HomeMy WebLinkAboutSD-21-28 - Supplemental - 3070 Williston Road (66)
1150 Airport Drive
S Burlington, VT 05403
(802) 281-3623
VIA ELECTRONIC MAIL
April 9, 2022
South Burlington Development Review Board
C/O Ms. Marla Keene, Development Review Planner
City of South Burlington
180 Market Street
South Burlington, VT 05403
Re: Responses to Application #MP-21-02 Findings of Fact dated March 22, 2022, and
Requested Additional Information for Application #SD-21-28
Dear Members of the Board,
Thank you for your approval of Application #MP-21-02 and the associated Findings of Fact and Decision as
we try to move the proposed master plan from concept to construction to operations by April 1, 2023.
In advance of the upcoming April 25th hearing, please find the following narrative responsive to items in the
#MP-21-02 decision and the requirement to reopen Application #SD-21-28.
Background
Since receiving the Master Plan Approval #MP-21-02, 3070 Williston Road letter from the Development
Review Planner on March 23, 2022, both Beta Technologies (“BETA” or “Applicant”) and the City of South
Burlington Planning and Zoning (“SBURL P&Z”) staff have been working to resolve the condition imposed by
the #MP-21-02 decision in section D) Requested Waivers and Findings, Item 4 requiring a re-opening of
Application #SD-21-28. The re-opening of this application is intended to address the position that
Application #SD-21-28 is not in compliance with 14.06B(2) and allow new testimony to be heard regarding
possible solutions to the condition, including the proposed illustrated parking solution; Figure 1 below and
attached. For clarity, Figure 1 below has been edited to show the proposed parking locations as “filled” blocks
in lieu of “outlined” blocks, as shown in Exhibit A.
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 2 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
Proposed Temporary/Interim Parking Locations
The illustration proposed (Figure 1 below) to relocate parking, temporary or other, while well-intentioned is
neither practical nor achievable without significant harm and delay to the Project. The two locations
proposed, behind and to the side of 3060 Williston Road (dark red) and adjacent to the proposed assembly
facility (light red) either require significant redesign and permitting or are not practical due to site topography,
or both. In both instances, relocating the parking will require temporary/interim parking to be constructed
and then removed to allow the as-permitted parking to be constructed. Because the decision has conditioned
the Applicant to amend Application #SD-21-28 prior to beginning construction, the impact to the start of
construction will be in excess of 120 days, considering design, permitting, and appeal periods, effectively
delaying the start of construction until October or November of this year. Such a delay will push construction
into the upcoming winter creating a cumulative impact that will be significantly greater than the 120 days
due to winter-time inefficiencies.
Figure 1: Proposed Illustrative Diagram for Possible Parking Locations
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 3 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
Understanding that the proposed temporary parking locations are not viable, there are several other possible
solutions to consider:
1) Acknowledge that buildings which, by their nature, need to adjoin a transportation route other than
roadways for vehicles, satisfy parking location requirements to the extent that they do front on other
transportation infrastructure; or
2) Reconsider application of the waiver provision 14.07E – Modification of Standards; or
3) The Applicant revises Application #SD-21-28 to eliminate parking; or
4) Condition the approval of Application #SD-21-28 such that the Applicant is able to construct the
“Blue” phase while designing and permitting a “Building” consistent with the LDR definition.
Of the four options listed above, the most practical paths forward, both of which are compliant with the
LDR’s, are the first two: (1) to recognize the need for transportation-related buildings to adjoin transportation
routes other than roadways and thereby necessarily requiring that parking be between the building and a
vehicular route or roadway, and (2) revisit the interpretation of 14.07E’s parking waiver provision. Each of the
four options are outlined below.
1) Recognizing that Transportation-Related Buildings Can’t Satisfy Parking Location Requirements When
They Adjoin Transportation Routes Other Than Roadways for Vehicles
The A-Build (“Blue” Phase) facility proposed by the Applicant is a state-of-the-art assembly plant to house
BETA’s final assembly of electric-powered, zero-emissions aircraft and related equipment. Therefore, it is
integral to the intermodal/multimodal purpose of the building that it faces and directly abuts the airport’s
runway infrastructure for purposes of access into and out of the facility. For purposes of locating the
Project’s new parking area, the northerly side of the facility facing the runway infrastructure should be
deemed the front side of the structure. Consequently, it would be permissible to locate the Project’s parking
area southerly of the facility as proposed by the Applicant.
Specifically, as it relates to the proposed assembly facility and the Transportation Security Administration
(TSA) Security Identification Display Area (SIDA) requirements, as defined in Title 49 Code of Federal
Regulations (CFR) Part 1542, parking beyond the restricted area as defined by BTV, TSA and the Federal
Aviation Administration (FAA) authorities is not permitted by Federal regulation and thus qualifies per
14.06B(2)(b)(iii) as a “unique site condition.”
The location of parking areas for purposes of 14.06B(2)(a) is determined with reference to the rear or side of
a building. The rear or side of a building, in turn, is determined with reference to any adjoining public street:
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 4 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
“Any side of a building facing a public street shall be considered a front side of a building for purposes of
[14.06(B)(2)(a)].” A “public street” is defined as:
“A right-of-way or fee simple tract of land which has been set aside for public travel, dedicated to the City by
the recording of a subdivision plat or irrevocable offer of dedication, built to public street standards, and
eligible for ownership by the City of South Burlington or other public entity.”
LDR, Art. 2, at 44.
A public street right-of-way is, in turn, defined as one that is:
“set aside for public travel which is accepted or eligible to be accepted for ownership by the City of South
Burlington or the State, if so authorized; or has been dedicated for public travel by the recording of a plat or
a subdivision which has been approved or is subsequently approved by the City of South Burlington; or has
otherwise been established as a public street prior to the adoption of these land development regulations;
the right-of-way for a public street.”
These definitions are all focused on travel by automobiles. When dealing with non-automobile modes of
transportation, however, the policies underlying these definitions of “street” for access and building
orientation purposes would apply with equal force to transportation routes other than paved public ways
designed for use by automobiles.
For instance, it would be inconceivable to require a marina building requiring water access to be located along
a street with parking between the building and the water when direct water access for boats is integral to the
purpose of the marina building. Similarly, it would be impractical to require an airport terminal such as the
Burlington International Airport to front on Airport Drive, with surface parking located between the terminal
and the apron and taxiway. The same would hold true for the location of a train station along railroad tracks
and other multimodal sites.
In essence, for land use planning purposes, the airport’s runway infrastructure is very much a public way to
which the Project needs direct access given the nature of the activities contemplated for the storage, service
and maintenance, manufacture, and assembly of aircraft. Interposing a parking area between the building
and the runway infrastructure would be as inconceivable as requiring the marina to be next to the road, or to
interpose parking between an airport terminal and the taxiway. Therefore, for purposes of 14.06B(2)(a), the
northerly side of the proposed facility facing the airport runway infrastructure should be deemed the front of
the building, allowing parking to be located between the facility and the more distant Williston Road.
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 5 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
2) Reconsideration of 14.07E – Modifications of Standards (Waiver Provision)
The Land Development Regulations (LDR’s) are constructed to be read such that the Applicant, when
resolving the parking requirements, must first read the relevant sections of Article 14, including both
14.06B(2) and then 14.07E if the project does not comply with 14.06B(2), and then read Article 15 relevant
sections, 15.02A(4)(c).
If the project does not wholly comply with 14.06B(2), then the Applicant may review 14.07E, the waiver
provision, to determine if the project qualifies for a waiver. In reviewing the waiver provision, it is clear that
the Project, which is the A-Build (“Blue” Phase) only, does qualify:
• An “unusual hardship” existed prior to the Applicant’s proposed project:
o The Project site requires direct access to the airport’s runway infrastructure for the building
to operate as intended under the by-right zoning, AIR-Industrial, for the site in support of the
FAA mandate that the site be used for “Aeronautical” purposes.
o This would be true whether the project is a traditional hangar or an electric aircraft assembly
facility, as proposed, or another aeronautical-related type facility.
o That parking cars “to the rear of the building” would be in direct conflict with FAA security
requirements.
• Project does not propose to place a “new structure less than five (5) feet from any property
boundary.”
• Project does not create a “total site coverage exceeding the allowable limit for the applicable zoning
district.”
The standard of care to apply in 14.07E is that the “Board may modify such standards as long as the general
objectives of Article 14 and the City’s Comprehensive Plan are met.” Given that the hurdle is that the ”general”
standards are met and not the “specific” standards are met, it is clear that a project that requires airport
runway access (an unusual hardship and operating requirement), creates 500 green jobs (Opportunity
Oriented, Green & Clean), provides 5 acres and 2MW of solar power (Green & Clean), is heated/cooled by
geothermal (Green & Clean), incorporates both rainwater harvesting and stormwater treatment (Green &
Clean), establishes walking and bike paths connected to the broader SBURL network (Walkable), and has a
Traffic Demand Management Plan (Opportunity Oriented, Green & Clean, Walkable) that minimizes the use of
fossil fuels and traffic congestion is considered to have met the standard of care as provisioned as “general.”
The Comprehensive Plan, as adopted in 2016, in section 2.2C – Economy, outlines a series of strategies that
the City, and thereby, its departments, boards, and commissions, should be actively engaged in to sustainably
grow the SBURL economy, and more specifically Strategy 14 which reads:
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 6 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
“Conduct a comprehensive analysis of City regulations relating to permitting with an eye toward ways to
eliminate outdated or duplicative requirements and to further streamline the process of obtaining needed
permits with a specific focus on improving predictability of the process.”
With the application of the waiver provision, which is intended to address the issue of predictability for
“unique site conditions” and “unusual hardships”, the Project is in compliance with Article 14 prior to the
reading of Article 15. It was incorrectly determined that the Project must meet 14.06B(2)(a), rather than
14.06B(2) as modified by the waiver provision outlined in 14.07E. Since the project is in compliance per
14.07E, the Applicant is not asking for a parking waiver under Article 15, nor does a waiver need to be
granted under Article 15. Rather, it should be recognized that the “Blue” phase of the Project is in compliance
and should be deemed approved without the condition that Application #SD-21-28 be reopened.
If a waiver is granted as allowed, it would align with the draft LDR language recently presented by SBURL
P&Z, and approved, modified, and moved to a public hearing, by SBURL City Council at its April 4th, 2022
meeting.
In approving this language, City Council and P&Z staff recognize the “unusual hardship” that exists and the
need to modify the requirement to a “by-right” condition, rather than a “waiver” condition. With this
language, applying the allowable waiver provision for Application #SD-21-28 would be both consistent with
and in compliance with this language.
3) Elimination of Parking from the Project
Since the LDR’s do not have a minimum parking standard and allow that “such commercial or private parking
may or may not exist on the same lot as the principal use”, the Applicant would propose eliminating the
Figure 2: Snippet from Live Stream of SBURL City Council Meeting on April 4, 2022
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 7 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
majority of the parking shown for the A-Build (“Blue”) phase of the Project, leaving only that parking which
meets the “allowable side parking” standard as calculated in the attached Exhibit B. Parking would not be
constructed until construction begins on the “commercial” building at a time to be determined in the future.
Exhibit B indicates the parking to remain, and the calculations used to determine the amount of allowable
parking.
Below is a brief description on how the parking was calculated and narrative for each of the key elements –
parking to the rear, parking to the side, and ADA parking:
• Parking to the Rear – The YELLOW area represents the parking space allowed by being to the rear of
3060 Willison Road. This area accounts for five (5) general spaces
• Parking to the Side – The GREEN area represents the allowable side parking when a site contains
multiple buildings and has been calculated using the Allowable Side Parking formula of 1/2 * (W1 +
W2) where W1 is the length of the front façade for 3060 Williston Road (70’-2”) and W2 is the length
from the eastern property line to the first parking space to the west of the eastern property line
(330’-1”). Totaling these two lengths and dividing by 2, yields and allowable side parking area of 200’
in total. The applicant has chosen to apply the entire allowable length to the eastern side of 3060
Williston Road. This area accounts for a total of twenty-five (25) spaces which is allocated as three (3)
general spaces and twenty-two (22) electric vehicle parking spaces.
• ADA Parking – There is one (1) ADA parking space that falls outside the GREEN area, however since
ADA parking spaces are exempt from the calculation, this space complies with the regulations. In
total, twelve (12) ADA spaces are provided.
To supplement the on-site parking, the Applicant has a commitment in place with Burlington International
Airport to provide the necessary additional parking spaces, using existing, underutilized parking infrastructure
to support BETA’s operations until the permanent parking is constructed; see attached letter, Exhibit C. BETA
will develop a plan to shuttle employees between the airport and the assembly facility closer to the opening
date of the facility.
4) Condition #SD-21-28 to Construct a “Building”
Of the options rendered in the decision, requiring the applicant to both construct a “building” and delay
construction of the Project proposed under #SD-21-28 until the “building” has been designed, permitted and
is ready for construction, will cause irreparable damage to the Applicant’s ability to operationalize the
assembly facility on April 1, 2023, as scheduled.
Designing and permitting a “building” under the most aggressive timeline will take a minimum of 150 days
including statutory appeal periods. This will push construction into the fall and possibly early winter.
South Burlington Development Review Board April 9, 2022
Re: Response to Application #MP-21-02 Findings of Fact
and Decision dated March 22, 2022 Page 8 of 8
Beta Technologies | 1150 Airport Drive, South Burlington, VT 05403 | (802) 281-3623
If a condition to construct a “building” is included, then the Applicant would request the following language in
response to SBURL P&Z Staff comments from its 21DEC21 #MP-21-02 report as shown below:
21DEC21 #MP-21-02 Staff Report, Page 9 … staff recommends the Board ask the applicant:
• How they propose to guarantee the “building” is built
o Applicant shall not construct its next phase of the assembly project until construction of the
“building” has begun.
• What condition could they propose that would require it to exist
o See above response.
• With what timeframe that gave the City an actionable enforcement
o Site plan application shall be submitted within [120] days from the date of approval of application
#SD-21-28.
o Construction shall be completed within [24] months from receipt of a final zoning permit for the
“building.”
In closing, the Applicant requests the two most practical paths forward be considered: (1) acknowledge the
need for transportation-related buildings to adjoin transportation routes other than roadways, and (2) revisit
the interpretation of 14.07E’s parking waiver provision. Additionally, the Applicant will also be prepared to
discuss other possible options, including deletion of parking from the initial project.
BETA’s desire to grow these jobs here in SBURL is strong and we very much hope for a reconsideration given
two fully compliant, well-established, and reasonable paths outlined above. BETA appreciates consideration
of this request, and we look forward to our upcoming discussions.
All the best,
Art Klugo
Team Member
aklugo@beta.team
(802) 373-8112
List of Exhibits:
Exhibit A – Sht. C-012 – Proposed Temporary Parking Locations
Exhibit B – Sht. EXB-200A - Overall Site Plan (A-Build)
Exhibit C – Burlington International Airport Letter of Commitment – Off-site Parking