Development Permitting

by Stephen A. Reynes and Jesse L. Moorman,
Primmer Piper Eggleston & Cramer PC

The Lay of the Land

Most development in the state of Vermont is subject to one or more land-use or environmental permits. Depending on the scope or location of a particular project, development often triggers review and approval under a combination of local, state or — in rarer instances — federal permitting regimes. This can be a complex and seemingly Byzantine process. Accordingly, preparation is the key, not only to curbing frustration, but also to avoiding inadvertent oversight or delay. In this overview of development permitting in Vermont, we offer some practical considerations that, in our experience, can contribute to a smoother approval process.

Jesse Moorman

In general, development permits emanate from three sources: municipalities, Act 250, and state or federal agencies. Municipalities that have enacted zoning bylaws require zoning permits for most development. If the project is a permitted use within the objective parameters, such as setbacks, the zoning administrator will issue a permit promptly. If the project is a conditional use or requires a variance from the regulations, local review and approval will consist of at least one public hearing before an appropriate municipal panel — typically a zoning board of adjustment or development review board.

In addition to a local permit, a project may require an Act 250 land-use permit. Act 250, Vermont’s statewide land-use law, typically considers issues of traffic, aesthetics, impacts on municipal services, and technical issues such as storm water, wetlands, and septic.

Stephen Reynes

Act 250 applies to major subdivisions and development, and to smaller projects in municipalities that have no zoning. Act 250 applications are heard and decided by a three-member district environmental commission, and because this typically involves a more extensive review, Act 250 approval may take longer than the local approval process.

Lastly, a project may be subject to various technical permits administered by the Vermont Agency of Natural Resources or the U.S. Army Corps of Engineers.

Know which permit(s) your project will require. It is important to take everything into consideration during the project design phase, which includes having a handle on the applicable permits. Due diligence up front can pay dividends by helping to identify and thereby avoid potential problems, and streamline the permitting process.

Ask questions early and often. It is important to engage the appropriate permitting authorities to informally discuss the project, gauge their response, and obtain advice based on their experience. If there is a close question of whether Act 250 applies to a project, the district coordinator for the project area can issue a jurisdictional opinion regarding whether an Act 250 permit is required.

Engage the appropriate professionals as necessary. While a ot of complexity can be involved with these permitting schemes, legal and technical consultants are not required in all cases. Even in instances where professionals might be advisable, a lot of work can be accomplished up front simply by engaging the appropriate state and local personnel.

Involve neighbors in the process before any hearing. Talking with neighbors and identifying their concerns may speed the permit process by avoiding protracted battles down the road. Personal attacks on project opponents are pointless and may result in an appeal that could have been avoided by respectful listening and consideration.

Decisions regarding local, Act 250, and state agency permits may be appealed to the Environmental Court and, ultimately, to the Vermont Supreme Court. While newspapers report on only the longstanding permit battles, there are countless matters that make it through the permitting process with little or no fuss.

The above advice, based on years of experience in the permit process, is designed to keep a project in this latter category. •

Stephen Reynes is a shareholder-director, and Jesse Moorman is an associate at the Burliongton law firm Primmer Piper Eggleston & Cramer. Reynes heads the firm’s environmental and land use practice; Moorman advises clients in environmental permitting and compliance matters.