Expiration of Bristol town plan will have consequences

BRISTOL — The current Bristol Town Plan, first adopted in December 2001 and readopted in January 2007, will expire on Jan. 15, 2012, almost two years after a proposed rewrite was turned down by voters in 2010.

The fact that Bristol, a town where land development has been the subject of some controversy in recent years, will be without a town plan in effect has some legal and practical ramifications.

Without a plan, Bristol can’t amend its zoning ordinances and can’t apply for municipal planning grants — the type of state funding that has footed the bill for planning commission consultation over the past two years.

Furthermore, the town plan is meant to guide town policy. The state relies heavily on the document when considering development proposals that trigger state review under Act 250, Vermont’s land-use law.

What would happen, then, if a large development, like a factory or natural resource extraction operation, sought an Act 250 permit to set up shop while the town doesn’t have a plan?

“Criteria 10 under Act 250 (looks) for compliance with a town plan … If there is no town plan, everything complies … So (townspeople and officials) lose their voice — to a certain extent — to control how things are developed within their town that are subject to Act 250,” said Adam Lougee, executive director of the Addison County Regional Planning Commission.

He explained that the town could add input on other criteria, but that the town plan carries serious weight as the town’s vision for its development.

On Jan. 3, the Bristol Planning Commission aims to iron out the exact perimeter of a controversial zone to prohibit natural resource extraction in and around Bristol’s downtown. Once that’s done, the planners are set on approving a proposed town plan and passing it on to the selectboard, which then must hold hearings and put it voters to adopt or reject. According to Lougee, once a plan has planning commission approval and has been warned by the selectboard, it constitutes a pending plan, which seems to hold weight in the court of law.

According to John Hasen, general counsel of Vermont’s Natural Resources Board, if a large development were to seek an Act 250 permit while Bristol had a pending plan, the board would likely consult a 2003 Supreme Court decision regarding a case involving John A. Russell Corp.

In this legal opinion, the court pointed to Title 24, Section 4387, Article D, to make its decision. That article states:

“The fact that a plan has not been approved shall not make it inapplicable … Bylaws, capital budgets and programs shall remain in effect, even if the plan has not been approved.”

The part of that article about “bylaws” means that even if the town doesn’t have a plan, its zoning ordinances remain in effect. But the first part of that article is less clear, and the Supreme Court justices acknowledged this when they interpreted the law.

“Although the wording is somewhat confusing,” wrote the justices, “we take this statutory section (to mean) that a pending plan must be given effect even if it is not yet finally approved … the plan is retroactive to cover any gap period between the expiration of the old plan and the adoption of the new one.”

Hasen said he interpreted the Supreme Court’s decision, which was made after the Natural Resources Board’s initial ruling on the issue, to mean “a new plan (though still pending voter approval) can apply to an (Act 250) application that has been filed after an old town plan has expired.”

Admittedly, Hasen said, this limbo period does present a grey area for Act 250 permitting.

“If this question is raised, the (Act 250) commission would look at the arguments and look at whether there was or wasn’t a town plan that could be applied. It’s not black and white,” he said.

One conclusive ruling that the Supreme Court did make in the Russell case, however, is that an applicant for an Act 250 permit cannot “withdraw an application and resubmit it to take advantage of less restrictive, subsequently enacted regulations.”

Reporter Andrew Stein is at [email protected]

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