Code of Vermont Rules › Agency 12 - AGENCY OF NATURAL RESOURCES › Sub-Agency 004 - NATURAL RESOURCES BOARD › Chapter 060 - ACT 250 RULES › Section 12 004 060 - ACT 250 RULES

Current through June, 2024
Rule No.1 Scope and Applicability; Citation
These rules are adopted pursuant to
				  10 V.S.A. §
											6025(b). They shall apply to
				  all Act 250 proceedings and shall be cited as "Act 250 Rule ___"
Rule No.2 Development;
				Subdivision; Definitions
(A) . Development.
The term "development," relating to Act 250 jurisdiction, is
				  defined at
				  10 V.S.A. §§
												6001(3)(A),
				  6001a,
				  6001b,
				  and
				  6001c.
				  Jurisdiction also attaches to any substantial change to a pre-existing
				  development pursuant to
				  10 V.S.A §
												6081(b).
(B) . Counting of Lots and Cessation of a
				Subdivision.
The term "subdivision," relating to Act 250 jurisdiction, is
				  defined at
				  10 V.S.A. §
												6001(19). Jurisdiction also
				  attaches to any substantial change to a pre-existing subdivision pursuant to
				  10 V.S.A. §
												6081(b).
(1) Counting of lots for the purpose of
				resale. In order to determine the number of lots created by a person, a lot
				shall be deemed to have been created for the purpose of resale with the first
				of the following events:
(a) the filing of a
				plot plan in the town land records depicting the subdivided lot or
				lots;
(b) the issuance of any
				required municipal approval for the subdivided lot or lots that becomes
				final;
(c) the issuance of a waste
				water system and potable water supply permit for the subdivided lot or lots by
				the Agency of Natural Resources or delegated municipality;
(d) in the absence of any of the above, the
				conveyance of a lot or lots created by a person.
(2) Cessation of a subdivision. A subdivision
				shall cease to exist if it is found, in a final jurisdictional opinion issued
				pursuant to Rule
				3, to have been retracted or
				revised below jurisdictional levels at any time prior to the construction of
				improvements on the subdivision. A demonstration of such action shall include:
(a) the official retraction or abandonment of
				all state and local permits which originally approved the subdivision;
				and
(b) the filing of a revised
				plot plan in town land records depicting the final retraction or revision of a
				subdivision below jurisdictional levels.
(C) . Definitions.
(1) "Person" means:
(a) For the purposes of a "development,"
				person means an individual, partnership, corporation, association,
				unincorporated organization, trust or other legal or commercial entity,
				including a joint venture or affiliated ownership; a municipality or state
				agency; and, individuals and entities affiliated with each other for profit,
				consideration, or any other beneficial interest derived from the "development"
				of land.
(b) For the purposes of a
				"subdivision," person is defined at
				10 V.S.A. §
													6001(14)(A).
(2) "Commencement of construction"
				means the construction of the first improvement on the land or to any structure
				or facility located on the land including work preparatory to construction such
				as clearing, the staking out or use of a right-of-way or in any way incidental
				to altering the land according to a plan or intention to improve or to divide
				land by sale, lease, partition, or otherwise transfer an interest in the
				land.
(3) "Construction of
				improvements" means any physical change to a project site except for:
(a) any activity which is principally for
				preparation of plans and specifications that may be required and necessary for
				making application for a permit, such as test wells and pits (not including
				exploratory oil and gas wells), percolation tests, and line-of-sight clearing
				for the placement of survey markers, provided that no permanent improvements to
				the land will be constructed and no significant impact under any of the
				criteria of
				10 V.S.A.
				§
													6086(a)(1) through
				(10) will result; a District Commission may
				approve more extensive exploratory work prior to issuance of a permit after
				complying with the notice and hearing requirements of Rule 51 of these Rules
				for minor applications
(b)
				construction for a home occupation as defined in these Rules; or
(c) construction which the person seeking the
				exemption demonstrates (i) is de minimis and (ii) will have no potential for
				significant adverse impact under any of the criteria of
				10 V.S.A.
				§
													6086(a)(1) through
				(10) directly attributable to such
				construction or to any activity associated with such construction.
(4) "Commercial purpose" means the
				provision of facilities, goods or services by a person other than for a
				municipal or state purpose to others in exchange for payment of a purchase
				price, fee, contribution, donation or other object or service having
				value.
(5) "Involved land"
				includes:
(a) The entire tract or tracts of
				land, within a radius of five miles, upon which the construction of
				improvements for commercial or industrial purposes will occur, and any other
				tract, within a radius of five miles, to be used as part of the project or
				where there is a relationship to the tract or tracts upon which the
				construction of improvements will occur such that there is a demonstrable
				likelihood that the impact on the values sought to be protected by Act 250 will
				be substantially affected by reason of that relationship. In the event that a
				commercial or industrial project is to be completed in stages according to a
				plan, or is part of a larger undertaking, all land involved in the entire
				project shall be included for the purpose of determining
				jurisdiction.
(b) Those portions of
				any tract or tracts of land to be physically altered and upon which
				construction of improvements will occur for state, county, or municipal
				purposes including land which is incidental to the use such as lawns, parking
				lots, driveways, leach fields, and accessory buildings, bearing some
				relationship to the land which is actually used in the construction of
				improvements, such that there is a demonstrable likelihood that the impact on
				the values sought to be protected by Act 250 will be substantially affected by
				reason of that relationship. In the case where a state, county or municipal
				project is to be completed in stages according to a plan, or it is evident
				under the circumstances that the project is incidental to or a part of a larger
				undertaking, all land involved in the entire project shall be included for the
				purposes of determining jurisdiction.
(c) With respect to "stormwater" offset
				projects required in "impaired watersheds" pursuant to
				10 V.S.A. §
													1264a, involved land shall include only that
				portion of the tract of land owned or controlled by the applicant which is
				actually to be used for the offset project.
(6) "Material change" means any cognizable
				change to a development or subdivision subject to a permit under Act 250 or
				findings and conclusions under
				10 V.S.A. §
												6086b, which has a significant impact on any
				finding, conclusion, term or condition of the project's permit or which may
				result in a significant adverse impact with respect to any of the criteria
				specified in
				10 V.S.A.
				§
												6086(a)(1) through
				(a)(10).
(7) "Substantial change" means any cognizable
				change to a pre-existing development or subdivision which may result in
				significant adverse impact with respect to any of the criteria specified in
				10 V.S.A.
				§
												6086(a)(1) through
				(a)(10).
(8) "Pre-existing development" mean any
				development in existence on June 1, 1970 and any development which was
				commenced before June 1, 1970 and completed by March 1, 1971. "Pre-existing
				development" also means any telecommunications facility in existence on July 1,
				1997, unless that facility is already subject to jurisdiction pursuant to
				10 V.S.A. §
												6001(3)(A).
(9) "Pre-existing subdivision" means any
				subdivision exempt under the regulations of the department of health in effect
				on January 1, 1970 or any subdivision which had a permit issued prior to June
				1, 1970 under the board of health regulations, or had pending a bona fide
				application for a permit under the regulations of the board of health on June
				1, 1970, with respect to plans on file as of June 1, 1970 provided such permit
				was granted prior to August 1, 1970.
(10) "Dwelling" means a place which is
				intended for human habitation including:
(a)
				any building, structure, or part thereof, which is used as a conventional
				residence, including but not limited to, single family homes, duplex or
				multiplex homes, and apartment buildings;
(b) any commercial residential building,
				including but not limited to, a hotel, motel, rooming house, nursing home group
				home, residential care facility, or dormitory which is usually occupied in
				exchange for the periodic payment of a fee, contribution, donation or other
				object or service having value.
(11) "Solid waste management district" means
				a solid waste management district formed pursuant to § 2202a and Chapter
				121 of Title 24, or by charter adopted by the general assembly.
(12) "Tract of land" means one or more
				physically contiguous parcels of land owned or controlled by the same person or
				persons.
(13) "Lot" means: any
				undivided interest in land, whether freehold or leasehold, including but not
				limited to an interests created by a trust, partnership, corporation, cotenancy
				or contract.
(14) "Municipality"
				means:
(a) For the purposes of
				10 V.S.A.
				§§
													6084 and
				6085,
				"municipality" means any city, town or incorporated village wherein the land is
				located.
(b) For the purposes of
				10 V.S.A. §
													6001(3), "municipal purpose"
				means any project proposed by an entity enumerated in
				1 V.S.A. §
													126.
(15) "State, county or municipal purposes"
				means the construction of improvements which are undertaken by or for the
				state, county or municipality and which are to be used by the state, county,
				municipality, or members of the general public.
(16) "Emergency replacement of a
				communication support structure" means the emergency replacement of a
				communication support structure to protect the health and safety of the public.
				Persons may take whatever action, without notice, hearing or a permit,
				necessary and appropriate to meet such an emergency and a permit will not be
				required prior to the emergency replacement. Upon cessation of such emergency,
				the work performed to meet the emergency shall be evaluated in accordance with
				the provisions of this rule and, if such work requires a land use permit, the
				person shall apply for such permit as soon as reasonably possible.
(17) "Home occupation" solely for purposes of
				Rule 2, means the use, by a resident, of a minor portion of the residence,
				including ancillary buildings, for an occupation or business:
(a) that is customary in residential areas;
				and
(b) that does not have a
				potential for significant impact under the criteria of
				10 V.S.A.
				§§
													6086(a)(1) through
				(10).
(18) "The farm" means, for purposes of
				10 V.S.A. §
												6001(22)(E), lands which are
				used for any purpose stated in
				10 V.S.A. §
												6001(22), which are owned or
				leased by a person engaged in the activities stated in
				10 V.S.A. §
												6001(22), if the lessee
				controls the leased lands to the extent that they would be considered to be the
				lessee's own farm. Indicia of such control include whether the lessee makes the
				day-to-day decisions concerning the cultivation of the leased lands, subject to
				incidental conditions of the lessor, and whether the lessee works the leased
				lands during the lease period.
(19)
				"Principally produced" means:
(a) for
				purposes of
				10 V.S.A. §
													6001(3)(D) (vii)(II), that
				more than 50% (either by volume or weight) of the ingredients or materials
				contributing to the compost, which is stored, prepared or sold at the farm, is
				grown or produced on the farm;
(b)
				for purposes of
				10 V.S.A. §
													6001(22)(E), that more than
				50% (either by volume or weight) of the ingredients or materials contributing
				to a final agricultural product or products which results from the activities
				stated in
				10 V.S.A. §
													6001(22)(A) - (D), and which
				is stored, prepared or sold at the farm, is grown or produced on the farm;
				or
(c) for purposes of
				10 V.S.A. §
													6001(22)(F), that more than
				50% (either by volume or weight) of the ingredients of any agricultural
				products or wastes that result from the activities stated in
				10 V.S.A. §
													6001(22)(A) - (D), used in
				preparation or production of fuel or power, is grown or produced on the
				farm.
(20) "Shoreline"
				For purposes of
				10 V.S.A.
				§
												6086(a)(1)(F), a
				project involves the" development or subdivision of shorelines," if
(a) the project involves construction on or
				the use of "the land between the mean high water mark and the mean low water
				mark of such surface waters."
				10 V.S.A. §
													6001(17), or
(b) the project, or an element of the project
				which is adjacent to the shoreline, has the potential for significant impact on
				any of the subcriteria specified in
				10 V.S.A.
				§
													6086(a)(1)(F)
				(i)-(iv).
(21) "Of necessity" means, for purposes of
				10 V.S.A.
				§
												6086(a)(1)(F), that
				the project or a portion of the project must serve a water-related purpose and
				that the project's location on the shoreline serves as such an integral part of
				the developmental scheme that the inability to locate the project, or a portion
				of the project, on the shoreline would make the project impossible
(22) [Repealed]
(23) "Unit" means an individual and discrete
				residence within a dwelling, condominium or cooperative project, including but
				not limited to an apartment within an apartment building, each separate
				residence of a duplex or multiplex home, or a room or suite of rooms within a
				hotel, motel, rooming house, nursing home, group home, residential care
				facility or dormitory. With respect to single family homes within housing
				projects, each home shall be counted as a unit.
In order to determine the number of units attributable to a
				  person under
				  10 V.S.A. §
													6001(3)
				  (A)(iv), the date that a unit is deemed to be
				  "constructed" shall be the date of the first occurrence of any of the following
				  events:
(i) the issuance of a state
				water supply/wastewater permit;
(ii) the issuance of a municipal zoning or
				building permit; or
(iii) the
				commencement of construction of improvements on the project.
(24) "Principally used" means, for
				purposes of
				10 V.S.A. §
												6001(3)(D)(vi) (III), that
				more than 50% (either by volume or weight) of the compost produced on the farm
				is physically and permanently incorporated into the native soils on the farm as
				a soil enhancement and is and not removed or sold at any time
				thereafter.
(25) "Construction
				costs" means all costs associated with the construction of the development or
				subdivision, including the costs of:
(a)
				materials and labor;
(b) site
				work;
(c) stormwater, water and
				wastewater systems;
(d)
				landscaping;
(e) utilities;
				and
(f) equipment that
(i) is a fixture, or integral to the building
				or structure or project with which it is associated,
(ii) is so fitted and attached as to be a
				part of a building or structure and kept and used as such, or
(iii) is so affixed to real property as to
				have become a part thereof and therefore not severable or removable without
				material injury to the real property.
Construction costs do not include the cost to acquire the
				  real estate for the development or subdivision or the costs of professional
				  services, such as architectural and engineering services. In order to provide
				  incentives for the use of alternative, energy-saving technologies, for a period
				  of five years from October 1, 2013, construction costs shall not include the
				  cost of solar or thermal panels, geothermal systems, heat pumps, wind turbines,
				  or electric vehicle charging stations.
(26) "Cognizable change" means any physical
				change or change in use, including, where applicable, any change that may
				result in a significant impact on any finding, conclusion, term or condition of
				the project's permit.
(D) Jurisdiction by Municipal Election
A municipality that has adopted permanent zoning and
				  subdivision bylaws and that elects by ordinance to have 1-acre development
				  jurisdiction apply pursuant to
				  10 V.S.A. §
												6001(3)(A) (iii):
(1) Shall file a copy of the ordinance, and a
				certificate of adoption pursuant to
				24 V.S.A. §
												1975, with the district
				coordinator.
(2) Shall remain a
				10-lot municipality for purposes of subdivision jurisdiction.