36. Does a municipality have to adopt the statutory language of appropriate municipal panels (AMPs)?
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37. Are rules of procedure and ethics policies required for municipal boards?
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38. What is the permitting relationship between the AMPs and the ZA?
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39. How much authority does a ZA have in amending permits issued by an AMP?
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40. What type of notice is required for a ZA to conduct minor reviews?
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41. When does the "180-day plat approval expiration" provision take effect?
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42. Do all permits issued by the zoning administrator have to be posted?
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43. Where notice is required within view of a public right-of-way, does a private driveway suffice?
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44. Who is required to post the notice of permit - the ZA or the landowner?
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45. Does either the ZA or the applicant have a duty to replace posted warnings and notices that have been ripped down?
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46. When should warnings and notices be posted - at the time the application is submitted, or when the permit is issued?
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47. What are the consequences for an applicant for not posting a zoning permit on the subject property?
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48. Is it a violation of a zoning bylaw if a posted notice gets ripped down?
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49. What is deemed approval? How does an applicant assert his or her right to deemed approval?
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50. When does the time period begin to run for deemed approval?
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51. If the zoning board of adjustment and the planning commission hold a combined review of an application, should the decisions of the two boards be separate?
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52. If a municipality has a joint meeting of the ZBA and PC, which notice requirements do you follow? Is it the more restrictive of the two?
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53. Does the ZA need to issue a permit after the AMP issues a decision?
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54. How much information must be given (e.g. date, time, place) to adjourn an AMP hearing to another time?
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55. Is it sufficient for an AMP to issue an oral decision to applicants?
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56. Must AMP decisions be mailed and, if so, to whom?
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57. Should decisions be sent via certified mail to the applicant and sent via regular mail to everyone else?
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58. Can a municipality charge to recover the cost of administering its zoning regulations?
     Answer

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No, municipalities should continue to use the existing terminology of planning commission, zoning board of adjustment, development review board, etc., in referring to their various zoning boards. For purposes of jurisdictional clarity, municipal bylaws must clearly spell out the jurisdiction of the respective boards by listing which boards will conduct which review processes. 24 V.S.A. § 4460.

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Yes, AMPs must adopt both rules of procedure and rules of ethics with regard to conflicts of interest. 24 V.S.A. § 4461. Look for model policies in the near future to be developed by the Vermont Land Use Education and Training Collaborative.

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Little has changed in the law that specifically changes the jurisdiction or authority of either the zoning administrator or the respective zoning boards. One change that local officials should be aware of is the referral process, which now requires zoning administrators to refer applicants to the AMP with jurisdiction over the review requested by the applicant. This is in contrast to the practice of many ZAs to deny the application and then have the applicant appeal to the zoning board. The ZA's decision to refer to the AMP is an appealable one.

Also, there is new authority in Chapter 117 for the bylaws to grant zoning administrators authority that did not exist under the prior law, such as the ability to make amendments to existing permits and to review and approve applications for minor development. 24 V.S.A. § 4464(c).

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A zoning administrator has no authority to amend permits issued by an AMP, unless the zoning bylaw permits the ZA to make amendments. A bylaw that provides for administrative review must specify thresholds and conditions under which the ZA may amend permits. The primary standard to be followed by the ZA is that no amendment issued as an administrative review can have the effect of substantively altering any of the findings of fact of the most recent approval. 24 V.S.A. § 4464(c).

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The statute on administrative review does not establish any notice requirements for the ZA to perform administrative reviews. Municipalities are advised that a best practice would be to follow the same notice and warning requirements as apply to other reviews pursuant to 24 V.S.A. § 4464(a).

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Depending on your local bylaw, this provision may or may not be effective. If a local bylaw states the old rule that approved subdivision plats must be filed within 90 days of the approval, that rule shall apply until September 2005, at which time the new law will supersede the bylaw. At that time, the new rule in 24 V.S.A. § 4463 will be effective, which requires approved plats to be recorded within 180 days of approval. If permitted in the bylaw, the ZA will then have the authority to extend that deadline by another 90 days, if final local or state permits or approvals are still pending.

If your local bylaw is silent on this topic, the 180-day rule in 24 V.S.A. § 4463 already applies.

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The new law requires that a notice of permit be posted within view from the public right-of-way for 15 days from the issuance of the permit. Additionally, that same notice must be posted in at least one public place in the municipality (e.g., on the notice board outside the municipal offices) for 15 days from the issuance of the permit. 24 V.S.A. § 4449(b).

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The notice must be visible from the nearest public right-of-way. So, if a neighbor walking by on a town highway can clearly see the posted notice, posting on a private driveway will suffice. Keep in mind that if the notice is posted somewhere on a private driveway and no one can see the notice from the nearest public right-of-way, this provision will not have been satisfied. 24 V.S.A. § 4449(b).

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If a bylaw does not require the zoning administrator to post, the burden lies with the applicant to post the notice. Municipalities may decide that this is a job best handled by the zoning administrator and include a bylaw provision requiring the ZA to post the notice. Applicants are advised that if the posting provision is not satisfied, an interested person could question the validity of the permit. 24 V.S.A. § 4449(b).

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If the bylaw does not require the zoning administrator to post the notice, it is the applicant's duty to see that a copy of the notice is posted for the requisite time period. If the bylaw requires the ZA to post the notice, then it is the ZA's duty to see that the posting remains up. Applicants must consider that this provision is designed to ensure adequate notice to would-be interested persons. If those people are not adequately warned about a hearing or about their rights to appeal, the validity of the permit may be questioned. Therefore, while a bylaw may assign the duty to post to a particular municipal official, applicants still have a strong interest in making sure the notice is visible for the requisite time period.

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There are two times that posting is required: The first is when a hearing is publicly warned on an application. For conditional use review, variances, appeals of ZA decisions and final plat review for subdivisions, the warning for the public hearing must be published in a newspaper, and posted in three or more places in the municipality, which includes posting within view from the nearest public right of way. 24 V.S.A. § 4464(a). Some bylaws may require that similar procedures be followed for site plan review and other types of development review.

The second time that posting is required is when a permit is issued. 24 V.S.A. § 4449(b). When the permit is issued, a notice must be posted within view from the nearest public right of way, and in at least one public place in the municipality, both for 15 days from the date of issuance.

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This provision is designed to ensure adequate notice to would-be interested persons. If they are not adequately warned about a hearing or about their rights to appeal, interested persons may question the validity of the permit in court. Therefore, applicants are warned to make sure that the notice is visible for the requisite time period. Failure to post could be a ground on which to question the validity of the permit in court.

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A notice that is ripped down does not rise to the level of a bylaw violation, as it is not "land development." However, it could be a reason for an interested person to challenge the issuance of a zoning permit in court.

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Generally stated, deemed approval is an applicant's right to approval for a project as applied for, if a permitting authority has failed to issue a permit in the statutorily required time period.

It is an open question under this new version of Chapter 117 as to how an applicant must assert this right. Some believe that the right to deemed approval, and the right to take action on an application, vests immediately upon the failure of the permitting authority to issue a permit in the requisite time period. Others believe that an applicant must take an appeal to the next highest tribunal to assert that right and be granted a permit to build the project. References to deemed approval can be found at 24 V.S.A. §§ 4448(d) and 4464(b)(1).

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A ZA has 30 days to take action and avoid deemed approval, which runs from the date that a complete application is submitted. 24 V.S.A. § 4448(d). Keep in mind that most bylaws specify the necessary elements of an application, and most ZAs use a checklist to certify completeness. If the application has not been accepted because it is incomplete, the clock does not begin to run.

An appropriate municipal panel has 45 days from the close of the final public hearing to issue a decision. If the board fails to issue a decision within that time period, the decision is deemed approved. 24 V.S.A. § 4464(b)(1).

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Each board issuing a decision in a matter should issue a separate decision, complete with the factual bases and conclusions relating to the review standards applied to the application. This holds even (and especially) where the two boards are comprised of the same or many of the same members.

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A best practice would be to follow the warning requirements that provide more notice to more people. So, if there is a joint meeting of the ZBA and PC, and the application is for site plan and conditional use review, it would be best to follow the notice requirements laid out in 24 V.S.A. § 4464 (a), which apply to conditional use review hearings. This requires that notice be provided not less than 15 days prior to the date of the public hearing by (1) publication in a newspaper; (2) posting in three places in the municipality, which includes posting within view from the nearest public right-of-way, and (3) written notification to the applicant and to owners of all properties adjoining the property subject to development, without regard to any public right-of-way.

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Yes. The permit issued by the ZA is issued once the AMP has issued a decision approving an application. Its purpose is to create a paper trail in that it must be recorded in the land records (as well as in the records of the zoning office) and posted within view from the nearest public right-of-way once issued. 24 V.S.A. § 4449(b), (c).

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An AMP may adjourn a hearing to another time, without re-warning it, by providing those in attendance with the precise date, time, and place of the continuation of the hearing. 1 V.S.A. § 312(c)(4).

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No. Decisions must be written. However, sending a copy of the minutes in which the decision is recorded can suffice, if they include the factual bases and conclusions relating to the review standards applied to the application. Additionally, boards are advised to not issue oral decisions "on the spot" - rather, to make use of deliberative session and issue a written decision within the requisite 45 days. It would put a board in a tough spot to issue an oral opinion approving a project, only to issue a written decision a month later denying it.

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Yes. All AMP decisions must be sent by certified mail to the applicant and to the appellant within 45 days of closing the final public hearing. Also, copies of the decision must be mailed to every person who participated in the proceeding (whether they submitted oral or written testimony). A copy of the decision must also be filed with the ZA wherever zoning records are kept, and another copy must be recorded in the municipal clerk's office. 24 V.S.A. § 4464(b)(3).

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Decisions must be sent by certified mail to the applicant and any appellant. The law does not require certified mail to be used for sending copies to persons having been heard at the hearing, though it may be a best practice. 24 V.S.A. § 4464(b)(3).

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Municipalities cannot "direct-bill" zoning applicants for the costs of administering their respective zoning reviews, but they may establish a reasonable fee structure which may include the cost of posting and publishing notices, holding public hearings, and the cost of conducting periodic inspections during the installation of public improvements. Many bylaws currently charge fees as a percentage of the total cost of the project. Municipalities may require that applicants pay these fees upon submission of an application or prior to the issuance of any municipal land use permit. 24 V.S.A. § 4440(b).

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