HomeMy WebLinkAboutAO-18-01 - Supplemental - 1505 Dorset Street (9)CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD
APPEAL #AO-18.01
RESPECTFULLY SUBMITTED ON BEHALF OF APPELLANTS
BY DANIEL A. SEFF OF MSK ATTORNEYS
NOVEMBER 20, 2018
A. This is an appeal to the DRB from an act or decision of the administrative officer
pursuant to 24 V.S.A. §§ 4465 and 4466 and Section 17.14 of the South
Burlington Land Development Regulations.
24 V.S.A. § 4465(a) provides in part: "An interested person may
appeal any decision or act taken by the administrative officer ... by
filing a notice of appeal with the' DRB (emphasis added).
24 V.S.A. § 4466 provides: "A notice of appeal shall be in writing and
shall include the name and address of the appellant, a brief description
of the property with respect to which the appeal is taken, a reference to
the regulatory provisions applicable to that appeal, the relief requested
by the appellant, and the alleged grounds why the requested relief is
believed proper under the circumstances."
• SBLDR § 17.14 provides: "An interested party may appeal any
decision or act of the Administrative Officer to the Development
Review Board within fifteen (15) days of the date of the decision or act
in accordance with 24 V.S.A. §4465."
B. Appellants are "interested persons." An "interested person" includes:
24 V.S.A. § 4465(b)(3): "A person owning or occupying property in the
immediate neighborhood of a property that is the subject of any
decision or act taken under this chapter, who can demonstrate a
physical or environmental impact on the person's interest under the
criteria reviewed, and who alleges that the decision or act, if confirmed,
will not be in accord with the policies, purposes, or terms of the plan or
bylaw of that municipality."
24 V.S.A. § 4465(b)(4): "Any ten persons who may be any combination
of voters or real property owners within a municipality listed in
subdivision (2) of this subsection who, by signed petition to the
appropriate municipal panel of a municipality, the plan or a bylaw of
which is at issue in any appeal brought under this title, allege that any
relief requested by a person under this title, if granted, will not be in
accord with the policies, purposes, or terms of the plan or bylaw of that
municipality. This petition to the appropriate municipal panel must
designate one person to serve as the representative of the petitioners
regarding all matters related to the appeal."
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C. The Dorset Meadows Sketch Meeting is Still Open.
® SBLDR § 15.05(C)(3) mandates that the DRB "shall determine if the
proposed [sketch plan] application meets the purposes of the
SBLDR (emphasis added).
In a recent case involving the South Burlington DRB, the
Environmental Court confirmed that the DRB must issue a "final
decision" concerning a sketch plan application. Saxon Partners LLC
BJ's Warehouse Sketch Plan, No. 5-1-16 Vtec, 2016 WL 4211462, slip
op. at 3 (Vt. Super. Ct. Envtl. Div. Mar. 25, 2016) (Walsh, J.) (emphasis
added).
24 V.S.A. § 4461(a): "... Meetings of any appropriate municipal panel
shall be held at the call of the chairperson and at such times as the
panel may determine.... The panel shall keep minutes of its
proceedings, showing the vote of each member upon each
question...." (emphasis added).
The Minutes of the August 7, 2018 Sketch Meeting and the CCTV
video of that Meeting confirm that the DRB did not "determine" if the
sketch plan application "meets the purposes of the SBLDR. There
was no vote to accept or reject the proposed sketch plan as required
by SBLDR § 15.05(C)(3), Section 4461(a) and Saxon Partners.
D. Because the Dorset Meadows Sketch Meeting is Still Open, the Developer's
September 26, 2018 Preliminary Plat and Master Plan Applications are
Premature, Unripe, Invalid, Null and Void, and of No Force or Effect.
The requirement for a formal and final recorded vote on a sketch plan
application is an important policy for at least two reasons. First, a
sketch plan approval starts a six-month clock running for the applicant
to file master plan and preliminary plat applications:
SBLDR § 15.07(C)(1) (master plan application must be filed "within
six (6) months after the final DRB meeting on the sketch plan")
(emphasis added).
SBLDR § 15.08(A) (preliminary plat application must be filed
"within six (6) months of the meeting on the sketch plan").
• Second, the public has the right to know where a proposed project is in
the permitting process, as well as the right to know how DRB members
are voting on particular projects.
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E. Who is the 'Administrative Officer' with Authority to Approve a Preliminary
Plat and/or Master Plan Application as Complete?
• According to the Minutes of the August 6, 2018 City Council meeting
submitted by Marla Keene, Paul Conner was appointed as Zoning
Administrative Officer on that date.
• According to the Minutes of the September 17, 2018 City Council
meeting, Dalila Hall was appointed as "Acting Zoning Administrative
Officer" on that date.
• According to the Minutes of the September 18, 2018 DRB meeting,
"Ms. Keene introduced Dalila Hall, the new Zoning Administrator."
• On September 26 and October 12, 2018, Dalila Hall was the
Administrative Officer.
• Ms. Hall did not approve the Preliminary Plat or Master Plan
applications.
• Ms. Keene signed her November 9, 2018 memos to the DRB as
"Assistant Administrative Officer' and "Assistant Zoning Administrative
Officer."
• Assuming Ms. Keene was the "Assistant Administrative Officer" on
September 26, 2018, it is unclear whether she had authority to approve
the Preliminary Plat and Master Plan applications as complete.
According to State law (24 V.S.A. § 4448(b)):
The planning commission may nominate and the
legislative body may appoint an acting administrative
officer who shall have the same duties and
responsibilities as the administrative officer in the
administrative officer's absence. If an acting
administrative officer position is established, or, for
municipalities that establish the position of assistant
administrative officer, there shall be clear policies
regarding the authority of the administrative officer
in relation to the acting or assistant officer.
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F. Requested Relief
Appellants request respectfully that the DRB reverse the September 26
and October 12, 2018 decisions by Ms. Keene and Mr. Conner holding
that the Applications are 'complete" and declare these decisions
approving the Applications as "complete" invalid, null and void, and of no
force or effect. In addition, Appellants request respectfully that the DRIB
declare that the Applications are premature, unripe, invalid, null and void,
and of no force or effect.
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