatible new design;

(ii) if an application is submitted for the alteration of the exterior appearance of a structure or for the moving or demolition of a structure deemed to be significant under subdivision (15)(A), the commission or the board shall meet with the owner of the structure to devise an economically feasible plan for the preservation of the structure;

(iii) an application shall be approved only when the commission or the board is satisfied that the proposed plan will not materially impair the historic or architectural significance of the structure or surrounding area;

(iv) in the case of a structure deemed to be significant under subdivision (15)(A), the commission or the board may approve the proposed alteration despite subdivision (15)(A)(iii) of this section if:

(I) the structure is a deterrent to a major improvement program which will be of clear and substantial benefit to the municipality; or

(II) retention of the structure would cause undue financial hardship to the owner.

(D) This subdivision, and zoning regulation issued pursuant to it, shall apply to designation of individual landmarks as well as to designation of historic districts. A landmark is any individual building, structure, or site having by itself a special historic, architectural, or cultural value.

(E) The provisions of this subdivision shall not in any way apply to or affect buildings, structures, or land within the "Capitol complex," as defined in 29 V.S.A. chapter 6.

(16) Transfer of development rights.

(A) In order to accomplish the purposes of 10 V.S.A. § 6301, the zoning regulations may contain provisions for the transfer of development rights. The regulations shall:

(i) specify one or more sending areas for which development rights may be acquired;

(ii) specify one or more receiving areas in which those development rights may be used;

(iii) define the amount of the density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases;

(iv) define "density increase" in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage or ratio of floor area to lot size, or any combination;

(v) define "development rights," which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A. chapter 155, limiting the land uses in the sending area solely to specified purposes, but including at a minimum, agriculture and forestry.

(B) Upon approval by the planning commission or the development review board, a zoning permit may be granted for land development based in part upon a density increase, provided:

(i) the area subject to the application is a receiving area, and the density increase is allowed by the provisions relating to transfer of development rights;

(ii) the applicant has obtained development rights from a sending area which are sufficient under the regulations for the density increase sought; and

(iii) the development rights are evidenced by a deed which recites that it is a conveyance under this subdivision and recites the number of acres affected in the sending area; and

(iv) the sending area from which development rights have been severed has been surveyed and suitably monumented.

(C) The municipality shall maintain a map of areas from which development rights have been severed. Following issuance of a zoning permit under this section, the municipality shall:

(i) ensure that the instruments transferring the conservation easements and the development rights are recorded; and

(ii) mark the development rights map showing the area from which development rights have been severed, and indicating the book and page in the land records where the easement is recorded.

Failure to record an instrument or mark a map does not invalidate a transfer of development rights.

(D) Development rights transferred under this section shall be valid notwithstanding any subsequent failure to file a notice of claim under the marketable record title act.

(17) Technical review. A bylaw enacted under this chapter may include procedures to require an applicant to pay for reasonable costs of an independent technical review of the application.

(18) Moratorium relating to the siting of wireless telecommunications facilities and ancillary improvements. If a municipality has begun a process to adopt or amend regulations relating to the siting of wireless telecommunications facilities, a municipality may adopt a regulation that establishes a moratorium on issuing permits to allow the siting and construction of wireless telecommunications facilities and ancillary improvements, and, if necessary, that requires that such permits be obtained.

(A) This moratorium may be adopted by vote of the municipality's legislative body, subject to disapproval by the voters under section 1973 of this title, or it may be adopted by vote of a majority of the voters of the municipality present and voting at a duly warned meeting of the voters of the municipality.

(B) A moratorium adopted under this subdivision shall run for no more than 180 consecutive days, covering dates which shall be identified in the regulation adopting the moratorium, and which shall fall between the effective date of this act and July 1, 1999.

(C) A moratorium adopted under this subdivision shall terminate upon the effective date of new regulatory provisions relating to the siting of wireless telecommunications facilities and ancillary improvements, upon expiration of 180 days from the effective date of the moratorium, or upon June 30, 1999, whichever comes first.

(D) When a moratorium is adopted under this subdivision, any telecommunications facility-related application pending as of the date of the adoption of the moratorium shall be entitled to a permit only when the applicant meets the requirements of the regulations as they exist at the termination of the moratorium.

(19) Provision for the decommissioning or dismantling of wireless telecommunications facilities and ancillary improvements. Regulations regarding the decommissioning or dismantling of wireless telecommunications facilities and ancillary improvements may include requirements that bond be posted, or other security acceptable to the legislative body, in order to finance facility decommissioning or dismantling activities.

(20) Stormwater management and control. Any municipality may adopt zoning and subdivision regulations as necessary to implement stormwater management and control consistent with the program developed by the secretary of natural resources pursuant to 10 V.S.A. § 1264. (Added 1967, No. 334 (Adj. Sess.), § 1, eff. March 23, 1968; amended 1969, No. 116, § 7; 1971, No. 257 (Adj. Sess.), §§ 21, 22, eff. April 11, 1972; 1975, No. 236 (Adj. Sess.), § 4; 1977, No. 268 (Adj. Sess.), § 1; 1979, No. 174 (Adj. Sess.), §§ 10-12; 1981, No. 132 (Adj. Sess.), § 14; 1983, No. 98 (Adj. Sess.); 1985, No. 243 (Adj. Sess.), §§ 4-6; 1993, No. 232 (Adj. Sess.), § 2, eff. March 15, 1995; 1995, No. 122 (Adj. Sess.), § 3, eff. Apr. 25, 1996; No. 190 (Adj. Sess.), § 1(a); 1997, No. 94 (Adj. Sess.), § 4, eff. April 15, 1998; 1999, No. 114 (Adj. Sess.), § 4, eff. May 19, 2000; No. 161 (Adj. Sess.), § 8.)