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Act 250’s “Criterion 9L” – Frequently Asked Questions

Act 250’s “Criterion 9L”
Frequently Asked Questions

What is Act 250?
Act 250 is an environmental review and permitting process. Its purpose is to review select projects for their potential impacts on the project site and the surrounding area. There are ten criteria, and several sub-criteria, used to evaluate a project, related to such issues as water, transportation, and conformance with local and regional plans. District Commissions, made up of citizen board members, review applications.

When does it apply to projects?
Generally speaking, Act 250 applies when projects meet certain criteria – for example, when projects are commercial projects taking place on a certain number of acres, or when a certain number of lots are being created. (You can learn more about when Act 250 applies here.) Act 250 also applies when land is already subject to an Act 250 permit.[1]

What is Criterion 9L?
9L is one of the Act 250 criteria. The purpose of this criterion, also called “settlement patterns,” is to ensure that projects that are subject to Act 250 are consistent with Vermont’s historic settlement pattern of compact downtowns and villages surrounded by working lands and the rural countryside. Criterion 9L does this by minimizing sprawl outside of existing, compact settlements.

Criterion 9L was updated in 2014. Before Criterion 9L was changed, Act 250 did not have a direct way to address incremental sprawl – poorly planned development that uses land inefficiently outside of compact centers and chips away at Vermont’s historic settlement pattern. Criterion 9L was updated to address the fact that Vermont has seen creeping strip development along many state highways and busier municipal roads. This has undermined the economic vitality of our downtowns and villages centers – even as we invest in them with public tax dollars. The “new” 9L was designed to address these impacts.

“Strip development” and “sprawl” are often thought of as problems that don’t apply to rural areas, but both are common throughout Vermont. This is particularly true in communities that are near areas with growth pressure, along roads leading to regional centers and downtowns, and in communities that have put land use policies in place that allow for commercial strip development along highways.

How does 9L work?
Under 9L, if a project is not located within an “existing settlement,” it must make efficient use of land, energy, roads, utilities and other supporting infrastructure, AND must not contribute to a pattern of strip development. The Natural Resources Board (NRB) has developed guidance to help applicants determine how to address the requirements of 9L and ensure that projects do not contribute to a pattern of strip development.

What are the benefits of 9L?

  • The criterion is designed to reduce sprawl, which is poorly planned development that uses land inefficiently and undermines our downtowns and villages centers – even as we invest in them. It’s also designed to encourage “infill” development where strip development already exists, to make those areas more functional.
  • It gives people more options for transportation because it helps steer development into places that are accessible on foot or by public transit, as well as by car.
  • It can help keep municipal expenses down since sprawl can cost communities money: the costs of sewer extensions, road maintenance, and deployment of emergency services to outlying areas are all greater with spread out development.
  • 9L helps keep pressure off our famed working landscape, one of our primary economic drivers in Vermont.
  • By encouraging infill within existing strip development, and by prioritizing development in compact centers, Criterion 9(L) is explicitly pro-development – that is, it makes it easier for development in locations that support the goals Vermont wishes to achieve.

Does Criterion 9L prevent all development in outlying areas?
No. Criterion 9L says that if development is within an existing strip, it needs to be built in a way that minimizes the characteristics of strip development. Outside an existing settlement, development can happen if it meets smart growth and other criteria.

How 9L has affected projects.
This information is current as of March 1, 2017.
The revised Criterion 9L went into effect on June 1, 2014.

Since its revision, the vast majority of projects have been found to meet Criterion 9L. Below are some statistics about how many projects have been approved, denied, and withdrawn since June 1, 2014:

1,121 Act 250 permits have been issued.

  • 101 were “major” permits, which means there was a hearing
  • 566 were “minor” permits – permits issued without a hearing (i.e., administratively)
  • 454 of the permits granted were for “administrative amendments.” These are changes to permits already in existence that have no potential for impacts under any of the criteria.

12 permit applications were denied, but none were denied because of failure to meet Criterion 9(L).
Criterion 9(L) is only part of what a District Commission reviews – before an Act 250 permit can be issued, a District Commission must find that the project meets all of the Act 250 criteria.

12 “partial findings” have been issued.
“Partial findings” is a process that allows people requesting permits to have a District Commission review the criteria likely to be the most difficult to meet. This shortened process gives an applicant the opportunity to determine whether a project will meet the requirements of Act 250, without the cost and time of a full application.

If a project does not get a positive finding on a criterion – i.e., the project is found not to meet that criterion – then the applicant may, within a certain time period, resubmit the project with changes that may make the project comply with Act 250. Sometimes, in their partial findings, District Commissions indicate the types of changes that would allow a project to meet the requirements of Act 250.

Since Criterion 9L was changed, a District Commission has issued one decision – on an application for partial findings – where a project was found not to meet Criterion 9L.

In this case, an application to build a Dollar General in Shoreham, the applicant submitted an application for partial findings on several criteria. The District Commission found that the project did not comply with Criterion 9(L). However, the Commission also found that the applicant had not provided sufficient information to issue a positive finding under two other criteria as well. In other words, Criterion 9(L) alone was not the deciding factor in this case. In addition, the District Commission offered a number of ways that the applicant could change the project to better meet Criterion 9(L). Though this does not guarantee approval, it provides a path.

Criterion 9(L) is only one of many criteria used by Act 250 to take a holistic look at environmental protection. As the numbers above suggest, Criterion 9(L) – despite being new, and the subject of much attention – is only one factor considered when it comes to determining the appropriateness of a project.

What are some of the ways that Criterion 9(L) has affected projects – positively and negatively?
There have been other projects where 9(L) has come into play in various ways – in some of these cases, projects were made better.

Several projects have been improved:

  • A proposal for a convenience store in the town of Jamaica initially did not meet Criterion 9L, but was then redesigned to meet it, and received a permit (Permit #2W0931-1). Design improvements included shared road access with an adjacent business, plus improved pedestrian access that linked the convenience store to the adjacent business and a residential area. The redesign also reduced the overall footprint of the project on the site, reducing the paved area and its impacts.
  • A proposal for a car dealership, Denecker Chevrolet, in Ferrisburgh was withdrawn by the developer. While Criterion 9L was one of the reasons reported in the press for the withdrawal, the official record with District 9 Commission does not contain a reference to Criterion 9L as a reason for withdrawal. (Note: as of December 15th, 2014 the applicant had opened a dealership on an existing car dealership site in Middlebury, something seen by many as a positive outcome because it reuses an existing site instead of affecting an undeveloped area. The reason given for the move was General Motors requirements.
  • A Nissan dealership was proposed in North Clarendon, Vermont, just north of the village but also near other car dealerships. VNRC and the Agency of Natural Resources both expressed concerns about the project’s conformance with Criterion 9(L). After discussions with both VNRC and ANR, the applicant agreed to provide better pedestrian circulation on the site, and also agreed to build a multi-use path in the future that would connect the site to adjacent sites as well as a nearby road.

These are examples of how, by focusing on both location and site design, Criterion 9(L) has encouraged the infill and reuse of existing areas of strip development, and better connections between new and existing development, to help reduce dependence on driving.

A limited number of projects withdrew their Act 250 applications, though sometimes due to multiple factors.

  • BJ’s Wholesale Club, Rutland. This application was for partial findings under Criterion 9(L). There was an existing Act 250 permit on the site for a mini mall. Because of this, in its decision the District Commission onlyreviewed whether the material changes between the old permit and the new proposed project met 9L. This means that their review was very narrow. Ultimately, the District Commission found that the project met Criterion 9(L). However, the District Commission’s approval was appealed to Environmental Court by the Diamond Run Mall, neighboring landowner who wanted to see BJ’s as an anchor tenant there instead. The Agency of Natural Resources was a party to the appeal. As of September 2016, the applicant had withdrawn its application, though it is not clear that the choice to withdraw was entirely based on Criterion 9(L); there may have been other factors. According to a VTDigger.org article, “the company will likely reapply for a permit in several months.” The article also says that “mounting costs and waning interest on the part of the tenant had compelled the [development company] to withdraw.”
  • The application for a proposed development in South Hero that would include restaurants, offices, industrial uses and/or retail, was withdrawn after the developers consulted with the District Coordinator about the project’s design, and found that it was unlikely to meet Criterion 9L The application was withdrawn and we have heard that the project is being redesigned to comply with Criterion 9L.

 

Resources

Information provided by the Vermont Natural Resources Council

www.vnrc.org

Contacts:

Kate McCarthy, AICP, Sustainable Communities Program Director
kmccarthy@vnrc.org

Jon Groveman, Policy and Water Program Director
jgroveman@vnrc.org