32 V.S.A. § 5404a — Tax stabilization agreements; tax increment financing districts

(a) A tax agreement or exemption shall affect the education property tax grand list of
the municipality in which the property subject to the agreement is located if the
agreement or exemption is:
(1) A prior agreement, meaning that it was:
(A) a tax stabilization agreement for any purpose authorized under 24 V.S.A. § 2741 or comparable municipal charter provisions entered into or proposed and voted by
the municipality before July 1, 1997, or a property tax exemption adopted by vote
pursuant to chapter 125 of this title or comparable municipal charter provisions before
July 1, 1997; or
(B) an agreement relating to property sold or transferred by the New England Power Company
of its Connecticut River system and its facilities along the Deerfield River that
was warned before September 1, 1997.
(2) A tax stabilization agreement relating to industrial or commercial property entered
into under 24 V.S.A. § 2741 or comparable municipal charter provisions.
(3) An agreement relating to affordable housing, which may be approved under this subdivision
by the Commissioner of Taxes upon recommendation of the Commissioner of Housing and
Community Affairs, provided the agreement provides either for new construction housing
projects or rehabilitated preexisting housing projects and secures federal financial
participation that may include projects financed with federal low income housing tax
credits.
(4) An exemption of property owned by a nonprofit volunteer fire, rescue, or ambulance
organization and used for the purposes of the organization, adopted, extended, or
renewed by vote of a municipality under chapter 125 of this title or comparable municipal
charter provision after July 1, 1997.
(5) An exemption of property owned by a municipality situated in another municipality,
which has been exempted from municipal property taxes by vote of the municipality
in which the property is situated and that is used for municipal forest lands, municipal
water supply, or for other noncommercial municipal purposes. To be exempted under
this subsection, the property must have been voted an exemption by the municipality
before January 1, 1998, and such exemption may be extended or renewed thereafter by
a similar vote of the municipality.
(6) An exemption of a portion of the value of a qualified rental unit parcel. An owner
of a qualified rental unit parcel shall be entitled to an exemption on the education
property tax grand list of 10 percent of the grand list value of the parcel, multiplied
by the ratio of square footage of improvements used for or related to residential
rental purposes to total square footage of all improvements, multiplied by the ratio
of qualified rental units to total residential rental units on the parcel. “Qualified
rental units” means residential rental units that are subject to rent restriction
under provisions of State or federal law but excluding units subject to rent restrictions
under only one of the following programs: Section 8 moderate rehabilitation, Section
8 housing choice vouchers, or Section 236 or Section 515 rural development rental
housing. A municipality shall allow the percentage exemption under this subsection
upon presentation by the taxpayer to the municipality, by April 1, of a certificate
of education grand list value exemption obtained from the Vermont Housing Finance
Agency (VHFA). VHFA shall issue a certificate of exemption upon presentation by the
taxpayer of information that VHFA and the Commissioner shall require. A certificate
of exemption issued by VHFA under this subsection shall expire upon transfer of the
building, upon expiration of the rent restriction, or after 10 years, whichever first
occurs; provided, however, that the certificate of exemption may be renewed after
10 years and every 10 years thereafter if VHFA finds that the property continues to
meet the requirements of this subsection.
[Subdivision (b)(1) effective until contingency met; see also subdivision (b)(1) effective
July 1, 2028 if contingency met, set out below.]
(b)(1) An agreement affecting the education property tax grand list defined under subsection
(a) of this section shall reduce the municipality’s education property tax liability
under this chapter for the duration of the agreement or exemption without extension
or renewal, and for a maximum of 10 years. A municipality’s property tax liability
under this chapter shall be reduced by any difference between the amount of the education
property taxes collected on the subject property and the amount of education property
taxes that would have been collected on such property if its fair market value were
taxed at the equalized nonhomestead rate for the tax year.
[Subdivision (b)(1) effective July 1, 2028 if contingency met; see also subdivision
(b)(1) effective until contingency met, set out above.]
(1) An agreement affecting the education property tax grand list defined under subsection
(a) of this section shall reduce the municipality’s education property tax liability
under this chapter for the duration of the agreement or exemption without extension
or renewal, and for a maximum of 10 years. A municipality’s property tax liability
under this chapter shall be reduced by any difference between the amount of the education
property taxes collected on the subject property and the amount of education property
taxes that would have been collected on such property if its fair market value were
taxed at the equalized rate for the tax year.
(2) Notwithstanding any other provision of law, if a municipality has entered into an
agreement that reduces the municipality’s education property tax liability under this
chapter and the municipality establishes a tax increment financing district under
24 V.S.A. chapter 53, subchapter 5, the municipality’s municipal and education tax increment shall be
calculated based on the assessed value of the properties in the municipality’s grand
list and not on the stabilized value.
(c) Tax agreements not affecting the education property tax grand list. A tax agreement
shall not affect the education property tax grand list if it is:
(1) A tax exemption adopted by vote of a municipality after July 1, 1997 under chapter
125 of this title, or voted under a comparable municipal charter provision or other
provision of law for property owned by nonprofit organizations used for public, pious,
or charitable purposes, or exemptions of property of a nonprofit volunteer fire, rescue,
or ambulance organization adopted by vote of a municipality.
(2) A tax stabilization agreement relating to agricultural property, forestland, open
space land, or alternate energy generating plants entered into after July 1, 1997
by a municipality under 24 V.S.A. § 2741.
(3) A tax stabilization agreement relating to commercial or industrial property entered
into after July 1, 1997 by a municipality under 24 V.S.A. § 2741, or a property tax exemption for purposes of economic development adopted by vote
after July 1, 1997.
(d) Tax agreements not affecting the education property tax grand list as defined in subsection
(c) of this section shall not reduce the total education property tax liability of
the municipality to the State under this chapter. However, such agreements shall reduce
the education property tax liability of the owner of the property subject to the agreement
to the extent provided in the agreement. A municipality shall assess a tax on its
municipal grand list at a rate sufficient to raise an amount equal to the difference
between the municipality’s total education property tax liability to the State under
this chapter and the amount collected from education property taxes in the municipality
after reductions for all tax agreements in effect in the municipality as defined in
subsection (c) of this section. Any such tax assessed under this section shall be
identified on the tax bill of the municipality as a separate tax for municipally voted
tax agreements.
(e) [Repealed.]
(f) A municipality that establishes a tax increment financing district under 24 V.S.A. chapter 53, subchapter 5 shall collect all property taxes on properties contained within the
district and apply not more than 70 percent of the State education property tax increment,
and not less than 85 percent of the municipal property tax increment, to repayment
of financing of the improvements and related costs for up to 20 years pursuant to
24 V.S.A. § 1894, if approved by the Vermont Economic Progress Council pursuant to this section, subject
to the following:
(1) In a municipality with one or more approved districts, the Council shall not approve
an additional district until the municipality retires the debt incurred for all of
the districts in the municipality.
(2) The Council shall not approve more than six districts in the State, and not more than
two per county, provided:
(A) The districts listed in 24 V.S.A. § 1892(d) shall not be counted against the limits imposed in this subdivision (2).
(B) The Council shall consider complete applications in the order they are submitted,
except that if during any calendar month the Council receives applications for more
districts than are actually available in a county, the Council shall evaluate each
application and shall approve the application that, in the Council’s discretion, best
meets the economic development needs of the county.
(3)(A) A municipality shall immediately notify the Council if it resolves not to incur debt
for an approved district within five years of approval or a five-year extension period
as required in 24 V.S.A. § 1894.
(B) Upon receiving notification pursuant to subdivision (A) of this subdivision (3), the
Council shall terminate the district and may approve a new district, subject to the
provisions of this section and 24 V.S.A. chapter 53, subchapter 5.
(g) Any use of education property tax increment approved under subsection (f) of this
section shall be in addition to any other payments to the municipality under 16 V.S.A. chapter 133, shall remain available to the municipality for the full period authorized under
24 V.S.A. § 1894, and shall be restricted only to the extent that the real property development giving
rise to the increased value to the grand list fails to occur within the authorized
period or by the enforcement provided by subsection (j) of this section.
(h) To approve utilization of incremental revenues pursuant to subsection (f) of this
section, the Vermont Economic Progress Council shall do all the following:
(1) Application review.
(A) Review each application to determine that the infrastructure improvements proposed
to serve the tax increment financing district and the proposed development in the
district would not have occurred as proposed in the application, or would have occurred
in a significantly different and less desirable manner than as proposed in the application,
but for the proposed utilization of the incremental tax revenues.
(B) The review shall take into account:
(i) the amount of additional time, if any, needed to complete the proposed development
within the tax increment district and the amount of additional cost that might be
incurred if the project were to proceed without education property tax increment financing;
(ii) how the proposed development components and size would differ, if at all, including,
if applicable to the development, in the number of units of affordable housing, as
defined in 24 V.S.A. § 4303, without education property tax increment financing; and
(iii)(I) the amount of additional revenue expected to be generated as a result of the proposed
development;
(II) the percentage of that revenue that shall be paid to the Education Fund;
(III) the percentage that shall be paid to the municipality; and
(IV) the percentage of the revenue paid to the municipality that shall be used to pay financing
incurred for development of the tax increment financing district.
(2) Process requirements. Determine that each application meets all of the following four requirements:
(A) The municipality held public hearings and established a tax increment financing district
in accordance with 24 V.S.A. §§ 1891-1900.
(B) The municipality has developed a tax increment financing district plan, including
a project description; a development financing plan; a pro forma projection of expected
costs; a projection of revenues; a statement and demonstration that the project would
not proceed without the allocation of a tax increment; evidence that the municipality
is actively seeking or has obtained other sources of funding and investment; and a
development schedule that includes a list, a cost estimate, and a schedule for public
improvements and projected private development to occur as a result of the improvements.
(C) The municipality has approved or pledged the utilization of incremental municipal
tax revenues for purposes of the district in the same proportion as the utilization
of education property tax revenues approved by the Vermont Economic Progress Council
for the tax increment financing district.
(D) The proposed infrastructure improvements and the projected development or redevelopment
are compatible with approved municipal and regional development plans, and the project
has clear local and regional significance for employment, housing, and transportation
improvements.
(3) Location criteria. Determine that each application meets at least two of the following three criteria:
(A) The development is:
(i) compact;
(ii) high density; or
(iii) located in or near existing industrial areas.
(B) The proposed district is within an approved growth center, designated downtown, designated
village center, new town center, or neighborhood development area.
(C) The development will occur in an area that is economically distressed, which for the
purposes of this subdivision means that the municipality in which the area is located
has at least one of the following:
(i) a median family income that is not more than 80 percent of the statewide median family
income as reported by the Vermont Department of Taxes for the most recent year for
which data are available;
(ii) an annual average unemployment rate that is at least one percent greater than the
latest annual average statewide unemployment rate as reported by the Vermont Department
of Labor; or
(iii) a median sales price for residential properties under six acres that is not more than
80 percent of the statewide median sales price for residential properties under six
acres as reported by the Vermont Department of Taxes.
(4) Project criteria. Determine that the proposed development within a tax increment financing district
will accomplish at least three of the following five criteria:
(A) The development within the tax increment financing district clearly requires substantial
public investment over and above the normal municipal operating or bonded debt expenditures.
(B) The development includes new or rehabilitated affordable housing, as defined in 24 V.S.A. § 4303.
(C) The project will affect the remediation and redevelopment of a brownfield located
within the district. As used in this section, “brownfield” means an area in which
a hazardous substance, pollutant, or contaminant is or may be present, and that situation
is likely to complicate the expansion, development, redevelopment, or reuse of the
property.
(D) The development will include at least one entirely new business or business operation
or expansion of an existing business within the district, and this business will provide
new, quality, full-time jobs that meet or exceed the prevailing wage for the region
as reported by the Department of Labor.
(E) The development will enhance transportation by creating improved traffic patterns
and flow or creating or improving public transportation systems.
(i) The Vermont Economic Progress Council and the Department of Taxes shall make an annual
report to the Senate Committee on Economic Development, Housing and General Affairs
and the House Committees on Commerce and Economic Development and on Ways and Means
on or before April 1. The report shall include, in regard to each existing tax increment
financing district, the date of creation, a profile of the district, a map of the
district, the original taxable value, the scope and value of projected and actual
improvements and developments, projected and actual incremental revenue amounts and
division of the increment revenue between district debt, the Education Fund, the special
account required by 24 V.S.A. § 1896 and the municipal General Fund, projected and actual financing, and a set of performance
measures developed by the Vermont Economic Progress Council, which shall include the
number of jobs created in the district, what sectors experienced job growth, and the
amount of infrastructure work performed by Vermont firms. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this
subsection.
(j)(1) Authority to adopt rules. The Vermont Economic Progress Council is hereby granted authority to adopt rules in
accordance with 3 V.S.A. chapter 25 for the purpose of providing clarification and detail for administering the provisions
of 24 V.S.A. chapter 53, subchapter 5 and the tax increment financing district provisions of this section.
A single rule shall be adopted for all tax increment financing districts that will
provide further clarification for statutory construction and include a process whereby
a municipality may distribute excess increment to the Education Fund as allowed under
24 V.S.A. § 1900. From the date the rules are adopted, the municipalities with districts in existence
prior to 2006 are required to abide by the governing rule and any other provisions
of the law in force; provided, however, that the rule shall indicate which specific
provisions are not applicable to those districts in existence prior to January 2006.
(2) Authority to issue decisions.
(A) The Secretary of Commerce and Community Development, after reasonable notice to a
municipality and an opportunity for a hearing, is authorized to issue decisions to
a municipality on questions and inquiries concerning the administration of tax increment
financing districts, statutes, rules, noncompliance with 24 V.S.A. chapter 53, subchapter 5, and any instances of noncompliance identified in audit reports conducted
pursuant to subsection (l) of this section.
(B) The Vermont Economic Progress Council shall prepare recommendations for the Secretary
prior to the issuance of a decision. As appropriate, the Council may prepare such
recommendations in consultation with the Commissioner of Taxes, the Attorney General,
and the State Treasurer. In preparing recommendations, the Council shall provide a
municipality with a reasonable opportunity to submit written information in support
of its position. The Secretary shall review the recommendations of the Council and
issue a final written decision on each matter within 60 days of the receipt of the
recommendations. However, pursuant to subdivision (5) of this subsection (j), the
Secretary may permit an appeal to be taken by any party to a Superior Court for determination
of questions of law in the same manner as the Supreme Court may by rule provide for
appeals before final judgment from a Superior Court before issuing a final decision.
(3) Remedy for noncompliance. If the Secretary issues a decision under subdivision (2) of this subsection that includes
a finding of noncompliance and that noncompliance has resulted in the improper reduction
in the amount due the Education Fund, the Secretary, unless and until he or she is
satisfied that there is no longer any such failure to comply, shall request that the
State Treasurer bill the municipality for the total identified underpayment. The amount
of the underpayment shall be due from the municipality upon receipt of the bill. If
the municipality does not pay the underpayment amount within 60 days, the amount may
be withheld from any funds otherwise payable by the State to the municipality or a
school district in the municipality or of which the municipality is a member.
(4) Referral; Attorney General. In lieu of or in addition to any action authorized in subdivision (3) of this subsection
(j), the Secretary of Commerce and Community Development or the State Treasurer may
refer the matter to the Office of the Attorney General with a recommendation that
an appropriate civil action be initiated.
(5) Appeal; hearing officer. A hearing that is held pursuant to this subsection shall be subject to the provisions
of 3 V.S.A. chapter 25 relating to contested cases. The hearing shall be conducted by the Secretary or by
a hearing officer appointed by the Secretary. If a hearing is conducted by a hearing
officer, the hearing officer shall have all authority to conduct the hearing that
is provided for in the applicable contested case provisions of 3 V.S.A. chapter 25, including issuing findings of fact, hearing evidence, and compelling, by subpoena,
the attendance and testimony of witnesses.
(k) The Vermont Economic Progress Council may require a third-party financial and technical
analysis as part of the application of a municipality applying for approval of a tax
increment financing district pursuant to this section. The applicant municipality
shall pay a fee to cover the actual cost of the analysis to be deposited in a special
fund, which shall be managed pursuant to chapter 7, subchapter 5 of this title and
be available to the Council to pay the actual cost of the analysis.
(l) The State Auditor of Accounts shall conduct performance audits of all tax increment
financing districts. The cost of conducting each audit shall be considered a “related
cost” as defined in 24 V.S.A. § 1891(6) and shall be billed back to the municipality pursuant to subsection 168(b) of this title. Audits conducted pursuant to this subsection shall include a review of a municipality’s
adherence to relevant statutes and rules adopted by the Vermont Economic Progress
Council pursuant to subsection (j) of this section, an assessment of record keeping
related to revenues and expenditures, and a validation of the portion of the tax increment
retained by the municipality and used for debt repayment and the portion directed
to the Education Fund.
(1)(A) For municipalities with a district created prior to January 1, 2006 and a debt repayment
schedule that anticipates retention of education increment beyond fiscal year 2016,
an audit shall be conducted when approximately three-quarters of the period for retention
of education increment has elapsed, and at the end of that same period, an audit shall
be conducted for the final one-quarter period for retention of education increment.
(B) Notwithstanding subdivision (1)(A) of this subsection (l), the audit schedule for the Burlington Waterfront Tax Increment Financing District
shall be as follows:
(i) an audit shall be conducted on or after October 1, 2021;
(ii) an audit shall be conducted not more than three years from the date debt is incurred
as allowed by 2020 Acts and Resolves No. 175, Sec. 29(4); and
(iii) a final audit shall be conducted at the end of the retention period for the District.
(2) For municipalities with a district created after January 1, 2006 and approved by the
Vermont Economic Progress Council, an audit shall be conducted five years after the
first debt is incurred and a second audit seven years after completion of the first
audit. A final audit will be conducted at the end of the period for retention of education
increment. (