HomeMy WebLinkAboutBATCH 5 - Supplemental - 1600 Spear StreetState of Vermont
Department of Environmental Conservation
Dan O'Rouke, Esquire
34 Pearl Street
P.O. Box 174
Essex Junction, Vermont 05453
Dear Dan:
A GENCY OF NA TURAL RESOURCES
Wastewater Management Division
111 West Street
Essex Junction, Vermont 05452.
Telephone (802) 879-5656
June 20, 2008
Subject: Permit #EC-4-1750 - Lot #1 located in the City of South Burlington,
Vermont.
I reviewed your e-mail to me dated June 10, 2008 regarding the property approved by
Permit #EC-4-1750. I understand the single family residence on Lot #1 has six bedrooms
instead of the five bedrooms approved by Permit #EC-4-1750. I further understand that the
residence with six bedrooms, the water service and sanitary sewer service were constructed
prior to January 1, 2007 and there have been no changes to the water supply and
wastewater disposal system, no an increase in the number of bedrooms within the
residence, or further subdivision of the property after January 1, 2007.
Based on the above understanding, the above subject lot is considered an exempt property
as allowed by the Wastewater System and Potable Water Supply Rules Effective
September 29, 2007, Subchapter 3 Section 1-304(a)(1). This is to say that the landowners
may continue to have six bedrooms without requiring an amendment to the permit. Please
note that a permit from the Wastewater Management Division will be required prior to
changes to the water and sanitary sewer services, increasing the number of bedrooms
within the residence, or further subdivision of the property after January 1, 2007. Please
note that this letter does not relieve the landowner of complying with all rules and
regulations administered by the City of South Burlington.
Please contact me should you have any questions.
Sincerely,
� o��-r'
Ernest Christianson
Regional Engineer
C City of South Burlington
Vale Drive
WARRANLY DEED :
KNOW ALL MEN BY THESE PRESENTS:
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON, a Vermont municipality having a place of business in
South Burlington in the County of Chittenden and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee,
and the heirs, successors and assigns ',of the -Grantee forever, a certain piece of land in South
Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of:the Land Records of the City of South Burlington,
and more particularly described as follows:
Being that roadway identified as Vale Drive, from its intersection with Nowland Farm
Road (formerly known as Deerfield Drive) to and including the cul-de-sac at its northern
terminus, as shown and depicted on a plat entitled
Final Plat for Subdivision
of Gerald Milot and John Larkin
(formerly Nowland Two)
Spear Street
South Burlington ,Vermont
dated 8/21/98, last revised 1/5/99, consisting of two pages, prepared by Vaughn C. Button,
L.S., recorded in Map Volume 430, Pages 57 and 58 of the Land Records of the City of
South Burlington.
Reference is hereby made to the aforementioned instruments, the records thereof and the
references therein in further aid of this description.
TO HAVE AND TO HOLD said granted premises, with all the privileges and
appurtenances thereof, to the said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are FREE FROM EVERY ENCUMBRANCE; and that it hereby engages to WARRANT
AND DEFEND the same against all lawful claims whatever, except as aforesaid.
C-1 T Y a: L E F K x S 0 F= F I C= E
Received Mug IM010 10:'�+P,
Recorded in VOL: 934 PCB: 114'
OF So. Burlington Land Records
Atts--sit a
Donna Kinville
Mg Clerk
01-3008577
V = 93$ PG s 115
IN WITNESS WHEREOF, the Grantor has caused this deed to be executed this J day
of December, 1999.
WI SSES: LA PA RTNERSHIP
L /l ,� � _ � BY
Gerald C Milot by Carl H Lisman attorney -in -
act pursuant to a power of attorney, dated December
1999, recorded in Volume, Page / of
t e City of South Burlington Land Records
BY (� ),,j�
John arkin, General Partner and
Duly: Authorized Agent
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this day of December, 1999, Carl H. Lisman, as attorney -in -fact
for Gerald C. Milot, a general partner of Larkin Milot Partnership, personally appeared, and he
acknowledged this instrument by him signed' ,sealed to be his free t and deed, and the free
act and deed of Gerald C. Milot.
Before me IzA
NotaryPublic-
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS
At South Burlington this (!� day of December, 1999, John P. Larkin, a general partner
of Larkin Milot Partnership, personally appeared,/ghd he acknowledged this trument by him
signed and sealed to be his free act and deed, and t e fr e act and dee o ar 'n ilot Partnership.
Before me
Notary ublic
Vermont Property Transfer Tnx
32 V.S.A. bhap" 231
RE if lei REC `D-TAX PAID BOARD
OF HEALTH CERT. RECT.
?T LAND USE & DEVELOPMENT
°LAIR ACTT ..:ERT. REC T
Return .No. -------------------------
Donna Kinville City Clerk
Date MQ9 18,2010
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402 (802) 864-5756
09\20014\010\legal\offroad.chl
00008576 V : 934 PG = 112
Dorey Road
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON, a Vermont municipality having a place of business in
South Burlington in the County of Chittenden and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee,
and the heirs, successors and assigns of the Grantee forever, a certain piece of land in South
Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington,
and more particularly described as follows:
Being that roadway identified as Dorey Road, from its intersection with Vale Drive to the
Grantor's southerly boundary, as shown and depicted on a plat entitled
Final Plat for Subdivision
of Gerald Milot and John Larkin
(formerly Nowland Two)
Spear Street
South Burlington ,Vermont
dated 8/21/98, last revised 1/5/99, consisting of two pages, prepared by Vaughn C. Button,
L.S., recorded in Map -Volume 430, Pages 57 and 58 of the Land Records of the City of
South Burlington.
Reference is hereby made to the aforementioned instruments, the records thereof and the
references therein in further aid of this description.
TO HAVE AND TO HOLD said granted premises, with all the privileges and
appurtenances thereof, to the said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are FREE FROM EVERY ENCUMBRANCE; and that it hereby engages to WARRANT
AND DEFEND the same against all lawful claims whatever, except as aforesaid.
CITY CLERK'S OFFICE
Received Mas 1BY2010 10:30A
Recorded in VOL: 934 PG: 112 J3
OF So. Burlington Land Records
Attr3s-:t a
Donna Yinville
-tty Clark
00008576
IN WITNESS WHEREOF, the Grantor has caused this deed to be executed this 6 day
of December, 1999.
WI ESSES:
i
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
11.
BY \�y
Gerald C. Milot, by Carl H. Lisman, attorney-in-
ct pursuant to a power of attorney, dated December
1999, recorded in Volume 541, Page &f of
e C' of South Burlington Land Records
BY
John arkin, General Partner and
Duly Authorized Agent
At South Burlington this 6 day of December,1999, Carl H. Lisman, as attorney -in -fact
for Gerald C. Milot, a general partner of Larkin ilot Partnership, personally appeared, and he
acknowledged this instrument by him signed a d sealed to be his free act and deed, and the free
act and deed of Gerald C. Milot. r
Before me
Notary Public
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this -4— day of December, 1999, John P. Larkin, as general partner
of Larkin Milot Partnership personally appeare and he acknowledged ' instrument by him
signed and sealed to be his free act and deed, e f ee act and defd�of L Milot Partnership.
Before me
Notary Public
Vermont Frnpert.5 Trcnn-rer a:;
32 V-1.A- Chap 231
—ACItNT.: WI_EDGEMENT—
R£TURN REC'D-rAX PAID BOARD
OF HEALTH CERT. REC'D.
VT LAND USE & DEVELOPMENT
FLANS ACT. CERT. REC'O
Return No - --------------------------
Donna Kinville CHU Clerk;
Date Ma9 ISY2010
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402 (802) 864-5756
10\20014\010\legal\offroadch1
00008575
tier ri ed mug 18,21310 10; (44
Recorded in VOL: 9134 Fu:
OF So. Eurlin3ton Land Records
Atteaes"
Donna Y, i nor i I le
city Clerk
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
V: 934 FG: 110
Nowland Farm Road
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON, a Vermont municipality having a place of business in
South Burlington in the County of Chittenden and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the
Grantee, and the heirs, successors and assigns of the Grantee forever, a certain piece of land in
South Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington,
and more particularly described as follows:
Being that portion of the roadway identified as Deerfield Drive (now known as
Nowland Farm Road) not previously dedicated to the City of South Burlington, that
is, that portion of the roadway easterly of the intersection of Deerfield Drive and
Pinnacle Drive, being approximately 1,300 feet in length, as shown and depicted
on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. al.
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map
Volume 286, Pages 111 and 112 of the Land Records of the City of South
Burlington.
Reference is hereby made to the aforementioned instruments, the records thereof and the
references therein in further aid of this description.
TO HAVE AND TO HOLD said granted premises, with all the privileges and
appurtenances thereof, to the said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are FREE FROM EVERY ENCUMBRANCE; and that it hereby engages to WARRANT
AND DEFEND the same against all lawful claims whatever, except as aforesaid.
IN WITNESS WHEREOF, the Grantor has caused this deed to be executed this day
00008575
s08575
V -- 934 PG -- i l l
LA N MILOT PARTNERSHIP
BY _�� �f LS
Gerald C. Milot, General Partner and Duly Authorized
Agent
BY LS
John P. rkin, General Partner and Duly Authorized
Age 1
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington this Tt- day of May, 1
authorized agent of Larkin Milot Partnership,
instrument, by him sealed and subscribed, to be
Larkin Milot Partnership.
Before me
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington this 11- day of May, 1998
authorized agent of Larkin Milot Partnership,
instrument, by him sealed and subscribed, to be i f
Larkin Milot Partnership.
Before me
t, general partner and duly
and he acknowledged this
and the free act and deed of
CARL H. LISMAN \,
Vermont Notary Public
Coni,n ,,ion Expires 2-10-99
Notary Public
P. Larkin, general partner and duly
t
eared, and he acknowledged this
deed and the free act and deed of
(;ARI- tl. i�i MAi
vc fnuu rit i ilii.s�tZ� PL1�4ir�
CC.)n
Notary Public
Vermont Properts Tran_fer Tar:
.32 V_=s.A- Chap 231
—AC-Kt OWLEDGEMENT--
n:ETURN REC'.rr-TAX PAID BOARD
OF HEALTH CERT. REC'G.
VT LAND USE t DEVELOPMENT
PLANS ACT, CERT. REC'D
Return No- -------------------------
Donna Hinville Citw Clerk
mate hag 18,2010
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402
(802) 864-5756
06\20014\010\1ega1\offroad. chl
108
Utility Easement
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON, aVermont municipality having a place of business in
South Burlington in the County of Chittenden and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee,
and the heirs, successors and assigns of the' Grantee forever, a certain piece of land in South
Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
I"
U.
U J U1
W `N C
�i ' n " a!
F-►q�d� ZN
== 4.1
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington,
and more particularly described as follows:
Being an easement, 10 feet in width, for the installation, construction, operation,
repair, maintenance and replacement of underground utilities, including storm
sewer, sanitary sewer, electric, water, natural gas, telephone, television lines, piping
and appurtenances, in the locations depicted as "10' Utility Easement" and shown
on a plat, being sheets 1 and 2 of 2, entitled
Final Plat for Subdivision
of Gerald Milot and John Larkin
(formerly Nowland Two)
Spear Street
South Burlington ,Vermont
dated 8/21/98, last revised 1/5/99, consisting of two pages, prepared by Vaughn C.
Button, L.S., recorded in Map ;Volume 430, Pages 57 and 58 of the Land Records
of the City of South Burlington, together with the right to enter on the lane of the
Grantor, its successors and assigns, for such purposes, provided that such entry
shall be reasonably necessary to the purposes hereof and that any such premises
shall be restored by the Grantee, its successors and assigns, to its condition prior
to entry at no cost to the Grantor or its successors or assigns;
As depicted on the plan, the easement is located in the southerly portion of Lot 52
and the easterly portions of Lots 52 through 60.
Reference is hereby made to the aforementioned instruments, the records thereof
and the references therein in further aid of this description.
TO HAVE AND TO HOLD said' granted premises, with all the privileges and
appurtenances thereof, to the said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are FREE FROM EVERY ENCUMBRANCE; and that it hereby engages to WARRANT
AND DEFEND the same against all lawful claims whatever, except as aforesaid.
00008574
V = ?34 € G g 109
IN WITNESS WHEREOF, the Grantor has caused this deed to be executed this day
of December, 1999.
TNESSES: 1
i�
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
BY
Gerald C. Milot, by Carl H. Lisman, attorney -in -
fact pursuant to a power of attorney, dated December
1999, recorded in Volume', Page /0 of
the City of South Burlington Land Records
BY("
John rkin, General Partner and
Duly Authorized Agent
At South Burlington this 4 day of December, 1999, Carl H. Lisman, as attorney -in -fact
for Gerald C. Milot, a general partner of Larkin Milot Partnership personally appeared, and he
acknowledged this instrument by him signed sealed to be his free act d deed, and the free
act and deed of Gerald C. Milot.
Before me
Notary
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this 6 day of December, 1999, John P. Larkin, a general partner
of Larkin Milot Partnership, personally appeared, he acknowledged this instrument by him
signed and sealed to be his free act and deed, the f ee act and deed of arkin of Partnership.
Before me
Notary Pu lic
Vermont Property Transfer Tax
32 V.S.A. Chcxp 231
—ACKNOWLEDGEMENT—
RETURN PAID BOARD
OF HEALTH CERT. REC'O.
VT LAND USE & DEVELOPMENT
PLANS ACT. CERT. PECID
Return 'No. -----------
Donna k;inville-C:iE; erE;
Gate Mqq 15t2010,
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402 (802) 864-5756
10\20014\010\1egal\offeas2.chl
:1 -C) 6
Utility Easement
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON, a Vermont municipality having a place of business in
South Burlington in the County of Chittenden and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee,
and the heirs, successors and assigns of the', Grantee forever, a certain niece of land in South
Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8,1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington,
and more particularly described as follows:
Being an easement, 20 feet in width, for the installation, construction, operation,
repair, maintenance and replacement of underground utilities, including storm
sewer, sanitary sewer, electric, water, natural gas, telephone, television lines, piping
Uj
and appurtenances, in the locations depicted as "20' Utility Easement" and shown
on a plat, being sheet 1 of 2, entitled
U.
LL
"
Final Plat for Subdivision
ce
of Gerald Milpt and John Larkin
(formerly Nowland Two)
r-4
Uj a .
Spear Street
South Burlington ,Vermont
~
dated 8/21/98, last revised 1/5/99, consisting of two pages, prepared by Vaughn C.
�Zn
Button , L.S., recorded in Map Volume 430, Pages 57 and 58 of the Land Records
la" 6 4
of the City of Soutli Burlington, together with the right to enter on the 1m1di of th@
Grantor, its successors and assigns, for such purposes, provided that such entry
shall be reasonably necessary to the purposes hereof and that any such premises
shall be restored by the Grantee, its successors and assigns, to its condition prior
to entry, at no cost to the Grantor or its successors or assigns.
As depicted on the plan, the easement is located in Common Land "B" (Revised)
and proceeds easterly in the common boundary of Lots 58 and 59.E
Reference is hereby made to the aforementioned instruments, the records thereof
and the references therein in further aid of this description.
TO HAVE AND TO HOLD said granted premises, with all the privileges and
appurtenances thereof, to the, said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are free from every encumbrance; and that it hereby engages to WARRANT AND
107
DEFEND the same against all lawful claims whatever, except as aforesaid.
IN WITNESS WHEREOF, the Grantor has caused this deed to be executed this day
of December, 1999.
SSES:
f
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
I A O ARTNERSHIP
BY
Gerald C. Milot, by Carl H. Lisman, attorney -in -
fact pursuant to a power of attorney, dated December
4', 1999, recorded in Volume �, Page jo of
the City of South Burlington Land Records
BY Osa�
John P. akin, General Partner and
Duly Authorized Agent
At South Burlington this 10 day of December, 1999, Carl H. Lisman, individually and
as attorney -in -fact for Gerald C. Milot, a general partner of Larkin Milot Partnership, personally
appeared, and he acknowledged this instrume by him signed and sealed to be free act and
deed, the free act and deed of Gerald C. Milot /�
Before me
Notary
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this —6a7 day of December, 1999, John P. Larkin, a general partner
of Larkin Milot Partnership, personally appeare , d he acknowledged this ' strument by him
signed and sealed to be his free act and deed, t free act and deed arki ilot Partnership.
Before me `
Notary Public
Vermont i'ror-ek Trans er Tat,36. VmS q-hCAP 231
RETURN'REC'D-TAX PAID BOARD
Of HEALTH CERT. REC'R.
VT LAND USE in DEVELOPMENT
PLANS ACTn CERT. REC'D
.ets�rn No, --------------------------
Coma Kinville City Clerk
!fat_ Mdv 18Y2010
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402 (802) 864-5756
10\20014\01Negahoffeas2.ch1
END OF DOCUMENT
104
Recreation Path
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON,'a Vermont municipality having a place of business in
South Burlington in the County of Chittenden-and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee,
and the heirs, successors and assigns of the. Grantee forever, a certain piece of land in South
Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington,
and more particularly described as follows:
Being an easement, 20 feet in width, for passive pedestrian and bicycle use, but not
motorized vehicles, identified:: as "Proposed 20' Pedestrian Easement" on a plat,
being sheets 1 and 2 of 2, entitled
Final Plat for Subdivision
of Gerald Milot and John Larkin
(formerly Nowland Two)
Spear Street
South Burlington ,Vermont
W
p
dated 8/21/98, last revised 1/5/99, consisting of two pages, prepared by Vaughn C.
U. �
Button, L.S., recorded in Map Volume 430, Pages 57 and 58 of the Land Records
U. - "'
a8C
of the City of South Burlington.
8�a
4
NJ 11
~'
Said easement and right of way shall be used by the public as a recreational and
bicycle pathway subject to the; condition that no motorized traffic, including, but
W C�l
not limited to, motorcycles, trail bikes and snowmobiles, shall be allowed to use the
`J
pathway, except motorized vehicles used by the Grantee, or its agents, for the
:2
purpose of maintaining or patrolling the pathway.
g
Grantee its successors and assigns shall have the right to construct reconstruct
repair, maintain, replace, patrol, level, fill, drain and pave said recreational
pathway, including all necessary bridges, culverts, cuts and ramps, at its sole cost
and expense.
Grantee further agrees, for itself and its successors and assigns, that any premises
affected by its entry pursuant to this easement and temporary construction easement
shall be restored to their condition prior to such entry at its own cost and within a
reasonable time.
Grantee agrees, for itself and its successors, that it will indemnify and hold the
Grantor harmless, to the fulllimits of liability insurance that it customarily
maintains, for any injury or damage resulting from the public use of said right of
way not attributable to acts of the Grantor. Grantee, by the recording of this
easement, acknowledges that it, has been donated to the City, at no cost to the City,
with the intent that Grantor shall receive the full benefit and protection of 19 V. S.A.
Section 2309.
For purposes of construction a temporary easement and right of way five feet on
00008572
each side of said permanent easement and right of way is hereby granted. Said
temporary easement and right of way shall expire once construction is completed
and the recreational pathway is open to the public.
The within Grantor, its successors and.assigns, shall have the right to make use of
the surface of the right of way and easement such as shall not be inconsistent with
Z
auj
the use of said right of way, but specifically, shall place no structures, landscaping
1
or other improvements within said easement and right of way which shall prevent
° U 0 Wi Q�
or interfere with the within Grantee's ability to use said easement and right of way.
Grantee acknowledges that the construction and maintenance of improvements
C a ¢ �, w
necessary to provide access to Grantor's property shall not be inconsistent with the
B
I �
use of this easement by the Grantee.
u
Reference is hereby made to the aforementioned instruments the records thereof
-j �' ry =
and the references therein in farther aid of this description.
ate iao-�a
TO
HAVE AND TO HOLD said granted premises, with all the privileges and
appurtenances thereof, to the said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are FREE FROM EVERY ENCUMBRANCE; and that it hereby engages to WARRANT
AND DEFEND the same against all lawful claims whatever, except as aforesaid.
IN WITNESS WHEREOF, the Grantor has cau�ed this deed to be executed this 6 day
of December, 1999.
WI USES:
: 'i
Gerald C. Milot, by Carl H. Lisman, attorney -in -
fact pursuant to a power of attorney, dated December
41 1999, recorded in Volume 411Page 16q of
the City of South Burlington
Land Records
BY ()�Adi-N,
116jLarkin; General Partner and
Duly Authorized Agent
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this Z day of December, 1999, Carl H. Lisman, as attorney -in -fact
for Gerald C. Milot, a general partner of Larkin Milot Partnership personally appeared, and he
acknowledged this instrument by him signed `sealed to be his free act d deed, and the free
act and deed of Gerald C. Milot.
i
Before me,,
Notary Public
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this -, day of December, 1999, John P. Larkin, a general partner
of Larkin Milot Partnership, personally appeared d he acknowledged this instrument by him
signed and sealed to be his free act and deed, th fr ` act and deed f L i Milot Partnership.
Before me
Notary Public
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402(802) 864-5756
10\20014\O10\legal\offeas2.chl
ENS 0`41F DOCUMENT
Vale Drive Extension
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
That GERALD C. MILOT and JOHN P. LARKIN, doing business as LARKIN MILOT
PARTNERSHIP, a Vermont general partnership having a place of business in Burlington in the
County of Chittenden and State of Vermont (the "Grantor"),
in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by
CITY OF SOUTH BURLINGTON, a Vermont municipality having a place of business in
South Burlington in the County of Chittenden and State of Vermont (together, if more than one,
the "Grantee"),
by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee,
and the heirs, successors and assigns of the Grantee forever, a certain piece of land in South
Burlington in the County of Chittenden and State of Vermont, described as follows, viz:
Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P.
Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen
N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington,
and more particularly described as follows:
Being an extension of Vale Drive, from its intersection with the northerly side of the cul-
de-sac to the Grantor's northerly boundary, as shown and depicted on a plat entitled
Final Plat for Subdivision
of Gerald Milot and John Larkin
(formerly Nowland Two)
Spear Street
South Burlington ,Vermont
dated 8/21/98, last revised 1/5/99, consisting of two pages, prepared by Vaughn C. Button,
L.S., recorded in Map Volume 430, Pages 57 and 58 of the Land Records of the City of
South Burlington, for use as a road.
Reference is hereby made to the aforementioned instruments, the records thereof and the
references therein in further aid of this description.
TO HAVE AND TO HOLD said granted premises, with all the privileges and
appurtenances thereof, to the said Grantee, and the heirs, successors and assigns of the Grantee,
to their own use and behoof forever;
And the Grantor, for itself and its successors and assigns, does covenant with the Grantee, and the
heirs, successors and assigns of the Grantee, that until the ensealing of these presents it is the sole
owner of the premises, and has good right and title to convey the same in manner aforesaid, that
they are FREE FROM EVERY ENCUMBRANCE; and that it hereby engages to WARRANT
AND DEFEND the same against all lawful claims whatever, except as aforesaid.
CITY CLERK'S OFFICE
Received flay E8r2020 10:30A
Recorded i n VOL: 934 PO 102
OF So. Burlington Land Records
AttFas.t z
Gonna Kinville
Citu Clerk
IN WITNESS WHEREOF, the Grantor has caused
z
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
deed to be executed this � day
BY
Gerald C. Milot, by Carl H. Lisman, attorney -in -
act pursuant to a power of attorne , dated December
1999, recorded in Volume �( , Page of
tie City Sou Burlington Land Records
BY
John P. in, General Partner and
Duly Au orized Agent
At South Burlington this � day of December, 1999, Carl H. Lisman, as attorney -in -fact
for Gerald C. Milot, a general partner of Larkin Milot Partnership personally appeared, and he
acknowledged this instrument by him signed Land sjed o be his free ct and ed, and the free
act and deed of Gerald C. Milot.
Before me
Notary Public
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At South Burlington this & day of December, 1999, John P. Larkin, a general partner
of Larkin Milot Partnership, personally appeared d he acknowledged thi instrument by him
signed and sealed to be his free act and deed, 'th fr e act and dee o ;Lar ilot Partnership.
Before me / /I /v��
Notary Public
Vermont Proper q Transfer Tax
32 =S.A. Chap 2-,71
—ACK1° OWLEDGEMENT—
RET►SRN'REG'G-TA" PAID BOARD
OF HEALTH CERT, EC'G=
VT LAND USE & DEVELOPMENT
PLANS ACT. CERT. REC'D
Return No. -------------------------
Donna Kinville Citu Clerk
Gate Maq 18",Olrj
Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402 (802) 864-5756
10\20014\010\1egaRoffroad2.ch1
END F DUL"�;UVI
IN THE SUPREME COURT OF THE STATE OF VERMONT
DOCKET NO. 2000-073
MBL ASSOCIATES
V.
CITY OF SOUTH BURLINGTON
Appeal from the
Chittenden Superior Court
Docket No. S392-98CnC
-and-
DOCKET NO. 2000-074
LARKIN-MILOT PARTNERSHIP
V.
CITY OF SOUTH BURLINGTON
Appeal from the
Chittenden Superior Court
Docket No. 5168-98CnC
APPELLANT'S CONSOLIDATED REPLY BRIEF
Robert E. Fletcher
Joseph S. McLean
Stitzel, Page & Fletcher, P.C.
171 Battery Street
P.O. Box 1507
Burlington, VT 05402-1507
(802) 660-2555
Attorneys for the City of South Burlington
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . ii-iii
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 1
THE TRIAL COURT ERRED IN ITS INTERPRETATION
AND APPLICATION OF THE IMPACT FEE ORDINANCE
AND THE FINAL APPROVALS ISSUED FOR THE
APPELLEES' PROJECTS . . . . . . . . . . . . . . . . 1
A. APPELLEES ARE OBLIGATED BY LAW
AND AGREEMENT TO PAY RECREATION
IMPACT FEES AND CONSTRUCT THE
ANCILLARY RECREATION PATHS . . . . . . . . 1
1. APPELLEES ARE BARRED FROM
COLLATERALLY ATTACKING THE
PROVISIONS OF THE FINAL PLAT APPROVALS 5
2. THE AGREEMENTS BETWEEN THE
APPELLANT AND THE APPELLEES SHOULD
BE ENFORCED AS WRITTEN . . . . . . . . . 9
B. THE GRANDFATHER CLAUSE DOES NOT
AFFECT THE FEES PAYABLE FOR THESE
PROJECTS . . . . . . . . . . . . . . . . . 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 12
-i-
TABLE OF AUTHORITIES
CASES:
Pages)
Blodgett Supply
Co., Inc. v. P.F. Jurgs and Co.,
159 Vt. 222,
617 A.2d 123 (1992) . . . . . . . .
. . . 10
Boisvert v. Boisvert, 143 Vt. 445,
446 A.2d 1184
(1983) . . . . . . . . . . . . . .
. . . 9
George v. Timberlake
Associates, Vt.
739 A.2d 1207
,
(1999) . . . . _ . . . . . . . .
. . . 6
Graves v. Town
of Waitsfield, 130 Vt. 292,
292 A.2d 247
(1972) . . . . . . . . . . . . . . .
. . . 8
Harvey v. Town
of Waitsfield, 137 Vt. 80,
401 A.2d 900
(1979) . . . . . . . . . . . . . . .
. . 8,9
Levy v. Town of
St. Albans Zoning Board of
Adjustment, 152
Vt. 139, 564 A.2d 1361 (1989) .
5,7,8,9
In re Miller,
_ Vt. , 742 A.2d 1219 (1999) . .
. . 6,7
Northern Aircraft, Inc. v. Reed, 154 Vt. 36,
572 A.2d 1382
(1990) . . . . . . . . . . . . . .
. . . 10
In re West, 165
Vt. 445, 685 A.2d 1099 (1996) . . .
. . . 10
Workman v. Agency of Transportation, 163 Vt. 606,
657 A.2d 174
(Mem. 1994 ) . . . . . . . . . . . .
. . . 10
STATUTES:
10
V.S.A.
§6086(a) (9) (A) . . . . . . .
. . . . . . . . . 9
10
V.S.A.
§6086(a) (9) (K) . . . . . . .
. . . . . . . . . 9
10
V.S.A.
§6086 (a) (10) . . . . . . . .
. . . . . . . . . 9
24
V.S.A.
§4413 . . . . . . . . . . . .
. . . . . . . . . 5
24
V.S.A.
§4464 . . . . . . . . . . . .
. . . . . . . . . 6
24
V.S.A.
§4471 . . . . . . . . . . . .
. . . . . . . . . 6
24
V.S.A.
§4472 . . . . . . . . . . . .
. . . . . . . 6, 7, 8
24
V.S.A.
§4472 (a) . . . . . . . . . .
. . . . . . . . . 6
24 V. S.A. §4472 (d) . . . . . . . . . . . . . . . . . . 6,8
24 V. S.A. §4475 . . . . . . . . . . . . . . . . . ... 5, 6, 7
ARGUMENT
THE TRIAL COURT ERRED IN ITS INTERPRETATION AND
APPLICATION OF THE IMPACT FEE ORDINANCE AND THE FINAL
APPROVALS ISSUED FOR THE APPELLEES' PROJECTS.
The parties agree that the Appellees are each legally
obligated to pay recreation impact fees to the City. We
part company over the scope and nature of the "fees"
payable.
Contrary to the Appellees' arguments, their own
conduct, the plain language of the City's Impact Fee
Ordinance, as amended, (the "Ordinance") and the provisions
of the Final Approvals for the Pinnacle and Dorset Farms
Projects establish that the Appellees must "pay" more than
simply constructing minor, ancillary recreation paths within
or adjacent to the respective developments. Indeed, the
City is justified in assessing and collecting fees
determined under the Ordinance as lots/units in the
respective projects are built -out.
A. Appellees Are Obligated by Law and Agreement to
Pay Recreation Impact Fees and Construct the
Ancillary Recreation Paths.
The first two arguments advanced by Appellees in their
Brief are built on a false premise. That is, that the
condition imposed by the City's Planning Commission on each
developer to construct a recreation path internal to the
project (Pinnacle) and adjacent to the project (Dorset
Farms), is the only enforceable recreation impact related
obligation imposed by the Planning Commission. Appellees'
1
Brief at 6-9. This premise is factually and legally
erroneous.
The recreation path required of each developer (MBL and
Larkin-Milot Associates) in the projects at issue here are
partial payments against recreation -related impacts of the
development of the two projects. The language in the
respective Final Approvals for each project is absolutely
clear on this point.
The Final Approval for the Pinnacle Project includes
the following Finding of Fact:
A credit of $22,000 should be given to the applicant
for the construction of the portion of the proposed
recreation path located outside of any public street
r.o.w. This value is based on $11 per linear foot for
a distance of 2,000 feet. This translates to $300 per
lot. Based on the current recreation impact fee of
$200, the applicant would not pay a recreation impact
fee since the credit is more than the actual fee. If in
the future the City adopts a recreation impact fee of
more than $300 per lot, then the applicant would be
required to pay the difference.
P.C. at 279-80 120 (emphasis added). Similarly, the Final
Approval for the Dorset Farms Project states, as a Finding
of Fact, that:
[t]he applicant should be given a credit of $75 per
unit for the construction of the portion of the
proposed recreation path located outside of any public
street r.o.w. This will consist of the recreation path
located on the east side of Dorset Street. The
applicant will be required to pay the difference
between the $75 credit and the recreation fee in effect
at the time of permit. This was a condition of
preliminary plat approval.
P.C. at 86 120 (emphasis added).
2
After making these findings, the Planning Commission
specified in both final approvals that at the "time of
application for a zoning/building permit, the applicant
shall pay the difference between the recreation impact fee
and the . [applicable] credit." P.C. at 282 T5; 88 J[5
(emphasis added).' These permit conditions, and the
findings of fact that precede them, logically support but
one conclusion. With respect to recreation -related impacts,
the final approvals for Appellees' projects contained a
specific obligation that at the time each lot/unit was
developed, the applicant for the building/zoning permit must
pay the recreation impact fees then in effect. Each such
applicant was entitled to a reduction in those fees equal to
the amount of the "credit" (specified in the respective
final approval) for the construction of the ancillary
recreation paths. Appellees understood this to be the case.
P.C. at 148.-
1 The referenced "applicable credit" granted by the Planning
Commission credits $300 per lot for the Pinnacle Project and $75 per
residential unit for the Dorset Farms Project. These credits reflect
the developer(s) construction of the portion of the proposed recreation
path located "outside of any public street right-of-way." P.C. at 282
15; 88 n5. In each case, the Planning Commission specifically stated
that the credit "may be applied toward required recreation fees," id.,
indicating that the developers were obligated to do far more than simply
construct short sections of recreation paths in or adjacent to their
developments. They were expected to pay the then -current recreation
impact fee as well.
2 Although Mr. Milot indicated that he thereafter understood that
these projects were exempt from the fees under the ordinance, the basis
for Mr. Milot's "understanding" is disputed.
Joseph Weith, Planning Director for the City filed an affidavit
P
The parties never intended that the construction of the
recreation path would constitute full payment for the
recreation related impacts of these two projects. If the
parties had so intended, there would have been no need for
discussion in the Final Approvals of the fees "in effect at
the time", or the potential for a subsequent increase in
recreation related fees. The Planning Commission need have
only required each developer to build the recreation paths,
and consider such construction to be "payment in full." The
trial court acknowledges the Planning Commission did not do
so, stating that "[w]e do not overlook the qualification
included in the subdivision approval that the $300 path
credit was something less than a 'Paid in Full.'". P.C. at
202.
The precise and plain language of the final plat
approvals affecting these two projects is clear and
unequivocal -- construction of the recreation paths in or
near the projects was only part payment, not payment in
full, for the recreation impacts related to these two
projects. P.C. at 279-80 120; 86 Q20.
disputing Mr. Milot's assessment of the conversation. P.C. at 173-74.
Additionally, the City, through Mr. Weith, notified the principals of.
both developers about the impacts of the Ordinance adoption in a letter.
P.C. at 103-04; 296-97.
The developers knew or should have known they were subject to the
Ordinance, and that the subsequent amendment did not exempt them.
4
1. Appellees Are Barred From Collaterally Attacking
the Provisions of the Final Plat Approvals.
The Appellees assert, in defense of the result reached
by the trial court, that the only lawful "condition"
concerning recreation impact fees which the City's Planning
Commission could impose was the in -kind contribution; it
could not lawfully impose the requirement that the
developers pay recreation impact fees determined
"prospectively," arguing that such "future impact fees" are
void ab initio and ultra vires. Appellees' Brief at 6-9.
In making this argument, the Appellees attempt to
rationalize their own failure to appeal the Final Approvals
issued by the Planning Commission, and overlook the
provisions of 24 V.S.A. §4475, and the decisions of this
Court, including most importantly, Levy v. Town of St.
Albans Zoning Board of Adjustment, 152 Vt. 139, 564 A.2d
1361 (1989).
The City's Planning Commission, being responsible for
reviewing and approving site plans for proposed subdivision
and PUD/PRD projects and applying the City's subdivision
regulations thereto, acts within its authority when it
conditions its approval on the developer's performance or
satisfaction of certain requirements related to health,
safety, and welfare. See, 24 V.S.A. §4413. Appellees
acknowledge this authority. Appellees' Brief at 8 n. 11. A
party to such a proceeding disappointed in the outcome has
5
the right to appeal, and must do so or be bound by the
decision reached by the planning commission.
Under section 4475 of Title 24, appeals from decisions
of a planning commission "shall be in the same manner as
provided for appeals from a decision of a board of
adjustment or a development review board." 24 V.S.A. §4475.
That is, an interested party must perfect a timely appeal
from a decision by a planning commission or be bound by that
decision. In re Miller, Vt. , , 742 A.2d 1219,
1227-28 (1999), citing George v. Timberlake Associates,
Vt. , 739 A.2d 1207 (1999)(mem.). An appeal is, by
operation of section 4472(a), the "exclusive remedy" for a
party. Id., at , 742 A.2d at 1227 n. 5. The absence of
a timely appeal makes the Planning Commission decision final
and incontestable. 24 V.S.A. §4472(d).3
In Miller, neighbors of a planned commercial
establishment sought to overturn the Environmental Court's
dismissal of their appeal from site plan approval granted by
the local planning commission. Miller, at , 742 A.2d at
3 Section 4472(d) of Title 24 provides as follows:
Upon the failure of any interested person to appeal to a board of
adjustment under section 4464 of this title, or to appeal to a
superior court under section 4471 of this title, all interested
persons affected shall be bound by such decision or act of such
officer, such provisions, or such decisions of the board, as the
case may be, and shall not thereafter contest, either directly or
indirectly, such decision ... of the board in any proceeding,
including, without limitation, any proceeding brought to enforce
this chapter.
24 V.S.A. §4472(d).
0
1227. In denying the requested relief, this Court opined
that the neighbors were "required to file a timely appeal
from the planning commission decision although the zoning
board proceedings were not yet completed. The statutes
specifically provide for appeals from the planning
commission, see 24 V.S.A. §4475, and we have treated site
plan review and conditional use review as separate - albeit
related - proceedings." Id. (citations omitted). The Court
explained further that interested parties disenchanted with
a planning commission's site plan approval decision must
file an appeal or be bound by the decision. Id. at 742
A.2d at 1227, n. 5.
Appellees contend that the provisions of the final
approvals issued to them which mandate that they pay
recreation impact fees to be determined at a later time were
ultra vires and therefore void ab initio. Appellees' Brief
at 7-8, n. 10. Appellees' analysis fails to address 24
V.S.A. sections 4472 and 4475, and the decisions of this
court interpreting those provisions, including specifically.
Levy v. Town of St. Albans Zoning Board of Adjustment, 152
Vt. 139, 564 A.2d 1361 (1989).
In Levy, St. Albans residents challenged (in December
1987) the issuance of a building permit for construction of
a dog -track in 1984. Levy, 152 Vt. at 140, 564 A.2d at 1363
(1989). The Franklin Superior Court granted the plaintiffs
motion for summary judgment, determining that the 1984
7
decision of the zoning board issuing a conditional use
permit for the track was void as ultra vires. Id. This
Court determined that "[i]f a direct appeal is not taken,
the decision ... is final and not contestable, under 24
V.S.A. §4472(d)." Id., at 142, 564 A.2d at 1363. "The
statute (24 V.S.A. §4472(d)) unequivocally forecloses
[collateral attack on the administrative action], and the
Superior Court was without jurisdiction to consider it." Id.
In response to the plaintiffs' contention that section 4472
did not bar challenges to decisions alleged to be void ab
initio, the Court explicitly disagreed. Relying on its
decisions in Graves v. Town of Waitsfield, 130 Vt. 292, 292
A.2d 247 (1972) (permit upheld even where alleged that
zoning officer lacked authority to issue permit) and Harvey
V. Town of Waitsfield, 137 Vt. 80, 83, 401 A.2d 9001 901
(1979) (overruled on other grounds)(section 4472 bars
collateral attack on zoning board decision notwithstanding
an allegation the board lacked authority), this Court held
that section 4472 "implements a policy of repose, even where
the board's ruling is ultra vires. To hold otherwise would
severely undermine the orderly governance of development and
would upset reliance on the process." Id. (emphasis added).
The Levy decision disposes of Appellees' claims that the
conditions of the final approvals cannot be enforced because
they are allegedly void ab initio.
Neither Appellee appealed the final plat approval
issued by the City's Planning Commission, and the time for
doing so has long since run. The Appellees have accepted
the terms and conditions of those final plat approvals and
have benefitted therefrom .4 They are therefore precluded
from asking the superior court or this Court to revise those
conditions at this time. The Appellees' current collateral
attack on those conditions are improper, untimely, and must
be rejected by this Court notwithstanding the allegation
that the Planning Commission's actions were ultra vires and
void ab initio.s
2. The Agreements Between the Appellant and the
Appellees Should be Enforced as Written.
The trial court properly analogized the Final Approvals
to "contracts" between the City and the respective
4 Appellees fully and actively participated before the City's
Planning Commission in pursuit of the respective final plat approvals.
They each had ample opportunity to affect the terms and provisions of
the approvals. Moreover, as confessed by the Appellees in their Brief,
the imposition of conditions on a final plan approval are beneficial to
a developer. Such conditions provide evidence in the subsequent Act 250
proceedings that the project's impacts on municipal services have been
addressed. See, 10 V.S.A. §6086(a)(9)(A), (K) and (a)(10). Appellees'
Brief at 7.
5 Inasmuch as this issue affects the subject matter jurisdiction of
the trial court, see, Levy, 152 Vt. at 142, 564 A.2d at 1363, it is
appropriately raised by the Appellant in the context of this appeal.
Boisvert v. Boisvert, 143 Vt. 445, 447, 466 A.2d 1184, 1185 (1983)
(absence of subject -matter jurisdiction may be raised for first time on
appeal).
9
developers. Id., at 201. As such, the parties are entitled
to have those "agreements" enforced in accordance with their
intentions, In re West, 165 Vt. 445, 450, 685 A.2d 1099,
1103 (1996), as determined from the plain language thereof,
Northern Aircraft Inc. v. Reed, 154 Vt. 36, 444, 572 A.2d
1382, 1388 (1990), reading each agreement as a whole and
giving effect thereto, if reasonable to do so. Blodgett
Supply Co., Inc. v. P.F. Jurgs and Co., 159 Vt. 222, 232,
617 A.2d 123, 128 (1992). "When an agreement is clear and
unambiguous, its plain meaning governs its interpretation."
Workman v. Agency of Transportation, 163 Vt. 606, 608, 657
A.2d 174, 176 (Mem. 1994). Notwithstanding these well -
settled and guiding principles, the trial court has "remade"
the "deal" to the Appellant's detriment, and without
justification.
The Final Approvals clearly show that the recreation
paths were not the whole and entire "fee" to be paid by the
developers for recreation -related impacts. They were
instead partial consideration therefor, the balance was to
be the fees in effect at the time that each zoning/building
permit was applied for and issued.
The respective Final Approvals for the Pinnacle and
Dorset Farms Projects provide that "[a]t time of application
for a zoning/building permit, the applicant shall pay the
difference between the recreation impact fee and the
[applicable] credit." P.C. at 88 15; 282 15 (emphasis
10
added). The explicit requirement that the applicants for
zoning/building permits for lots at Pinnacle and Dorset
Farms pay the difference between the then -current recreation
impact fee and the appropriate credit is valid and legally
enforceable. The amendment to the Ordinance does not change
that status.
B. The Grandfather Clause Does Not Affect the Fees
Payable for These Projects.
The Appellant contends that the "grandfather" clause
does not apply to these projects, as discussed at length in
its Brief. For the grandfather clause to apply to
lots/units within a subdivision project, three conditions
must be satisfied. First and foremost, the final approval
for the project must specify a fee payable for recreation
related impacts. Unlike previously approved projects, the
Final Approvals for the Pinnacle and Dorset Farms Projects
do not specify a dollar specific fee (i.e., $200 per lot).
Instead, they state that the fee payable for the development
of each lot shall be the fee in effect at the time of
application for a zoning/building permit for the particular
lot. P.C. at 88 15; 282 f5. Hence, these projects do not
meet the first criterion for application of the grandfather
clause, and are therefore not immune from having to pay the
recreation impact fees specified by the Ordinance. See,
Appellant's Brief at 16-26.
Even assuming, arguendo, that the grandfather clause is
applicable to the Projects, the outcome is identical. The
11
grandfather clause has the effect of suspending the fee
formula in the Ordinance, and reinstating the fees specified
in the final approval of the grandfathered project. The
plain language of the respective final approvals at issue
here specifies that the fees payable are the recreation
impact fees in effect at the time each zoning/building
permit is applied for, less the applicable credit of $300 or
$75 depending on the.project. This point, too, was made by
the Appellant in its Brief, and will not be repeated at
length here. Id., at 28-32. Suffice it to say that the
plain language of the Final Approvals themselves, which
mandate that the fees in effect as each lot/unit is
developed means that the fees in the Ordinance apply to
these projects regardless of the grandfather clause and its
applicability.
CONCLUSION
Appellees try mightily to belatedly revise the final
approvals issued by the Planning Commission, and then to
portray the plain language of the relevant documents and
Appellant's arguments as a "Gordian knot", in an effort to
dissuade this Court from doing other than affirming the
trial court decision. The Appellant knows that, like
Alexander the Great himself, this Court will see past the
surface complexities, cut to the heart of the legal
analysis, and reverse the trial court.
12
Appellees received final plat approval for their
respective projects conditioned, in part, on each developer
building an ancillary recreation path and each applicant for
a building/zoning permit paying the City the then current
recreation impact fee. The decisions of the Planning
Commission were never appealed by Appellees, and are
therefore valid, legally binding, and incontestable.
The Ordinance includes a formula for the determination
of recreation impact fees payable to the City after January
1995. The amendment to the Ordinance suspended the formula
in the Ordinance for eligible projects, and reinstated the
fees specified in the final plat approvals. These Projects
are not eligible for application of the grandfather clause,
and the fees under the formula in the Ordinance are payable.
But, even if. these projects are determined to be eligible
for application of the grandfather clause, and the terms of
the respective Final Approvals control the fees payable,
those provisions require that lot/unit developers pay the
"fees then in effect" within the City as each lot/unit is
developed. The fees in effect are those specified in the
Ordinance.
The City was entitled to assess and collect the fees
computed pursuant to the Ordinance formula as each lot/unit
was developed in these two projects. The City respectfully
requests that the trial court's decisions and orders be
13
reversed, and that judgment in Appellant's favor be entered
by this court.
DATED at Burlington, Vermont this 13th day of June
2000.
B,
SON673
CITY OF SOUTH BURLINGTON
14
State of Vermont
SUBDIVISION PERMIT
LAWS/REGULATIONS INVOLVED
Environmental Protection Rules
Effective August 8, 1996
Case Number: EC-4-1750-1
PIN: EJ96-0037
Landowner: L & M Partnership
(c/o John Larkin)
Address: 410 Shelburne Road
South Burlington, Vermont 05403
This project, consists of a seven lot subdivision, lots 63 through 69. In addition, reconfiguring lots
52 - 73, renumbering lots 63 - 73 previously approved in Subdivision Permit # EC-4-1750, and
revising sewer easement areas, building sewer and water service line locations for lots 52 - 73,
previously approved in Subdivision Permit # EC-4-1750. The project, which will utilize municipal
water and sewer services and is located off Spear Street in the city of South Burlington, Vermont
is hereby approved under the requirements of the regulations named above, subject to the following
conditions.
This permit does not constitute approval under Act 250 case number
1. This permit does not relieve the permittee from obtaining all other approvals and permits as
may be required from the Act 250 District Environmental Commission, the Department of
Labor and Industry -phone (802) 828-2106 or (802) 658-2199, the Vermont Department of
Health - phone (802) 863-7220, and local officials prior to proceeding with this project.
2. The project shall be completed as shown on the following plans prepared by Llewellyn
Incorporated, Vaugh C. Button, L.S., and Fitzpatrick - Llewellyn Incorporated, which have
been stamped "approved" by the Wastewater Management Division:
Project 97024; "Pinnacle @ Spear"; Overall Site Plan; Sheet: 1 of 9;Dated June 1998; Last
revised Jan 1999; Plan & Profile - Station 0+00 to 11+00; Sheet 3 of 9; Dated June 1998;
Last revised Dec 1998; Plan & Profile - Station 11+00 to 16+93; Sheet 4 of 9; Dated June
1998; Last revised Feb 1999; General/Sanitary - Details & Specifications; Sheet 6 of 9;
Dated June 1998; Water Supply - Details & Specifications; Sheet 7 of 9; Dated June 1998;
Stormwater/Erosion - Details & Specifications; Sheet 8 of 9; Dated June 1998; prepared by
Llewellyn Incorporated.
Proj. No.: 987004; "Pinnacle @ Spear (Formerly Nowland Two)"; Final Plat for
Subdivision; Dated 8-21-98; Last revised 1-05-99; Final Plat for Subdivision; Sheet 2 of 2;
Dated 8-21-98; Last revised 1-05-99; prepared by Vaughn C. Button, L.S.
Project Number 95036; "Nowland Two"; Sanitary Sewer Extension; Sheet 1 of 2; Dated
April 1995; Last revised 4/19/85 Sanitary Sewer Extension Profile; Sheet 2 of 2; Dated
April 1995; prepared by Fitzpatrick - Llewellyn Incorporated.
Subdivision Permit
EC-4-1750-1
L & M Partnership
Page 2
The project shall not deviate from the approved plans without prior written approval from
the Wastewater Management Division.
3. Each prospective purchaser of each lot shall be shown a copy of the approved plot plan and
this Subdivision Permit prior to conveyance of the lot.
4. The conditions of this permit shall run with the land and will be binding upon and
enforceable against the permittee and all assigns and successors in interest. The permittee
shall be responsible for the recording of this permit and the "Notice of Permit Recording"
in the city of South Burlington Land Records within 30 days of issuance of this permit and
prior to the conveyance of any lot subject to the jurisdiction of this permit.
5. All conditions set forth in Subdivision Permit # EC-4-1750 shall remain in effect except as
modified or amended herein.
6. A copy of the approved plans and this permit shall remain on the project during all phases
of construction and, upon request, shall be made available for inspection by State or local
personnel.
7. In the event of a transfer of ownership (partial or whole) of this project, the transferee shall
become permittee and be subject to compliance with the terms and conditions of this permit.
8. By acceptance of this permit, the permittee agrees to allow representatives of the State of
Vermont access to the property covered by the permit, at reasonable times, for the purpose
of ascertaining compliance with Vermont environmental/health statutes and regulations,
with this permit.
WATER SUPPLY
9. The water main extension is approved provided the water main extension is constructed in
strict accordance with the Agency of Natural Resources, Water Supply Division's "Public
Water System Permit to Construct " Project # E-0262 WSID # 5091.
10. Each lot is approved for water supply by connection to the municipal water system. No
other means of obtaining potable water shall be allowed without prior review and approval
by the Wastewater Management Division.
Subdivision Permit
EC-4-1750-1
L & M Partnership
Page 3
SEWAGE DISPOSAL
11. Each lot is approved for wastewater disposal by connection to the municipal sewer system.
No other method of wastewater disposal shall be allowed without prior review and approval
by the Wastewater Management Division, and such approval will not be granted unless the
proposal conforms to the applicable laws and regulations.
12. This project has been reviewed and is approved for the construction of one, four bedroom
single family residence on each of the approved lots. Construction of other type of building
or dwellings, including public buildings, commercial buildings, duplexes, and condominium
units, is not allowed without prior review and approval by the Wastewater Management
Division and such approval will not be granted unless the proposal conforms to the
applicable laws and regulations.
13. A professional engineer, registered in the State of Vermont, is to generally supervise the
construction of the sanitary sewer line extensions and, upon completion of construction, the
supervising engineer is to submit to the Wastewater Management Division a written
certification stating all construction has been completed in accordance with the stamped
approved plans. The engineer's certification is to be submitted to the Division prior to the
occupancy of any unit and the certification shall include, but not be limited to, the numerical
results of all leakage testing performed on each segment of the sanitary sewer extension and
all manholes, as described in Appendix A, of the Environmental Protection Rules.
14. This project (lots 63 - 69), has been granted a 10% reduction in design wastewater flow,
based on the proposed installation of water saving plumbing fixtures. Accordingly, the
plumbing fixtures utilized throughout the project shall comply with the following
performance specifications: water closets - 3.5 gallons/flush, maximum; showerheads - 2.0
gpm, maximum; and lavatory/sink faucets (aerators or flow regulators) - 2.0 gpm, maximum.
Fixtures complying with such performance standards shall be permanently maintained
throughout the project.
Subdivision Permit
EC-4-1750-1
L & M Partnership
Page 4
15. The project (lots 63 - 69) is approved for connection to the Bartletts Bay wastewater
treatment facility for a maximum of 3,619 gallons of sewage per day.
16. The project shall obtain or include legal easements, as shown on the approved plans, which
grants the project the right to construct, maintain, and replace a wastewater collection
system in the subject location, together with the right to enter upon the property for
construction, inspection, maintenance, and other such reasonable purposes as may arise
regarding the wastewater collection system.
Dated at Essex Junction, Vermont on this 24`h day of February, 1999.
Canute E. Dalmasse, Commissioner
Department of Environmental Conservation
'William E. abiloski
Assistant Regional Engineer
c For the Record
South Buriington Planning Commission & Selectboard
Act 250 coordinator - James Boyd
Water Supply Division
Llewellyn Incorporated
Vaugh C. Button, L.S.
Fitzpatrick - Llewellyn Incorporated
Department of Environmental Conservation
Wastewater Management Division
111 West Street
Essex Junction, Vermont 05452
Telephone #(802) 879-5656
February 3, 1999
L & M Partnership
(c/o John Larkin)
410 Shelburne Road
South Burlington, Vermont 05403
Subject: EC4-1750-1, Seven lot subdivision, South Burlington, Vermont
We have reviewed the information submitted for the above referenced project and have
determined that there are items that were not included or were insufficient for the submittal. Please
refer to the items listed below to identify those missing and/or incorrect items which are required for
this project to meet the Environmental Protection Rules. Once we receive this additional information,
we will continue our review. Please respond within sixty (60) days from the date of this letter.
Incomplete resubmittals or submittals made after sixty days may result in the denial of the project.
1. It appears that some of the previously approved lots on Vale Drive have been renumbered, and also
have been reconfigured. Please clarify.
2.Include information (if applicable), concerning any pump stations that the sewer lines discharge to.
3. The access ofthe previously approved sewer system to the existing system on Whately Road was
changed in 1995. There are correspondences (see enclosed), that indicated an amendment to the
original permit would be needed. Was the permit obtained?
Page 2
4. The curb stop for lot 66 is located underneath the proposed road.
5. Include all boundary line dimensions for the proposed lots.
6. Have the manholes (8 & 9) and connecting sewer lines been constructed. They appear to be in a
slightly different location than originally approved. If so, also include easement area.
If you have any questions, please contact me at 1-802-879-5672
Sincerely,
V41liam E. Abiloski
Assistant Regional Engineer
encls.
copies: City of South Burlington
Llewellyn Incorporated
CII
State of Vermont
DEFERRAL OF PERMIT
RETAINED PARCEL
LAWS/REGULATIONS INVOLVED: 18 VSA §1218-1220 and Environmental Protection Rules,
Chapter 1. Subchapter 3-Subdivisions,
§1-305 Deferral of Permit
PERMIT NUMBER: DE-4-1881-1
APPLICANT AND ADDRESS: (Person Retaining Parcel)
L & M Partnership
410 Shelburne Road
South Burlington VT 05403
LOCATION OF SUBDIVISION: (Road and Town)
off Spear Street, South Burlington
DESCRIPTION OF SUBDIVISION:
Amend permit for retained common land known as Area D to become 6.00 acres with remaining lands
subject to EC-4-1750-1
CONDITIONS:
(1) The parcel retained under the provisions of this permit may not be resold unless a
subdivision permit is obtained, or the waiver of developmental rights is included in the deed or lease and
notice of the purchaser's name and address is filed with the Division prior to conveyance. Any waiver of
developmental rights shall be made a term of any contract of sale or of lease of the parcel, and shall be
recited in any deed in the form as follows:
"WAIVER OF DEVELOPMENTAL RIGHTS"
"In order to comply with the State of Vermont Environmental Protection
Rules on the subdivision of lands and disposal of waste including sewage,
the grantee shall not construct or erect a structure or building on the
parcel of land conveyed herein, the useful occupancy of which will require
the installation of plumbing and sewage treatment facilities or convey this
land without first complying with said State regulations. The grantee by
acceptance of this deed acknowledges that this lot may not qualify for
approval for development under the appropriate environmental protection
or health regulations and that the State may deny an application to
develop the lot."
(2) If the parcel is to be considered for building development at some future date, the
applicant(s) understand(s) that the information required by Section 1-307 of the Rules must be submitted
for evaluation. If such information does not meet the Environmental Protection Rules, permission to build
on the lot will be denied.
(3) The conditions of this permit shall run with the land .and will be binding upon and
enforceable against the permittee and all assigns and successors in interest. The permittee shall be
responsible for recording this permit and the "Notice of Permit Recording" in the South Burlington Land
Records within 30 days of issuance of this permit and prior to the conveyance of any lot subject to the
jurisdiction of this permit.
(4) This permit does not constitute Act 250 approval (10 VSA §151). The permittee is hereby
reminded to procure all relevant state and local permits prior to proceeding with this project.
Dated at Essex Junction, Vermont, on Cq 24,1999.
Canute E. Dalmasse, Commissioner
Departme t of Environmental nservation
By ®« C
Irene L. Roberge
DEC Regional Office Coord.
cc: For the Record
City of South Burlington Planning Commission and Selectboard
LLEWELLYN • HOWLEY
I N C O R P O R A T E D
February 22, 2002
Mr. Ernie Christianson
Regional Engineer
Agency of Natural Resources
Wastewater Management Division
H-T"West Street
Essex Jct., VT 05495
Re: Pinnacle @ Spear
Subdivision Permit EC-4-1750-1
File: 99030
Dear Ernie,
?�-r-) 5 Z- 73
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This is to certify construction of the utility systems (water, sewer and storm) to serve the
residential lots, 52 through 80 on Vale Drive, as part of the subdivision referred to Pinnacle @
Spear, in South Burlington. This certification is to satisfy Condition #13 of the Subdivision
Permit EC-4-1750-1.
Please find enclosed two copies of a drawing entitled "Pinnacle at Spear — As Built Site Plan" by
Llewellyn -Howley, Incorporated, drawing number 99030300, dated 01/21/00, last revised
02/22/02. Also included with this submission are copies of the leakage test results for the
sanitary sewer system on Vale Drive. We understand this information satisfies the conditions of
the above referenced permit and will be incorporated into the permit.
Thank you for your assistance in this matter.
Sincerely,
LLEWELLYN-HOWLEY INCORPORATED
Grp
Lance lewelly ,E,
FEB 2 6 2002
y
4049 Williston Road • South Burlington • Vermont • 05403
T 802-658.2100 • F 802-658.2882 • e-mail: Ilewellinc@aol.com
Engineering - Land Development • Permitting
LLEWELLYN • HOWLEY
I N C O R P O R A T E D
May 17, 2000
Re: Pinnacle @ Spear
Record of utility test results
File: 99030
Test: Sewer main deflection test
Minimum criteria to pass test: 95% mandrel must be pulled through all sewer mains.
Tests performed by: Don Laughlin, Don Weston Excavating Inc.
Tests observed by: John Pyke, Llewellyn -Howley Inc.
Date of Test: April 18, 2000
Section tested: SMHI to SMH2
Result: Pass
Comments: Clean
Section tested: SMH2 to SMH3
Result: Pass
Comments: Dirty, 5 gallons muck pulled through and removed.
Section tested: SMH4 to SMH3
Result: Pass
Comments: 2 cups muck pulled through and removed.
Section tested: SMH5 to SMH4
Result: Pass
Comments: Dirty, 4 gallons muck pulled through and removed.
Section tested: SMH6 to SMH5
Result: Pass
Comments: Clean
Section tested: SMH7 to SMH6
Result: Pass
Comments: Clean
Section tested: SMH3 to SMH8
Result: Pass
Comments: small quantity muck pulled through and removed
Section tested: SMH8 to SMH2O
Result: Pass
Comments: Dirty, 5 gallons muck pulled through and removed.
4049 Williston Road • South Burlington • Vermont • 05403
T 802-658.2100 • F 802-658.2882 • e-mail: Ilewellinc@aol.com
Engineering • land Development • Permitting
LE
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LLEWELLYN - HOWLEY
I N C O R P O R A T E D
May 17, 2000
Re: Pinnacle @ Spear
Record of utility test results
File: 99030
Test: Sewer main leakage test using the Air Test
Minimum criteria to pass test: The mimimum allowed time for a pressure drop from 3.5 psi to
2.5 psi shall be 1.2 minutes per 100 feet of 8" sewer.
Tests performed by: Don Laughlin, Don Weston Excavating Inc.
Tests observed by: John Pyke, Llewellyn -Howley Inc.
Section tested: SMH5 to SMH6
Date tested: 04/ 14/2000 Length tested: 216 feet
Minimum allowable time for pressure drop: 2.6 minutes
Starting pressure: 3.9 psi Ending pressure: 3.7 psi
Length of test: 3 minutes Result: Pass
Section tested: SMH6 to SMH7
Date tested: 04/13/2000 Length tested: 200 feet
Minimum allowable time for pressure drop: 2.4 minutes
Starting pressure: 3.5 psi Ending pressure: 3.2 psi
Length of test: 2 min. 30 sec. Result: Pass
Section tested: SMH8 to SMH2O
.Date tested: 4/ 14/2000 Length tested: 190.5 feet
Minimum allowable time for pressure drop: 2.3 minutes
Starting pressure: 3.5 psi Ending pressure: 3.2 psi
Length of test: 3 minutes Result: Pass
t
►,l`t` Fg 2 6 2002 I
4049 Williston Road • South Burlington • Vermont • 05403
T 802-658.2100 - F 802-658.2882 - e-mail: Ilewellinc@aol.com �u tip
Engineering • Land Development - Permitting
LLEWELLYN • HOWLEY
I N C O R P O R A T E D
May 17, 2000
Re: Pinnacle @ Spear
Record of utility test results
Fite: 99030
Test: Sewer Manhole Vacuum Test
Minimum criteria to pass test: Vacuum shall not drop from 10 inches to less than 9 inches within
a 2 minute test period.
Test performed by: Don Laughlin, Don Weston Excavating Inc.
Observed by: John Pyke, Llewellyn -Howley Inc.
Structure: SMH7
Date: 4/ 14/2000
Results: 10 psi to 9.5 psi in 2 minutes.
Pass.
Structure: SMH8
Date: 4/ 14/2000
Results: 11.0 psi to 10.5 psi in 2 minutes.
Pass.
Structure: SMH2O
Date: 4/ 14/2000
Results: 10 psi to 9 psi in 2 minutes
Pass.
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FEB 2 g 2002
4049 Williston Road • South Burlington • Vermont • 05403
T 802-658.2100 • F 802.658.2882 • e-mail Ilewellinc@aol.com
Engineering • Land Development • Permitting
LLEWELLYN - HOWLEY
I N C O R P O R A T E D
November 29, 1999
Re: Pinnacle @ Spear
Record of utility test results
File: 99030
Test: Sewer main leakage test using the Air Test
Minimum criteria to pass test: The mimimum allowed time for a pressure drop from 3.5 psi to 2.5
psi shall be 1.2 minutes per 100 feet of 8" sewer,
Tests performed by: Don Laughlin, Don Weston Excavating Inc.
Tests observed by: John Pyke, Llewellyn -Howley Inc.
Section tested: SMH 1 to SMH2
Date tested: 10/22/99 Length tested: 311 feet
Minimum allowable time for pressure drop: 3.6 minutes
Starting pressure: 3.7 psi Ending pressure: 3.6 psi
Length of test: 3.6 minutes Result- Pass
Section tested: SMH3 to SMH4
Date tested: 10/25/99 Length tested: 195 feet
Minimum allowable time for pressure drop: 2.6 minutes
Starting pressure: 4 psi Ending pressure: 3.5 psi
Length of test: 4 minutes Result: Pass
Section tested: SM13 to SMH8
Date tested: 10/25/99 Length tested: 175 feet
Minimum allowable time for pressure drop: 2.1 minutes
Starting pressure: 3.9 psi Ending pressure: 3.9 psi
Length of test: 4 minutes Result: Pass
Section tested: SMH2 to SMH3
Date tested: 10/26/99 Length tested: 318 feet
Minimum allowable time for pressure drop: 3.8 minutes
Starting pressure: 3.5 psi Ending pressure: 2.8 psi
Length of test: 3.8 minutes Result: Pass
Section tested: SMH4 to SMH5
Date tested: 10/26/99 Length tested: 231 feet
Minimum allowable time for pressure drop: 2.8 minutes
Starting pressure: 3.8 psi Ending pressure: 3.8 psi
Length of test: 4 minutes Result: Pass
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r' FEB 2 6 2002
Y
4049 Williston Road • South Burlington - Vermont • 05403
T 802-658.2100 • F 802.658.2882 • e-mail Ilewellinc@aol.com
Engineering • Land Development - Permitting
LLEWELLYN HOWLEY
I N C O R P O R A T E D
November 29, 1999
Re: Pinnacle @ Spear
Record of utility test results
File: 99030
Test: Sewer Manhole Vacuum Test
Minimum criteria to pass test: Vacuum shall not drop from 10 inches to less than 9 inches within a
2 minute test period.
Test performed by: Don Laughlin, Don Weston Excavating Inc.
Observed by: John Pyke, Llewellyn -Howley Inc.
Structure: SMH 1
Date: 10/8/99
Results: 10 psi to 9 psi in 2 minutes.
Pass.
Structure: SMH2
Date: 10/8/99
Results: 11.5 psi to 10.5 psi in 2 minutes.
Pass.
Structure: SMH3
Date: 10/8/99
Results: 11.5 psi to 10.5 psi in 2 minutes
Pass.
Structure: SMH4
Date: 10/8/99
Results: 10 psi to 9.5 psi in 2 minutes
Pass
Structure: SMH5
Date: 10/8/99
Results: 10.1 psi to 9.7 psi in 2 minutes
Pass
Structure: SMH6
Date: 10/8/99
Results: 10.1 psi to 9.6 psi in 2 minutes
Pass
4049 Williston Road • South Burlington • Vermont • 05403
T 802-658.2100 • F 802.658.2882 • e-mail: Ilewellinc@aol.com
Engineering • Land Development • Permitting
FEB?
LLEWELLYN • HOWLEY
I N C O R P O R A T E D
May 17, 2000
Re: Pinnacle @ Spear
Record of utility test results
File: 99030
Test: Sewer main deflection test
Minimum criteria to pass test: 95% mandrel must be pulled through all sewer mains.
Tests performed by: Don Laughlin, Don Weston Excavating Inc.
Tests observed by: John Pyke, Llewellyn -Howley Inc.
Date of Test: April 18, 2000
Section tested: SMH 1 to SMH2
Result: Pass
Comments: Clean
Section tested: SMH2 to SMH3
Result: Pass
Comments: Dirty, 5 gallons muck pulled through and removed.
Section tested: SMH4 to SNUB
Result: Pass
Comments: 2 cups muck pulled through and removed.
Section tested: SMH5 to SMH4
Result: Pass
Comments: Dirty, 4 gallons muck pulled through and removed.
Section tested: SMH6 to SMH5
Result: Pass
Comments: Clean
Section tested: SMH7 to SMH6
Result: Pass
Comments: Clean
Section tested: SMH3 to SM H8
Result: Pass
Comments: small quantity muck pulled through and removed
Section tested: SMH8 to SMH2O
Result: Pass
Comments: Dirty, 5 gallons muck pulled through and removed.
4049 Williston Road - South Burlington - Vermont - 05403
T 802-658.2100 • F 802-658.2882 • e-mail: Ilewellinc@aol.com
Engineering - Land Development - Permitting
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LLEWELLYN • HOWLEY
I N C O R P O R A T E D
May 17, 2000
Re: Pinnacle @ Spear
Record of utility test results
File: 99030
Test: Sewer main leakage test using the Air Test
Minimum criteria to pass test: The mimimum allowed time for a pressure drop from 3.5 psi to
2.5 psi shall be 1.2 minutes per 100 feet of 8" sewer.
Tests performed by: Don Laughlin, Don Weston Excavating Inc.
Tests observed by: John Pyke, Llewellyn -Howley Inc.
Section tested: SMH5 to SMH6
Date tested: 04/ 14/2000 Length tested: 216 feet
Minimum allowable time for pressure drop: 2.6 minutes
Starting pressure: 3.9 psi Ending pressure: 3.7 psi
Length of test: 3 minutes Result: Pass
Section tested: SMH6 to SMH7
Date tested: 04/13/2000 Length tested: 200 feet
Minimum allowable time for pressure drop: 2.4 minutes
Starting pressure: 3.5 psi Ending pressure: 3.2 psi
Length of test: 2 min. 30 sec. Result: Pass
Section tested: SMH8 to SMH2O
Date tested: 4/ 14/2000 Length tested: 190.5 feet _
Minimum allowable time for pressure drop: 2.3 minutes
Starting pressure: 3.5 psi Ending pressure: 3.2 psi
Length of test: 3 minutes Result: Pass
FEB 2 6 i
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14At. t�
4049 Williston Road - South Burlington - Vermont - 05403
T 802-658.2100 • F 802-658.2882 • e-mail Ilewellinc@aol.com
Engineering - Land Development - Permitting
CARL H. LISMAN
ALLEN D. WEBSTER, CPA
MARY G. KIRKPATRICK
E. WILLIAM LECKERLING
DOUGLAS K. RILEY
MARK D. OETTINGER
RICHARD W. KOZLOWSKI
JUDITH L. DILLON
CHRISTINA A. JENSEN
Mr. Ray Belair
City of South Burlington
Planning Office
575 Dorset Street
South Burlington, VT 05403
Dear Ray:
LISMAN & LISMAN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
P.O. BOX 728
BURLINGTON, VERMONT 05402
Telephone 802-864-5756
Telecopier 802-864-3629
November 23, 1999
The Pinnacle at Spear
OFFICES IN FINANCIAL PLAZA
AT 84 PINE STREET
BURLINGTON, VERMONT
LOUIS LISMAN
BERNARD LISMAN
COUNSEL
E-Mail Address:
clisman@lisman.com
Lance Llewellyn has forwarded to us a revised table with respect to height limitations for
Lots 52 through 80 at The Pinnacle at Spear.
I have prepared a Third Notice of Development Conditions, a copy of which is enclosed.
I am sending a copy directly to Tim Eustace.
Let me know whether this document is
V
Carl H. Lisman
CHL/ddp
Enclosure
cc Timothy Eustace, Esq.
20014\010
the City.
PINNACLE AT SPEAR
THIRD NOTICE OF DEVELOPMENT CONDITIONS
THIS NOTICE is made this day of November, 1999, by Gerald C. Milot and John P.
Larkin, doing business as Larkin Milot Partnership, a Vermont general partnership (the "Declarant").
Recitals
A. The Declarant was the original sponsor of the subdivision located on the easterly side of
Spear Street in the City of South Burlington known as "Pinnacle at Spear." The lands comprising
the subdivision were conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed,
dated July 8, 1990, from Rheal C. Gagnon and HelenN. Gagnon, recorded in Volume 296, Page 538
of the Land Records of the City of South Burlington, and pursuant to a warranty deed, dated March
17, 1992, from Marie Underwood, recorded in Volume 322, Page 188 of the Land Records of the
City of South Burlington (the "Property").
B. The Declarant initially received approval from, the South Burlington Planning
Commission to subdivide the Property into 73 single-family lots, common areas and roads, as
depicted on the Plan. Thereafter, the Declarant received approval to create 7 additional single-family
lots and reconfigure a portion of the common areas.
C. The subdivision, as originally approved, is shown and depicted on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. al.
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume 286,
Pages 111 and 112 of the Land Records of the City of South Burlington. The subdivision, with Lots
74 through 84, is shown and depicted on a plan entitled
Final Plat for Subdivision
of Property of Gerald Milot and John Larkin
Pinnacle @ Spear
(Formerly Nowland Two)
dated August 21, 1998, last revised January 5, 1999, prepared by Vaughn C. Button, L.S., recorded
in Map Volume 430, Pages 57 and 58 of the Land Records of the City of South Burlington.
C. It is a condition to the subdivision approval, as amended, by the Planning Commission
that the Declarant make certain undertaking and promises.
D. This document supplements prior Notices of Development Conditions, dated November
5,1993, recorded in Volume 353, Page 585, dated , 1995, recorded in Volume ,
Page , and dated January _, 1999, recorded in Volume , Page , respectively,of the
Land Records of the City of South Burlington.
AGREEMENT
In consideration of Ten Dollars and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Declarant hereby declares that the Property is and
confirms that the Property shall be held, sold and conveyed subject to the following covenants,
agreements, easements and restrictions, all of which are for the purpose of protecting the value and
desirability of, and which shall run with, the Property and be binding on all parties having any right,
title or interest therein or any part thereof, and their heirs, successors and assigns:
The maximum height of any building and any landscaping on each of Lots 52 through 80
inclusive shall be as set forth on the Attachment hereto. No building shall be constructed or
landscaping permitted which shall exceed such limits.
To the extent that any previous Notice of Development Conditions permits a greater limitation than
set forth in this Notice, this Notice shall control.
IN WITNESS WHEREOF, the Declarant has executed this Declaration this day of
November, 1999.
WITNESS:
:•
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
LARKIN MILOT PARTNERSHIP
John P. Larkin, general partner and duly authorized
agent
At South Burlington in said County and State on this day of November, 1999,
personally appeared John P. Larkin, general partner and duly authorized agent of Larkin Milot
Partnership, and he acknowledged this instrument by him signed and sealed to be his free act and
deed and the free act and deed of Larkin Milot Partnership.
Before me
Notary Public
03\20014\010Uegalkonditi3.not
STEVEN F. STITZEL
PATT1 R. PAGE*
ROBERT E.FLETCHER
JOSEPH S. MCLEAN
TIMOTHY M. EUSTACE
MIA KARVONIDES
('ALSO ADMITTED IN N.Y.)
STITZEL, PAGE & FLETCHER, P.C.
ATTORNEYS AT LAW
171 BATTERY STREET
P.O. BOX 1507
BURLINGTON, VERMONT 05402-1507
(802) 660-2555 (VOICEII'DD)
FAX (802) 660-2552
E-MAIL(FIIZM2555@FIRMSPF.COW
WRITER'S EMAIL (TEUSTACE@FIRMSPF.COM)
November 19, 1999
VIA FACSIMILE & FIRST CLASS MAIL
Carl E. Lisman, Esq.
PO Box 728
Burlington, VT 05402-0728
Re: Pinnacle at Spear
Dear Carl:
OF COUNSEL
ARTHUR W. CERNOSIA
Thank you for the Irrevocable Offers of Dedications and
Warranty Deeds for the revised Vale Drive, Dorey Road, Utility
Easements and Recreation Path. I offer you the following
comments regarding the documents:
1. General Comment - Map Reference. Please note that the full
title for the plans are as follows:
"Final Plat for Subdivision of Gerald Milot and John Larkin
Pinnacle @ Spear (formerly Nowland Two) Spear Street, South
Burlington, Vermont dated 8/21/98, last revised 1105/99,
consisting of two pages, prepared by Vaughn C. Button, L.S.,
recorded in Map Volume 430, pages 57 and 58 of the Land
Records of the City of South Burlington."
2. Irrevocable Offers of Dedication - Recitals - Paragraph E -
Note the following typo:
"The Owner has, with the delivery ...11
3. Roadways - Warranty Deed/Exhibit A - Description:
A. Description of Vale Drive should read as follows:
"Being that roadway identified as Vale Drive, from its
intersection with Nowland Farm Road Drive (formerly
known as Deerfield Nowland Farm Drive) to and including
the cul-de-sac at its northern most terminus..."
Carl H. Lisman, Esq.
November 19, 1999
Page 2
B. The sixty foot wide easement extending from the
northerly terminus of Vale Drive should also be
conveyed to the City. Since this extension would be
for use as a future road, it would be best that this
piece be conveyed to the City in a separate Warranty
Deed.
C. Dorey Road Description - Note that there is no cul-de-
sac for Dorey Road. The description should read as
follows:
"That roadway identified as Dorey Road, from its
intersection with Vale Drive to Grantor's southerly
boundary, as shown and depicted on the Plat."
4. Utility Easements and Recreation Path Easement:
A. 20 foot Utility Easement - Note that this easement is
located in common land "B" and proceeds easterly in the
common boundary of lots 58 and 59.
B. Easement located along the southerly portion of Lot 52
and the easterly portions of Lots 52 through 60 - note
that this is a 10 foot utility easement.
C. Recreation Path Easement Deed. The Recreation Path
Easement Deed you provided is not in the City's
standard format. I enclose a copy of the Recreation
Path Easement Deed you submitted in April of 1998
(currently in cold storage at the City offices). The
City will require use of this format.
5. General Comment - As you know, Irrevocable Offers of
Dedication and Exhibits have already been recorded for this
project. Since the new Offers of Dedication will amend, in
part, the Offers previously recorded and replace certain
Exhibits and Warranty Deeds, these new Offers should refer
to the previously recorded Offers of Dedication and briefly
explain the amendment thereto and the replacement
Exhibits/Deeds. Moreover, your client will probably want
the City to quitclaim its interest in the easements that
will no longer be used. In addition, the new Offers should
note that aside from the changes made in the amended Offers
of Dedication, the original Offers of Dedication remain in
full force and effect. Finally, the last package of real
estate documents for this project included Partial
Discharges from (1) Vermont National Bank; (2) Rheal C.
Gagnon and Helen N. Gagnon; and (3) Gerald C. Milot and
Marsha W. Milot. I do not know if one or more of these
mortgages have since been discharged. If not, these Partial
Discharges would have to be amended to address the revisions
Carl H. Lisman, Esq.
November 19, 1999
Page 3
to the location of the easements being conveyed to the City
of South Burlington.
Please give me a call if you have any questions. I look
forward to receiving revised documents.
Sincerely,
Timothy M. Eustace
THE/7P
Enclosure
cc: Raymond J. Belair
Son4186.cor
RECREATION PATH EASEMENT DEED
KNOW ALL MEN BY THESE PRESENTS, that GERALD C. MILOT and 1OHN P.
LARKIN, doing businness as LARKIN MILOT PARTNERSHIP, a Vermont general partnership
having a place of business in Burlington, Vermont, in consideration of One Dollar, and other valuable
consideration, the receipt and satisfaction of which are hereby acknowledged, to it paid by the CITY
OF SOUTH BURLINGTON, a municipal corporation existing under the laws of the State of
Vermont, Grantee, hereby GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the said
Grantee, CITY OF SOUTH BURLINGTON, and its successors and assigns forever, a perpetual
easement and right of way for the purpose of constructing and maintaining a recreational pathway
for public use over, on and through property in the City of South Burlington, County of Chittenden
and State of Vermont, described as follows:
A strip of land twenty feet (20) in width as depicted on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. al.
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume
286, Pages 11 l and 112 of the City of South Burlington Land Records. As depicted on the
plan, the strip of land extends over portions of Common Land Area B between the northerly
sideline of Deerfield Drive and the northerly boundary of Common Land Area B.
Said easement and right of way shall be used by the public as a recreational and bicycle
pathway subject to the condition that no motorized traffic, including, but not limited to,
motorcycles, trail bikes and snowmobiles, shall be allowed to use the pathway, except
motorized vehicles used by the Grantee, or its agents, for the purpose of maintaining or
patrolling the pathway.
Grantee, its successors and assigns, shall have the right to construct, reconstruct, repair,
maintain, replace, patrol, level, fill, drain and pave said recreational pathway, including all
necessary bridges, culverts, cuts and ramps, at its sole cost and expense.
Grantee further agrees, for itself and its successors and assigns, that any premises affected by
its entry pursuant to this easement and temporary construction easement shall be restored to
their condition prior to such entry at its own cost and within a reasonable time.
Grantee agrees, for itself and its successors, that it will indemnify and hold the Grantor
harmless, to the full limits of liability insurance that it customarily maintains, for any injury or
damage resulting from the public use of said right of way not attributable to acts of the
Grantor. Grantee, by the recording of this easement, acknowledges that it has been donated
to the City, at no cost to the City, with the intent that Grantor shall receive the full benefit and
protection of 19 V.S.A. Section 2309.
For purposes of construction a temporary easement and right of way five feet on each side
of said permanent easement and right of way is hereby granted. Said temporary easement and
right of way shall expire once construction is completed and the recreational pathway is open
to the public.
The within Grantor, its successors and assigns, shall have the right to make use of the surface
of the right of way and easement such as shall not be inconsistent with the use of said right
of way, but specifically shall place no structures, landscaping or other improvements within
said easement and right of way which shall prevent or interfere with the within Grantee's
ability to use said easement and right of way. Grantee acknowledges that the construction
and maintenance of improvements necessary to provide access to Grantor's property shall not
be inconsistent with the use of this easement by the Grantee.
Being a portion of the lands and premises conveyed to Gerald C. Milot and John P. Larkin
pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen N.
Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South l
Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John t
P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood,
recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington.
Reference is hereby made to the aforementioned instruments, the records thereof and the
references therein in further aid of this description.
TO HAVE AND TO HOLD the above granted rights and privileges in, upon and over said
premises unto Grantee, its successors and assigns forever; and Grantor does for itself and its
successors and assigns, covenant with Grantee and its successors and assigns, that Grantor is lawfully
seized in fee simple of the aforesaid premises, that they are free from all encumbrances, that the
Grantor has good right and title to sell and convey the rights as aforesaid and that Grantor, and its
successors and assigns shall warrant and defend the same to Grantee and its successors and assigns
forever against the lawful claims and demands of all persons.
IN WITNESS WHEREOF, Larkin Milot Partnership hereunto set its hands and seals this
I day of November, 1995.
IN P E F: LARKIN cMI ILOT PARTN RSHIP
BY Y. \
Gerald C. Milot, General Partner and Duly Authorized
ent
BY
Jop6y. Larkin, General Partner and Duly Authorized
t
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington in said County and State on this�r day of November, 1995, personally
appeared Gerald C. Milot, General Partner and Duly Authorized Amcnf-o-lNarkin Milot Partnership,
and he acknowledged this instrument by him signed and sealed free aN and deed and the free
act and deed of Larkin Milot Partnership.
Before me
Notary Public
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington in said County and State on this I it
j; J L : day of November, 1995, personally
appeared John C. Larkin, General Partner and Duly Authorized Agent of Larkin Milot Partnership,
and he acknowledged this instrument by him signed and sealed, .t ct and deed and the free
act and deed of Larkin Milot Partnership.
Before me
Notary Public
Prepared by Lisman & Lisman, P.C., P.O. Box 728, Burlington, VT 05402 (802) 864-5756
04UW1Me1&ksdW.e-a.4v
. 1 ,
Agency of Natural Resources
Department of Environmental Conservation
Water Quality Division
Building 10 North, 2nd Floor
802-241-3770
Fax #:802-241-3287
MEMORANDUM
To: Randy Bean, Wastewater Management Division
From: Jim Pease
Date: November 15, 1999
Subject: Pinnacle at Spear, Permit # 1-1155, sn # 1
cc: Ray Belair, South Burlington Planning and Zoning Office
Greg Eurich, UVM Horticulture Farm
Randy:
This is to notify you that stormwater being released from the Pinnacle at Spear (Spear Street,
South Burlington) extended detention basin is causing some significant erosion on several
properties west of Spear Street. I have been notified by several neighboring landowners, the
UVM Horticulture Farm and the city about the problem. I did visit the area on October 26 and
photo documented some of the problems. In addition I spoke with Greg Eurich (658-9166) the
farm manager who provided me with a description of the problem on the UVM property. I have
also been told by the city that over $15,000 was spent for about 275 feet of culvert (diagram) in
the drainage way recently to correct flooding problems at least in part related to this discharge.
The city has also spent an unspecified amount for stone riprap to reinforce a municipal bikepath
where outfall water from the Pinnacle at Spear basin crosses the path. It appears that prior to
construction of Pinnacle at Spear there was an existing drainage way or at least culvert crossing
of Spear St, however the additional runoff from the 10 yr design storm basin has overwhelmed
the drainage even though the developer installed several hundred feet of stone swale at the
outfall. It does appear that the swale may have been improperly installed as the rock is moving
downhill over the underlying fabric (photo 1). At the UVM property line there is erosion
immediately below the bikepath where a deep (2'x3') trench has been formed and continues to
down cut (photo 2). The trench continues and widens to the west end of the field where the city
just installed drainage pipe to collect the runoff and redirect it into the street drain system of
Sebring/Yandow Drives. At this point the swale had become quite enlarged and was a danger
for tractor operation on the farm. Although there is some overland flow entering the drainage
way from the north (Symanski Park) the largest fraction is coming from the east and therefore
from Pinnacle. In addition even with this work the system is still sometimes overwhelmed and
causes flooding in the Sebring neighborhood.
Unfortunately this problem is not unique in this watershed. The city has recognized that there is
an erosion problem in the Bartlett Brook watershed for over 15 years. Unfortunately the city did
not require 25 yr design storm controls for this project. It would appear though that the smaller
more frequent storms may be responsible for a lot of the down cutting in these very erodible
Adams -Duane sands. If this in fact true a retrofit of the existing basin to the 2 yr storm might
alleviate a lot of the erosion. Even though this permit was recently amended (1999) this
discharge point was not required to be upgraded to the current procedures. It would seem that, if
possible, the addition of a smaller orifice to the outlet structure, might correct the problem along
with corrections in the riprap below the outfall. Greg Eurich believes the only real solution is to
install drainage pipe the entire length of the swale, obviously a costly solution. He thinks a
riprapped swale on the UVM property would be difficult to maintain. The total length of pipe
needed would be close to 2000 feet.
In reviewing the permit file I did notice that the maintenance survey for the permit amendment
although well done, did not look at the outfall and downstream, which is where the problems are
occurring. Also it would appear that the calculation of the total stormwater source areas for the
permit was incorrect (xerox attached). I don't know if this would have effected the final peak
discharge rates.
If you have any questions please don't hesitate to call me.
a
�
Extended Detention
3asin #1-115� sn #1
�J Soils
Storm lines
Tax Parcels
Roads
�' Bartlett Brook
LISMAN & LISMAN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
P.O. BOX 728
BURLINGTON, VERMONT 05402
CARL H. LISMAN
ALLEND. WEBSTER, CPA
MARY G. KIRKPATRICK
E. WILLIAM LECKERLING
DOUGLAS K. RILEY
MARK D. OETTINGER
RICHARD W. KOZLOWSKI
JUDITH L. DILLON
CHRISTINA A. JENSEN
Mr. Ray Belair
City of South Burlington
Planning Office
575 Dorset Street
South Burlington, VT 05403
Telephone 802-864-5756
Telecopier 802-864-3629
January 28, 1999
OFFICES IN FINANCIAL PLAZA
AT 84 PINE STREET
BURLINGTON, VERMONT
LOUIS LISMAN
BERNARD LISMAN
COUNSEL
The Pinnacle at Spear
Dear Ray:
I am enclosing the signed original of the Not ce of Development Conditions.
V
Carl H. Lisman
CHL/ddp
Enclosure
20014\010
E-Mail Address:
clisman@lisman.wm
CARL H. LISMAN
ALLEN D. WEBSTER, CPA
MARY G. KIRKPATRICK
E. WILLIAMLECKERLING
DOUGLAS K. RILEY
MARK D. OETTINGER
RICHARD W. KOZLOWSKI
JUDITH L. DILLON
CHRISTINA A. JENSEN
Mr. Ray Belair
City of South Burlington
Planning Office
575 Dorset Street
South Burlington, VT 05403
Dear Ray:
LISMAN & LISMAN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
P.O. BOX 728
BURLINGTON, VERMONT 05402
Telephone 802-864-5756
Telecopier 802-864-3629
January 26, 1999
The Pinnacle at Spear
OFFICES IN FINANCIAL PLAZA
AT 84 PINE STREET
BURLINGTON, VERMONT
LOUIS LISMAN
BERNARD LISMAN
COUNSEL
E-Mail Address:
clisman@lisman.com
lisman.com
As we previously discussed, I am enclosing another copy of the Notice of Development
Conditions, signed by both Gerry and John. If you have not already recorded the prior version,
you may want to record this one. I have not inserted the information regarding the recording
data, because I did not keep a copy of the documeneviously delivered.
Carl H. Lisman
CHL/ddp
Enclosure
20014\010
JAN-08-99 FRI 15:36 Lisman & Lisman FAX NO. 802-864-3629 P.02/09
PINNACLE AT SPEAR
NOTICE OF DEVELOPMENT CnNDITIONS
THIS NOTICE is made this day of January, 1999, by Gerald C. Milot and John P.
Larkin, doing business as Larkin Milot Partnership, a Vermont general partnership (the "Declarant").
RECITALS
1. The Declarant was the original sponsor of the subdivision looted on the easterly side of
Spear Street in the City of South Burlington known as "Pinnacle at Spear." The lands comprising
the subdivision were conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed,
dated July 8, 1990, from Rheal C. Gagnon and Helen N. Gagnon, recorded in Volume 296, Page 538
of the LaM Records of the City of South Burlington, and pursuant to a warranty deed, dated Marsh
17, 1992, from Marie Underwood, recorded in Volumc 322, Page 188 of the Land Records of the
City of South Burlington (the "Property").
2. The Declarant initially received approval from, the South Burlington Planning
Commission to subdivide the Property into 73 single-family lots, common areas and roads, as
depicted on the Plan. Thereafter, the Declarant received approval to create 7 additional single-family
lots and reconfigure a portion of the common areas.
3. The subdivision, as originally approved, is shown and depicted on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. a1.
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorpordted, recorded in Map Volume 286,
Pages 111 and 112 of the Land Records of the City of South Burlington. The subdivision, with Tots
74 through 94, is shown and depicted on a plan entitled
Final Plat for Subdivision
of Properly of Gerald Wot and John Larkin
Pinnacle (try Spear
(Formerly Nowiand Two)
dated August 21,1998, last revised January 5, 1999, prepared by Vaughn C. Button, L.S., recorded
in Map Volume �, Pages and of the Land Records of the City of South Burlington.
JO-08-99 FRI 15:37 Lisman & Lisman FAX NO. 802-864-3629 P.03/09
� I
4. It is a condition to the subdivision approval, as amended, by the PIanning Commission
that the Declarant make certain undertaking and promises.
5. This document supplements prior Notices of Development Conditions, dated November
5, 1993, recorded in Volurne 153, Page 585 and dated , 1995, recorded in Volume
Page __ of the Land Records of the City of South Burlington.
AGREENTNT
In consideration of Ten Dollars and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Declarant hereby declares that the Property is and
confirms that the Property shall be held, sold and conveyed subject to the fallowing covenants,
agreements, easements and restrictions, all of which are for the purpose of protecting the value and
desirability of, and which shall run with, the Property and be binding on all parties having any right,
title or interest therein or any part thereof., and their heirs, successors and assigns:
6. The maximum height of any building and any landscaping on each Lot shall be as set
forth on the Attachment hereto. No building shall be constructed or landscaping permitted which
shall exceed such limits.
IN WITNESS WHEREOF, the Declarant has executed this Declaration this day of
January,1999.
WITNESSES: LARKIN MILOT PAK'1:vERSHIP
Gerald C. Milot, general partner and duly authorized
agent
BY �L
John, P. kin, general partner and duly authorized
agent,
STATE OF VERMONT
CHIT ENDEN COUNTY, SS.
At Burlington in said County and State''s n� 7 day of January, 1999, personally
appeared John P. Larkin, general partner anW,e
agent of Larkin Milot Partnership, and
he acknowledged this instrument by him so be his free act and deed and the free
act and deed of Larkin Milot Partnership..
Before me
Notary Public
2
JAN-08-99 FRI 15:37 Lisnan & Lisman FAX NO. 802-864-3629 P.05/09
PINNACLE ca SPEAR
Lots 1 through 51
South Burlington, Vermont
The following information was obtained from a document entitled "Table of Height Limitations
For Structures Within the Dorset Park View Protection Zones" prepared by FitzPatrick-Llewellyn
Incorporated in July 1993
Table of height limitations for Dorset Park View Protection Zones
Zone A - Section 25.401
Zone D - Section 25.407
Dotes refer to Table below
Column 1. Lot numbers according to Fit .Patrick -Llewellyn Incorporated, Drawing D-4382
Column 2. Dorset Park View Protection Zone (VPZ), A or D
Column 3. Distances scaled from Dorset Park VPZ baseline to center of house lot - feet
Column 4. Existing house lot grade
Column S. Ceiling Height relative to Dorset park VPZ Baseline
VPZ A: ceiling height - 43 5'- 3.1 (distance/1000)
VPZ D; ceiling height = 435 - .7 (distance/1000)
Column 6. Road Centerline Grade adjacent to house Iot
Column 7, First Floor Elevation (road centerline grad plus 5 feet)
Column R. Maximum height of structures, first floor elevation to ridgelirue (ceiling height
minus FFE).
TABLE I
1
Lot 4
2
Vicw
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Existing
Grade
S
Ceiling
Height
6
Road
Centerline
grade
7
1" Floor
Elevatiorn
8
Max
Height
1
A
5900
391.0
416.7
390.5
395.5
21.2
2
A
5900
390.0
416.7
389.5
394.5
222
3
A
5850
387.0
416.9
387.9
392.9
24.0
4
A
5850
386.0
416.9
387.0
392.0
24.9
5
D
5900
384.0
430.9
386.0
39I.0
39.9
6
D
6000
382.0
430.8
385.2
390.2
40.6
7
D
6000
380.0
430.8
3842
3892
41.6
8
D
6100
390.0
430.7
384.1
389.1
41.6
LLEWELLYN
INCORPORATED
JAN-08-99 FRI 15:38 Lisman & Lisman FAX NO. 802-864-3629 P,06/09
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Existing
Grade
S
Ceiling
Height
430.9
6
Road
Centerline
2�rade
387.0
7
1" Floor
Elevatiom
392.0
8
Max
Height
38.9
9
D
5900
388.0
10
D
5850
386.0
430.9
384.0
389.0
41.9
11
D
5850
386.0
430.9
383.8
388.8
411
12
D
5800
386.0
430.9
384.4
389.4
41.5
13
D
5800
386.0
430.9
384.8
389.8
41.1
14
D
5750
387.0
431.0
385.4
390.4
40.6
15
n
5720
388.0
431.0
385.9
390.9
40.1
16
A
5650
390.0
417.5
386.8
391,8
25.7
17
A
5650
390.0
417.5
386.9
391.8
25.7
18
A
5650
390.0
417.5
397.4
392.4
25.1
19
A
5600
390.0
417.6
387.9
392.8
24.8
20
A -T
5620
389.5
417.6
388.3
393.3
24.3
21
A
5500
392.0
417.9
390.5
395.5
22.4
22
A
5500
392.0
4179
391.5
396.5
21.4
23
A
5500
392.0
417.9
392.2
397.2
20.7
24
D
5550
392.5
431.1
393.0
398.0
33.1
25
D
5550
392.5
431.1
393.0
398.0
33.1
26
D
5560
393.0
431.1
393.2
398.2
32.9
27
D
55600
393.0
431.1
393.5
398.5
32.6
28
D
56I0
391.0
431.1
393.3
398.3
32.8
29
D
5650
392.0
431.0
393.0
398.0
33.0
30
D
5680
3 92. 0
431.0
392.5
397.5
3 3..5
31
D
5720
391.0
431.0
391.0
396.0
35.0
32
D
5780
391.5
431.0
389.5
394.5
36.5
Page 2 of 3 LLEWELLYN
INCORPORATED
JAN-08-99 FR[ 15:38 Lisman & Lisman FAX N0, 802-864-3629 P.07/09
i
Lot A
2
View
ProteCt
Zone
3
Distance
from VPZ
Base
Line
4
Existing
tirade
5
Ceiling
Height
6
Road
Centerline
grade
7 R
I, Floor Max
F.levatiom Height
D
5680
391.0
431,0
----f33
390.a
395.5
35.5
34
D
5560
390.0
431.1
391.5
396.5
34.6
35
D
5520
391.0
431.2
392.2
397.2
34.0
36
1)
5500
390.5
431.2
393.8
398.9
32.4
37
D
5460
391.0
431.2
393.2
398.2
33.0
3R
T)
5420
391.0
431.2
393.4
398.4
U8
39
D
5400
391.0
4312
393.3
398.3
32.9
40
f}
5370
391,0
431.3
393.1
398.1
312
41
D
$350
391.0
431,3
392.9
397.8
33.5
42
A
5330
391.5
418.5
392.3
397.3
21.2
43
A
5300
390.5
418.6
392.0
397.0
21.6
44
A
5290
390.0
418.6
392.2
397.2
21.4
45
A
5300
390.0
418.6
390.6
395.6
23.0
46
A
5340
390.5
418.5
390.2
395.2
23.3
47
A
5420
391.5
418.2
389.9
394.9
23.3
48
A
5540
390.5
417.8
389.4
394.4
23.4
49
A
5650
389.0
417.5
389.0
394.0
23.5
50
A
560
389.5
417.5
389.8
394.9
22,7
51
A
5660
389,5
417.5
39i1.5
ig5.5 1
22.0
Pago 3 of 3 LUMIJLLYN
JWCORPORATRU
JAN-08-99 FRI 15:39 Lisman & Lisman FAX N0, 802-864-3629 P.08/09
i
LL WELLYN
INCOPPORATED
PINNACLE g SPEAR
Lots 52 through 80
Vale Drive
South Burlington, Vermont
July 29, 1998(rev)
Table of height limitations for Dorset Park View Protection Zones
Zone A - Section 22.401
Zone D - Section 22.407
Notes refer to Table b!PIow
Column 1. Lot numbers according to Llewellyn Incorporated., Drawing 0067-D
Column 2. Dorset Park View Protection Zone (VPZ), A or D
Column 3. Distances scaled from Dorset Park VP2 baseline to center of house IQt - feet
Column 4. Ridge Line Elevation relative to Dorset Park 'VPZ Baseline
VPZ A: Ridge line - 441 - 4.3 (Distance l I000)
VPZ D: Ridge line - 441 - 2.0 (Distance / 1000)
Column 5. Roadway centerlinne elevation at center of house lot
Column 6. Assumed First Floor Elevation (based on footing drains discharging to storm
sewers)
Column 7. Height of house (First Floor Elevation to Ridge Line Elevation)
Column S. height of House (Roadway centerline elevation to ridge line elevation)
TABLE V
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Ridge
Line
Elevation
5
Roadway
Elevation
6
Assumed
FFE
7
Height of
House
above
YFE
8
Heighi of
House
abQY0
Roadway
52
A
4650
421.0
394.9
398.1
22.9
26.1
53
A
4685
420.9
395.0
398.3
22.6
25.9
54
A
4710
420.8
394.9
398.5
22.3
25.9
55
A
4725
4203
394.6
398.7
22.0
26.1
56
A
4735
420.6
394.5
398.9
21.7
26.1
57
A
4740
420.6
394.4
399.0
21.6
26.2
F7757
A
4750
420.6
394.4
399.3
21.3
26.2
4C49 Williston RW • 5outr Bur;mgton • Armort t 05403
T 802-658.2100 - F 802-658.2982 , t,m;i l: con.
engineering • Permitting • Consu!! ng Services
JAN-08-99 FRI 15:39 Lisman & Lisman FAX NO. 802-864-3629 P.09/09
TABLE V (continued) Pinnacle @a Spear July 28, 1999
1
Lot 4
2
VPZ
3
Distance
from Base
4
Ridge
Line
Elevation
5
Roadumy
Elevation
6
Proposed
FFE
7
Height
of
House
7
Height of
House
59
D
4755
431.5
393.6
399.4
32.1
37.9
60
D
4760
431.5
394.3
399.8
31.7
37.2
61
D
4765
431.5
394.5
399.9
31.6
37.0
62
D
4750
431.5
394.7
400.0
31.5
36.8
63
D
4735
431.5
394.9
400.3
312
36.6
64
D
4750
431.5
395.2
400.5
31.0
36.3
65
D
4745
431.5
395.5
400.7
30.8
36.0
66
D
4780
431.4
396.4
401.0
30.4
35.0
67
D
4850
431.3
396.5
401.9
29.4
34.8
68
D
4600
431.8
396.4
402.0+
29.8
35.4
69
D
4580
431.8
395.3
401.8
30.0
36.5
70
D
4575
431.9
394.8
400.6
31.3
37.1
71
D
4590
431.8
394.E
400.1
31.7
37.2
72
D
4580
431.8
394.4
400.0
31.8
37.4
73
D
4585
43 L8
393.6
399.7
32.1
38.2
74
D
4590
431.9
394.4
399.6
32.2
37.4
75
A.
4580
421.3
394.4
399.5
22.8
26.9
76
A
4615
421.2
394.5
399.2
22.0
26.7
77
A
4555
421.4
394.6
399.0
22.4
26.8
78
A
4550
421.4
394.9
398.6
22.8
26.5
79
A
4525
421.5 1
394.9
398.5
23.0
26.6
80
A 1
4500
421.7
394.9
398.4
23.3
25.8
KeV. 12-04-98
Pagc 2 of 2 LLEWELLYN
INCORPORATED
JAN-08-99 FRI 15:37 Lisman & Lisman FAX N0, 802-864-3629 P.04/09
ST E OF FL,QRIDA
COUNTY, SS.
At A t LS oyo A , in said County and State on this __�_ day of January, 1999, personally
appeared Gcrald C. ?viilot, general partner and duly authorize agent of .Larkin Milot Partnership, and
he acknowledged ibis instrument by him signed and scaled to be his free act and deed and the free
act and deed of Larkin Milot Partnership. %
lcfirc me
Notary Public
02'zoo14to10vcgaVnmcha2.=
3
CIT CLERK'S OFFICE 30 ) )
Received 19 at em
Recorded in -'D! or page , 02
Or So. Burlirg an Lard Records 39g
Attest: PINNACLE AT SPEAR
Margaret A. Picard, City Clerk NOTICE OF DEVELOPMENT CONDITIONS
4
THIS NOTICE is made this f day of January, 1999, by Gerald C. Milot and John P.
Larkin, doing business as Larkin Milot Partnership, a Vermont general partnership (the "Declarant").
RECITALS
1. The Declarant was the original sponsor of the subdivision located on the easterly side of
Spear Street in the City of South Burlington known as "Pinnacle at Spear." The lands comprising
the subdivision were conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed,
dated July 8, 1990, from Rheal C. Gagnon and Helen N. Gagnon, recorded in Volume 296, Page 538
of the Land Records of the City of South Burlington, and pursuant to a warranty deed, dated March
17, 1992, from Marie Underwood, recorded in Volume 322, Page 188 of the Land Records of the
City of South Burlington (the "Property").
2. The Declarant initially received approval from, the South Burlington Planning
Commission to subdivide the Property into 73 single-family lots, common areas and roads, as
depicted on the Plan. Thereafter, the Declarant received approval to create 7 additional single-family
lots and reconfigure a portion of the common areas.
3. The subdivision, as originally approved, is shown and depicted on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. al.
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume 286,
Pages 111 and 112 of the Land Records of the City of South Burlington. The subdivision, with Lots
74 through 84, is shown and depicted on a plan entitled
Final Plat for Subdivision
of Property of Gerald Milot and John Larkin
Pinnacle @ Spear
(Formerly Nowland Two)
dated August 21, 1998, last revisbd January 5, 1999, prepared by Vaughn C. Button, L.S., recorded
in Map Volume Via , Pages 5� and 5 8 of the Land Records of the City of South Burlington.
1
4. It is a condition to the subdivision approval, as amended, by the Planning Commission
that the Declarant make certain undertaking and promises.
5. This document supplements prior Notices of Development Conditions, dated November
5, 1993, recorded in Volume 353, Page 585 and dated �� l7 , 1995, recorded in Volume
�J 'IL
I , Page of the
Land Records of the City of South burlingtontnd C1ctr-d NS - 0i ri�,
�l,lltirtkei,� - �C�( IG�L 2 .
AGREEMENT
In consideration of Ten Dollars and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Declarant hereby declares that the Property is and
confirms that the Property shall be held, sold and conveyed subject to the following covenants,
agreements, easements and restrictions, all of which are for the purpose of protecting the value and
desirability of, and which shall run with, the Property and be binding on all parties having any right,
title or interest therein or any part thereof, and their heirs, successors and assigns:
6. The maximum height of any building and any landscaping on each Lot shall be as set
forth on the Attachment hereto. No building shall be constructed or landscaping permitted which
shall exceed such limits.
IN WITNESS WHEREOF, the Declarant has executed this Declaration this I Ith day of
January, 1999.
LARKIN MILOT PARTNERSHIP
BYE--�
Jo . arI , general partner and duly authorized
ag
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At South Burlington in said County and State on this 1
appeared John P. Larkin, general partner and duly aui
he acknowledged this instrument by him signed and
act and deed of Larkin Milot Partnership.
Before me
03\20014\010\legakond itil not
2
to
of January, 1999, personally
f L kin Milot Partnership, and
Nfre act and deed and the free
Notary Public
PINNACLE @ SPEAR
Lots 1 through 51
South Burlington, Vermont
The following information was obtained from a document entitled "Table of Height Limitations
For Structures Within the Dorset Park View Protection Zones" prepared by FitzPatrick-Llewellyn
Incorporated in July 1993
Table of height limitations for Dorset Park View Protection Zones
Zone A - Section 25.401
Zone D - Section 25.407
Notes refer to Table below
Column 1. Lot numbers according to FitzPatrick-Llewellyn Incorporated, Drawing D-4382
Column 2. Dorset Park View Protection Zone (VPZ), A or D
Column 3. Distances scaled from Dorset Park VPZ baseline to center of house lot - feet
Column 4. Existing house lot grade
Column 5. Ceiling Height relative to Dorset Park VPZ Baseline
VPZ A: ceiling height = 435' - 3.1 (distance/1000)
VPZ D: ceiling height = 435' - .7 (distance/1000)
Column 6. Road Centerline Grade adjacent to house lot
Column 7. First Floor Elevation (road centerline grad plus 5 feet)
Column 8. Maximum height of structures, first floor elevation to ridgeline (ceiling height
minus FFE).
TABLE I
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Existing
Grade
5
Ceiling
Height
6
Road
Centerline
grade
7
I" Floor
Elevatiom
8
Max
Height
1
A
5900
391.0
416.7
390.5
395.5
21.2
2
A
5900
390.0
416.7
389.5
394.5
22.2
3
A
5850
387.0
416.9
387.9
392.9
24.0
4
A
5850
386.0
416.9
387.0
392.0
24.9
5
D
5900
384.0
430.9
386.0
391.0
39.9
6
D
6000
382.0
430.8
385.2
390.2
40.6
7
D
6000
380.0
430.8
384.2
389.2
41.6
8
D
6100
F380.0
430.7
384.1
389.1
41.6
LLEWELLYN
INCORPORATED
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Existing
Grade
5
Ceiling
Height
6
Road
Centerline
grade
7
1 S` Floor
Elevatiom
8
Max
Height
9
D
5900
388.0
430.9
387.0
392.0
38.9
10
D
5850
386.0
430.9
384.0
389.0
41.9
11
D
5850
386.0
430.9
383.8
388.8
42.1
12
D
5800
386.0
430.9
384.4
389.4
41.5
13
D
5800
386.0
430.9
384.8
389.8
41.1
14
D
5750
387.0
431.0
385.4
390.4
40.6
15
D
5720
388.0
431.0
385.9
390.9
40.1
16
A
5650
390.0
417.5
386.8
391.8
25.7
17
A
5650
390.0
417.5
386.8
391.8
25.7
18
A
5650
390.0
417.5
387.4
392.4
25.1
19
A
5600
390.0
417.6
387.8
392.8
24.8
20
A
5620
389.5
417.6
388.3
393.3
24.3
21
A
5500
392.0
417.9
390.5
395.5
22.4
22
A
5500
392.0
417.9
391.5
396.5
21.4
23
A
5500
392.0
417.9
392.2
397.2
20.7
24
D
5550
392.5
431.1
393.0
398.0
33.1
25
D
5550
392.5
431.1
393.0
398.0
33.1
26
D
5560
393.0
431.1
393.2
398.2
32.9
27
D
55600
393.0
431.1
393.5
398.5
32.6
28
D
5610
391.0
431.1
393.3
398.3
32.8
29
D
5650
392.0
431.0
393.0
398.0
33.0
30
D
5680
392.0
431.0
392.5
397.5
33.5
31
D
5720
391.0
431.0
391.0
396.0
35.0
32
D 1
5780
391.5
431.0
389.5
394.5
36.5
Page 2 of 3 LLEWELLYN
INCORPORATED
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Existing
Grade
5
Ceiling
Height
6
Road
Centerline
grade
7
I" Floor
Elevatiom
8
Max
Height
33
D
5680
391.0
431.0
390.5
395.5
35.5
34
D
5560
390.0
431.1
391.5
396.5
34.6
35
D
5520
391.0
431.2
392.2
397.2
34.0
36
D
5500
390.5
431.2
393.8
398.8
32.4
37
D
5460
391.0
431.2
393.2
398.2
33.0
38
D
5420
391.0
431.2
393.4
398.4
32.8
39
D
5400
391.0
431.2
393.3
398.3
32.9
40
D
5370
391.0
431.3
393.1
398.1
33.2
41
D
5350
391.0
431.3
392.8
397.8
33.5
42
A
5330
391.5
418.5
392.3
397.3
21.2
43
A
5300
390.5
418.6
392.0
397.0
21.6
44
A
5280
390.0
418.6
392.2
397.2
21.4
45
A
5300
390.0
418.6
390.6
395.6
23.0
46
A
5340
390.5
418.5
390.2
395.2
23.3
47
A
5420
391.5
418.2
389.9
394.9
23.3
48
A
5540
390.5
417.8
389.4
394.4
23.4
49
A
5650
389.0
417.5
389.0
394.0
23.5
50
A
5660
389.5
417.5
389.8
394.8
22.7
51
A
5660
389.5 1
417.5
390.5
395.5
22.0
Page 3 of 3 LLEWELLYN
INCORPORATED
LLEWELLYN
INCORPORATED
PINNACLE @ SPEAR
Lots 52 through 80
Vale Drive
South Burlington, Vermont
July 28, 1998(rev)
Table of height limitations for Dorset Park View Protection Zones
Zone A - Section 22.401
Zone D - Section 22.407
Notes refer to Table below
Column 1. Lot numbers according to Llewellyn Incorporated, Drawing 0067-D
Column 2. Dorset Park View Protection Zone (VPZ), A or D
Column 3. Distances scaled from Dorset Park VPZ baseline to center of house lot - feet
Column 4. Ridge Line Elevation relative to Dorset Park VPZ Baseline
VPZ A: Ridge line = 441 - 4.3 (Distance / 1000)
VPZ D: Ridge line = 441 - 2.0 (Distance / 1000)
Column 5. Roadway centerline elevation at center of house lot
Column 6. Assumed First Floor Elevation (based on footing drains discharging to storm
sewers)
Column 7. Height of house (First Floor Elevation to Ridge Line Elevation)
Column 8. Height of House (Roadway centerline elevation to ridge line elevation)
TABLE V
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Ridge
Line
Elevation
5
Roadway
Elevation
6
Assumed
FFE
7
Height of
House
above
FFE
8
Height of
House
above
Roadway
52
A
4650
421.0
394.9
398.1
22.9
26.1
53
A
4685
420.9
395.0
398.3
22.6
25.9
54
A
4710
420.8
394.9
398.5
22.3
25.9
55
A
4725
420.7
394.6
398.7
22.0
26.1
56
A
4735
420.6
394.5
398.9
21.7
26.1
57
A
4740
420.6
394.4
399.0
21.6
26.2
58
A
1 4750
1 420.6
1 394.4
1 399.3
1 21.3
1 26.2
4049 Williston Koacl • South Burlington • Vermont • U54U3
T 802.658.2100 • F 802.658.2882 • e-mail: Ilewellinc@aol.com
Engineering • Permitting • Consulting Services
TABLE V (continued) Pinnacle @ Spear July 28, 1998
1
Lot #
2
VPZ
3
Distance
from Base
4
Ridge
Line
Elevation
5
Roadway
Elevation
6
Proposed
FFE
7
Height
of
House
7
Height of
House
59
D
4755
431.5
393.6
399.4
32.1
37.9
60
D
4760
431.5
394.3
399.8
31.7
37.2
61
D
4765
431.5
394.5
399.9
31.6
37.0
62
D
4750
431.5
394.7
400.0
31.5
36.8
63
D
4735
431.5
394.9
400.3
31.2
36.6
64
D
4750
431.5
395.2
400.5
31.0
36.3
65
D
4745
431.5
395.5
400.7
30.8
36.0
66
D
4780
431.4
396.4
401.0
30.4
35.0
67
D
4850
431.3
396.5
401.9
29.4
34.8
68
D
4600
431.8
396.4
402.0+
29.8
35.4
69
D
4580
431.8
395.3
401.8
30.0
36.5
70
D
4575
431.9
394.8
400.6
31.3
37.1
71
D
4590
431.8
394.6
400.1
31.7
37.2
72
D
4580
431.8
394.4
400.0
31.8
37.4
73
D
4585
431.8
393.6
399.7
32.1
38.2
74
D
4590
431.8
394.4
399.6
32.2
37.4
75
A
4580
421.3
394.4
399.5
22.8
26.9
76
A
4615
421.2
394.5
399.2
22.0
26.7
77
A
4555
421.4
394.6
399.0
22.4
26.8
78
A
4550
421.4
394.9
398.6
22.8
26.5
79
A
4525
421.5
394.9
398.5
23.0
26.6
80
A
4500
421.7
394.9
398.4
23.3
26.8
Rev. 12-04-98
Page 2 of 2 LLEWELLYN
INCORPORATED
JAN-08-99 FRI 15:36 Lisnan & Lisman FAX NO. 802-864-3629 P.02/09
The following btice of Development Condition Pntains the signatures
of both partners of Larkin Milot Partnership. An i_-ntical version of the
Notice, bearing the signature of only one partner, is recorded in Volume�f�,
Page3fj of the Land Records of the City of South Burlington.
PINNACLE AT SPEAR
N(YHCE OF DEVELOPMENT CQNDITIONS
THIS NOTICE is made this day of January, 1999, by Gerald C. Milot and John P.
Larkin, doing business as Larkin Milot Partnership, a Vermont general partnership (the "Declarant").
RECITALS
1. The Declarant was the original sponsor of the subdivision located on the easterly side of
Spero Street in the City of South Burlington known as "Pinnacle at Spear." The lands comprising
the subdivision were conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed,
dated July 8, 1990, from Rheal C. Gagnon and Helen N. Gagnon, recorded in Volume 296, Page 538
of the Land Records of the City of South 13urlington, and pursuant to a warranty deed, dated March
17, 1992, from Marie Underwood, recorded in Volume 322, Page 199 of the Land Records of the
City of South Burlington (the "Property")-
2. The Declarant initially received approval from, the South Burlington Planning
Commission to subdivide the Property into 73 single-family lots, common areas and roads, as
depicted on the Plan. Thereafter, the Declarant received approval to create 7 additional single-farnily
lots and reconfigure a portion of the common areas.
3. The subdivision, as originally approved, is shown and depicted on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. al.
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume 286,
Pages 111 and 112 of the Land Records of the City of South Burlington. The subdivision, with Lute
74 through 94, is shown and depicted on a plan entitled
Final Plat for Subdivision
of Property of Gerald Milot and John Larkin
Pinnacle Q Spear
(Formerly Nowland Two)
dated August 21,1998, last revised January 5, 1999, prepared by Vaughn C. Button, L.S., rewrded
in Map Volume, Pages S7 and �05 of the Lund Records of the City of South Burlington.
CI CLERK'S OFFICE
Received 19a�
Recorded i ol.�—o page.i"���r
Of So Burlington Land Records
Attest.
Margaret A. Picard, City Clerk
JAN-08-99 FRI 15:37 Lisman & Lisman FAX NO. 802-864-3629 P.03/09
4. It is a condition to the subdivision approval, as amended, by the Planning Commission
that the Declarant make certain undertaking and promises.
5. This document supplements prior Notices of Development Conditions, dated November
5, 1993, recorded in 'Volume 353, Page 585 and dated ANC ar 23 , 1995, recorded in Volume
Page of the Land Records of the City of South Burlington. ,qW FATED A16 L) 43 f4 l y/ /995-
RE(p1tDzD IN Vbe,slp ya$/ pAG AGREEMENT
In consideration of Ten Dollars and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Declarant hereby declares that the Property is and
confirms that the Property shall be held, sold and conveyed subject to the following covenants,
agreements, easements and restrictions, all of which are for the purpose of protecting the value and
desirability of, and wiieh shall nm with, the Property and be binding on all parties having any right,
title or interest therein or any part thereof. and their heirs, successors and assigns:
6. The maximum height of any building and any landscaping on each Lot shall be as set
forth on the Attachment hereto. No building shall be constructed or landscaping permitted which
shall exceed such limits.
IN WITNESS WHEREOF, the Declarant has executed this Declaration this ;f day of
January, 1999.
WITNESSES:
STATE OF VERMONT
CHITT ENDEN COUNTY, SS.
LARKIN MILOT PAK I'NFRSHIP
BY_
Gerald C. Milot, general partner and duly authorized
agent
BY cletollld�
John P. k i , genial partner and duly authorized
agent
At Burlington in said County and StateVritis 5 day of January, 1999, personally
appeared John P. Larkin, general partner an agent of Larkin Milot Partnership, and
he acknowledged this instrument I him s e led o be his free act and deed and the free
act and deed of Larkin Milot Partnership..
Before me
Notary Public
JAN-08-99 FRI 15:37 Lisman & Lisnan FAX NO. 802-864-3629 P.04/09
STAgE OF FLPRIDA
Pylewotrtf COUNTY, SS.
At 9 I &L o & � in said County and SWe on this _�_ day of January, 1999, personally
appeared Gerald C. Milot, general partner and duly authorize went of Larkin Milot Partnership, and
he acknowledged this instment by him signed and scaled to be his free act and deal and the free
act and deed of Larkin Milot Partnership.
Before me
1�11114 /7 Az4-A
Notary Public
0212001A010\legatm&2.nol
3
South Burlington Street Department
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
TEL: (802) 658-7961
OFFICE
104 LANDFILL RD.
June 4, 2002
To: Ray Belair, Zoning Administrator
From: Bruce K. Hoar, Public Works Director
Re: Vale Drive
The city should not accept Vale Drive for a period of 3 years. The starting point of the 3 years
should be from September of 2001. There are a number of reasons to not accept the road.
The first if the fact that curbs had to be raised before the final coat of asphalt was laid. I am not
positive that the method for raising the curbs will have eliminated the problem of settlement. This
will only be proved over time.
There are also drainage problems with the road. Water lays in front of numbers 16 and 18 Vale
and also at the corner of Vale and Dorey. If the city is required to fix these problems we will also
require that the road be overlaid before we release any funds.
CIT CLERIJ'S OFFICE 30
Received 1974 at 11M
Recer-_+ed in or, cage
0� So. Burlir5,an L. ,d 3 pg
Attest: PINNACLE AT SPEAR
klar,�:re,,A. Picard, City Clerk NOTICE OF DEVELOPMENT CONDITIONS
1 4�.
THIS NOTICE is made this 1 ` day of January, 1999, by Gerald C. Milot and John P.
11
Larkin, doing business as Larkin Milot Partnership, a Vermont general partnership (the "Declarant").
RECITALS
1. The Declarant was the original sponsor of the subdivision located on the easterly side of
Spear Street in the City of South Burlington known as "Pinnacle at Spear." The lands comprising
the subdivision were conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed,
dated July 8, 1990, from Rheal C. Gagnon and Helen N. Gagnon, recorded in Volume 296, Page 538
of the Land Records of the City of South Burlington, and pursuant to a warranty deed, dated March
17, 1992, from Marie Underwood, recorded in Volume 322, Page 188 of the Land Records of the
City of South Burlington (the "Property").
2. The Declarant initially received approval from, the South Burlington Planning
Commission to subdivide the Property into 73 single-family lots, common areas and roads, as
depicted on the Plan. Thereafter, the Declarant received approval to create 7 additional single-family
lots and reconfigure a portion of the common areas.
3. The subdivision, as originally approved, is shown and depicted on a plan entitled
Nowland Two
South Burlington Vermont
Plat of Subdivision of Lands
of
Gerald C. Milot, et. al.
i
dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume 286,
Pages I I I and 112 of the Land Records of the City of South Burlington. The subdivision, with Lots
74 through 84, is shown and depicted on a plan entitled
Final Plat for Subdivision
of Property of Gerald Milot and John Larkin
Pinnacle @ Spear
(Formerly Nowland Two)
dated August 21, 1998, last revised January_ 5, 1999, prepared by Vaughn C. Button, L.S., recorded
in Map Volume ;' °" , Pages and of the Land Records of the City of South Burlington.
' I
r
1
1
1
PROPERTY LINE
1
COMMON
�1I
I q A, DELINEATED 'WETLAND' (SEE ENGINEERING DRAWINGS) I
,o, A, A.
A.
13 � "T
Aa
x
in
w
h
m
�
w1
2
W
1i
wl
Q
I
w�
N 6' 455' E
N 07W5' E
150,00•
100.00'
100.00'
106.2T
3
3
p
0,45 ACRES
"�
'-2 0.J0 ACRES �
o
n 0.J0 ACRES m
0.31 ACRES
A IO EAYENi
�-
I � eb
1 tip• us.00•
i
1
80
I� 0.45 ACRES
1
150.00,
� 1
0
hi
x
U
ro
0
N 6 1435" E
Too:oo T—roo:oo� --
VALE
C�>o 79
ng
78
ng
Q
t2 O.JO ACRES
'1
O.JO ACRES
Z
O.JI ACRES
2,
Po0.00'
100,00'
I0t2J'
6' 4'S5' f
N 777T0' E
COMMON
LAND
-D-
(REVISED)
5.59
ACRES
PROPERTY LINE
- - - - _ - - - N 67B'50' E
NIF ECONOMOU FARMS. INC.
N l0.0870" E --
I06.J7, N p 5730" E �---
" �PR^AOJEO
)OB EASEMENT
Milo rY
37' MI5 SS10-E- I I EASEMENT
IYS d.• )SEE NOTES)
ON ACRES
7
O,J/ ACRES
O J/ ACRES
0 58
034 ACRES
I DRIVE
03/ ACRE5
/0636.
J ? ,( 5��55C / C� h
I 034 ACRES rp 6D
c
U
b
O�ACAES � � 72/
2
/
/
NOR TH
15'*
SEE NOTES
AUG 2 4 1998
City of So. Burlington
A TTENTION
THIS IS A TWO —SHEET PLAT.
INFORMA TION SHOWN ON EITHER
SHEET MAYBE APPLICABLE TO
EITHER OR BOTH SHEETS. THE
USER IS CAUTIONED TO REFER
TO BOTH SHEETS.
h, VAUGHN %;A
C.
b k : bui 111N
� N0.175
- - - - NVLiDBy
AM NTEPARED • 9 p �
---------- lAroSqu IRrTON Asa SSOCICIArEMS �9d 1.0
sarmr eIAaMDroN. ,raralr 4 SUFt..........
/ GRAPHIC SCALE
20' RECREATION gp so 0 E!0 120 lee 240 3W FEET
EASEMENT
I
I
I
I
T,0CU.S
-LEGEND--
O PROPERTY MARKER TO BE SET (SEE NOTES)
® CONCRETE BOVND TO BE SET (SEE NOTES)
--. -- -- RIGHT OF WAY OR EASEMENT LINE
RECEIVED FOR RECORD
. a.D.
AT O'CLOCK. MIN.. _. M.
RECORDED IN BOOK PAGE
OF RECORDS.
ATTEST
TOWN CLERK
APPROVED BY RESOLUTION OF THE PLANNING
COMMISSION OF THE CITY OF SOUTH BURLINGTON. VT..
ON THE _ DAY OF 19_. SUBJECT
TO ALL REOUIREMENTS AND CONDITIONS OF THE
RESOL UTION.
SIGNED THIS DAY OF _ . 19 . BY:
CHAIRMAN/CLERK
FINAL PLAT FOR SUBDIVISION
OF PROPERTY OF GERALD MILOT
AND
JOHN LARKIN
PINNACLE @ SPEAR
(FORMERLY NOWLAND TWO)
SPEAR STREET
SOUTH BURLINGTON. VERMONT
SCALE: I' - 60' PROD. NO.: 987004
DRAWN BY: V. C.B. DATE: 8-21 -98
SHEET I OF 2
INFOHMATION SHOWN HEHEON IS A FAIIHfUI PUHIHAYAI. OF
CIRCUMSTANCES PERTINENT TO REVISIONS TO A PREVIOUSLY PLATTED
SUBDIVISION. THIS PLAT COMPLIES WITH REOUIREMENTS OF TITLE
27. SECTION 1403. (a) THRU (e). TO THE BEST' OF MY KNOWLEDGE
AND BELIEF.
VA06HN C. BUTTON. L.S. 415
6-zq-!Q y
(2) roos v. c. surmm. L. s.
N7FRSrAr�-
R79
NORTH
15
t
SEE NOTES
/
1
/
0 /
0.31 ACRES
A TTENTION
THIS IS A TWO -SHEET PLAT.
INFORMATION SHOWN ON EITHER
SHEET MA Y BE APPLICABLE TO
EITHER OR BOTH SHEETS. THE
USER IS CAUTIONED TO REFER
TO BOTH SHEETS.
PINNACLE DRIVE
SECTION OF NOWLAND TWO
N 87J50' E 94f79,
A, DELINEATED 'WETLAND'
(SEE ENGINEERING DRAWINGS)
r4
COMMON LAND 'B'
16.76 ACRES
REVISED
Nil'1jy,0 \ \
�op 62 jr \ "a� \ 4 DELINEATED "WETLAND'
ON ACRES \ • (SEE ENGINEERING DRAWINGS)
63 ' ss• ` r A, rr
.• / -
r�� gyp. ON ACRES ! N G'4700' A , J.
(SO . �,A L� 7 0.30 ACRES ! p4� \�
U a
u
.,T F
71
0.31 ACRES ! /T
7o t\ DRrvE
/
N 9g94 035 ACRES
.vzp9e l4,�P !.
/
110.
COMMON
LAND 'D' (REVISED) I o`w�? e^qC 0.58 ACRES
/
5.59 ACRES j?
r
'`
1566! 20' RECREATIONAL EASEMENT
N 67437' E
$� 029 ACRES S 0.29 ACRES
R \
G
N656 a5 I
0.98 ACRES
m IM
J 4
53
`1l"
F\
F F4 s F T \
0.46 ORES P c 'N
Z49• 8 oCONNON LAND 'C'
N 87030'E a 0.39 ACRES
REVISED -
--17J156'_ _N B7030E I54.03-
NIF ECONOMOU FARMS. INC.
LEGE'NO
PROPERTY WRKER TO BE SET (SEE NOTES)
CONCRETE BOUND TO BE SET (SEE NOTESI
RIGHT OF WAY OR EASEMENT LINE
N 87030, E
NIF ISHAM
CURVE TABLE
DELTA ANGLE
RADW
ARC
TANGENT
CNORO
A 90'00'00'
6..00'
2J56'
15.00'
2721'
B 27B'40'
2030.00'
&89'
40.95'
8L8B'
C 2.4920-
2030.00-
100.00-
50.0(
99.99-
D JV615'
2030.00'
109.97'
55.00'
109.95'
S 0.4470'
2050.00'
2608'
4192'
8146'
P A053'04'
440.00'
83.59'
4304'
2608'
G 8.47'04'
440.00'
67.46'
J3.80'
67J9'
B 2*0774'
970.00'
35.90'
1795'
35.90'
R 28'4138-
7100'
J759'
19.20'
37.20'
L 6811576'
75.00'
89.34'
50.83'
84.15'
N 47*09'4J'
7500'
6173'
32.74'
60.01'
N 49113'50'
75.00'
64.44'
34.36'
J248'
P 40.4304'
7500'
53.30'
27dJ'
5218'
Q 2 Jl'59'
910.00'
40.25'
20J3'
40.24'
R 3'02'41'
500.00'
2657'
1129'
26.57'
S 15'0938'
500.00'
M2.29'
6654'
AR91'
T J 1975'
1970.00'
19.9f
59.97'
1989'
U 3'06'45-
197000-
10702-
5152'
10700-
V 2 JJ29'
197000'
8796'
4399-
8795'
N 677'Or
960.00'
254.87'
130.23'
25dO9'
SI
--- - LOCUS
NO TES
4 BEARINGS SHOWN HEREON ARE ORIENTED TO U.V.M. GRID NORTH.
F'r )r .•�� -,._ .`�•ol F'r rrr.': rfir •I-. T•(I^• TIIIF' r-rW ^rc?IG'I S1, 411 ?F r4'I/
1. rA_G/I..L✓ L-...�✓rt1C �✓rt Ife ✓tic�l /I -II .•c✓l•-1/c rrt.•rcrtl r
MARKERS BE SE TAS /NDICA TED ION THUS PLAT. BUTTON ASSOCIATES AND
VAUGHN C. BUTTON. L.S.. BEAR NO RESPONS/BlL/TY OR LIABILITY FOR DIFFICULTIES
THAT MAY ARISE FROM THE OWNER(S) OR THEIR SUCCESSORS FA/LURE TO DO SO.
J. ALL PER/METER BOUNDARY DATA SHOWN HERON IS TAKEN DIRECTLY FROM A
PLAT FURNISHED BY THE 0WNER(S). ENTITLED "NO WL ANO TWO'. SNOWING SUBO/V/S/ON
OF LANDS OF GERALD C. M/LOT. ET AL. BY FI TZPA TRICK LLEWELL YN /NCORPORA TED.
J DATED DULY 1992. CERTIFIED BY GARY H. COE. L.S.. OCTOBER /J. /99J. REVISED
INTERIOR PARTITIONING HAS BEEN CALCULATED AND PLATTED TO THE SPECIFICATIONS
2 OF THE OWNER(S) AND/OR THEIR AGENT(S).
Q
lL 4. THIS /S 4 REDESIGN OF LOTS SHOWN ON SHEET / OF 2. OF THE PLAT C/TEO /N
NOTE J.
4
5. THE EXACT LOCATION OF UTILITY EASEMENTS MAY BE MODIFIED TO ACCOMODATE
POST -CONSTRUCTION. AS -BUILT FACILITIES.
S 8JY44T
62.86'
` 5 8JY44 E
20.01'
cowl➢ .In ~AKD
..
BUTTON ASSOC/A TES
I•w I wrw - ml.w.r toms uwn
sorrrll Aa rw- WA w
GRAPHIC SCALE
PECEIV'cD
AUG 2 4 11 '.
City
of So. Burlington
�,000. ........IQ,'�",.,
,! P�. .•qO • i
•
VAUCiHN :'%;A r
C.
* t BUTTON
No.415 r
�'•• ey FC/STEP : R.
6B Be 0 80 120 tt30 2415 3W FEET
RECEIVED FOR RECORD
A.O.
AT O'CLOCK. MIN.. _. N.
RECORDED IN BOOK . PAGE _-.
OF RECORDS.
ATTEST
TOWN CLERK
APPROVED BY RESOLUTION OF THE PLANNING
COMMlSS10N OF THE CITY OF SOUTH BURLINGTON VT..
ON THE _ DAY OF /9_. SUBJECT
TO ALL REOUIREMENTS AND CONDITIONS OF THE
RESOLUTION.
SIGNED THIS _DAY OF . 19 . BY.-
CHANMAN/CLERK
FINAL PLAT FOR SUBDIVISION
OF PROPERTY OF GERALD MILOT
JOHNAND LARKIN
P1-NNACLE @ SPEAR
(FORMERLY 1VOWLAND TWO)
SPEAR STREET
SOUTH BURLINGTON. VERMONT
SCALE: I' - 60' PROJ. NO.: 987004
DRAWN BY: V. C. B. DATE: 8-21 -98
SHEET 2 OF 2
INFORMATION SHOWN HEREON IS A FAITHFUL PORTRAYAL OF
CIRCUMSTANCES PERTINENT TO REVISIONS TO A PREVIOUSLY PLATTED
SUBDIVISION. THIS PLAT COMPLIES WITH REQUIREMENTS OF TITLE
27. SECTION 1403. (a) THRU (o). TO THE BEST OF MY KNOWLEDGE
AND BELIEF.
�1-
V HN C. BUTTON. L.S. 415
B-2Y-9'1S
n I... l.f.
• '\ r '`
ri
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V
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♦ MA is rim J0.D48 SF
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e-rovnr / i ♦��```` d5/15? 0.409 IF
I 1. laonm•/ i IJ9161 1.55 AG
D r _ raver i8-_:lt1,. J•71Ji SF. 49/6/
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OW a55 AG 54,6TQ Sr.
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• / 11FI j^ . �. ''iii. � i a82 AC F / OW AC ^
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L - ua• / `\LM�. tOy. I . K?' 0.3.7 AG _ r _ c•>. R - IanW 1.14 AG
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L . aan i. - Irara• 0.J2 AC 1.� 144 SF. i 0.J2 AG ' 0.36 AG Q40 AG O L 0.J1 AG i r , I - rolaW y r Km. 0.J0 AG a3O AG 0.4/ AG a4o AG 1 /4D40 SF. L I I i
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eo i 1 47 Id D9J SF. ; : LaR.s QAVf AC 1 21 a° ,3i3o rtaw _- claw
Q32 AG i . L,: nan' = II,J.76 IF.
22 axasrti
b •' e . Nzs3 am
AG 23 24 25 30
e -Sara• 1 s �.<27
L- • is aar • is i�u I e-sa, - 1.:000 SF 6 w Ai
3\ja i a - r.lm. 0.JY3 AG I.;000 SF. - 1.;000 SF. - '! _ _q '�B 29 14561 IF. 1,!
' , �` • -Lam• L _ L . alrr _ QJO AG QJO AG I.x000 IF.
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;iR QJS um ! P ♦�`- fa35/ASGF.
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LEGEND Approved by resolution of the Planning Commission of w �r
M La"'r°9f1lW ut i he City of Soub1 Rurfington. Vermont on the I D A r I z o-17� N O W L AND D i W O
/wG ac= rear or WY/tANUNr LAV mu11 auatrrrv+ ,p.p,,,
i1 C FOR GYM/ TMH/A AQV OF AWS PLAT,
0 1R -- OWN PAa'EA1r LM day of & •�U�, 19U .subject to the reQuNe
t CL c _ _ _ _ _ _ _ un5 ar VEDWAIa m W MMSMe■n NotEs Ann wax or ergs PLAT OF SUBDIVISION OF LANDS
- ro xr orY w xvw NACMB1a meets of said conditions Of said resolution. S this
In • ■ PAa+c�rn aatoerlr rcrAAovr OF
p c x • PROPOSM Am AN g� r day of �1,r 1923, by
_ GERALD C. MILOT et. al.
O DaorrrE ow nx 7�/I /pM ,o+ �D-
rr c t(M I+wwr+Q w 4) Chairman or CJwii
• 0 MOL AW MrorYcno, C GRAPHIC $GALE o A o o D2045
.� A,Y rLa. aR f0■OtY _ _ Fg��PQ4G30G� a
MQ(T K lar ;�• - .a L
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£ #OVTN MArUNIJOA LAND AECQT= i w \ V`,e 91CORPOII M
• (■ r ) ►J<. 4.. v ..�
L W - m R TTT"' L ,• D-4745
NrWSTON VER►IONT 2 7 2
Rec ' 19 iinY
Retaded in Vd. on page-A3
Of es Bur ington lend ReocA
Attat �
ftla 9r" A./lord, C*1 Clef
R• igraphics of Now England, Inc., So-urlington, VT,
he y certifies that this map was rap, uced by the
fixed line photogrspAiie procua.
C UUnVf1.G91CA'P-5. hi ?. A !' .e 3l !", .Qa►� Signature
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(City Town, or Village)
Date
Gentlemen:
Please furnish street lighting according to the sizes and locations as
listed below:
Size of
Street or Road Pole No. Fixture Type
2.
3.
4.
5.
W,
7.
8.
9.
10.
I agree to pay for this service in accordance with the street lighting rate
filed by Green Mountain Power Corporation with the State of Vermont Public Service
Board.
Very truly yours,
Signed
�CU/L�cf Lam/
Name printed or typed
Mailing�ddrZ /-A -C)
Form No. TD-24 Rev. 1/78
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a LEGEND Approved by resolution of the Planning Commission of 7� w f1 T.
77�
i « & -- LOTLO m �` The City of SouM Owlington. Vermont on the J U A _ _ N O w L d ND i RT O E
M _ _WSWfYM' E 4UT I OF Or �A]Ti-------wRI-ExT Q Mr[A9<E)!r Ill OLOM rR00r,4 uc day of �d�U . 191 .subject to the repuireCp c errs o ly 0, Sw ro ar DrANs> fe® NOTES ANn DIOEX ar PUT OF SUBDIVISION OF LANw
a - - ro Dc on oR DDU/N waaRcrav meets of said no tions Of said resolution. SIRIIld thisn
' OF
a 3 D day of (< 19;,3, GERALD C. MILOT a t. aL
F ° f� !wAftcr M[/►/I� A y Chairman or Cork IL
�gPQ�n�Ma r'�a.i a'n g`Da+ cFUPtilc scAte° °°W W_Q C « N.arnoRarrlr,urtsDtYOLaalf /IeK CRY Or�• DICaI1PORAlED �w
SOUfW DIRLAWTON LAND R[COWS
1 ART)
r r.• . r a„r, Cjo jai to ws �� D-4713
VALLISTON VERMONT ! T2
S
Recei/ed
Recorded in VDI. -Fg V' on pate -
Of So Burlington land R
Attest
Marga'M A Pkord, City Clerk
STITZEL, PAGE & FLETCHER, P.C.
ATTORNEYS AT LAW
171 BATTERY STREET
P.O. BOX 1507
BURLINGTON, VERMONT 05402-1507
STEVENF. STITZEL
PATTI R PAGE*
ROBERTE.FLETCHER
(`ALSO ADMITTED IN N.Y.)
Martha Hicks -Robinson
Docket Clerk
Vermont Supreme Court
111 State Street
Montpelier, VT 05602
(802) 660-2555 (VOICE/TDD)
FAX (802) 660-2552 or 660-9119
E-MAIL(FIRM2555@FIRMSPF. COM)
WRITER'S E-MAIL (RFLETCHER@FMMSPF.COM)
WRITER'S FAX (802) 660-9119
HAND DELIVERED
June 13, 2000
Re: MBL Associates v. City of South Burlington
Vermont Supreme Court Docket No. 2000-073
Larkin-Milot partnership v. City of South Burlington
Vermont Supreme Court Docket No. 2000-074
Dear Ms. Hicks -Robinson:
JOSEPH S. MCLEAN
TIMOTHY M. EUSTACE
MIA KARVONIDES
AMANDA S.E. LAFFERTY
Enclosed for filing with regard to the above -captioned
matter are an original and twelve (12) copies of Appellant's
Consolidated Reply Brief.
Thank you.
Sincerely,
STITZEL, PAGE & FLETCHER, P.C.
i
1� ! /
/ �� L�� O"
Robert E. FletchdZ
REF/gmt
Enclosures
cc: Dennis R. Pearson, Esq.
Joseph Weith, Director of Planning and Zoning
SON4338.COR
�eceiveo-Ll L L- 19..cl--') at 3_: ,
Recorded in Vol.-.a.�3 on page�ak�—;--
Of So. BZ=:��
S93
Attest:
NOTICE OF DEVELOPMENT CONDITIONS Margaret A. Picard, City Clerk
THIS NOTICE is made as of the 5th day of November, 1993, by Gerald C. Milot
of Burlington, County of Chittenden, State of Vermont and John P. Larkin, of
Burlington, County of Chittenden, State of Vermont, (the "Owners").
WITNESSETH:
WHEREAS, the South Burlington City Planning Commission (the "Planning
Commission") has approved a planned residential development known as Nowland Two
(the "Nowland Two PRD") as depicted on a final subdivision plat entitled "Nowland
Two: Plat of Subdivision of Lands of Gerald C. Milot et al.", Sheets 1 of 2 and 2 of 2,
signed October 11, 1993, and prepared by Fitzpatrick -Llewellyn Incorporated, and
recorded in Map Volume at Pages it and La respectively; and
WHEREAS, the final approval of the Planning Commission dated August 10, 1993
requires some of the specific conditions which will be of particular interest to purchasers
of lots in the Nowland Two PRD to be included in a Notice of Development Conditions
to be recorded simultaneously with the recording of the aforementioned final plat.
NOW THEREFORE, in consideration of the Planning Commission's final
approval, and for other good and valuable consideration, the Owners hereby give notice
of the following obligations, restrictions, and requirements that will directly affect lots
within the Nowland Two PRD. Reference should also be made to the complete text of
the South Burlington City Planning Commission approval dated August 10, 1993, and on
file in the planning office of the City of South Burlington.
1. Obligation for Tree Planting. Owners shall plant two (2) trees on each lot
as required in Section 19.104(a) of the South Burlington Zoning Regulations. The
approximate location of said trees is depicted on a survey entitled "Nowland Two:
Landscape & Lighting Plan", Drawing D-4501, dated November 1992, last revised
October 5, 1993 and recorded in Map Volume,��&at Page%�O of the South Burlington
City Land Map Records. Particular reference should be made to tree height limits and
eligible species referred to in the notes of the survey.
2. Height Limitations. The Nowland Two planned residential development is
in compliance with the Dorset Park View Protection Zone set forth in Article XXV,
Section 25.40. Calculations of elevations and maximum height for each lot for structures
and landscaping are set forth on a schematic plan and tables attached hereto as Exhibit
"A". Reference is also made to the Landscape & Lighting Plan referred to hereinabove
and to surveys entitled "Nowland Two: Site and Utilities Plan" revised October 5, 1993,
Drawings D-4383 through D-4388 and recorded in Map Volume ,qat Pages,,
lLrL, f f�j , A, and L& of the South Burlington City Land Map Records.
3. Building Envelopes on Lots 5-8. To satisfy the requirements imposed by
the 200' view corridor adjacent to the Spear Street right-of-way, the area where
residences can be constructed on Lots 5, 6, 7, and 8 have been limited to building
envelopes located therein. Reference should be made to the survey entitled "Nowland
Two: Site and Utilities Plan", Drawing D-4384, last revised October 5, 1993 and recorded
in Map Volume,�at Page I/I of the South Burlington City Land Map Records, which
depicts the boundaries of the building envelopes.
4. C'oMMEMitvMWlboX Areas. The final approval of the Planning
Commission includes a requirement to provide for two community mailbox areas. The
first is adjacent to Pinnacle Drive and shall impose an casement imposed on Lot 49, the
second is adjacent to Vail Drive and shall impose an easement on Lots 52 and 53.
Reference is made to the aforementioned final subdivision plat and to a survey entitled
"Howland Two: Overall Site Plan" dated July, 1992, leaf revised October 1, 1993 and
recorded in Map VolumejE�-at Pagel jL of the South Burlington City Land Map
Records for depiction of the aforementioned mailbox easements. The homeowners'
association established to govern the Nowland Two PRD shall be obligated to maintain
the community mailbox easement areas as well as all drainage ditches and ponds which
serve the development.
5. Miscen=g= Reference should be made to the plat of Subdivision of
Lands, Overall Site Plan, Landscape & Lighting Plan, and Site and Utilities Plans for
identification of any further easements, obligations, or restrictions which affect a
particular lot within the Nowland Two PRD.
Executed as of the date first above -mentioned.
IN RESENCE � F: OVS
ss as to GCM Gerald C. Milot
as to
STATE OF VERMONT
COUNTY OF C,HM7ENDEN, SS.
At Burlington, in said County and State, this 5th day of November, 1993,
personally appeared Gerald C. Mot and he 7acknow dged this instrument, by him
signed, to be his free act and deed.
Before me--'
Notary Pubic
My commission expires 2/10/95
.2-
k
residences can be constructed on Lots 5, 6, 7, and 8 have been limited to building
envelopes located therein. Reference should be made to the survey entitled "Nowland
Two: Site and Utilities Plan", Drawing D-4384, last revised October 5, 1993 and recorded
in Map Volume , at Page of the South Burlington City Land Map Records, which
depicts the boundaries of the building envelopes.
4. Communi1y Mailbox Areas. The final approval of the Planning
Commission includes a requirement to provide for two community mailbox areas. The
first is adjacent to Pinnacle Drive and shall impose an easement imposed on Lot 49, the
second is adjacent to Vail Drive and shall impose an easement on Lots 52 and 53.
Reference is made to the aforementioned final subdivision plat and to a survey entitled
"Nowland Two: Overall Site Plan" dated July, 1992, last revised October 1, 1993 and
recorded in Map Volume.�g at Pages1of the South Burlington City Land Map
Records for depiction of the aforementioned mailbox easements. The homeowners'
association established to govern the Nowland Two PRD shall be obligated to maintain
the community mailbox easement areas as well as all drainage ditches and ponds which
serve the development.
5. Miscellaneous. Reference should be made to the plat of Subdivision of
Lands, Overall Site Plan, Landscape & Lighting Plan, and Site and Utilities Plans for
identification of any further easements, obligations, or restrictions which affect a
particular lot within the Nowland Two PRD.
Executed as of the date first above -mentioned.
I ESENCE OR
�-
tness to Clm &
itness as to GCM & JPL
i
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
OWNERS
Geral C. Milot
/John . Larkin
by Stephen R. Crampton, his
attorney -in -fact
At Burlington, in said County and State, this 5th day of November, 1993,
personally appeared Gerald C. Milot and he acknowledged this instrument, by him
signed, to be his free act and deed.
Before me,
Notary Public
My commission expires 2/ 10/95
Wa
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At Burlington, in said County and State, this 5th day of November, 1993,
personally appeared Stephen IL Crampton, Attorney -in -Fact for John P. Larkin and he
acknowledged this instrument, by him signed, tZbi free act and deed.
Before m L4Z
Notary Public
< <milotnot.bll > >
My commission expires 2/10/95
-3-
NOWLAND TWO SUBDIVISION
SPEAR STREET EXHIBIT A
SOUTH BURLINGTON
TABLE OF HEIGHT DETERMINATION FOR STRUCTURES AND LANDSCAPING WITHIN
THE DORSET PARK VIEW PROTECTION ZONES IN ACCORDANCE WITH SOUTH
BURLINGTON ZONING REGULATION: Article XXV, Sections 25.401 - 25.402
(Zone A), and 25.407 - 25.408 (Zone D)
Column Designations
1. House lot number according to FitzPatrick-Llewellyn Incorporated
Overall Site Plan, Project Number 92045, drawing number D-4382
2. Dorset Park View Protection Zone (VPZ), A or D (See South
Burlington Zoning Regs)
3. Distance from Dorset Park VPZ baseline to center of house lot
4. Maximum elevation of structures and trees on house lot
TABLE OF HEIGHT DETERMINATION
1
2
3
4
Lot #
VPZ
Distance
Maximum
Elevation
1
A
5900
416.7
2
A
5900
416.7
3
A
5850
416.9
4
A
5850
416.9
5
D
5900
430.9
6
D
6000
430.8
7
D
6000
430.8
8
D
6100
430.7
9
D
5900
430.9
10
D
5850
430.9
11
D
5850
430.9
FITZPATRICK-LLEWELLYN INCORPORATED
F r l r 1, n(, r;• n n r f ;iru1 f ' ! , if l ni n rl `,r'r, li
Nowland Two Subd.L lion (Cont.)
TABLE OF HEIGHT DETERMINATION
1
2
3
4
Lot #
VPZ
Distance
Maximum
Elevation
12
D
5800
430.9
13
D
5800
430.9
14
D
5750
431.0
15
D
5720
431.0
16
A
5650
417.5
17
A
5650
417.5
18
A
5650
417.5
19
A
5600
417.6
20
A
5620
417.6
21
A
5500
417.9
22
A
5500
417.9
23
A
5500
417.9
24
D
5550
431.1
25
D
5550
431.1
26
D
5560
431.1
27
D
5600
431.1
28
D
5610
431.1
29
D
5650
431.0
30
D
5680
431.0
31
D
5720
431.0
32
D
5780
431.0
FITZPATRICK-LLEWELLYN INCORPORATED
Ewyneennq .uu7 P!.inruny Sefvwt,�
Nowland Two Suba°1 lion (Cont.)
TABLE OF HEIGHT DETERMINATION
1
2
3
4
Lot #
VPZ
Distance
Maximum
Elevation
33
D
5680
431.0
34
D
5560
431.1
35
D
5520
431.2
36
D
5500
431.2
37
D
5460
431.2
38
D
5420
431.2
39
D
5400
431.2
40
D
5370
431.3
41
D
5350
431.3
42
A
5330
418.5
43
A
5300
418.6
44
A
5280
418.6
45
A
5300
418.6
46
A
5340
418.5
47
A
5420
418.2
48
A
5540
417.8
49
A
5660
417.5
50
A
5660
417.5
51
A
5660
417.5
52
A
4900
419.8
53
A
4900
419.8
54
A
4950
419.7
FITZPATRICK-LLEWELLYN INCORPORA rLD
Emyneennq ,in(j I'I,inninq Services
Nowland Two Subd*_ ;ion (Cont.)
JA9#6:92045list
TABLE OF HEIGHT DETERMINATION
1
2
3
4
Lot #
VPZ
Distance
Maximum
Elevation
55
A
4950
419.7
56
A
4970
419.6
57
A
5000
419.5
58
A
5000
419.5
59
D
5000
431.5
60
D
5000
431.5
61
D
5000
431.5
62
D
5000
431.5
63
D
4840
431.6
64
D
4740
431.7
65
D
4800
431.6
66
D
4800
431.6
i
67
A
4800
420.1
68
A
4800
420.1
69
A
4780
420.2
70
A
4750
420.3
71
A
4750
420.3
72
A
4730
420.3
73
A
4700
420.4
FITZPATRICK-LLEIVELLYN INCORPORATED
Emlinperin(j ,inn Pl,inninq delVIces
STITZEL, PAGE & FLETCHER, P.C.
ATTORNEYS AT LAW
171 BATTERY STREET
P.O. BOX 1507
BURLINGTON, VERMONT 05402-1507
(802) 660-2555 (VOICE/TDD)
STEVENF. STITZEL
FAX (802) 660-2552 or 660-9119 OF COUNSEL
PATTI R PAGE*
E-MAIL(FUW2555@FIRMSPF.COM) ARTHUR W. CERNOSIA
ROBERT E. FLETCHER
WRITER'S E-MAII. (RFLETCHER FIRMSPF.COM)
WRITER'S FAX (802) 660-9119
JOSEPH S. McLEAN
TIMOTHY M. EUSTACE
MIA KARV ONIDES
AMANDA S.E. LAFFERTY
(*ALSO ADMITTED IN N.Y.)
February 28, 2000
Martha Hicks -Robinson, Docket Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT 05609-0801
Re: Larkin-Milot Partnership v. City of South Burlington City
Council
Docket No. 2000-0734
Dear Ms. Hicks -Robinson:
Enclosed for filing with regard to the above -captioned
matter is Appellant City of South Burlington's Docketing
Statement.
Thank you.
REF/gmt
Enclosure
cc: Dennis R. Pearson, Esq.
Joseph Weith
SON4258.COR
VERMONT SUPREME COURT
LARKIN-MILOT PARTNERSHIP, )
Plaintiff ) Appealed from:
Chittenden Superior Court
V. ) Docket No. S168-98CnC
CITY OF SOUTH BURLINGTON )
CITY COUNCIL, ) Supreme Court
Defendant. ) Docket No. 2000-074
APPELLANT CITY OF SOUTH BURLINGTON'S DOCKETING STATEMENT
A. Court, Counsel
1) Trial Judge: Hon. Matthew I. Katz
2) Trial counsel for plaintiff/appellee: Dennis R.
Pearson, Esq.
3) Trial counsel for defendant/appellant: Robert E.
Fletcher, Esq.
4) Counsel in Supreme Court for plaintiff/appellee:
Unknown.
5) Counsel in Supreme Court for defendant/appellant:
Robert E. Fletcher, Esq.
6) Please list other parties and their counsel: N/A.
7) Date of decision being appealed: February 2, 2000
8) Date notice of appeal filed: February 14, 2000
B. Criminal Cases
1) Was defendant given a sentence of imprisonment?
N/A
2) If so, what is the sentence?
N/A
3) If so, has the sentence been stayed pending
appeal? N/A
4) If the sentence has not been stayed, when did the
defendant begin service of the sentence? N/A
5) What penalty other than a sentence has been
imposed? N/A
Please describe:
6) Was trial counsel appointed or retained? N/A
C. Brief Description of Nature of Case and Result
In December 1993, Larkin-Milot Partnership (the
"Plaintiff") received final plat approval from the City of
South Burlington Planning Commission for a planned
residential development consisting of 73 single-family lots
(the "Project"). The final plat approval obligated the
Plaintiff to pay to the City the recreation impact fee "in
effect" as each lot in the Project was developed. Because
Plaintiff was to construct, at its own expense, a recreation
path through a portion of its property, the Plaintiff was
given a $300 credit to be "applied toward required
recreation fees." At the time of the final plat approval,
the City customarily charged an impact fee of $200 per unit.
On January 9, 1995, the City Council adopted an impact
fee ordinance which included provisions pertaining to
recreation impacts (the "Ordinance"). In April 1995, the
City Council amended the Ordinance to exempt certain
projects from the impact fees specified in the Ordinance.
Such exempt projects remained liable for the recreation
impact fees specified in their respective final plat
approvals.
Development of the Project began after the effective
date of the Ordinance. The City's Zoning Administrator
erroneously assessed a recreation impact fee of $200 on the
first 21 lots developed; he collected no fees, however,
because of the $300.00 per lot credit. In November 1997,
the City's Zoning Administrator determined that lots in the
Project should be paying the recreation impact fee
determined under the Ordinance, and advised the Plaintiff in
writing of that determination. The Plaintiff appealed to
the City Council, which after a hearing, determined that
lots in the Project were obligated to pay the recreation
impact fee calculated under the Ordinance.
Thereafter Plaintiff sought declaratory relief in the
Chittenden Superior Court to the effect that Plaintiff's
project was "exempt" from the fees under the Ordinance. The
Defendant's Motion for Summary Judgment on all issues was
denied by Entry Order dated December 1, 1999; the Court
determined that the original 73 residential lots in the
Project are potentially exempt from the impact fees under
the Ordinance.
The City filed a Motion to Alter or Amend the Court's
Order, pointing out to the Court a factual error in the
Order which the City believed was dispositive of the issues.
The City's Motion was opposed by the Plaintiff, and
2
eventually denied by the Court by written order dated
January 11, 2000.
A judgment for declaratory relief was entered February
2, 2000 granting the Plaintiff the declaratory relief
requested and ordering the City to refund to the lot
developers all monies heretofore collected as recreation
impact fees.
D. Statement of Issues To Be Raised on Appeal
1. Did the trial court err in concluding that the
original 73 lots in the Project are exempt from paying
recreation impact fees to the City in light of the plain
language of the Ordinance and the provisions of the final
plat approval, as amended?
2. Did the trial court err in denying the City's
Motion to Alter or Amend?
3. Did the trial court err in ordering the City to
refund to lot developers those recreation impact fees
collected prior to the entry of the trial court's order?
E. Photocopies of Documents to be Attached
Was there a written decision? Yes
F. Inventory of Hearings; Transcripts Ordered. None.
Date of Length of Type of Reporter's name Transcript Date necss.
hearing hearing hearing (or "TAPE") necessary transcript
days/hours for appeal? ordered
Does the appellee agree as to which transcript(s) are
essential for the appeal? Yes No If not,
indicate name(s), date(s), and report(s) of additional _
transcript(s) needed.
G. Conference; Summary Disposition
1) Do you request a conference with a staff attorney
to di cuss either settlement or expedited
reso on? (Most conferences are done by phone)
Yes No circle
2) Is this matter appropriate for expedited
disposition by a three -justice panel pursuant to
3
V.R.A.P. 33.1 and the criteria set forth in
V.R.A.P. 33.2?
Yes ONocircle
This appeal involves matters of significant public
interest.
Submitted by:
AppPT.T.hXTm
CIT
By
STI'
Dated: February 28, 2000 By:
Son633.1it
4
STATE OF VERMONT T : iY L F rt tCkIITTENDEN SUPERIOR COURT
CHITTENDEN COUNTY, SS. DOCKET NO. 168-98 CnC
LARKIN-MILOT PARTNERSHIP
CHITTENDEN C.01: 'TY CLERK
fILLU 1N C' i CE
v. )
FEB --
CITY OF SOUTH BURLINGTON )
2 2000
UTANLCLEitKLLEE,
JUDGMENT FOR DECLARATORY RELIEF
IT IS HEREBY ORDERED AND ADJUDGED, pursuant to 12 V.S.A. 4711 et seq., and,
Rule 57, V.R.Civ.P., and based upon the Court's decision and Entry dated December 1, 1999,
and its decision and Entry dated January 11, 2000:
1. The seventy-three (73) single-family building lots located off Spear Street in the
City of South Burlington, Vermont, also known as "Pinnacle at Spear," which were proposed and
developed by Plaintiff Larkin-Milot Partnership and approved by the South Burlington Planning
Commission by written decision of December 21, 1993, are not subject to, and are exempted
from payment of recreation impact fee(s) which would otherwise be imposed by the South
Burlington Impact Fee Ordinance adopted January 9, 1995, provided that Pinnacle at Spear is
developed in conformance with any condition(s) of the December 21, 1993 written final plat
approval, and/or any amendment(s) thereto, related to any required improvement, contribution
or dedication with respect to recreation or recreation paths, and provided further that the
requirements of § 3(B)(5)(c) of said Ordinance are met with respect to each lot.
2. The City of South Burlington shall refund, to each respective applicant for a
building permit for any of the 52 "Pinnacle at Spear" lots developed since November 6, 1997,
any recreation impact fee(s) collected by the City of South Burlington under Section 3(B) of the
1995 Ordinance, which fees since November 6, 1997 have been paid under protest to the City of
South Burlington, together with any interest earned r llocated to said recreation impact fees.
' 4 2Y
Dated, at Burlington, Vermont, this day o , 0,00.
Presiding Judge
Chittenden Superior
STATE OF VERMONT
Chittenden County, ss.:
LAIZKIN-MILOT PR"INSIIP
V.
CITY OF SOUTH BURLINGTON
ENTRY
SUPERIOR COURT
Docket No. 168-98 CnC
I CHITTENDEN C4TY `LERK
FILED IN CLEf�:� (:`+Itir
DEC - I EM
I OIAN_LA YALLEE
CLERK
Pursuant to 24 V.S.A. ch. 131, South Burlington has enacted an
impact fee ordinance. The parties dispute its proper application to plain-
tiff's development, which somewhat predates the ordinance enactment in
1995. We are therefore faced with the legal issue of interpreting the
ordinance, in the context of an evolving subdivision process.
Plaintiff submitted an application for plat approval on its Spear Street
development and received subdivision approval in 1992. At that time,
South Burlington had no ordinance providing for impact fees, but had
initiated a practice of "routinely including" $200 per lot fees on final permit
issuance. It had "begun developing an impact fee that same year, but did
not actually adopt such a fee ordinance until January, 1995. Prior to that
official adoption, South Burlington officials negotiated with plaintiff on the
subject of its contribution to what we might call the City's "recreation
capital." Specifically, officials sought the developer's contribution of land
and costs for extending its recreation path through the new development.
An agreement was reached, reflected in ¶20 of the Planning Commission's
"Findings:"
A credit of $22,000 should be given the applicant for con-
struction of the portion of the proposed recreation path ...
This translates to $300 per lot. Based on the current recre-
ation impact fee of $200, the applicant would not pay a
recreation fee since the credit is more than the actual fee. If in
the future the City adopts a recreation fee of more than $300
per lot, then the applicant would be required to pay the differ-
ence.
The final "Condition" of the subdivision approval required plaintiff to
V construct the recreation path. Apparently, it did. That subdivision approval
was formally issued in December, 1993.
After the January, 1995 enactment of the impact fee ordinance,
South Burlington quickly took up some amendments thereto. It now agrees
that these amendments were developed to deal with the issue of fairness to
developments which were already ongoing under the earlier impact fee
arrangement. In April, 1995, an amendment was passed which included
paragraph 3(B)(5):
This impact fee shall not apply to land development as de-
scribed in subparagraph (1) which:
(a) is for development within a subdivision that received final
plat approval under the South Burlington Subdivision Regula-
tions prior to January 9, 1994, which subdivision approval
2
contained a condition requiring payment of fees to the City for
the purpose of funding recreation improvements; and
(b) the fees specified in the subdivision approval were paid to
the City in accordance with the terms of the approval; and
(c) a permit is issued for the development under South
Burlington Zoning Regulations on or before January 9, 2005.
The parties refer to this amendment as the "Grandfather Clause." Plaintiff
began obtaining zoning permits later in 1995, and received 21 such permits
over the course of two years, always benefitting from the ' $300 credit" it
had against the old ' $200 fee," before City officials concluded that it should
pay the much higher impact fees enacted under the ordinance.
So the issue is joined: Plaintiff developer maintains it is entitled to
the benefits of the Grandfather Clause; South Burlington contends that
plaintiff's only payment under the old Subdivision Approval was the
application of a credit which was always understood to be good only so far
as it went, it the fee went up, the credit was only for $300.
Initially, we conclude that this is an appropriate case for summary
judgment. The court's obligation is to interpret and apply written instru-
ments, in one instance the subdivision approval, in the other the later,
Grandfather Clause ordinance. The interpretation of such documents is pre-
eminently a question of law, unless one of them is found to be ambiguous.
But we decline to find that either is ambiguous, although there may be some
level of conflict between the two. Neither party argues that one or the other
cited instrument, standing alone, is capable of two reasonable interpreta-
tions, which requires resort to extraneous sources in order to reach a proper
understanding.
W
The Grandfather Clause ordinance is as binding on the City and its
inhabitants as are the general laws of the State on its citizens. 5 E. McQuil-
lin, Municipal Corporations (3d ed. 1996), § 15.14. Words in ordinances
are to be given their plain meaning. Badger v. Town of Ferrisburgh, 712
A.2d 911 913 (1998). If the meaning of the ordinance is clear from its plain
language, it will be enforced according to its terms. Houston v. Town of
Waitsfield, 162 Vt. 476, 479 (1994). South Burlington does not argue that
the Grandfather Clause, standing by itself, somehow excludes plaintiff's
g` development. We accept its implicit concession that the Clause's language
does apply to the Spear Street project. That project constitutes land deve-
lopment which
• is within a subdivision which received final plat approval prior to
January 9, 1995;
• within that approval required payment of fees to the City for the
purpose of funding recreation improvements;
• the specified fees were paid; and
• final permit has been issued before the 2005 cutoff date.
What the City contests is whether the middle two elements are vitiated by
the subdivision approval language anticipating future fees higher than the
$300 credit.
When the Planning Commission determined to require plaintiff to
construct a recreation path within its development, it was clearly and
✓; explicitly in lieu of the then -customary $200 fee. It is uncontested that the
construction was completed. Hence, the question for us is whether a "fee in
kind" should somehow be treated differently than one in cash. We certainly -
see no reason to do so. South Burlington could, presumably, have extracted
a simple $200 per lot from plaintiffs, as it apparently did from all other
applicants. Instead, it reached an agreement seemingly more favorable to
the City, for path construction. Indeed, the City concluded the agreement
was worth fully 50 percent more than the contemporaneous fee. We
therefore conclude that, in 1993, a fee was charged and, subsequently, it
rd
was paid.
We do not overlook the qualification included in the subdivision
approval that the $300 path credit was something less than a "Paid in Full."
The City reserved the right to increase the fee at some future time, and
plaintiff evidently accepted that qualification, for it failed to appeal the
approval. But inclusion of the qualification does not mean that no fee was
exacted, or none paid. Something was exacted, and what was so wrested
was indeed paid. It is against this background that the Grandfather Clause
was crafted and enacted.
South Burlington also argues extensively that the fee is not actually
imposed until a permit is issued, and that its regimen provides for only one
permit —the zoning/building permit. We have in mind that subparagraph (b)
of the Grandfather Clause is written in the past tense ("were"), suggesting
that it might not govern cases in which the fee has not yet been paid. But
such an interpretation would put (b) at odds with (c), which looks forward
until 2005 for the period in which lots could be grandfathered. Reading the
(b) and (c) as part of a whole, as we must, it must be interpreted as provid-
ing protection to lots for which the predetermined fee is paid, when due.
In sum, we conclude that South Burlington could have written a
different Grandfather Clause, or could have (legally) declined to enact one
at all. Instead, it enacted one which plaintiff's project satisfies. As it comes
later than the subdivision qualification, and binds the City, we conclude that
the Clause must govern, standing on its own. As such, it exempts plaintir s _
Spear Street project from further impact fees.
5
Plaintiff's request for declaratory relief is granted. If a formal
declaratory judgment is required, plaintiff should submit a proposal within
ten days.
Dated at Burlington, Vermont, December I , 1999.
2
STATE OF VERMONT
Chittenden County, ss.:
V.
CITY OF SOUTH BURLINGTON
ENTRY
f -JAIJ
,r•� 1�
ITZEL, PAG E & FLE l C:H:E PC
SUPERIOR COURT
Docket No. 168-98 CnC
WIfTEWN ('01,)NTY':LERK +
:v : f1LED IN CLE: I'^ C#F'CE
�� �rw i i a000
� yY
CLt K�1fF
South Burlington has pointed out a factual error in this court's Entry
of December 1, 1999. The Entry is based on the understanding that
plaintiff developer in fact constructed the envisioned portion of the
Recreation Path within the subdivision, but outside the City's street rights -
of -way.. In fact, plaintiff developer did not construct that Recreation Path
portion. Instead, in late 1998, plaintiff and the City reached a new
agreement. That new state of affairs was expressed in Findings of the
Planing Commission including "Decision & Conditions"
¶ 7. The applicant shall no longer be required to construct
that portion of the recreation path located outside of any
ppublic street right-of-way. The $300 credit per lot
previously approved is hereby eliminated.
¶12. ' The plat plans shall be revised to show changes ...
1. The recreation path easement shall be shifted
so as to meander through the center of common
land D:
2. The survey plat shall be amended to show
the recreation path easement as an easement,
not part of the public r.o.w.
This action, however, was commenced in early 1998, seeking a declaration
that the whole Pinnacle at Speer project is exempt from the 1995 Impact
Fee Ordinance. The City had taken the position in 1997 that this project is
subject to the 1995 ordinance.
As of the time this action was commenced, it was anticipated that
plaintiff developer would construct the Recreation Path, as set out in its
permits. That construction had been negotiated, it was a condition of the
permits which had been issued. The City does not assert that plaintiff had
violated its obligation to construct, or that it had somehow been late.
Instead, a determination was made to alter plaintiff's obligation with regard
to the Pecreation Path. The resolution of this dispute must come from the
Impact Fee ordinance, and specifically its Grandfather Clause. That
Clause, §3B(5)(b) requires "the fees specified in the subdivision approval
were paid to the City in accordance with the terms of the approval." We
have previously indicated why the past tense "were" is not dispolisitve, for
the Clause looks forward to permits being issued through 2005, as well as
approvals as late as January 9, 1995. Although the recreation path had not
been built, its cost of construction was incurred as surely as if it had already
been built, "in accordance with the termsof the [Pinnacle] approval."
Plaintiff had undertaken the obligation to construct, the City had gained the
benefit. It was, and remains, within the City's ability to force compliance
_ with the recreation path obligations. It is the obligation as a whole, not use
precise degree to which it has been completed, which must govern. The
obligation meets the requirements of §3B(5)(b). We therefore conclude
that plaintiff was entitled to the declaratory relief for which it had
commenced this action.
Later in 1998, the parties evidently reached an agreement to alter the
Recreation Path obligation. But the new agreement must be held to have
been reached against the background that the Grandfather Clause applied to
2 __.
this project. If the parties alter their Recreation Path obligation, they alter
an obligation which meets the requirement of the Grandfather Clause.
The court therefore continues to adhere to the conclusion previously
announced.
Dated at Burlington, VT, January 2000.
STATE OF VERMONT
ENVIRONMENTAL BOARD
DISTRICT #4 ENVIRONMENTAL COMMISSION
111 West Street • Essex Junction • Vermont • 05452
(802) 879-5614 • Fax (802) 879-3871
November 1, 1999
L&M Partnership
c/o John Larkin
410 Shelburne Road
South Burlington, VT 05403
Subject: Notice of Alleged Violation 10 V.S.A. §8006 - Failure to comply with conditions # 20
and # 28 of Land Use Permit 4C0942R-1.
Dear Mr. Larkin:
I have determined that you have not complied with the aforementioned conditions of Land Use Permit
4CO942-RI and the Findings of Fact and Conclusions of Law and Order issued on August b, 1999. The
pertinent conditions require the following:
20. The Permittee shall install all outstanding landscaping, including all plantings along the wetland
buffer, in accordance with Sheet 27 of 27 and Condition #13 of Land Use Permit #4C0942R for
the presently completed portion of the project (Howland Farm Drive and Pinnacle Drive) by
October 1, 1999. In addition, the Permittee shall certify by affidavit from a nurseryman or
landscape architect, immediately upon completion of planting, that these plantings have been
installed in accordance with Sheet 27 of 27 and the conditions of this permit. (Emphasis added.)
28. The Permittee shall fully execute the primary agricultural soils Mitigation Agreement and make
the requisite payment of S93,480 in accordance with the agreement within sixty (60) days of
issuance of this land use permit. Immediately upon execution of the agreement and payment of
$93,480, the Permittee shall provide proof to the Commission that the payment and Mitigation
Agreement have been executed. Should the land use permit be overturned on appeal by the
Environmental Board or other appellate body, the Permittee shall fully execute the Mitigation
Agreement and $90,000 payment as previously conditioned by Land Use Permit #4C0942R, with
sixty days (60) of the appellate decision. (Emphasis added.)
As you know, the Commission made findings during the hearing proceedings with respect to the street
trees. Sr-� Findings of Fact # 23. In addition, the Commission noted during the hearing that many of the
Arborvitae shrubs (wetland plantings), also shown on Sheet 27 of 27, have died since they were
originally installed. The Commission specifically added condition # 20 to correct the situation. You
have failed to meet the October 1, 1999 compliance date for this condition.
Notice of Alleged Violation
November 1, 1999
Page 2
During the hearing proceedings, the Commission noted that L&M Partnership had not made the
Mitigation Agreement payment of $90,000 as required by Land Use Permit #4C0942R issued on May
23, 1994. S= Permit at 3. As required by condition #28 of Land use Permit 4C0942R-1, the agricultural
soils Mitigation Agreement was to be fully executed and the requisite payment of $93,480 made by
October 6, 1999. You have also failed to meet this deadline for compliance with the permit condition.
Therefore, in response to the alleged violations, the Environmental Board may pursue additional
enforcement measures. Pursuant to 10 V.S.A. § 8008, it may obtain an Administrative Order. This order
may impose penalties and direct you to take certain action to achieve compliance, including, when
necessary, corrective/restorative action. The Administrative Order may be subject to judicial review arld
may lead to litigation. In the alternative and pursuant to 10 V.S.A. § 8007, the Environmental Board
may enter into an agreement called an Assurance of Discontinuance with you. Such an agreement may
include, but is not limited to, directives and schedules for actions to correct the violation and the
assessment of monetary penalties.
I have calculated an initial financial penalty in the amount of $12,500 pursuant to 10 V.S.A. § 8010.
Prompt correction of the alleged violation is a factor considered by the Board in determining the
appropriate enforcement action to be taken. Therefore, to correct the violations, I recommend the
following:
Immediately install all plantings as shown on Sheet 27 of 27 in accordance with Condition ##
20 of Land Use Permit 4C0942R-1. Furthermore, these plants should be installed at a
height and size equal to the originally installed plantings.
2. Immediately execute the primary agricultural soils Mitigation Agreement and make the
requisite payment of $93,480 in accordance with Land Use Permit 4C0942R-1
Please contact John Hasen, General Counsel of the Environmental Board, at 828-5444 to discuss the
settlement of this case. Thank you in advance for your prompt attention to this matter.
Sincerely,
James Boyd
Environmental Board
District #4 Coordinator
cc: Carol Shea, Chair, District #4 Environmental Commission
John Hasen, General Counsel, Environmental Board
John Klauzenberg, ANR Enforcement Officer
City of South Burlington
UAEB OARD\ENFORC\4C942R- I . LTR
PINNACLE * SPEAR
Vale Drive - Lets 52 through 80
South Burlington, Vermont
July 28, 1998(rev)
Nov 18,1999(rev)*
"Fable of height limitations for Dorset Park View Protection Zones
Zone A - Section 22.401
Zone D -Section 22.407
1`Zot4 rem to T&We V bela r
Column 1. Lot numbers according to Llewellyn Incorporated, Drawing 0067-D
Column 2, Dorset Park View Protection Zone (VPZ), A or D
Column 3. Distances scaled from Dorset Park VPZ Baseline* to center of lot (in feet)
Column 4. Ridge Line Elevation (of house) calculated from Dorset Park VPZ Baseline"`
VPZ A: Ridge line (of house) = 441' - 4.3' (Distance' 11000')
VPZ D; Ridge line (of house) - 441 V- 2.0' (Distance' l 1000')
Column 5. Roadway centerline design elevation at center of lot
Column 6. Assumed First Floor Elevation (based on footing drains discharging to storm
sewers)
Column 7. Height of ]House above FFE (First Floor Elevation to Ridge Line Elevation)
Column 8. Height of House above roadway (Roadway centerline elevation to ridge line)
* Baseline moved 200 feet west by City Council (adopted 9-23.96).
TABLE, V (Rev Nov 18,1999)
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Ridge
Line
Elevation
5
Roadway
Elevation
Design
6
Assumed
FFE
7
Height of
House
above
FFE
8
Height of
House
above
Roadway
52
A
4450
421.8
394.9
398.1
23.7
2 6, 9
53
A
4485
421.7
395.0
398.3
23.4
26.7
54
A
4510
421.6
394.9
398.5
23,1
26.7
55
A
4525
421.5
394.6
398.7
22.8
26.9
56
A
4535
421.4
394.5
398.9
22.5
26.9
57
A
4540
421.4 f
394,4
399.0
22.4
27,0
58
A
4550
421.4
394.4
399.3
22.1
L 27.0
Post -it" Fax Note
7671
Date I
Rages
To t !'
�r
+�
From
Co./Dept
Co. I1
Phone #
Phone #
Fax #
Fax #
LLEWELLYN • HlDWLEY
I N 0 0 R F 0 R A T 9 D
Finnacle (g Spear TABLE V (Rev Nov 18, 1999)cont.
k40
1
Lot 9
2
VPZ
3
Distance
from Base
f
4
Ridgc
Line
Elevation
i
5
Roadway
Elevation
Design
6
Proposed
IFI;E
7
Height of
House
above FFE
7
Height of
House
above
Roadway
59
D
4555
431.9
393.E
399.4
32.5
38.3
60
D
4560
431.9
394.3
399.8
32.1
37.6
61
D
4565
431.9
394.5
399.9
32.0
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Page 2 of 2 L.LEWELL.Y N • HOWL.EY
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--------------------------------I
See sheet 5 of 9 1
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For construction details of Nowland Form Rood see / I
FitzPatrick-Llewellyn Inc. drawings entitled "Nowland Two" ` I
dated July 1992. Copies of these drawings are attached. ir `Br Fdary of the Dorset Park Scenic I
Yew Protection Overlay District
A ZONE I//
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r-50' Wetlands buffer zone I
Burlington
Delineated edge of wetlands. See FitzPatrick-Llewellyn Inc.
plan set entitled "Nowland Two doted July 1992.
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Utilities easement (for Economou Farms, Inc.) 4 or 9 I
to Economou Forms
1. Owner / Applicant: Gerold Milot k John Larkin
P.O. Box 4193
Burlington, Vermont 05402
Tel: 802-864- 7444
2. Project - The project described by this plan set
is the construction of Vale Drive and the addition
of seven single family residential lots on the project
approved as Nowland Two, July 199Z and now known
as Pinnacle ® Spear, South Burlington. Also included
is the construction of Dorey Road to the Economou
Farms property line.
This construction contract also includes the completion
of Nowland Form Road from Station 7+00 (approximately)
to Station 21+20 (easterly property boundary). See
FitzPatrick-Llewellyn drawings D-4351, D-4352, D-4385
and D-4388, attached.
J. For construction purposes, this project includes the
construction of Nowland Form Road, Vale Drive, Dorey
Rood, utility systems, stormwoter detention pond
and landscaping.
4. Total parcel - 66.7 acres
Additional proposed lots - 7
Total lots, this subdivision - 80
5. Minimum setbacks
Front - 20 feet
Skin - 1n foot
Rear - 30 feet
Setbacks denoted by on plans
6. Topographic Survey. Topographic data was obtained
from plans prepared by FitzPatrick-Llewellyn Inc.,
July 1992, see plan set entitled "Nowland Two", lost
revised on 1011193. project number 92045. Data
was digitized for this plan from that set.
7. The contractor shall obtain as -built ties to
underground structures, including pipes, and
provide ties to the owner, the engineer, and the City.
8. Proposed roadway right-of-ways are 80' for Nowland
Farm Road. 60' for Vole Drive and 60' for Dorey Rood.
9. Roadway profiles and utility details - see sheets 3
through 9 and attached Fitzilotrick-Liewellyn drawings.
10. The Nowland Form Road extension and the 12" water
line extension on Nowland Farm Road ore shown on
drawings prepared by FitzPotrick-Llewellyn Inc., July
199Z see plan set entitled 'Nowlond Two, last revised
on 1011193, project number 92045. Photocopies of
these drawings are attached to this plan set.
11. Utilities - Roadway - Vole Drive - 1693 feet
Dorey Road - 261 feet
8" Sanitary sewer - 2190 feet
8' Ductile iron water main - 1890 feet
12 HOPE Storm sewer - 310 feet
15" HOPE Storm sewer - 980 feet
18" HOPE Storm sewer - 1018 feet
24' HOPE Storm sewer - 715 feet
12. See General Specifications sheet 6 of 9.
13. Utility systems (sanitary, water and storm) serving
lots 52-80, originate in the existing phase of Nowland
Two. As such, the proposed elevations shall not be
adjusted without written authorization of the developer,
engineer or owner.
14. Leave excess roll on lots.
15. f.l leJul 1'.1 er c..o ...,J oleo.., ;p ll.... a, ace II , 1.1.0
N/F Forrell
Graphic Scole
-100 O 100 200 300 400
PINNACLE @ SPEAR
SOUTH BURLINGTON
OVERALL SITE PLAN
VERMONT
IM
LLEWELLYNI DAL 9702
Reconfigure Iota, shill rood, Aug DAL DUNE 1998
fix building envelopes 1998
Regrode rood, extend water line July INCORPORATED DRA•t By. SAR
h sewer line, move trees 1998 / ONitEERNG-PEIbmTtNG•ca+wtmGSOIACES
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11T 05403 F E02-658-2282 WET: I s 9
un I IOATF
fZEL, PAGE & FLETCHER, �..,.
ATTORNEYS AT LAW
171 BATTERY STREET
P.O. BOX 1507
BURLINGTON, VERMONT 05402-1507
(802) 660-2555 (VOICE'TDD)
STL . cN F. STITZEL
FAX (802) 660-2552
PATTI R. PAGE'
E-MAIL(FIRM2555@FIRMSPF.COM)
ROBERT E. FLETCHER
WRITER'S E-MAIL (RFLE CHER@FIRMSPF.COM)
JOSEPH S. MCLEAN
TIMOTHY M. EUSTACE
MIA KARVONIDES
AMANDA S.E. LAFFERTY
(-ALSO ADMITTED IN N.Y.)
January 21, 2000
Diane A. Lavallee, Clerk
Chittenden Superior Court
175 Main Street
PO Box 187
Burlington, VT 05402-0187
RE: MBL Associates v. City of South Burlington
Docket No. S392-98 CnC
Larkin-Milot Partnership v. City of South Burlington
Docket No. S168-98 CnC
Dear Diane:
OF COUNSEL
ARTHUR W. CERNOSIA
Mr. Pearson's re -draft of the proposed Judgment Orders in
the above -entitled matters reached my desk this morning. I have
reviewed them, and I believe that paragraph 1 of each of the
revised proposed Orders more accurately reflects the Court's
decision in these cases. There is one discrepancy between the
two proposed orders which should be corrected.
In the proposed order for MBL, the last phrase of section 1
reads ", and that the lots/units therein meet the requirements of
53(B)(5)(c) of said Ordinance." In contrast, the proposed order
for Larkin-Milot Partnership reads, in the last phrase of section
1, as follows: ", and provided further that the requirements of
§3(B)(5)(c) of said Ordinance are met with respect to each lot."
The City believes the Larkin-Milot phraseology is more specific
and consistent with the Court's decisions. The City therefore
requests that the language in section 1 of the MBL order be made
to conform to the Larkin-Milot order in this respect.
Despite Mr. Pearson's characterization, the City does not
currently, nor has it ever, believed that the Plaintiffs
satisfied the provisions of sections 3(B)(5)(a) and (b) of the
City's Ordinance. The City does not agree with the Court's
analysis and conclusion on this issue.
Thank you for your attention to these matters.
Sin
Rob
REF/bj 1
cc: Dennis Pearson, Esq.
Charles Hafter
Joseph Weith
son4219.cor
STITZEL, PAGE & FLETCHER, P.C.
ATTORNEYS AT LAW
171 BATTERY STREET
P.O. BOX 1507
BURLINGTON, VERMONT 05402-1507
(802 60-2555
STEVEN F. STITZEL
FAX (802)( 60`25fi/2
PATTI R. PAGE*
E-MAIL(FIRM2555CwFIRMSPF.COM)
ROBERT E. FLETCHER
WRITER-S E-MAIL (RFLE CHER C FIRMSPF.COM)
IOSEPH S. MCLEAN
TIMOTHY M. EUSTACE
MIA KARVONIDES
AMANDA S.E. LAFFERTY
(-ALSO ADMITTED IN N.Y.)
January 18, 2000
Diane A. Lavallee, Clerk
Chittenden Superior Court
175 Main Street
PO Box 187
Burlington, VT 05402-0187
RE: MBL Associates v. City of South Burlington
Docket No. S392-98 CnC
Larkin-Milot Partnership v. City of South Burlington
Docket No. S168-98 CnC
Dear Diane:
Enclosed please find the City of South Burlington's
Objection to the proposed Judgment Orders submitted by the
respective Plaintiff's in the above -entitled causes.
Thank you for your attention to these matters.
Since 1 ,
Robe t Fletche
REF/bj 1
Enclosures
cc: Dennis
Charles
Joseph
son4217.cor
Pearson, Esq.
Hafter
Weith
OF COUNSEL
ARTHUR W. CERNOSIA
STITM., PAGE &
FLETCHER, P.C.
ATTOTIN EyS AT LAN'
17] Ii\T'11A:) SHO'17(
A I , 1:111"
\I.R.M(IVI
STATE OF VERMONT
CHITTENDEN COUNTY, SS
LARKIN MILOT PARTNERSHIP, )
Plaintiff )
V. )
CITY OF SOUTH BURLINGTON )
CITY COUNCIL, )
Defendant. )
Chittenden Superior Court
Docket No. S168-98CnC
OBJECTION TO PROPOSED JUDGMENT ORDER
NOW COMES the City of South Burlington, by and through its
attorneys, Stitzel, Page & Fletcher, P.C., and hereby objects to
the form of the Proposed Judgment Order submitted by Plaintiff on
January 14, 2000.
The Court has determined that the first pre -condition for
application of the so-called grandfather clause pertaining to
recreation impact fees under the City's Impact Fee Ordinance
("Ordinance"), section 3(B)(5)(a), has been met with respect to
the original seventy-three lots in the Plaintiff's subdivision on
Spear Street ("Pinnacle at Spear"). It has also determined that
these lots may meet the second and third pre -conditions for
application of the grandfather clause. §3(B)(5)(b) and (c). To
the extent that all of the pre -conditions for application of the
grandfather clause are satisfied with respect to a lot within the
Plaintiff's subdivision, that lot is exempt from the recreation
impact fees specified in the Ordinance. If, however, a lot does
not meet all three of the specified pre -conditions, that lot is
not exempt from the recreation impact fees under the Ordinance.
1
The Plaintiff's proposed judgment order is not sufficiently
clear on this point. It can be read to preclude the assessment
and collection of any recreation impact fees by the City for lots
in the Plaintiff's subdivision regardless of their compliance
with the provisions of the grandfather clause.
Therefore, Defendant respectfully requests that the Court
modify the proposed judgment order by deleting at the end thereof
the phrase "in accordance with Section 3(B)(5) of said Ordinance"
and inserting in lieu thereof "provided that Pinnacle at Spear isl
developed in conformance with the provisions of the December 21,
1993 written final plat approval and provided further that all of
the requirements of Section 3(B)(5) of said Ordinance are met
with respect to each lot." This will assure that the lots must
meet all three of the pre -conditions for exemption under the
grandfather clause.
DATED at Burlington, Vermont this 16day of L,
2000.
By:
son619.1it.objProp0rderLMP
\_�ir_zei, Yage & r'ietcner,
171 Battery Street
Box 1507
Burlington, VT 05402-1507
2
IWM
STITZE ,. PAGE
FLE'rcHER, Y.C.
ATTURNK'YS :AT LAN'
PdI. BOX I:.07
iil I: 1.1\G'il l�. \'1AMOV
nbuC 1lo'
STATE OF VERMONT
CHITTENDEN COUNTY, SS
MBL ASSOCIATES,
Plaintiff )
V. )
CITY OF SOUTH BURLINGTON, )
Defendant )
Chittenden Superior Court
Docket No. 392-98 CnC
OBJECTION TO PROPOSED JUDGMENT ORDER
NOW COMES the City of South Burlington, by and through its
attorneys, Stitzel, Page & Fletcher, P.C., and hereby objects to
the form of the Proposed Judgment Order submitted by Plaintiff on',
January 14, 2000.
The Court has determined that the first pre -condition for
application of the so-called grandfather clause pertaining to
recreation impact fees under the City's Impact Fee Ordinance
("Ordinance"), section 3(B)(5)(a), has been met with respect to
the two hundred twenty-one residential lots/units in the
Plaintiff's subdivision on Dorset Street ("Dorset Farms"). It
has also determined that these lots/units may meet the second and
third pre -conditions for application of the grandfather clause.
§3(B)(5)(b) and (c). To the extent that all of the pre-
conditions for application of the grandfather clause are
satisfied with respect to a lot/unit within the Plaintiff's
subdivision, that lot/unit is exempt from the recreation impact
fees determined under the Ordinance. If, however, a lot/unit
does not meet all three of the specified pre -conditions, that
1
lot/unit is not exempt from the recreation impact fees under the
Ordinance.
The Plaintiff's proposed judgment order is not sufficiently
clear on this point. It can be read to preclude the assessment
and collection of any recreation impact fees by the City for
lots/units in the Plaintiff's subdivision regardless of their
compliance with the provisions of the grandfather clause.
Therefore, Defendant respectfully requests that the Court
modify the proposed judgment order by deleting at the end thereof
the phrase "in accordance with Section 3(B)(5) of said Ordinance"
and inserting in lieu thereof "provided that Dorset Farms is
developed in conformance with the provisions of the January 11,
1994 written final plat approval and that the lots/units therein
meet all of the requirements of Section 3(B)(5) of said
Ordinance." This will assure that the lots/units must meet all
three of the pre -conditions for exemption under the grandfather
clause.
DATED at Burlington, Vermont this 0 day of ,
2000.
By:
son618.1it.objPropOrder
CI
Fobert E. Fletcher v
Stitzel, Page & Fletcher, P.C.
171 Battery Street
Box 1507
Burlington, VT 05402-1507
2
STITZEL, PAGE & FLETCHER, P.C.
ATTORNEYS AT LAW
171BATTERY STREET
P.O. BOX 1507
BURLINGTON, VERN40NT 05402-1507
660-2555
STEVEN F. STITZEL (S02 FAX (802)(VOICE660-25552 DD)
PATTI R. PAGE' E-MAIL(FIRM2555 aFIRMSPF.COM)
ROBERT E. FLETCHER WRITER'S E-MAIL (RFLEf6HER@FIRMSPF.COM)
JOSEPH S. MCLEAN
TIMOTHY M. EUSTACE
(-ALSO ADMITTED IN N.Y.)
June 141 1999
Diane A. Lavallee, Clerk
Chittenden Superior Court
175 Main Street
PO Box 187
Burlington VT 05402-0187
Re: Larkin-Milot Partnership v. City of South Burlington
Docket No. S168-98 CnC
Dear Diane:
Enclosed for filing with regard to the above -captioned
matter please find the following:
OF COUNSEL
ARTHUR W. CERINOSIA
1. Defendant's Supplemental Memorandum in Support of
Defendant's Motion for Summary Judgment;
2. Defendant's Response to Plaintiff's Counter -Statement
of Material; Undisputed Facts, with attachments;
3. My Certificate of Service.
Thank you for your attention to these matters.
any questions, please feel f
REF/bjl
Enclosures
cc: D. Pearson,Esq.
C. Hafter
J. Weith
son4061.cor
If there are
STATE OF VERMONT
CHITTENDEN COUNTY, SS
LARRIN MILOT PARTNERSHIP,
Plaintiff,
V.
CITY OF SOUTH BURLINGTON
CITY COUNCIL,
Defendant.
Chittenden Superior Court
Docket No. S168-98CnC
CERTIFICATE OF SERVICE
I, ROBERT E. FLETCHER, ESQ., do hereby certify that I served a
copy of Defendant's Supplemental Memorandum in Support of
Defendant's Motion for Summary Judgment, dated June 14, 1999,
upon Plaintiff's counsel, Dennis Pearson, Esq., by causing a copy
to be placed in the U.S. Mail, postage pre -paid this 14th day of
June, 1999.
Dated at Burlington, in the County of Chittenden, State of
Vermont, this 14th day of June, 1999.
son586.1it
5T1TZE11, PAGE &
FLETCHER, P.C.
ATTOR1E)S %T I A%k
By:
1
Stitzel, Page & Fletcher, P.C.
PO Box 1507
Burlington, VT 05402-1507
STITZEL. PAGE S
FLETCHER. PC.
ATTORNEY.'; Al LAW
ITI I; a'I'"f F Itl SI'R I<Ll
ROA I:,n':
�, �. ki
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
LARKIN MILOT PARTNERSHIP, )
Plaintiff, )
V. )
)
CITY OF SOUTH BURLINGTON )
CITY COUNCIL, )
Defendant. )
Chittenden Superior Court
Docket No. S168-98CnC
DEFENDANT'S SUPPLEMENTAL MEMORANDUM IN SUPPORT
OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The City of South Burlington, Defendant, responds to the
Memorandum of Plaintiff in Opposition to Defendant's Motion for
Summary Judgment and supplements its earlier Memorandum in
Support of Defendant's Motion for Summary Judgment as follows.
I. THE IMPACT FEE ORDINANCE IS NOT AMBIGUOUS AND SHOULD BE
ENFORCED AS WRITTEN.
A. Plaintiff Has Failed to Prove The Ordinance Is
Ambiguous.
The Plaintiff concedes, as it must, that the City's impact
fee ordinance (the "Ordinance") is, on its face, clear and
unambiguous. It then asserts that as applied the Ordinance is
ambiguous. Its only bases for this assertion are a mis-
characterization of a condensed version of a statement made by
the City Manager and an initial administrative error in the
application of the Ordinance to this project. These two events
STITZEL, PAGE &
PLFTCHFE. P.C.
V7"1'OR NF.: S T 1,, k%
ii T1 11c rRf 11
are portrayed by Plaintiff as "prima facie" evidence of ambiguity
inherent in applying the Ordinance. The City believes that
neither of these events, either alone or in combination, satisfy
Plaintiff's burden nor create any ambiguity in the Ordinance.
1. Plaintiff Bears the Burden of Proving that The
ordinance is Ambiguous.
It is not enough for Plaintiff to simply assert that the
Ordinance is unclear and ambiguous, Plaintiff must prove it. "Iti
is for the plaintiff to demonstrate why confusion or ambiguity
beclouds a statute that appears clear on its face." Sanders v.
St. Paul Mercury Ins. Co., 148 Vt. 496, 504, 536 A.2d 914, 919
(1987); see also, 2A Sutherland Statutory Construction §46.01,
p.82 (Plaintiff "must show either that some other section of the
act expands or restricts its meaning, that the provision itself
is repugnant to the general purview of the act, or that the act
considered in pari materia with other acts, or with the
legislative history of the subject matter, imports a different
meaning.").
Ambiguity exists where the instrument or enactment is
reasonably susceptible to two or more interpretations. Towns v.
Vermont Mut. Ins. Co., 1999 WL 50274, 2 (Vt. 1999) (insurance
contract is ambiguous if language is reasonably or fairly
-2-
STITZEL. parr S
FLE,TCHER, F.C.
7 li 1l"!I 1;1
susceptible to different interpretations). The mere fact that a
dispute has arisen over the proper interpretation of a contract
does not render the language ambiguous. Id., citing Isbrandtsen
v. North Branch Corp., 150 Vt. 575, 581, 556 A.2d 81, 85 (1988).
The same is true of disputed legislation.
The Plaintiff's alleged evidence of the City's "intent"
which occupies so much of Plaintiff's Memorandum does not prove
the Ordinance to be ambiguous.
2. The "Extraneous" Evidence Relied Upon by the
Plaintiff is Irrelevant and Miscast.
The ultimate goal of interpreting an ordinance is to give
effect to the legislative intent. Appeal of Weeks, 167 Vt. 551,
554, 712 A.2d 907, 909 (1998) (quoting Lubinsky v. Fair Haven
Zoning Board, 148 Vt. 47, 527 A.2d 227 (1986)). The Plaintiff
alleges that an abbreviated version of comments made by the City
Manager, as reproduced in the minutes of a City Council meeting,
is evidence of the City's "admitted intent" concerning the April
1995 amendments. The Plaintiff attaches considerable
significance to this capsulized distillation, insinuating that it
constitutes some form of "legislative history" or admission by
the City of the intent of the April 1995 amendment. The
-3-
STITZEL. PAGE &
FLETCHER, P.C.
1.FT
Plaintiff not only misconstrues these statements, it oversells
them.
Only the Defendant City Council is vested with authority to
enact ordinances and to formulate policy for the City. Hence,
only the actions and statements of the City Council can be
relevant evidence of the City Council's "legislative intent."
The City Manager is not a member of the City Council; he is an
employee of the City responsible for implementation of the
policies adopted and enacted by the City Council, and for day -to -I
day management of the City. His comments cannot fairly be
characterized as the conscious or intent of the City Council.
Moreover, the statements attributed to the City Manager were
an explanation to the City Council of the comments made by
developers concerning the enactment and implementation of the
Ordinance in its original form. This point was made by Mr.
Hafter during the course of his deposition. Deposition of Charles
Hafter, pp. 11-12, Exhibit 3 (Dec. 3, 1998)(attached hereto).
For the Plaintiff to characterize those comments as indicative of
the intent of the City is disingenuous, at best.
Finally, the significance, if any, of the City Manager's
statement is undercut when put in context. The statement was
made at the March 6, 1995 City Council meeting, fully a month
-4-
STITZEL. PAGE &
FLETCHEH. P.C.
Al"IUR\ I)s :1T1,W
before the date on which the Ordinance was amended. Id. At that
same meeting, the Chair suggested soliciting input from the
Planning Commission before the matter was considered further, and
the matter was dropped. Deposition of Charles Hafter, Exhibit 3.
Mr. Hafter's statements are not, in any real sense, compelling
evidence of the intent of the City Council.
The Plaintiff also attempts to make an issue of an
administrative error by the City Zoning Administrator to
demonstrate that the City interpreted the Ordinance to require
that an impact fee of $200 per lot be assessed for lot
development within the instant project. It suggests that the
City changed its policy on the fees assessable with respect to
development in this project in a surreptitious attempt to
increase City revenues. Nothing could be further from the truth,
and the Plaintiff knows that.
The City has never denied that the Zoning Administrator
erred in the assessment of recreation impact fees with respect to
the first 21 building/zoning permits issued for lots in this
project. He erroneously assumed that the fee assessable for
recreation impacts associated with the project were $200 per lot.
Based on that erroneous assumption, he collected nothing from lot
developers as they applied for the first 21 land development
-5-
STITZEL, PAGE, &
FLETCHER. P.C.
ATTORNEYS AT I-W
1: i i; rrrr'ity srer:r r
permits for lots in Pinnacle at Spear. When the error was
discovered, the Zoning Administrator wrote to the Plaintiff
telling it of the error and advising that henceforth he would be
assessing the correct fee under the Ordinance. Deposition of
Richard Ward, pp. 11-14, Ex. 6 (March 1, 1999) (attached).
This error is not proof of anything other than the fact that
the Zoning Administrator made a mistake. The Plaintiff suggests
that it is evidence of a broader conspiracy by the City, but it
has no proof thereof. Indeed, in his deposition testimony,
Richard Ward, the City's Zoning Administrator at the time,
refuted that suggestion. Id., at pp. 14-15. The City believes
that the Plaintiff's resort to this type of innuendo is both
malicious and desperate.
The motivation and intent of the City Council in enacting
the amendment can best be discerned from a review of the plain
language of the enactment itself. The City's views on the
meaning and proper interpretation of the amendment are set forth
in detail in the City's Memorandum in Support of its Motion for
Summary Judgment.
The plain language of the Ordinance conveys clearly the
intent of the City Council. As such, the City is entitled to
W
STITZEL PAGE &
FLETCHER, P.C.
ATTORnr:vs.%T 1,A"
I H%I'll iO SPHEI`T
W I.I.I \(�ff11.\I'. H\10\,I
1.0
have the Ordinance enforced in accordance with that plain
language.
If "confusion or ambiguity does not appear [from the
language of the enactment], then the statute is not construed buts
rather enforced in accordance with its express terms." Cavanaughl
v. Abbott Laboratories, 145 Vt. 516, 529, 496 A.2d 154, 162
(1985), quoting Heisse v. State, 143 Vt. 87, 89, 460 A.2d 444,
445 (1983); see also, Houston v. Town of Waitsfield, 162 Vt. 476,
479, 648 A.2d 864, 865 (1994); see also, Bisson v. Ward, 160 Vt.
343, 348, 628 A.2d 1256, 1260 (1993). Indeed, interpretation is
not required, or permitted, where the language of the enactment
is plain. Smith v. Winhall Planning Commission, 140 Vt. 178,
183, 436 A.2d 760, 762 (1981), citing Kalakowski v. John A.
Russell Corp., 137 Vt. 219, 223, 401 A.2d 906, 909 (1979). These
tenets of statutory construction apply with full force to zoning
ordinances. Blundon v. Town of Stamford, 154 Vt. 227, 229, 576
A.2d 437, 439 (1990); Kalakowski v. John A. Russell Corp., 137
Vt. 219, 223, 401 A.2d 906, 909 (1979).
The cases relied on by Plaintiff are not at odds with these
principles. A recent decision written by Chief Justice Amestoy
puts them in perspective:
-7-
STITZEL, PACs, &
FLETCHER. P.C.
P, 14l)\ I:,07
lit I:I\i;'f111. `.-I
I:'117
Our paramount goal in statutory construction is to give
effect to the Legislature's intent. See, Burlington Elec.
Dep't. v. Vermont Dep't of Taxes, 154 Vt. 332, 335, 576 A.2d
450, 452 (1990). We apply the plain meaning of a statute
where the language is clear and unambiguous, see, Conn v.
Middlebury Union High School Dist. #3, 162 Vt. 498, 501, 648
A.2d 1385, 1387 (1994), and where there is ambiguity, we
look to the general context of the statutory language, the
subject matter, and the effects and consequences of our
interpretation. See, Paquette v. Paquette, 146 Vt. 83, 86,
499 A.2d 23, 26 (1985).
Shea v. Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998).
The City is not concerned about the outcome of a broad -based)
analysis of the Ordinance, but it contends that such an analysis
is unnecessary and unwarranted. The Ordinance language is plain
and unambiguous; it needs no interpretation or further analysis.
The Ordinance should be enforced, not interpreted, by this court.
II. THE DECISION OF THE CITY COUNCIL ON THE PLAINTIFF'S
APPEAL IS ENTITLED TO DEFERENCE FROM THE COURT.
The Plaintiff takes issue with the notion that the decision
reached by the City Council on the Plaintiff's appeal from the
Zoning Administrator's decision should be afforded considerable
deference absent proof that it was the product of compelling
error.
The City recommends to the Court the decisions cited in its
original Memorandum and the decisions in Mountain Cable Co. V.
Vermont Department of Taxes, Vt. , 721 A.2d 507 (1998),
-O-
STITZEL. PAGE S
FLETCHER. P.C.
AT LAkk
Secretary, Agency of Natural Resources v. Upper Valley Regional
Landfill Corp., 167 Vt. 228, 705 A.2d 1001 (1997), and Lemieux v.
Tri-State Lotto Comm'n, 164 Vt. 110, 112-13, 666 A.2d 1170, 1172
(1995). Although these Supreme Court decisions involve appeals
from decisions of administrative agencies, the City contends that
the decision of a municipal body charged by statute with
responsibility for entertaining appeals, 24 V.S.A. §5203
(ordinance shall include a provision for administrative appeal ofi
the impact fee assessed), interpreting its own impact fee
ordinance is tantamount to an administrative agency interpreting
statutes it has been charged to execute or regulations it has
adopted pertaining to its area of responsibility.
The decision of the City Council in this instance should be
afforded considerable weight, and should be upheld absent a
compelling indication of error.
III. PLAINTIFF HAS NO "VESTED RIGHTS" IN THE $200 RECREATION
IMPACT FEE.
Application of the Ordinance, upon its effective date, to
the Project is not a violation of any rights of the Plaintiff,
vested or otherwise.
Even though Vermont has adopted the minority rule on "vested
rights" in land use regulation, see, Smith v. Winhall Planning
-9-
sTTZ i.. PAGE x
PLFTCHFR. P.C.
AITOR E)'',:1T LAK
C I: \ i'll'li1 S'fliI I']
via iso;
Commission, 140 Vt. 178, 181-82, 436 A.2d 760, 761 (1981), the
Vermont Supreme Court has been careful to limit the doctrine to
cases involving changes to or enforcement of zoning and land use
regulations, and then only in instances where application of the
doctrine is appropriate. See, In re Ross, 151 Vt. 54, 57-58, 5571
A.2d 490 (1989); In re McCormick Management Co., Inc., 149 Vt.
585, 588-90, 547 A.2d 1319 (1988); see also, Petition of
Department of Public Service, 157 Vt. 120, 127-128, 596 A.2d 1303
(1991)("[w]e will not apply vested rights to change the [public
benefit and public burden] equation to expand private rights at
the expense of an added public burden.")
This case does not involve a change in zoning regulations,
as Plaintiff concedes. Nonetheless, the Plaintiff asserts that
the Ordinance is "land use control" legislation, enacted to serve
traditional zoning purposes, Plaintiff's Memorandum in opposition
to Motion for Summary Judgment, at 12, and on that basis the
"vested rights" doctrine should apply and entitle Pinnacle at
Spear lots to be assessed, in perpetuity, the $200 recreation
impact fee. There is no legal or logical basis for the
Plaintiff's contention, and the argument runs counter to the
plain language of the Conditions of Approval imposed on the
Plaintiff's project.
sm
STITZEL. PAGE S
FLETCHER. P.C.
VITUKti F-:SS AT LAN'
1 0 Itl1\ 7-,11-
First, the Ordinance is an exercise of the City's police
power, enacted pursuant to the authority granted to it by the
State through 24 V.S.A. §5200, to further the health, safety or
welfare of the citizens of the City. It is a means by which the
City can equitably distribute the costs of the impact of
development within the City on infrastructure and other public
amenities between existing residents, who have been and will
continue supporting City services through the payment of taxes,
and developers/new residents whose development activity or in -
migration, respectively, accelerate the deterioration of existing)
services or necessitate the development of new sources of such
services. The Ordinance is not a zoning regulation, and does not
affect a change in the City's zoning regulations. Neither is the
Ordinance a land use regulation.
Second, final plat or subdivision approval authorizes a
landowner to subdivide his/her land and to subject the
development thereof to the zoning and subdivision by-laws of the
City. It gives the landowner the ability to apply for building
permits for each individual lot; it does not mandate the issuance
of building permits.
The final plat approval for this project, like so many
others, imposed conditions on the project. Included among the
STITZEL, PAGE &
FLETCHER. P.C.
H NTJI M S'lli 11
1' 0 11, A , : 1,7
conditions imposed in this case was a requirement that the City
collect the recreation impact fee in effect at the time that each)
zoning/building permit was applied for. The City believes that
the controlling and operative event for determination of the
"vested rights" of the Plaintiff to any particular recreation
impact fee is the date of the application for a zoning/building
permit. The zoning/building permit is the lynchpin to actual
land development on a particular site. Hence, the date of filing
a complete application for each such permit determines, as it
should, the recreation impact fees payable for the affected lot.
The Plaintiff apparently believes that impact fees are
determined at the time of final plat approval, regardless of when
development, and the associated impacts on municipal services,
occurs'. But final plat approval does not, in and of itself,
authorize any land development in the City; a zoning/building
permit must be obtained from the City before any actual land
development may occur within the City. Zoning Regulations, City
of South Burlington, §27.10; see also, 24 V.S.A. §§4441, 4443.
' "If I read this document as a developer and I was going through the
conditions, as was standard practice in the City of South Burlington, we
didn't pay a rec fee until we had impact, but the rec fee was determined at
the time of the issuance of the permit, not the building permit, the final
plat permit." Deposition of Gerald Milot, p. 25, lines 4-13 (Dec. 17, 1998).
-12-
S ITZEL, PAGE &
FLETCHF11, P.C.
�'1"frik\E1'� A'I' LAN'
rrri;� rei<i: r
In this case, the express language of Condition #5 of final
plat approval granted by the Planning Commission specified that
the impact fee in effect at the time that each building/zoning
permit is issued shall be assessed and collected by the City.
Approval, Condition #5. The Ordinance became effective January
9, 1995. If zoning/building permits for lots in Pinnacle at
Spear had been applied for and issued prior to that time, the
appropriate recreation impact fee for the City to have assessed
and collected would have been $200. After January 9, 1995,
however, the appropriate recreation impact fee to be assessed was
the fee provided for in the Ordinance. Whatever "entitlement"
Plaintiff may have had to a $200 per lot recreation impact fee
ceased to exist on January 9, 1995, with the adoption of the
Ordinance. That "entitlement" ceased not in derogation of some
right vested in the Plaintiff, but specifically because the
express language of Condition #5 requires that the impact fee in
effect at the time that each building/zoning permit is issued is
to be assessed and collected by the City.
The final plat approval in this case gave Plaintiff the
right to subdivide its land subject to several conditions. Among
those conditions is the requirement that as a building/zoning
permit was "pulled" for each lot in the project, the applicant
STITLEL, PAGE R;
YI.FTCHEH. P.C.
,rri.nw
11\ ,
�.�A 111 NAIi)AT
for that permit must pay the recreation impact fee in effect at
that time. On and after January 9, 1995, "the recreation fee" ini
effect was the fee determined by the formula set forth in the
Ordinance. The obligation to pay that fee is established by the
plain language of the Ordinance and of Condition #5 of the final
plat approval. The Plaintiff had no "vested right" to pay any
other fee.
CONCLUSION
The Ordinance as originally enacted, and as amended, is
clear and unambiguous. The Plaintiff has failed to meet its
burden to establish an ambiguity therein. Hence, the Ordinance,
as amended, should be enforced in accordance with its terms.
The Ordinance and the final plat approval for the instant
project, in combination, mandate that as building/zoning permits
for each individual lot within the project are applied for, the
applicant must pay the recreation impact fee calculated in
accordance with the formula specified in the Ordinance, less any
per lot credit specified in the final plat approval for the
project. The Plaintiff has no vested rights in any other
recreation impact fee.
For all of the foregoing reasons, and those set out in the
City's earlier Memorandum in Support of Motion for Summary
-14-
Judgement, the City respectfully asserts that there are no
material facts in dispute in this case and that the City is
entitled to judgment as a matter of law. The City respectfully
requests that the Court grant the City's Motion for Summary
Judgment.
Dated this 14th day of June 1999, at Burlington, Vermont.
son581.1it.LMPreplymem
STITZEL. PAGE b
FLETCHER, P.C.
W\ 1 07
CIT F S T BURL N
By;
obert E. K6tcher, Esq.
STITZEL, PAGE & FLETCHER, P.C.
171 Battery Street
P.O. Box 1507
Burlington, Vermont 05402-1507
(802) 660-2555
STITZEI,. PAGE, &
FLETCHER. P.C.
A"1TOHVba'S AT LAVE
Li 1t V , I WNION,I
STATE OF VERMONT
CHITTENDEN COUNTY, SS
LARKIN MILOT PARTNERSHIP,
Plaintiff
9M
CITY OF SOUTH BURLINGTON
CITY COUNCIL,
Defendant.
Chittenden Superior Court
Docket No. S168-98CnC
DEFENDANT'S RESPONSE TO PLAINTIFF'S COUNTER -STATEMENT
OF MATERIAL UNDISPUTED FACTS
1. Disputed as irrelevant and immaterial, and as a matter
of fact -- the principals of the Plaintiff were never
affirmatively led to believe that §3(B)(5) exempted Dorset Farms
from the recreation impact fees. Supplemental Affidavit of
Joseph Weith attached hereto.
2. Disputed as a matter of fact. There is no indication ofl
what specific language, if any, was being discussed at the March
6, 1995 meeting. Further, Mr. Hafter's comments represent the
substance of comments he had received from third persons about
the Ordinance. Deposition of Charles Hafter attached hereto,
3. Disputed as irrelevant and immaterial.
4. Disputed both as a matter of fact. The action of the
Zoning Administrator in issuing 21 building/zoning permits for
lots in Pinnacle at Spear was an administrative error.
Supplemental Affidavit of Joseph Weith attached hereto.
1
5. Disputed as a matter of fact. Deposition of Richard
Ward attached hereto; Supplemental Affidavit of Joseph Weith
attached hereto.
6. Disputed as a matter of fact. The assertion is
unsupported by the materials cited by Plaintiff.
Dated at Burlington, Vermont this day of June, 1999.
son584.lit.LMPrespmatlfacts
STITZEL. PAGE &
FLETCHER. P.C.
ATTORNEYS AT LAW
171 H1'1'TI'1{1'ti'I'HEIA,
I'.(!. BOX I.W7
By:
01 1 I LrLL, rt1VL, a t 11 Lr 11. I7 Lrft, r . I- .
171 Battery Street
P.O. Box 1507
Burlington, Vermont 05402-1507
(802) 660-2555
2
STITZEL, PAGE &
FLETCHER. Y.C.
A]TORN1AS ATLAW W 1:1 nr rub. r itnv��r
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
LARKIN-MILOT PARTNERSHIP, )
Plaintiff )
CITY OF SOUTH BURLINGTON, )
Defendant. )
Chittenden Superior Court
Docket No. S168-98CnC
SUPPLEMENTAL AFFIDAVIT OF JOSEPH WEITH
I, JOSEPH WEITH, being duly sworn, hereby depose and state
on my personal knowledge:
1. I am the Director of Planning and Zoning for the City
of South Burlington, Vermont, and I am familiar with the above -
referenced matter.
2. It has always been my understanding that the fees
specified in section 3(B) (5) of the Ordinance applied ful.l.y to
lot/unit development within Pinnacle at Spear.
3. Gerald Milot and I discussed by telephone the
applicability of the Impact Fee Ordinance ("Ordinance") to
Pinnacle at Spear.
4. I specifically recall indicating to Mr. Milot that
Pinnacle at Spear was only exempt from or "grandfathered" with
respect to, the school impact fees set out in the Ordinance.
5. The fees specified in section 3(B)(5) of the Ordinance
should have been assessed and collected as lots/units within
Pinnacle at Spear were developed.
6. The issuance by the Zoning Administrator of 21 buildings
permits for lots within Pinnacle at Spear for which he assessed al
recreation impact fee of $200/lot was erroneous.
DATED at South Burlington, Vermont, this day of June
1999.
Z';
Jos Wei th
Subscribed and sworn to before me this day of June 1999.
Notary Public
son580.1it.LMPaffid2
STITZEL, PAGE &
FLETCHER, P.C.
ATTORNEYS AT LAN'
1'.11. IA 1.A IB117
2
CHARLES E.,HAFTER
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
---------------
MBL ASSOCIATES,
I
Plaintiff, ) Vermont Supericr Cour
v• ) Docket No. 5352-98Cnc
CITY OF SOUTH BURLINGTON, )
Defendant. )
Plaintiff, j Docket No. 5168-98CnC
CITY OF SOUTHvBURLINGTON, )
Defendant. )
-------------------------------------------------------
D E P O S I T I O N
OF
CHARLES E. HAFTER
taxen on the �at
-
1:20 p.m., at City of South Burlington
City Hail, South Burlington, Vermont.
ti • 1 . • R t . . t • • . • • . • . . • . • . . .
APPEARANCES:
ROBERT F. O'NEILL, ESQUIRE
Gravel 6 Shea, Esqs.
76 St. Paul Street, P.O. Box 369
Burlington, Vermont 05402
On behalf of the Plaintiffs.
ROBERT E. FLETCHER, ESQUIRE
Stitzel, Page & Fletcher, P.C.
171 Battery Street, P.O. Box 1507
Burlington„ Vermont 05402
On behalf of the Defendants.
REPORTER: M. Paula Mecke, RPR
COURT REPORTERS ASSOCIATES
117 Bank Street
Burlington, Vermont 05401
8C2-862-4593
2
I I N D E X
Witness Page
2 rFarTes E. Hafter----------------------------------
3 Examination by Mr. O'Neill ---------------------- 4
4
Exhibit Marked For Identification
5 - nswers to Interrogatories ------------------------
2 - Original set of Answers to Interrogatories---5
6 3 - Meeting minutes ----------------------------- 13
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 S T I P U L A T I O N S
2 It is hereby stipulated and agreed by and
3 between the attorneys of record for the respective
4 parties hereto as follows:
5
6 1. TEAT the testimony of CHARLES E. RAFTER
7 may be taken and treated as if taken pursuant to notice
8 and order to take depositions and that all formalities of
9 notice and order are waived by the parties, and the
10 signatures to this stipulation are in like manner waived;
11
12 2. THAT all objections except as to matters
13 of form are reserved until the deposition or any part
14 thereof is offered in evidence;
15
16 3. THAT the deposition may be signed by the
17 said CHARLES E. HAFTER before any Notary Public;
16
19 4. THAT all exhibits offered for
20 identification may be retained by counsel until the time
21 of trial.
22
23
24
25
4
1 CHARLES E. RAFTER,
2 having been duly sworn to tell the truth, deposes
3 and says as follows:
4 EXAMINATION BY MR. O'NEILL:
5 Q would you give us your full name?
6 A Charles Eliot, E-L-1-O-T, Hafter, H-A-F-T-E-R.
7 Q And would you very briefly tell us what your
8 title and responsibilities are for the City of South
9 Burlington?
10 A I'm the city manager for South Burlington.
11 I've been employed in that job since May of 1989. My
12 jobs are to supervise the day-to-day operations of the
13 City of South Burlington and to implement the policies of
14 the City Council.
15 Q I received yesterday new answers to
16 interrogatories. Did you have anything to do with them?
17 A I reviewed it.
18 Q Are they truly accurate to the best of your
19 knowledge?
20 A Yes, they are.
21 MR. O'NEILL: Why don't we have them marked.
22 (Deposition Exhibit 1 was marked for identification..)
23 Q Are these the interrogatories -- or answers to
24 interrogatories that you reviewed? That would be Exhibit
25 1.
HAFTER
Pages 1 to 4
CHARLES E. HAFTER
1 want to be heard about it, come talk to us? 9
2 A I have no knowledge of how the public notice
3 was -- I don't remember how the public notice was
4 written.
5 Q Just in general?
6 A Just in general I would say the City would be
7 conducting a public hearing on the impact fee ordinance.
8 Q And --
9 A And I don't know what specific fee it got
10 into.
11 Q But just as a practical matter, the public
12 hearing wouldn't have been to tell the public we have a
13 new fee; the hearing would have been to say we are
14 considering a new fee?
15 A I don't understand the difference.
16 Q well, since the vote hadn't occurred yet, you
17 couldn't -- there's no certainty that in fact the fee
18 would have been enacted, right?
19 A That's the purpose of the public hearing,
20 that's correct.
21 Q The purpose of the public hearing is for the
22 public to make comments to the board members so the board
23 members can consider their comments when they vote on the
24 matter before them?
25 A That's correct. That's correct.
10
1 Q All right. And so there was nothing that the
2 City had done or that the City had done either through
3 the board or through any of its employees prior to the
4 actual vote that advised the public that there was going
5 to be a hundred percent positive certain a new impact
6 fee?
7 A No, the public hearing introduces the
6 ordinance and the proposed impact fee.
9 Q All right. And do you remember when that was?
10 A 1995.
11 Q Like January?
12 A Early 1995.
13 Q And that was subsequently amended, was that
14 right?
15 A Yes, following its adoption of the impact fees
16 it was amended.
17 Q And that was in April of 195?
18 A To the best of my recollection.
19 Q And do you remember why that was amended?
20 A Following the adoption of the impact fee, the
21 city manager was approached by several developers who
22 requested that the City Council reconsider the effect of
23 the impact fee on their developments.
20 Q when you say "the city manager," that's you?
25 A That's me.
11
1 Q who approached you?
2 A I received a letter from David White
3 representing Ernie Pomerleau who is concerned about a
4 development called the Southland Development.
5 Q Southland?
6 A Okay. Where the Har.naford Center is. I was
7 also -- that's the only one I specifically recall.
8 Q And what was David's last name?
9 A White.
10 Q In addition to him were there other people who
11 you just don't remember now?
12 A I don't remember.
13 Q But would it be accurate to say that after it
14 was enacted, developers who had projects already in place
15 or who had already received final plot approval came
16 forward and said, gee, we didn't think this is fair, why
17 aren't we crandfathered in or words to that effect?
18 MR. FLETCHER: I object to the form of the
19 question.
20 Q Go ahead. You have to answer it.
21 A Yes.
22 Q And reading over what you testified to before
23 the board, you were sympathetic to that?
24 A The minutes are difficult to construe. I was
25 presenting the argument as presented to me by the
12
1 developers.
2 Q well, what do you remember? Were you
3 sympathetic or not?
4 A Yes.
5 Q okay. Because you could have simply told
6 them, forget it, you make your pitch to the City Council,
7 I'm not getting involved?
8 A I will not do that if I'm requested to -- I
9 believe you have an opportunity to go before City Council
10 and some people do not want to go before the City Council
11 and ask me to represent their position.
12 Q Did the developers ask you to represent their
13 position in this matter?
14 A Mr. White did not. I don't remember anybody.
15 Q And at the meeting, you said, or the minutes
16 said that you said there is a question of when impact
17 fees are charged, the language of the ordinance says it
18 is when the developer gets a building permit. The City
19 has, however, a number of approved projects for which all
20 permits have been obtained except a building permit and
21 some of these go back a long time. would that -- is that
22 accurate so far?
23 A Yes.
24 Q This raises a question of fairness. The city
25 attorney has proposed language which would grandfather
riHt 1't h - - Pages 9 t0 12
PAGE 1 SHEET 1
PAGE 3
1 STATE OF VERMONT
2 CHITTENDEN COUNTY, SS.
---------------------------
3 LARKIN MILOT PARTNERSHIP )
4 Plaintiff,i Chitlenden Superior Court
5 VS. I Docket No. SISS-98 CnC
CITY OF SO. BURLINGTON )
6 Defendant.)
7 MBL ASSOCIATES )
8 Plaintiff,) Chittenden Superior Court
9 vs. Docket No. S392-98 CnC
CITY OF SO. BURLINGTON )
10 Defendant.)
----------------
11
DEPOSITION
12 -of-
13 RICHARD WARD
taken on behalf of the Plaintiffs on
14 Monday, March 1. 1999, at the So. Burlington
Municipal Offices, So. Burlington, Vermont.
15 commencing at 1:00 p.m.
16
APPEARANCES:
117 ON BEHALF OF THE PLAINTIFFS:
18 GRAVEL AND SHEA
BY: DENNIS R. PEARSON, ESQUIRE
19 76 St. Paul Street
20
Burlington, Vermont 05402-0369
ON BEHALF OF THE DEFENDANT:
'21 STITZEL, PAGE 6 FLETCHER, P.C.
BY: ROBERT E. FLETCHER, ESQUIRE
122 171 Battery Street
tl Burlington. Vermont 05402-1507
u23
1 DARLENE G. LITTLEFIELD
24 COURT REPORTERS ASSOCIATES
117 BANK STREET
25 BURLINGTON, VERMONT 05402
(802) 862-4593
PAGE 2
2
1 INDEX
2 PAGE
RICHARD WARD
3
EXAMINATION BY MR. PEARSON: 3
4 EXAMINATION BY MR. FLETCHER: 22
RE-EXAMINATION BY MR. PEARSON: 23
5 RE-EXAMINATION BY MR. FLETCHER: 23
6
7 EXHIBITS
B DEPOSITION
9 EXHIBITS DESCRIPTION PAGE
No. 6 11-16-97 letter to Larkin 13
10 froNo. 7 1-13 98 letter to Crampton i6
12 (Original exhibits retained by Mr. Pearson.)
13
14
17
18
e o 0 o e
19
STIPULATION
20
IT IS HEREBY STIPULATED AND AGREED
21 by and among Counsel for the respective parties that
this deposition is being taken in accordance with the
22 Vermont Rules of Civil Procedure; that all objections
as to Notice of this deposition are hereby waived; that
23 all objections except as to form are reserved Until the
tine of trial; and that the witness has reserved the
24 right to read and sign the deposition after review by
counsel.
25
COURT REPORTERS ASSOCIATES
3
1 MONDAY, MARCH 1. 1999; 1:00 P.M.
2 RICHARD UARD,
3 having first been duly sworn, testified as follows:
4 EXAMINAIION
5 BY MR. PEARSON:
6 0. Mr. Ward, can you state your full name and present
7 address, for the record?
8 A. Richard Ward, 1775 Dorset Street, South
9 Burlington.
10 0. And how are you currently employed?
11 A. Zoning administrator for the City of South
12 Burlington.
13 Q. How long have you had that position?
14 A. 32 years.
i5 0. Can you give me a brief summary of the duties and
i6 responsibilities of a zoning administrator in South
17 Burlington?
18 A. I administer all aspects of the bylaws. Issue
19 permits, and due code enforcement.
20 Q. What kind of permits is your office responsible
21 for issuing?
22 A. Zoning permits.
23 0. And what do you mean by zoning permits?
24 A. That's a building permit, sign permits, wastewater
25 permits.
COURT REPORTERS ASSOCIATES
nar_r e
4
1
Q.
Okay. Do YOU have to go out and do any field
2
inspections before Issuing any of those types of
3
permits?
4
A.
Not generally. They do then after.
5
Q.
The process for issuing a zoning or building
6
permit. how does that generally work?
7
A.
An applicant would request the paperwork, fill out
8
the
application. Then we would review it for
9
compliance, assess appropriate fees --
10
0.
Do they have --
11
A.
-- and complete it.
12
0.
Excuse me. Do they have to bring in plans of the
13
building
that they want to build?
14
A.
Sometimes.
15
0.
Is the fee for the permit based on square footage
16
or
some other measure?
17
A.
We have two formulas. One is square footage, and
i8
the
other one is on an estimated value.
19
Q.
Okay. How do you know when to use which formula?
20
A.
Neu construction versus alterations and additions.
21
Q.
Okay. Which one gets which?
22
A.
The new construction is the 10 cents a square
23
foot,
and the alterations and additions are by the
24
construction cost.
25
0.
if its new construction, is i1 part of your
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responsibility to make sure that all other required
approvals have already been obtained?
A. Normally.
Q. And what kinds of approvals night that be?
A. There's a series of then. And you could have a
subdivision; you could have a site plan, or naybe a
variance.
Q. In South Burlington, are subdivision and site plan
approvals done by the Planning Commission?
A. Yes, sir.
Q. Are those generally done in separate Proceedings
or combined proceedings?
A. Separate.
Q. Thev re separately warned, as far as you know?
A. Site Plans are warned.
Q. Okay. Do you ever assist the Planning Commission
in any subdivision matters?
A. Not much.
0. But than s --
A. No more.
Q. That's the city Planner's function?
A. That's correct.
Q. Do you understand that ue're here today to talk
about two subdivision developments, the Pinnacle at
Spear and the Dorset Farms Projects and, more
COURT REPORTERS ASSOCIATES
PAGE 6
6
specifically, the recreation impact fee as it relates
to those two Projects?
A. Yes, sir.
Q. So I don't need to go into a lot of background
about why ue•re here?
A. No, sir.
Q. Okay. I'd like to show you what has been marked I
believe Deposition Exhibit 4 at the Gerald Milot
deposition taken December 171h, 1998. I believe its a
copy of the South Burlington impact fee ordinance, and
I•d like to show that to you and ask you if you are
familiar with the ordinance?
A. Yes, I an.
Q. Do you recall that that vas originally enacted in
January of 1995?
A. I believe that,s correct.
Q. Prior to the enactment of this impact fee
ordinance in January of 1995, was there an ordinance or
bylaw in South Burlington that authorized collection of
any impact fees?
MR. FLETCHER: Objection; calls for a
legal conclusion. Dick, you can go ahead and answer
that question.
THE DEPONENT: Ansver the question?
MR. FLETCHER: Yeah, you can.
7
1 A. I don't believe it•s an ordinance.
2 Q. Vas it the Practice prior to January 1925 to
3 collect a S200 per unit recreation impact fee Prior to
4 issuing a building Permit?
5 A. That's correct.
6 0. Do you know how long that practice had been in
7 effect?
8 A. The s200 one, three years maybe.
9 0. Would that have been only in connection with new
10 developments that had to go through subdivision
11 approval?
12 A. Yes.
13 Q. So it was -- it was as a result of the Planning
14 Commission imposing a condition as part of its
i5 subdivision approval that you then collected a S200 Per
16 unit recreation impact fee?
17 A. That's correct.
18 Q. So if there was a Preexisting lot that somebody
19 Just wanted to build a single-family hone on, Prior to
20 January 1995, you would not have collected a recreation
21 impact fee on one of those houses?
22 A. Depending which subdivision it was in. Some were
23 exempt.
24 Q. How about a -- Just a Plain lot that say existed
25 on the city records for years and years, had never even
COURT REPORTERS ASSOCIATES
e�r_r o
8
1 gone through a formal subdivision process, and they
2 came in say in 1994 for a building permit to build a
3 single-family hone on a lot like that; would you have
4 collected a $200 recreation impact fee as a condition
5 of issuing a building permit?
6 A. No.
7 0. Okay. Now, when you say that some applications
8 for building permits in that Period Prior to January
9 1995 were exempt from the $200 Per unit recreation
10 impact fee, what did you mean by that?
11 A. The Planning Commission would consider location of
12 a subdivision and, in lieu of funds, would take land
13 for nini Parks.
14 Q. Okay.
15 A. So if they took the land, that was their impact
16 fee.
17 0. So it was an in -kind contribution of land as
18 opposed to exacting payment of money?
19 A. Yes. Statutes allow for that.
20 Q. But again, that determination was not the result
21 of a South Burlington ordinance or bylaw that existed
22 at that Point, as far as you know?
23 A. As I recall, before the ordinance it was done by
24 resolution or by policy, so there was no ordinance on
25 the books.
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Q. And that was a policy that was implemented by the
1
it.
Planning Commission?
2
Mr. Ward, does that refresh your recollection
A. That's correct.
3
whether you might have attended that March 1995 City
Q. Do you recall at some point after the impact fee
4
Council meeting?
ordinance that we've Just looked at was passed in
5
A. I attended some of those meetings. Yeah, I night
January 1995, there was some further discussion about
6
have been at that one.
subdivisions or developments that had already seen
7
Q. Okay. Did you have any discussions with Mr.
Planning Commission approval being sonehou exempted
B
Hafter about the subject of modifying the ordinance to
from the impact fees?
9
grandfather any PreaPProved -- or previously -approved
A. I recall some discussion, yea).
10
subdivision Projects?
Q. Okay. Were you Part of any of the discussions
11
A. Not that I can remember.
leading up to a modification of the ordinance which was
12
Q. Do you recall that subsequently the Pinnacle at
adopted in April of 1995?
13
Spear project, they actually started building the units
A. No, I was not.
14
up there and coning in to get building permits from
Q. Did you have any discussions with any city
15
you?
employees about either the nature of the modification
16
A. Yes, I do.
or the reason for the modification?
17
D. And do you recall that for the first 21 of those
A. Well, Planning and Zoning staff would have
18
units you collected a recreation impact fee of $200 Per
discussion, of course.
19
unit?
Q. And Were you part of the Planning and Zoning
20
A. I did not. I didn't collect any.
staff?
21
0. Okay. What do you mean by you didn't actually
A. I an part of the Planning and Zoning staff, but
22
collect it?
the subdivision and site plan and that kind of
23
A. Well, that's -- herein lies the case. I have a
ordinance is administered and created by the Planning
24
different interpretation of a provision within the
Commission, and Joe Weith is the staff person to the
2S
decision and finding of fact for the subdivision.
COURT REPORTERS ASSOCIATES
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PAGE 10
10
Planning Commission, so I'm the planning -- I•n the
Zoning Board of Adjustment staff Person.
Q. Did you have any discussions with Mr. Weith about
this modification to the recreation impact fee
ordinance in that period between January 195 and when
the modification was enacted?
A. None that I can really recall.
Q. Do you recall either Mr. Weith or Mr. Hafter
saying to you or in your presence that they had told
Gerry Milot not to come to the hearing on the ordinance
modification because everything was all set, the
Projects were going to be grandfathered?
A. No. I never heard that.
Q. Okay. So you can't Independently verify that that
kind of discussion was had?
A. That's correct.
Q. Were you at the Mach 1995 City Council meeting in
which the modification to the impact fee ordinance was
discussed?
A. Not that I recall.
Q. Okay. And just to see if we can refresh your
recollection to make sure, I,m going to show you uhat•s
been marked as Deposition Exhibit 3 at the December
3rd, 199E deposition, and ask you if you -- to read
through uhat,s been circled and has an asterisk next to
_ PAGE 12
12
1 0. Maybe my misunderstanding is correct. Isn't $200
2 what they Paid for those first two units -- first 21
3 units, excuse me?
4 A. No.
5 0. What did they pay?
6 A. For recreation?
7 0. Just for the recreation part. That's all I'm
B focusing on.
9 A. Zero.
10 0. Okay. I believe you referred to the findings of
11 fact and decision of the Planning Commission as it
12 related to the Pinnacle at Spear Project. and I'd like
13 to show you what's previously been marked as Deposition
14 Exhibit 3 at the December 171h, 1998 Deposition, and
15 ask you to look at that and see if you can identify the
16 document?
17 A. It's the final plot subdivision approval and
i8 decision and findings of fact and conditions.
19 Q. Okay. It looks to me like it's paragraph 20 of
20 the findings and condition 5 of the decision that
21 relate to the recreation path and a credit for
I22 recreation impact fee. Is that your understanding of
23 how it applied to that particular project?
:24 A. 20, you said?
:25 0. I believe 20 in the findings.
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PAGE 13 SHEET 4
PAGE 15
13
1 A. What was the question?
2 0. I Just want to confirm that those are the two
3 provisions of the decision you had in mind when you
4 testified earlier that you interpreted the decision as
5 requiring you to collect a certain amount of recreation
6 impact fee on those first 21 units, which you later
7 testified was actually zero. So it would be P& asraph
8 20 and condition S.
9 A. Paragraph 20 is, as I recall, and if you read it,
10 you'll see that they gave then a $300 credit. So my
11 interpretation was that because the $300 credit
12 exceeded the S200 requirement, that there was no impact
13 fee due.
14 Q. Okay. And so for the first 21 units of the
15 Pinnacle project you didn't collect any recreation
16 impact fee prior to issuing the building permits?
17 A. That's correct.
18 MR. PEARSON: I think we're up to Exhibit
19 6 from our side.
20 (Deposition Exhibit No. 6 was marked for
21 identification.)
22 Q. Mr. Ward, I'd like to show you what I've just had
23 marked as Deposition Exhibit 6, and I apologize that
24 it's such a not very good copy because it's a
25 third -generation copy off a fax machine, but it's all
COURT REPORTERS ASSOCIATES
nar_r
14
1 that I have. I think it's still readable. I'd ask you
2 to look at that and see if you can identify it?
3 A. That's my letter to John Larkin.
4 U. And it's dated November Gth, 1997?
5 A. Yes, it is.
6 Q. In the third paragraph of the letter it says:
7 Recently the city staff discovered the 21 zoning
8 permits were issued without consideration of the
9 condition relating to the recreation path and the
10 credit. Do you -- can you recall today exactly how
11 that was discovered, how it came about that you noticed
12 this discrepancy?
13 A. The assistant Planning and Zoning director and Joe
14 Weith, the city's planner at the tine, and myself were
15 discussing this particular project, and Joe kind of led
16 us to believe that they were subject to the new impact
17 fee, and because I wasn't collecting any, it became an
18 issue which was discussed with the city attorney. As a
19 result, the 21 permits became the issue: and from that,
I20 we went into an appeal Which ended up in front of the
21 City Council.
22 0. Do you recall whether Mr. We(th said anything more
23 specific about how this had become an issue for him?
124 A. I think we were just discussing subdivisions at
;25 the tine and impact fees. They were relatively new, so --
i
i
COURT REPORTERS ASSOCIATES
15
1 Exact words, no.
2 0. Do you recall any discussion about interpreting
3 and applying the impact fee ordinance to these projects
4 as a way of generating more revenue for the city?
5 A. No, not as a way of generating more revenue.
6 0. Whether that was the impetus for reexamining the
7 impact fees -- recreation impact fee that these
8 projects would pay, was in fact that a consideration?
9 MR. FLETCHER: Object to the form of the
10 question. It's vague, unspecific as to whose
11 motivation we're talking about. You can answer it if
12 you can.
13 A. There was a lot of study going on by different
14 people, outside consultants: and between the Planning
15 Commission and the Council, they decided that we would
16 start purchasing lands on Dorset Street for what is now
17 called Dorset Park, and there was a dollar amount set
18 aside for seed money to purchase the land, and there
19 was also some projected costs for developing the land,
20 and based on those numbers was how some of these
21 figures were arrived at.
22 0. Was there any discussion about collecting
I23 additional recreation impact fees from these two
24 projects, and by that I mean Pinnacle and the Dorset
25 Farms project, as a means of helping to finance the
COURT REPORTERS ASSOCIATES
16
1 Cairns Ice Hockey Arena?
2 A. Not that I recall. That was a separate fund
3 raiser.
4 MR. PEARSON: Could I have this marked as
5 Deposition Exhibit 7?
6 (Deposition Exhibit No. 7 was marked for
7 identification.)
8 0. Mr. Ward, I'd like to show you a letter dated
9 January 131h, 1998, addressed to Steve Cranpton in our
10 firm. Ask you to read through that and identify it for
11 us?
12 A. Okay.
13 0. Exhibit 7 relates to Gerry Milot's Dorset Farms
14 project, correct?
15 A. Correct.
16 0. And with respect to that project, you never issued
17 any building permits prior to having the discussions
18 with counsel and other planning staff that you had with
19 regard to Pinnacle about how to apply the impact fee
20 ordinance: is that correct?
21 A. That's correct. Yes.
22 0. So right from the get -go on Dorset Farms you were
23 applying the impact fee ordinance as Mr. McLean had
24 recently interpreted it for you in the fall of 1997?
25 A. That's correct.
COURT REPORTERS ASSOCIATES
PAGE 17 SHEET 5
PAGE i9
17
1 Q. Who does the year to year recalculation of what
2 the impact fee -- the recreation impact fee is going to
3 be in a given year?
4 A. I don't know.
5 G. Is that just a number that's given to you?
6 A. There's a schedule, and it's figured out year to
7 year.
8 Q. Okay.
9 A. Most of the numbers are calculated on that format
10 by Ray Belair.
11 Q. And what position does he have?
12 A. He's our assistant.
13 Q. Okay. So as you understand it, 10 calculate the
14 actual recreation impact fee for a given year, it's
15 just a matter of applying the various schedules that
16 are attached to and incorporated into the ordinance?
17 A. It's a little bit complicated. There's values.
18 0. But that's not something you have anything to do
19 with?
20 A. I've never done it, no.
21 Q. Going back to Deposition Exhibit 4, the impact fee
22 ordinance, I'd like to direct your attention to part B,
23 section 5, which deals with the recreation impact fee
24 and the so-called grandfather or exemption section
25 which is at the heart of this dispute. I'd like you to
COURT REPORTERS ASSOCIATES
PAGE 18
18
1 just read through that section 5 again, it's on page 3
2 of the exhibit, and refresh your recollection of what
3 that says.
4 A. You're looking for an exemption?
5 0. It starts --
6 MR. PEARSON: Mind if I point it out to
7 him. Bob?
8 MR. FLETCHER: Go ahead.
9 Q. It starts at number 5 here and reads through. It
10 has A. B and C subparts.
11 A. Okay.
12 Q. In your capacity as zoning administrator and
13 responsible for issuing building permits, are you aware
14 Of any subdivision projects that were approved prior to
15 January 1995 which since then have been exempted from
i6 paying any recreation impact fee pursuant to the
17 exemption language in the ordinance?
1H A. I an.
1s 0. And can you name those projects for me?
20 A. Oak Creek subdivision.
'21 Q. And where is that located?
22 A. On Hinesburg Road.
23 Q. How many -- do you recall how many units that
24 involves?
i
;25 A. In round figures, 250. I don't know the exact
i
COURI REPORTERS ASSOCIATES
19
1 number.
2 Q.
Did you or your office make a determination that
3 that
project was entitled to the exemption stated in
4 the ordinance?
5 A.
This was one of the projects that gave us the
6 land.
It was approved in '93, I believe.
7 0.
So the reason that project was exempt was because
8 they
had given the city an in -kind contribution of
9 land?
10 A.
That's correct.
ll 0.
So the exemption applied to all of the units in
12 the
project, whether it's 250 or whatever it is?
13 A.
That's correct.
14 Q.
Do you recall whether all of the building permits
i5 were
issued after 1995?
16 A.
There's still some going.
17 Q.
But none of the building permits were issued prior
18 to January
of '95?
19 A.
Oh, yeah.
20 0.
Some were?
21 A.
It started back in 1993.
22 Q.
SO it was an ongoing project?
23 A.
Still going, yeah.
24 Q.
Do you recall any other subdivision project that
25 was
approved prior to 1995 but has been exempted from
COURT REPORTERS ASSOCIATES
PAGE 20
20
1 paying
a recreation impact fee?
2 A.
The other one is Butler Farms. The same street.
3 Q.
And is it the same kind of situation as Oak Creek?
4 A.
Yup, they're adjoining subdivisions.
5 Q.
It was an In -kind contribution of land?
6 A.
Yes, it was.
7 Q.
And the building permits were issued both before
8 and
after January of 1995?
9 A.
Yes, still active.
10 Q.
Any other subdivision project besides Oak Creek or
11 Butler Farms that you can think of?
12 A.
Harbor Heights.
13 Q.
Harbor Heights?
14 A.
On Spear Street.
15 Q.
Do you recall when that was originally approved by
16 the
Planning Commission?
17 A.
No, I don't.
18 Q.
Okay. Is it fully built Out yet?
19 A.
Yes.
20 0.
Do you recall how many units?
21 A.
140 rings a bell.
22 Q.
Were those building permits issued before or after
23 January
19957
24 A.
Both.
25 Q.
Okay. And do you recall what the reason was for
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that project receiving an exemption from the --
A. We had some pocket parks.
Q. They contributed land for the parks?
A. Yup.
Q. Any other project you can think of?
A. Ledge Knoll on Hinesburg Road.
Q. Is that built out?
A. Yes, it is.
Q. Do you recall how many units. approximately?
A. 60. I think.
Q. And was that active both before and after January
'95?
A. No, all prior to.
Q. All prior to '95, okay. We talked about four
Projects, Oak Creek, Butler Farms, Harbor Heights. and
Ledge Knoll. Can you think of any others that were
exempted from recreation impact fees?
A. Not that were exempted, but Summer Woods predates
Ibis 195. They paid the $200.
0. So when you're talking about pre 1995 projects
that were not exempted but didn't pay a recreation
impact fee, that's because the Planning Commission
never imposed one in the first place?
A. That's correct.
MR. PEARSON: Okay. I think that's all
I have.
COURT REPORTERS ASSOCIATES
EXAMINATION
22
BY MR. FLETCHER:
Q. Mr. Ward, just a couple questions to follow up on
the last couple of items. I believe -- strike that.
The projects that you were speaking about just
moments ago with Mr. Pearson, Oak Creek, Butler Farms,
Harbor Heights, Ledge Knoll, Summer Woods, those
projects that -- for whom or for which building permits
were Issued both before January •85 and after January
of •95 Included Oak Creek, Butler Farms. and Harbor
Heights; is that correct?
A. That's correct.
Q. And Ledge Knoll and Summer Woods were both built
out prior to the adoption of the ordinance?
A. That's true.
Q. Okay. And with respect to Oak Creek, Butler
Farms, and Harbor Heights, I believe the
characterization was that they were exempt from fees
under the rec impact ordinance as adopted because of
their contribution of land to the city?
A. That's correct.
Q. In fact, do those projects meet the criteria
under 5B or B5, rather, for being relieved of the
obligation to pay the impact fee under the ordinance?
23
1 A. B5?
2 Q. The impact fee ordinance. Depo Exhibit 4 from
3 December 17, •98.
4 A. I believe so.
5 MR. FLETCHER: Okay, nothing further.
6 RE-EXAMINATION
7 BY MR. PEARSON:
8 Q. Mr. Ward, when Mr. Fletcher just asked you about
9 the Oak Creek, Butler Farms, and Harbor Heights
10 projects also meeting the three criteria for exemption
11 under the impact fee ordinance, can you tell me how It
12 is that those three projects do meet all three of those
13 criteria A. B and C under 5?
14 A. Well, A is they were approved prior to 95.
15 Q. Okay.
16 A. During approval, no fees were specified by the
17 Planning Commission. And they obtained the building
18 permits prior to 195, actually, for number 3 -- or C.
19 MR. PEARSON: Okay, thank you.
20 RE-EXAMINATION
21 BY MR. FLETCHER:
22 0. Mr. Ward, you were asked about being -- the
23 exemption from paying the fee, and choosing for a
24 moment to continue with that line using the Word
25 exemption, the exemption is the -- is from paying the
COURT REPORTERS ASSOCIATES
PAGE 24
24
1 fee under the ordinance; is that correct?
2 A.
Yes.
3 Q.
Are they exempted from paying any impact --
4 recreation impact fee?
5 A.
Those projects?
6 Q.
Yes.
7 A.
That's -- they're exempt because of the in -kind
s donation.
9 Q.
So the only reason they don't pay a fee in dollars
10 is
because they have contributed land to the city?
11 A.
That's my understanding, yeah, they don't pay.
12
MR. FLETCHER: Okay, nothing further.
13
MR. PEARSON: Nothing further.
14
tThe deposition concluded at 1:46 P.m.)
15
16
17
is
i9
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SIGNATURE OF DEPONENT
I, the undersigned, RICHARD WARD,
do hereby certify that I have read the foregoing
deposition and find it to be a true and accurate
transcription of my testimony, with the following
corrections, if any:
(If necessary, attach separate errata sheet)
PAGE/LINE CHANGE
7 Date:
19
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117
ills
1i25
REASON
RICHARD WARD
State of County of
Subscribed and sworn to before me this
day of , 1999.
Commission expires: NOTARY PUBLIC
COURT REPORTERS ASSOCIATES
rar_r =
CERTIFICATE
26
I, Darlene G. Littlefield, court
Reporter and Notary Public, do hereby certify that the
foregoing pages, numbered 3 through 24, inclusive, are
a true and accurate transcription of my stenographic
notes of the Deposition of RICHARD WARD, taken before
me on Monday, March 1, 1999. commencing at 1:00 p.m.,
for use in the matter of LARKIN MILOT PARTNERSHIP VS.
CITY OF SO. BURLINGTON, Docket No. S168-98 CnC, and MBL
ASSOCIATES VS. CITY OF SO. BURLINGTON, Docket No.
S392-98 CnC, as to which a transcript was duly ordered.
DARLENE G. LITTLEFIELD. RM, CRR
COURT REPORTERS ASSOCIATES
actually 11:13.21 13:7 17:14
believe 6:8,9,16 7:1 12:10,25
confirm 13:2
23:18
additional 15:23
14:16 19:6 22:5,18 23:4
bell 20:21
connection 7:9
consider 8:11
8200 7:3,8,15 8:4,9 11:18 12:
1 13:12 21:19
$300 13:10,11
additions 4:20.23
besides 20:10
consideration 14:8 15:8
address 3:7
addressed 16:9
between 10:5 15:14
bit 17:17
construction 4:20,22,24,25
consultants 15:14
&
& 1:21
adjoining 20:4
Board 10:2
continue 23:24
Adjustment 10:2
administer 3:18
Bob 18:7
books 8:25
contributed 21:3 24:10
contribution 8:17 19:8 20:5
'93 19:6
administered 9:24
both 20:7 21:11 22:10,14
22:21
'95 10:5 19:18 21:12,14,19
administrator 3:11,16 18:12
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City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERIMONT 05403
FkX E58-448
PUkNNER
E56.7555
November 6, 1997
Mr. John Larkin
Larkin Realty
410 Shelburne Road
South Burlington, Vermont 05403
Re: Pinnacle @Spear Impact Fees
Dear Mr. Larkin:
ZONING ADMINIs i mA71 OR
656-7968
This letter will confirm, our recent discussion regarding the
recreational impact fees which were a condition of your approval
granted by the Planning Commission cn December 21, 1953.
Condition #5 from your approval states that the Planning
Commission grants a credit of three hundred ($300) dollars per
lot for construction of the portion of the proposed recreation
path located outside of any public street right-of-way. This
credit was to be applied to the new impact fees which were in the
adoption process at the same time as your subdivision application
review.
Recently the City staff discovered the twenty-one zoning permits
were issued without consideration of that condition. This ;natter
was reviewed by the City Attorney in order to determine if
Pinnacle at Spear was exempt from the new recreation impact fee.
His opinion was that Pinnacle at Spear must pay the fees, less
the three hundred ($300) dollars credit. A copy of his opinion
is enclosed.
My record shows that six (6) permits were issued in 1995, the fee
at that time was $1306.03 per lot. In 1996, six (6) permits were
issued and the fee at that time was $1306.09. This year to date
nine (9) permits have been issued, the fee this year is $1413.33.
DEPOSITION
EXHIBIT
#6
Mf. 'jOhn Larkin
Pinnace @Spear Impact Fees
NOveirber 6, 1997
Page 2
Be advised that impact fees are adjusted annually, the formula is
set -forth within the South Burlington Impact Fee Ordinance.
Therefore, to date, the Pinnacle at Spear development is required
to pay impact fees in the amc%:nt of twenty eight thousand three
hundred ninety two dollars and sixty nine cents less a credit of
sixty three hundred dollars
If you have any questions, please don't hesitate to call me.
Very truly,
Richard Ward,
Zoning Administrative Officer
RW/mcp
l
LLEWELLYN • HOWLEY
I N C O R P O R A T E D
November 18, 1999
Mr. Carl Lisman, Esq
Lisman & Lisman
84 Pine Street
Burlington, Vermont 05401
Re: Pinnacle @ Spear
Vale Drive height restrictions
File: 97024 / 99030
Dear Carl:
I spoke with Ray Belair this morning concerning the height restrictions for Pinnacle Lots 52 - 80,
contained in Table V (Rev Nov 16, 1999). Ray agrees with the contents of the Table with the
addition of a date on which the City Council adopted the relocated Dorset Park View Protection
Zone Baseline.
We have corrected the note and renamed the table to TABLE V (Rev Nov 18,1999). Please use
this to revise and record the Pinnacle @ Spear Notice of Development Conditions.
Sincerely,
Llewellyn -Howley Incorporated
Lance A. Llewellyn, P.E.
cc: Ray Belair
John Larkin
Gerald Milot
Enclosure
4049 Williston Road • South Burlington • Vermont • 05403
T 802-658.2100 • F 802.658.2882 • e-mail: Ilewellinc@aol.com
Engineering • Land Development • Permitting
PINNACLE @ SPEAR
Vale Drive - Lots 52 through 80
South Burlington, Vermont
July 28, 1998(rev)
Nov 18,1999(rev)*
Table of height limitations for Dorset Park View Protection Zones
Zone A - Section 22.401
Zone D - Section 22.407
Notes refer to Table V below
Column 1. Lot numbers according to Llewellyn Incorporated, Drawing 0067-D
Column 2. Dorset Park View Protection Zone (VPZ), A or D
Column 3. Distances scaled from Dorset Park VPZ Baseline* to center of lot (in feet)
Column 4. Ridge Line Elevation (of house) calculated from Dorset Park VPZ Baseline*
VPZ A: Ridge line (of house) = 44F - 4.3' (Distance' / 1000')
VPZ D: Ridge line (of house) = 441' - 2.0' (Distance' / 1000')
Column 5. Roadway centerline design elevation at center of lot
Column 6. Assumed First Floor Elevation (based on footing drains discharging to storm
sewers)
Column 7. Height of House above FFE (First Floor Elevation to Ridge Line Elevation)
Column 8. Height of House above roadway (Roadway centerline elevation to ridge line)
* Baseline moved 200 feet west by City Council (adopted 9-23-96).
TABLE V (Rev Nov 18,1999)
1
Lot #
2
View
Protect
Zone
3
Distance
from VPZ
Base
Line
4
Ridge
Line
Elevation
5
Roadway
Elevation
Design
6
Assumed
FFE
7
Height of
House
above
FFE
8
Height of
House
above
Roadway
52
A
4450
421.8
394.9
398.1
23.7
26.9
53
A
4485
421.7
395.0
398.3
23.4
26.7
54
A
4510
421.6
394.9
398.5
23.1
26.7
55
A
4525
421.5
394.6
398.7
22.8
26.9
56
A
4535
421.4
394.5
398.9
22.5
26.9
57
A
4540
421.4
394.4
399.0
22.4
27.0
58
A
4550
421.4
394.4
399.3
22.1
27.0
LLEWELLYN - HOWLEY
I N C O R P O R A T E D
Pinnacle @ Spear TABLE V (Rev Nov 18, 1999)cont.
1
Lot #
2
VPZ
3
Distance
from Base
4
Ridge
Line
Elevation
5
Roadway
Elevation
Design
6
Proposed
FIFE
7
Height of
House
above FIFE
7
Height of
House
above
Roadway
59
D
4555
431.9
393.6
399.4
32.5
38.3
60
D
4560
431.9
394.3
399.8
32.1
37.6
61
D
4565
431.9
394.5
399.9
32.0
37.4
62
D
4550
431.9
394.7
400.0
31.9
37.2
63
D
4535
431.9
394.9
400.3
31.6
37.0
64
D
4550
431.9
395.2
400.5
31.4
36.7
65
D
4545
431.9
395.5
400.7
31.2
36.4
66
D
4580
431.8
396.4
401.0
30.8
35.4
67
D
4650
431.7
396.5
401.9
29.8
35.2
68
D
4400
432.2
396.4
402.0
30.2
35.8
69
D
4380
432.2
395.3
401.8
30.4
36.9
70
D
4375
432.3
394.8
400.6
31.7
37.5
71
D
4390
432.2
394.6
400.1
32.1
37.6
72
D
4380
432.2
394.4
400.0
32.2
37.8
73
D
4385
432.2
393.6
399.7
32.5
38.6
74
D
4390
432.2
394.4
399.6
32.6
37.8
75
A
4380
422.1
394.4
399.5
23.6
27.7
76
A
4415
422.0
394.5
399.2
22.8
27.5
77
A
4355
422.2
394.6
399.0
23.2
27.6
78
A
4350
422.2
394.9
398.6
23.6
27.3
79
A
4325
422.3
394.9
398.5
23.8
27.4
80
A
4300
422.5
394.9
398.4
24.1
27.6
Page 2 of 2 LLEWELLYN • HOWLEY
I N C O R P O R A T E D
State of Vermont 1
DEFERRAL OF PERMIT
RETAINED PARCEL
LAWS/REGULATIONS INVOLVED: 18 VSA §1218-1220 and Environmental Protection Rules,
Chapter 1. Subchapter 3-Subdivisions,
§1-305 Deferral of Permit
PERMIT NUMBER: DE-4-1880-1
APPLICANT AND ADDRESS: (Person Retaining Parcel)
L & M Partnership
410 Shelburne Road
South Burlington VT 05403
LOCATION OF SUBDIVISION: (Road and Town)
off Spear Street, South Burlington
DESCRIPTION OF SUBDIVISION:
Amending permit for retained common land known as Area C to become 0.78 acres with remaining lands
subject to EC-4-1570-1
CONDITIONS:
(1) The parcel retained under the provisions of this permit may not be resold unless a
subdivision permit is obtained, or the waiver of developmental rights is included in the deed or lease and
notice of the purchaser's name and address is filed with the Division prior to conveyance. Any waiver of
developmental rights shall be made a term of any contract of sale or of lease of the parcel, and shall be
recited in any deed in the form as follows:
"WAIVER OF DEVELOPMENTAL RIGHTS"
"In order to comply with the State of Vermont Environmental Protection
Rules on the subdivision of lands and disposal of waste including sewage,
the grantee shall not construct or erect a structure or building on the
parcel of land conveyed herein, the useful occupancy of which will require
the installation of plumbing and sewage treatment facilities or convey this
land without first complying with said State regulations. The grantee by
acceptance of this deed acknowledges that this lot may not qualify for
approval for development under the appropriate environmental protection
or health regulations and that the State may deny an application to
develop the lot."
(2) If the parcel is to be considered for building development at some future date, the
applicant(s) understand(s) that the information required by Section 1-307 of the Rules must be submitted
for evaluation. If such information does not meet the Environmental Protection Rules, permission to build
on the lot will be denied.
(3) The conditions of this permit shall run with the land and will be binding upon and
enforceable against the permittee and all assigns and successors in interest. The permittee shall be
responsible for recording this permit and the "Notice of Permit Recording" in the South Burlington Land
Records within 30 days of issuance of this permit and prior to the conveyance of any lot subject to the
jurisdiction of this permit.
(4) This permit does not constitute Act 250 approval (10 VSA §151). The permittee is hereby
reminded to procure all relevant state and local permits prior to proceeding with this project.
Dated at Essex Junction, Vermont, on ,I,.AA„g o�y, 1999.
Canute E. Dalmasse, Commissioner
Departure t of Environmental Ppn� ation
By
Irene L. Roberge
DEC Regional Office Coord.
cc: For the Record
City of South Burlington Planning Commission and Selectboard
W
W5
j
CARL H. LISMAN
ALLEN D. WEBSTER, CPA
MARY G. KIRKPATRICK
E. WILLIAM LECKERLING
DOUGLAS K. RILEY
MARK D. OETTINGER
RICHARD W. KOZLOWSKI
JUDITH L. DILLON
CHRISTINA A. JENSEN
Mr. Ray Belair
City of South Burlington
Planning Office
575 Dorset Street
South Burlington, VT 05403
Dear Ray:
LISMAN & LISMAN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
P.O. BOX 728
BURLINGTON, VERMONT 05402
Telephone 802-864-5756
Telecopier 802-864-3629
December 6, 1999
The Pinnacle at Spear
OFFICES IN FINANCIAL PLAZA
AT 84 PINE STREET
BURLINGTON, VERMONT
LOUIS LISMAN
BERNARD LISMAN
COUNSEL
E-Mail Address:
clisman@lisman.com
In connection with the second phase, we are enclosing the following documents:
(a) Discharge, signed by Vermont National Bank, as to a Collateral Assignment of
Licenses, Permits, Approvals and Contractor's, Architect's and Engineer's
Agreements and Work Product;
(b) copy of Mortgage Discharge, signed by Vermont National Bank;
(c) Power of Attorney, dated December 4, 1999, from Gerald C. Milot to me,
authorizing me to sign the Offers of Dedication, Deeds and related documents;
(d) Irrevocable Offer of Dedication, dated December 6, 1999, as to utility easements
and recreation path, to which is attached unsigned copies of the deeds;
(e) Deeds, dated December 6, 1999 and signed, to the utility easements and recreation
path, together with Vermont Property Transfer Tax Returns;
(f) Irrevocable Offers of Dedication, dated December 6, 1999, as to roads, to which is
attached unsigned copies of the deeds;
Mr. Ray Belair
Page 2
December 6, 1999
(g) Deeds, dated December 6, 1999 and signed, to the roads, together with Vermont
Property Transfer Tax Returns.
Jim Wick will deliver to you directly the Partial Mortgage Discharge signed by Mr. and
Mrs. Gagnon. You will need to record the Discharge of the Collateral Assignment and my Power
of Attorney when you record the Offers.
Ve tru ' OOU
0
Carl H. Lisman
CHL/ddp
Enclosures
cc Timothy Eustace, Esq. (w/o copies)
20014\010
LLEWELLYN
INCORPORATED
January 27, 1999
Mr. James Boyd
State of Vermont
111 West Street
Essex Junction, Vermont 05452
RE: Pinnacle @ Spear (formerly Nowland Two)
File: 97024
Dear Jim:
Enclosed please find an "ability to serve" letter from Green Mountain Power Corporation for the
above referenced project. This letter should accompany the original application as part of Exhibit
K. Copies of the letter are being sent to the City and the Chittenden County Regional Planning
Commission.
Please feel free to call with any questions, or if you need any additional information.
Thank you for your help with this project.
Sincerely,
LLEWELLYN INCORPORATED
Scott A. Rogers, P.E.
cc: L & M Partnership
Chittenden County Regional Planning Commission
City of South Burlington
4049 Williston Road • South Burlington • Vermont • 05403
T 802.658.2100 • F 802.658.2882 • e-mail: Ilewellinc@aol.com
Engineering • Permitting 9 Consulting Services
(11,FFN MOUNTAIN POWLR CORPORATION
(;Rt_t-_N MM NIAWN I)IZIVE • P.O BOX 850 • tiutil11 RtIRIJN(;) uN, VT05402...0S�0 • (802),M4 ;- 3I
January 20, 1999
Mr. Scott A. Rogers, P.E.
Llewellyn Incorporated
4049 Williston Rd.
South Burlington, Vermont 05403
Dear Mr. Rogers:
We have reviewed your letter of December 18, 1998, which requests Green
Mountain Power's ability to serve the electric load for the proposed amendment to
the number of lots in the Pinnacle at Spear residential subdivision.
As you know, our comments are required so that a meaningful assessment
can be made under 10 VSA Section 6086 (a) (9) (J).
When load data is not available, Green Mountain Power Corporation
forecasts an average use for each structure. You have informed us that this project
will consist of an additional seven (07) single family residential building lots with
typical homes in the 3,000 square foot range. Our review of this project assumes
that all three phase motors larger than 10 H.P. and all single phase motors larger
than 5 H.P. meet the requirement for reduced voltage starting unless written
approval has been received from Green Mountain Power, and that none of the
proposed structure(s) will have electric space heating. Based on this information
and other developments with similar parameters, it is estimated that the electrical
panels will be rated single phase 240/120 volts, and the total project as described
will result in an estimated peak demand of 23 additional KW. This requirement
can be supplied from Green Mountain Power's existing and planned generation
sources. If this estimate is not consistent with your load projections, Green
Mountain Power Corporation should be made aware of the situation for planning
purposes.
We have evaluated the transmission and distribution system that will be
used to serve your project's requirements and have determined that existing
facilities are adequate for that purpose. We do not anticipate that your addition
will require distribution or transmission improvements at this time or accelerate
routine system improvements planned for the near future. Any new line extension
construction necessary to provide service will be administered under GMP's line
Mr. Scott A. Rogers, P.I.
January 20, 1999
Page Two
extension tariff. This tariff provides that line extensions will be installed in a right-
of-way granted by the customer. GMP requires that these rights -of -way be
unencumbered, a minimum of 10' wide and be protected by a legally binding
easement.
In view of these facts, we conclude that the proposed development will not
put an excessive or uneconomic demand on Green Mountain Power's facilities.
Details concerning service size, scheduling, costs, etc., should be discussed
with Dave Murray of the Colchester District Office.
Piease note that GMP also provides technical information and assistance
with permit requirements regarding criterion 9 (F), energy efficiency. You may
contact Dan Gaherty at 1-800-750-5674 or 655-8533 for a copy of the Act 250
Energy Efficiency Guidelines and more information regarding compliance with
criterion 9(F).
Very truly yours,
Louis A. Fonte
Director of Engineering
LAF/jka
cc: Eng. File
Via e-mail:
J. Saintcross, Energy Planning
D. J. Gaherty
G. S. Morgan
T. G. Cecchini
C. M. Hart
C. R. Brier
D. K. Murray
City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
FAX (802)658-4748
PLANNING
(802)658-7955
December 1, 1998
Lance Llewellyn
Llewellyn, Inc.
4049 Williston Road
South Burlington, Vermont 05403
Re: Pinnacle at Spear, Sewer Allocation Extension
Dear Mr. Llewellyn:
ZONING
(802)658-7958
Enclosed is a copy of the October 27, 1998 Planning Commission meeting minutes and the Findings
of Fact and Decision on the above referenced project approved by the Planning Commission on
October 27, 1998 (effective 11124198). Please note the conditions of approval.
If you have any questions, please give me a call.
Sir cerely,
f
e Weith, Dire for
lanning and Zoning
JW%mcp
1 Encl
City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
FAX 658-4748
PLANNER
658-7955
February 8, 1995
Mr. Gerald Milot
P.O. Box 4193
Burlington, Vermont 05402
ZONING ADMINISTRATOR
658-7958
Re: Nowland II and Southeast Summit - Recreation Impact Fees
Dear Gerry:
I am writing this letter to inform you that the South Burlington
City Council adopted an impact fee ordinance on January 9, 1995
which requires the payment of impact fees for certain recreation,
school and roadway improvements. This new impact fee ordinance
replaces the former recreation impact fee which was in place at the
time the above reference projects received final plat approval from
the Planning Commission. Since the new impact fee ordinance
requires payment of a fee at the time of issuance of a zoning
permit, the above referenced projects will be subject to the
requirements of the new ordinance.
For each of the above referenced projects, the Planning Commission
granted a per unit credit to be applied against the recreation
impact fee ($75/unit for Nowland II and $300/unit for Southeast
Summit) . These credits were given for the proposed construction of
various recreation paths which are located outside of public
r.o.w.'s. The new impact fee ordinance provides for credits for
"In -Kind" contributions to be applied against impact fees.
However, these "In -Kind" contributions must be approved by the City
Council.
The new ordinance also states that "In -Kind" contributions must be
related to the specific projects which are designated to be paid
for by the impact fees. Since the recreation impact fees are
designated to pay for only the Dorset Park construction and not
recreation path construction, I believe it is unlikely that the
Council will grant a credit.
Gerry Milot
Recreation Impact Fees
February 8, 1995
Page 2
Since the granting of a credit is unlikely, you may wish to
reconsider whether or not you still want to construct the
recreation path as proposed and approved. If you no longer wish to
construct the path, you will need to amend the final plat approvals
for the above referenced projects.
Please contact me to let me know how you wish to proceed.
S' erely,
tf
Jo Wei ,
Ci y Planner
cc: John Larkin
Richard Ward
Ray Belair
(gm2-7)
1 ram- C-1-1'zc '0_ _1 FG,1 ,..)" N:! IJT Tu 1�Cl_4740- P.01
® m
PRO I'll [('I I h \ i N 1.
FAX TRANSMITTAL
DATE: 2/15/95
SENT TO : Joe Weith
REGARDING: Impact fees
FAX NUMBER: 658-4748
FROM: Gerry Milot
NUMBER OF PAGES [ including cover sheet ] 1
COMINIENTS: As you might guess, I have a problem with the new impact fee
ordinance. I certainly expect to discuss this matter with the City Council at my
earliest convenience. I would like to be scheduled for a final plat revision on the
Nowland 11 and Southeast Summit for the elimination of the Bike Path that is not a
part of the internal sidewalk system. It still makes sense to build Bike paths in lieu of
sidewalks when appropriate.
Also, at the same time, I would like to review the changes to our landscape plan on
the Dorset St. Project. Please schedule these hearings after the 15th of March, as we
hope to have an answer from the Environmental Board by then. Thanks
FLOR Da TEL, 305 7314222
FLOR[DA F.4X 305 783-9694
Y 0 Box A 193
liurlinj:ruu, V,-rmonr
0 S 4 p h
Tel (802) 658-2000
FAX (802) 864-8172