The Vermont Statutes Online

Title 5: Aeronautics and Surface Transportation Generally

Chapter 017: Airport Zoning

• § 1001. Short title

  This chapter shall be known and may be cited as the “Airport Zoning Act.” (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1002. Airport zoning commission

  Prior to the initial zoning of any airport hazard area under this chapter, the political subdivision or joint airport zoning board that is to adopt the regulations shall appoint a commission, to be known as the airport zoning commission, to recommend the boundaries of the various zones to be established and the regulations to be adopted. The commission shall make a preliminary report and hold public hearings before submitting its final report. The legislative body of the political subdivision or the joint airport zoning board shall not hold its public hearings or take other action until it has received the final report of the Commission. When a municipal planning commission or regional planning commission already exists, it may be appointed as the airport zoning commission. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1003. Joint zoning board; powers

  If an airport hazard area appertaining to an airport is located outside the territorial limits of the political subdivision that owns or controls the airport, the political subdivision owning or controlling the airport and the political subdivision within which the airport hazard area is located, by ordinance or resolution adopted, may create a joint airport zoning board, which board shall have the same power to adopt, administer, and enforce airport zoning regulations applicable to the airport hazard area in question as that vested by section 1004 of this title in the political subdivision within which the area is located. Each joint board shall comprise three representatives of the political subdivision(s) in which the airport is located and two representatives of the political subdivision controlling the airport. The political subdivision in which an airport hazard area is located shall have two representatives. The members of the joint board so constituted shall by majority elect a chair from their number. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1004. Zoning regulations generally

  Any political subdivision having an airport hazard area within its territorial limits may adopt, administer, and enforce in the manner and upon the conditions prescribed in this chapter airport zoning regulations for an airport hazard area, which regulations may divide the area into zones. Within the zones, the subdivision may specify the land uses permitted and regulate and restrict the height to which airport hazards may be erected or allowed to grow. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1005. Incorporation in comprehensive zoning regulations

  In the event that a political subdivision adopts a comprehensive zoning ordinance regulating, among other things, the height of buildings, any airport zoning regulations applicable to the same area or portion of the area may be incorporated in and made a part of the comprehensive zoning regulations, and be administered and enforced. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1006. Conflict with other regulations

  In the event of conflict between any airport zoning regulations adopted under this chapter and any other regulations applicable to the same area, whether the conflict be with respect to the height of an airport hazard, the use of land, or any other matter, and whether such other regulations were adopted by the political subdivision that adopted the airport zoning regulations or by some other political subdivision, the more stringent limitation or requirement shall govern and prevail. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1007. Adoption or amendment of airport zoning regulations

  Airport zoning regulations shall not be adopted, amended, or changed under this chapter except by action of the legislative body of the political subdivision in question, or the joint board provided for in section 1003 of this title, after a public hearing, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the hearing shall be published in a paper of general circulation in the political subdivision in which the airport hazard area to be zoned is located. (Added 1985, No. 222 (Adj. Sess.), § 2; amended 2023, No. 6, § 19, eff. July 1, 2023.)

• § 1008. Record and notice of regulations

  The regulations, or any amendments to the regulations, shall be recorded in the office of the clerk of each city and town in which any portion of the land to which the regulations apply is located. Notice that the regulations or amendments have been adopted shall be sent by registered mail to the owner of every parcel of land to any portion of which the regulations or amendments are applicable. For the purposes of this provision, the person to whom the land was assessed in the last preceding annual tax levy shall be addressed in the same manner as the notice of the tax, unless a different owner or a different address is known to be the correct one. The notice shall also be given by posting in one or more public places in each city and town in which any portion of the land subject to the regulation is located, a map of the area subject to the regulations with sufficient explanation to give the public and the owners of land reasonable notice of the adoption of the regulations or amendments. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1009. Nature of regulations

  All airport zoning regulations adopted under this chapter shall be reasonable and none shall impose any requirement or restriction that is not reasonably necessary to effectuate the purposes of this chapter. In determining what regulations it may adopt, each political subdivision and joint airport zoning board shall consider, among other things, the character of the flying operations expected to be conducted at the airport, the nature of the terrain within the airport hazard area, the character of the neighborhood, and the uses to which the property to be zoned is to be put and adaptable. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1010. Existing nonconforming use

  Airport zoning regulations adopted under this chapter shall not require the removal, lowering, or other change or alteration or prohibit the repair or replacement of any airport hazard not conforming to the regulations when adopted or amended, or otherwise interfere with the continuance of any nonconforming use, except as provided in section 1013 of this title. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1011. Permits as to structures

  Airport zoning regulations adopted under this chapter may require that a permit be obtained before any new structure or use may be constructed or established and before any existing use or structure may be substantially changed, altered, or repaired. The permit shall be issued if the structure, as erected or altered, conforms with the regulations, or will not constitute a greater hazard than the structure that is replaced or altered. In any event, however, all regulations shall provide that before any nonconforming airport hazard may be replaced, substantially altered, repaired, rebuilt, allowed to grow higher, or replanted, a permit must be secured from the administrative agency authorized to administer and enforce the regulations, authorizing the replacement, change, or repair. A permit shall not be granted that would allow the establishment or creation of an airport hazard or permit a nonconforming airport hazard or use to be made or become higher or become a greater hazard to air navigation than it was when the applicable regulation was adopted or than it is when the application for a permit is made. Except as provided in this chapter, all applications for permits shall be granted. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1012. Variance from regulations

  A person desiring to use his or her property in violation of airport zoning regulations adopted under this chapter may apply to the board of adjustment for a variance from the zoning regulations in question. The variances shall be allowed where a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of the regulations and this chapter. However, any variance may be allowed subject to any reasonable conditions that the board of adjustment may deem necessary to accomplish the purposes of this chapter. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1013. Conditional permit or variance

  In granting any permit or variance under sections 1011-1013 of this title, if it deems such action advisable to accomplish the purposes of this chapter and reasonable in the circumstances, the administrative agency or board of adjustment may so condition the permit or variance as to require the owner of the airport hazard in question to permit the political subdivision, at its own expense, to install, operate and maintain such markers and lights as may be necessary to indicate to flyers the presence of an airport hazard. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1014. Administrative agency

  All airport zoning regulations adopted under this chapter shall provide for the administration and enforcement of the regulations by an administrative agency that may be an agency created by the regulations or any official, board, or other existing agency of the political subdivision adopting the regulations or of one of the political subdivisions that participated in the creation of the joint airport zoning board adopting the regulations, if satisfactory to that political subdivision, but in no case shall the administrative agency be or include any member of the board of adjustment. The duties of any administrative agency designated pursuant to this chapter shall include hearing and deciding all permits under section 1011 of this title, but the agency shall not have or exercise any of the powers delegated by this chapter to the board of adjustment. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1015. Appeals to board of adjustment

  (a) A person aggrieved, or taxpayer affected, by any decision of an administrative agency made in its administration of airport zoning regulations adopted under this chapter, or any governing body of a political subdivision, or any joint airport zoning board, which is of the opinion that a decision of the administrative agency is an improper application of airport zoning regulations of concern to the governing body or board, may appeal to the board of adjustment authorized to hear and decide appeals from the decisions of the administrative agency.

  (b) An appeal taken under this section shall be taken within a reasonable time, as provided by the rules of the board, by filing with the agency from which the appeal is taken and with the board a notice of appeal specifying the grounds. The agency from which the appeal is taken shall transmit to the board all the papers constituting the record upon which the action appealed from was taken.

  (c) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the agency from which the appeal is taken certifies to the board, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay in its opinion would cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by order of the board on notice to the agency from which the appeal is taken and on due cause shown.

  (d) The board shall fix a reasonable time for the hearing of appeals, give public notice and notice to the parties in interest, and render a decision within a reasonable time. Upon the hearing, any party may appear in person, by agent, or by attorney.

  (e) In conformity with the provisions of this chapter, the board may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination appealed from and make such order, requirement, decision, or determination as required, and to that end shall have all the powers of the administrative agency from which the appeal is taken. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1016. Powers of board of adjustment

  (a) All airport zoning regulations adopted under this chapter shall provide for a board of adjustment to have and exercise the following powers:

  (1) to hear and decide appeals from any order, requirement, decision, or determination made by the administrative agency in the enforcement of the airport zoning regulations, as provided in section 1015 of this title;

  (2) to hear and decide any special exceptions to the terms of the airport zoning regulations upon which the board may be required to pass under the regulations; and

  (3) to hear and decide specific variances under section 1012 of this title.

  (b) Where a zoning board of appeals or adjustment already exists, it may be appointed as the board of adjustment. Otherwise, the board of adjustment shall consist of five members, each to be appointed for a term of three years by the authority adopting the regulations and to be removable by the appointing authority for cause, upon written charges and after public hearing.

  (c) The concurring vote of a majority of the members of the board of adjustment shall be sufficient to reverse any order, requirement, decision, or determination of the administrative agency, or to decide in favor of the applicant on any matter upon which it is required to pass under the airport zoning regulations, or to effect any variation in the regulations.

  (d) The board shall adopt rules in accordance with the provisions of the ordinance or resolution by which it was created. Meetings of the board shall be held at the call of the chair and at such other times as the board may determine. The chair, or in his or her absence the acting chair, may administer oaths and compel the attendance of witnesses. All hearings of the board shall be public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating this fact. The board shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the board and shall be a public record. (Added 1985, No. 222 (Adj. Sess.), § 2; amended 2013, No. 161 (Adj. Sess.), § 72; 2023, No. 6, § 20, eff. July 1, 2023.)

• § 1017. Appeals to Superior Court

  (a) Any person aggrieved, or taxpayer affected, by any decision of a board of adjustment, or any governing body of a political subdivision or any joint airport zoning board, that is of the opinion that a decision of a board of adjustment is illegal, may present to the Superior Court of the county in which the airport is situated a verified petition requesting a de novo review of the decision. The petition shall specify the grounds for review. It shall be presented to the court within 30 days after the decision is filed in the office of the board.

  (b) Upon presentation of the petition, the court may review the decision of the board. The appeal shall not stay proceedings upon the decision appealed from, but, on application, on notice to the board, and on cause shown, the court may grant a restraining order.

  (c) The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies or of portions of copies that may be called for by the court.

  (d) The court shall have exclusive jurisdiction to affirm, modify, or set aside the decision brought up for review, in whole or in part, and, if need be, to order further proceedings by the board of adjustment.

  (e) In any case in which airport zoning regulations adopted under this chapter, although generally reasonable, are held by a court to interfere with the use or enjoyment of a particular structure or parcel of land to such an extent, or to be so onerous in their application to a structure or parcel of land, as to constitute a taking or deprivation of that property in violation of the Constitution of this State or the Constitution of the United States, the holding shall not affect the application of the regulations to other structures and parcels of land. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1018. Violations

  The political subdivision or agency adopting zoning regulations under this chapter may institute in any court of competent jurisdiction, an action to prevent, restrain, correct, or abate any violation of this chapter or of airport zoning regulations adopted under this chapter, or of any order or ruling made in connection with their administration or enforcement. The court shall grant to the plaintiff such relief, by way of injunction or otherwise, as may be proper under all the facts and circumstances of the case, in order fully to accomplish the purposes of this chapter and of the rules adopted and orders and rulings made pursuant to this chapter. (Added 1985, No. 222 (Adj. Sess.), § 2.)

• § 1019. Condemnation; appeals

  (a) The political subdivision within which the property or nonconforming structure or use is located, or the political subdivision owning the airport or served by it, may acquire such air right, navigation easement, or other estate or interest in the property or nonconforming structure or use in question, as may be necessary, by purchase or grant or condemnation in the manner provided under 5 V.S.A. chapter 5 in any case in which:

  (1) it is desired to remove, lower, or otherwise terminate a nonconforming structure or use;

  (2) the approach protection necessary cannot, because of constitutional limitations, be provided by airport zoning regulations under this chapter; or

  (3) to accomplish the purpose of this chapter, it appears advisable that the necessary approach protection be provided by acquisition of property rights rather than by airport zoning regulations.

  (b) If the adoption of airport zoning regulations in itself constitutes the taking of the property, or of rights in property, of any person, he or she may recover for the taking from the city or town in which the airport to which the regulations relate is situated, by petition filed in the Superior Court within two years from the time when the regulations were recorded, as provided in section 1008 of this title. If the owner of property so taken has applied for a variance within one year after the regulations were recorded, and his or her application is in whole or in part denied, he or she may file a petition for damages within one year after the mailing to him or her of a notice of the denial of his or her application, or within two years after the recording of the regulations, whichever period ends later.

  (c) If any corporation, subject to regulation as a public service corporation pursuant to Title 30 or as a common carrier or railroad pursuant to part 3 or 4 of this title, is aggrieved by the adoption of airport zoning regulations, or by a direction to lower, remove, reconstruct, or equip a structure, or by taking of its property or rights in property, or by refusal to grant a variance permit it may, within 30 days after the adoption, direction, taking, or refusal, appeal to the Transportation Board and, if after notice and a hearing, the Board determines that the public safety, necessity, and convenience will be best served by the amendment or annulment of the regulation, direction, or taking, it may order the regulation, direction, or taking to be amended or annulled or may grant a variance permit as prescribed in sections 1011–1013 of this title. (Added 1985, No. 222 (Adj. Sess.), § 2; amended 2017, No. 113 (Adj. Sess.), § 9; 2023, No. 6, § 21, eff. July 1, 2023.)

• § 1020. Penalties

  A person who violates a provision of this chapter or any rule, order, or ruling adopted or made pursuant to this chapter shall be fined not more than $500.00 or imprisoned for not more than 90 days, or both. (Added 1985, No. 222 (Adj. Sess.), § 2; amended 2021, No. 105 (Adj. Sess.), § 20, eff. July 1, 2022.)