Effective June 1, 2014 the Vermont Legislature approved an amendment to Act 250 law designed to protect historic compact settlement patterns across the State. Specifically, the Legislature adopted criterion 9(L) [10 V.S.A. §6086(a)(9)(L)] which reads:

(L) Settlement patterns. To promote Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside, a permit will be granted for a development or subdivision outside an existing settlement when it is demonstrated by the applicant that, in addition to all other applicable criterion, the development or subdivision:

(i) will make efficient use of land, energy, roads, utilities, and other supporting infrastructure; and

(ii)(I) will not contribute to a pattern of strip development along public highways; or

(II) if the development or subdivision will be confined to an area that already constitutes strip development, will incorporate infill as defined in 24 V.S.A. § 2791 and is designed to reasonably minimize the characteristics listed in the definition of strip development under subdivision 6001(36) of this title.

With little guidance initially provided by the Natural Resources Board and the Legislature, (the “NRB”) (the State entity responsible for administering Act 250) developers and planners were unsure what was meant by “contribute to a pattern of strip development” and how regulators would define “historic settlement patterns.” This created uncertainty and fear about the potential impact of the new criterion.

Since the passage of 9(L), new procedures adopted by the NRB and decisions by Act 250 District Environmental Commissions have offered some clarification of the meaning, intent and scope of Criterion 9(L).

In October 2014 the NRB published the Criterion 9(L) Procedures (the “Procedures”). The Procedures are available here. In the Procedures the NRB defined “existing settlement” as those places designated as Downtown Development Districts, Village Centers, Growth Centers, New Town Centers, Vermont Neighborhoods or Neighborhood Development Areas along with those areas that are:

-compact in form and size

-contain a mixture of uses that include a substantial residential component

-within walking distance of each other

-with higher density than the surrounding area

“Strip development outside” of these areas is not an existing settlement. The NRB developed this definition from former Environmental Board Decisions addressing the impact of projects on neighborhood aesthetics. See Re: Waterbury Shopping Village, Inc., #5W1068-EB, Findings of Fact, Conclusions of Law, and Order, at 34 (Vt. Envtl. Bd. Jul. 19, 1991) and Re: Killington, Ltd., et al. (Master Plan), #1R0835-EB, Findings of Fact, Conclusions of Law, and Order (Vt. Envtl. Bd. Jul. 20, 2000).

Additionally, the NRB clarified what “strip development” and “contributes to strip development” mean. Strip development means “linear commercial development along a public highway” with a lack of coordination with surrounding land and limited pedestrian access. Under the NRB rules, it is also up to the applicant to prove that a project does not lengthen or initiate a new strip development if a project does not occur in an “existing settlement.” The NRB provided no set factors to assess what was “strip development” but outlined that considerations of the traffic, adjacent zoning, project type, extension of municipal services would guide this assessment.

Within the last few months, Act 250 commissions around the state have started to issue decisions incorporating the NRB’s guidance on 9(L). In Saxon Partners, LLC, #1R0948-2, Findings of Fact and Conclusions of Law and Order, April 3, 2015 – Criterion 9(L), the District #1 Environmental Commission issued the first substantive review of 9(L). In Saxon Partners, District #1 Commission here outlined the general framework for review under (L). According to the District #1 Commission under 9(L) a commission should ask:

a. If the project is proposed to be located within an “existing settlement” or formally designated area for development, then it is not adverse under 9(L) and the project conforms;

b. If the project is proposed to be located in an existing strip as “infill”, it may be permitted if it is found to sufficiently mitigate or minimize strip development design characteristics and shall be found by the Commission to make efficient use of land, energy, roads, and utilities or other supporting infrastructure; or

c. If the project is not in an existing settlement (or other designated center), and if it does not qualify as “infill” into existing “built up” area, then it may only be approved upon a finding by the Commission that it will “not contribute to a pattern of strip along public highways” and that it meets the design parameters described above.

In answering these questions on the Saxon Hill project, the Commission determined that the proposed modifications (only proposed modifications to an existing project were tested) were not within an existing settlement or within existing strip development but still concluded that the project made efficient use of the land by altering the façade to appear to be multi-story and efficiently using street access for various elements of the project.

Similarly, in Shelburne Green, LLC, No. 4C0822-5, Findings of Fact and Conclusions of Law and Order, the District #4 Environmental Commission determined that a project to build 12 new buildings along Route 7 satisfied 9(L). The Commission found this satisfied 9(L) because the proposed project was infilling a strip development by clustering the 12 proposed buildings around parking and not in a linear format, provided efficient shared access to Route 7, created synergy with neighboring uses and had significant landscaping when viewed from Route 7.

While these decisions provide clarity as to how district commissions might analyze projects under the new 9(L), until the Supreme Court of Vermont, or the Legislature adopt this analysis, it is not certain that all commissions, in all cases will apply these same analytical steps. Additionally, until a project is found to violate 9(L) the development community will not know where the bottom end of acceptable design lies.

-by A. J. LaRosa