Statutory Provisions

In Vermont, exclusionary zoning methods are expressly prohibited by an enforceable statute.  The use of inclusionary zoning by a Vermont municipality is optional, but if it is adopted statutory provisions must be followed for certain types of development.  These provisions are part of the framework for affordable housing and inclusionary zoning set forth in 24 V.S.A., Chapter 117, the state enabling act for local land use planning and regulation.The Goal: Affordable Housing.  Chapter 117 includes among its goals“[t]o ensure safe and affordable housing for all Vermonters.”  24 V.S.A. § 4302(c)(11) (popularly known as Act 200). All regional and municipal land use planning and regulation must be consistent with the goals of Act 200.

Regional Planning for Affordable Housing.  Each of the state’s eleven regional planning commissions is required to adopt a regional plan that contains “a housing element” identifying the housing needs of all economic groups in the region. 24 V.S.A. §§ 4345a(5), 4348a(a)(9).

Municipal Planning for Affordable Housing.  A Vermont municipality is not required to adopt a plan, though most have. A municipal plan, if adopted, must also contain “a housing element” addressing low and moderate income housing needs as identified in the regional plan. 24 V.S.A. §§ 4382(a)(10). A municipality may establish an advisory housing commission to acquire data about affordable housing and to review and make recommendations concerning appropriate land use regulations.  24 V.S.A. § 4433(5).

Land Use Regulations to Implement the Municipal Plan.  A municipality that has adopted a municipal plan may adopt zoning or other land use regulations so long as they conform to the plan and other provisions of the enabling act. 24 V.S.A. § 4410.

Exclusionary Zoning Prohibited.  Land use regulations must not contain provisions that would have the effect of excluding housing—including mobile homes and multi-unit or multi-family dwellings—that meets the needs identified in the housing element of the municipal plan. 24 V.S.A. § 4412(1).  The attorney general is authorized to investigate violations of this provision and to challenge an alleged violation in court.  24 V.S.A. § 4453.

Inclusionary Zoning Permitted.  A municipality may incorporate specific provisions in its land use regulations under which a developer must include a percentage of affordable housing units in a subdivision or planned unit development. 24 V.S.A. § 4414(7).

Required Inclusionary Provisions.  If a municipality chooses to adopt affordable housing regulations under 24 V.S.A. § 4414(7) they must, at a minimum:

    • Conform with specific housing policies of the municipal plan.
    • Be based on an analysis of local affordable housing needs.
    • Include incentives to make affordable units feasible for developers, such as density bonuses for other housing units and reductions or waivers of lot size and other dimensional requirements, fees, or requirements for improvements.
    • Require conditions in the permit approving a project to assure that the units remain affordable, such as income qualifications for renter or purchasers, marketing, and regulation of the price, rent, or resale price of the units for a fixed period of time.

Other Inclusionary Provisions.  Other provisions not specifically mentioned in the statute may be adopted, such as conditions requiring rents on other units to be increased to permit reduction of rents on affordable units, or requiring impact fees to be imposed on nonresidential developers to support affordable housing for low-income workers.

Examples of Inclusionary Zoning. Few Vermont municipalities have taken advantage of these inclusionary zoning provisions.  Burlington adopted inclusionary zoning as part of a broader housing strategy in 19902.   Burlington’s inclusionary zoning requirements apply to all new market-rate developments of 5 or more homes and any converted non-residential structures that result in at least 10 homes.  The developer must set aside 15 – 25% of the development for affordable housing, depending on the average price of the homes.  The program also features a 99-year or permanent control period for homes to continue being affordable, extensive incentives for developers, and cooperation with a nonprofit housing trust.  More recently, as the affordable housing squeeze tightens, other Vermont communities have adopted inclusionary zoning3.

2 See Burlington Comprehensive Development Ordinance, art. 9, pt. 1 (10/21/08),
3 See, for example, Middlebury,  Zoning and Subdivision Regulations § 748 (adopted 11/18/08), See also Hinesburg, Zoning Regulations (adopted May 2009)