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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 YB�ru.�ixr _ &T 7 , re, Il-I?Sv V—S+ e-A 1,4,s 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 4� 'a No. 2884 s w .' 002 FEB 2 6 2 a y t� t J 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. LLf/r! �l * s No. 2W �. �9ISTE�\�� 0 N A1. 'E CG 0\Y,7 dl#`\ 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 `s !la 2M 10EVAL 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 LE�!`�t�1 `j Na 28M ac \\ ��//1"Al 4 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 LE No. 2W s coi 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 N/F IBIS V � � 2rr9/f55 C / / - 15JAJ / b 281AJ i D97AX p / i Nor AWeINS i \ (A ti i 1 / N/F GA GNQN i 49/r19 C 147/134 mil` i ♦ MA is rim J0.D48 SF E I5J/6J I / �f L - au• a91 AG N,1Y M£RED17H 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/ L - aa1� / [wooer OW a55 AG 54,6TQ Sr. ice♦ ,.� A>.� _ 1 558 / 1.13 AG • / 11FI j^ . �. ''iii. � i a82 AC F / OW AC ^ A , m.` _._ / e - rm+71• 4 1.; 11J SF. / e . rxro,• ! e _ wm2f• i i i 49,QM SF. L - ua• / `\LM�. tOy. I . K?' 0.3.7 AG _ r _ c•>. 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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. /a3o AG 4000 IF. /0.J0 aC Q.lD AG 1 000 IF. ;iR QJS um ! P ♦�`- fa35/ASGF. i 1 i i A. - arxrr -• _ _ QJO AG 1.7,000 SF. - • ; 1 r _ claw. ♦♦♦___CCC .- _ _ -- x e - --- . r 1 1 e :sanrner� -�L - Iw.m• i : %nm •----1°Q-"'Q._-. rML^2._._ _ --- --- 0.J0 AG r- a _ _ i wam' r - n. u' • - aorr /> ._._ --..La't�._._ _ i _ .. _._ - __ L Ka I _ ITIW /ILVmm w-J 1tyTa]I1 _.1� __ !��' _ ._ _. L- 1JpW 7J+ •' ; r. Isar L - LIxJT r . Star ula/n °2?�._._ �. 4JC t _- I >. rarJ `r �r1W C,AWW SO7 AC O V , 1 I,KMa><O ]O' l . Km' 4B ' _._ �._._. _._ L . IT.TJ' 1D O054 I F `� fa/%i{ rim I : /� l _ "aw _ _ _ pry OF r436J SF. ' a C 1 YLL/r> tAf[L[Mr `'� e - eraser• _ C a 1 i /4oJ4 IF. ": am�� f 7atl' yam._. �. _ aanas,ti Kya. s. Ir.r `. ` V 0.J3 AG '� L - arr I �R . ronW' a - mx'w1 R ��"�' `Q.H AG T-- aJ-- -� i r-av I /.roam' 1 t-- t�i'M'-- Cad'-- _ � is ,xm� Lnad'._.- 'ifif' �J � � � I ` � : ; �.r• 45 L u ro 1 1 aw i � , �e . roarar ! : _� 44 43 42n°r '� O IDL ' ' 1�154 SF. 39 O C ` I a32 Al- i /.�D17 SF. ( 1.T�2I4 Sr. I /zQ25 SF. �/zers SF 37 V • o - aJ2 AG 1 0.J0 AG 1 a29 AG j Q29 AG /Q�SAGF 1 1za23 Sf. 1 1;a25 Sf. IZQ1= Sf. O O t la.m AC (AREA .n/. I i 0.% AG , a2D AG �y L Iz■25 SF. 1 Iza23 SF. - • . \ CQIMIQN LAAn C ; • i I - arati -•-___4.ffi' 6fffi�_ffi.ffi• 1- 1 i Ar 0.2D AG ; a29 AG 14076 IF. �, , - \ IF. i 6}.ffiQ,ffi'�� JS Ai i nraroseataz [R• I aonryrti !}ffi-�rR It 7J AG QG a C w p 1 'k 1 C•a W t p V .� • Z=i 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 .U[Y fDD2 03 / IS4 VOL Uwe / PA aE CITY err -5•5 £ #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 SHEET 1 OF 2 r-- I I I ------- — i ' i i I � / I I � ' j 1 11 ! I I� I i ' I � / i I ►' I I I n ii I L--------- SHEET I OF 2 q;Q8:AI,::;I, 6 fggzjA Qs 4 �Iii r,% ill U SHEET 2 OF 2 � � I 1 I SHEET 2 OF 2 •0' —is Plat meats the requirements of ^- VSA 1403. Signature ti SLV ECF rD OMMCAlr[ L: M OF DMICAWN M rN£ err W SOUIN AGRLMMV 322/ 02 —\ � wear .'♦. e•-"-i'aoi--•ems_' i7liY" _ .Hill" ' I e - >► 1 1iI �y8, $$$9! U , '• I:uu YHRgy �iftil `t b L $ . U. �� � p✓4• I� \ I � � 9 i i $v$� RF7f—:►yam pM Sys O ey 1 i t N ! I ' �.�`� i i �8l�llnN G1 �`r•� N nil I _ 1 4 $ RIq, , dcae > � ' gkggRi; 4.R8e nod pN r� a ak� nkl y 1 ; 1 •D Q I y H ^ >► 1 n ; I B .,.�; �1 I •' • • pA iia1 icN N 9 i 9'8Yn� � I ' 1 I , YNq 1 , h> Baia Ka.B y QY$y b ,p > g > $ �N QN ti �U Zc%C y�C� mot/ Vermont (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 J o ` •, N/Y IBIS • 209,1155153163 All ...a i ♦' -' uw /RrD N/F OHIU / rrs7Rt ♦ \ / 261/93 i DITAII, t � ♦ 153A5 / / ��r • t `p N/i AIKINS r • is iim• JDr646 Sf. 153/6J 0.DI AG / N/r A/EREINTH i \ e -raver i• I O / 65/152 97,400 IF. _ I 1J9/16J I.W AG / i/ i� _/«tr. J7•IJI SF. 49AI O _�/ h Q a -.Hair/ ip _ a65 AG O O , , a' • ( r +a.y1� 1 ` 54.626 IF / •"m'r e . aoaom•� ro''ar•' •ii ii,-.- i 0.42 AG Q62 AG 1 7 ,°� 7.x 11J 5F R : rm i • . ronr w i e i 49.876 SF C a-ns• �M'--. Lty / r. ar' O 0.3J AG r"rrP. R"ranar i i i.14AC _ Rwror o ♦ e - mv'sr- r . au' • 9 i - R - MOT a - rae a . rn.s e - v=a• i / / IROr+OS[D _ / •. rr Yar' T. aisY is NO: i i • - RraabR' • NAJWX �� - ^.- i R ..nor a - a.r -.-.-_ _ _ _ - / i i / R " ram' E * 51 [A9Enwr--r _._.• au.„ n x • r" Aw M _ a • aN' i i / r. raM / i i w JI/IyU•' _ L . iii)a' — r mm— — ._.—.—._. _ _ _ i / t . 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P 1 _ -. - - _ v � I r � • i^rsrarJ �r - rxr' i : MMsnm _. > --- _ - --- __ ___ Q.m AC C r R. rxRr r. ear is Rnm� nroo� rr --./ - 1aF _. _.la'2 _ _._.1aQ°Q._._.1QEL_ ._ 241 a • ar • R°: wvaar 1 r. gar' - ras> r. Awn u�awr-.2R4Q._ �,n• _0 770 Dia f a1 • i ` a . am' 4B _ • _ _ _ _ a . rn.A' S . pLNNACIa' i]R19D S07 AC. C "aar +R ..d!! _ _. r0 6Lr' 0�mvcA REn ro nr art ar • • 'O'O"• A Awn r+>n[rr �6 O • - ars7°' ` c� C 7 e 1 i i ` 15, OJ4 SF._ �:,aw°O \ `- Zft!'t -lfod' .�. _ szfl,l 1H 61UPLMVCIO► ,: I,ar* \ .,��. ffti16J SF. • b 1 i a " an' r `\• - rirw• \\ I _ icad'._._ afad"-- _ r - MarJ' ` Y aJ5 AG R . ranoo' • . ano'r• X ad• - - eCod' - - _ a - an>.r 0.36 AG i r . star 1 - �.� 45 t._._ _ .�. ZrJ •� r. «.r' �. 44 3s B c 1 ' ; u-32 SF. I O 43 42 R 41 40 39 O O O ' , . ,,.,> O 1 ' • R o iQ32 AC i 1Q32 AC i 13,214 SF. I Q2D AGF I Q29 ACF r Z625 SF. 1Zd25 SF. 36 o ++' 1Z625 SF. V • o I _ _ a3O AG i a29 AC 1 r i 1Z62- IF rZ625 SF. Iam - 1 (a WON LAND c , 1 Mr r, -- jI— i a21 AC i a2D AG 1 , 1Z6?S S.F. a.7D AG ' 1 nrar7r�rP?3r 4agr I a2f AG i Q2D AC i 0.29 AC FQ076 SF. ' w,6(AREIF n, �ffi �e effi �eP-- 1 I a35 Ac ' e10.70o IF. C • ^... ' i � �' r aw:r�rti �Y.tQ�QtB---�--.en.�ar.,F��' iD.7J AG c 00 r / cEC W L v • M 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 37.4 6.2 D 4550 4319 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 43L7 396.5 401.9 29.8 35.2 68 D 4400 432.2 396,4 402.0 30.2 351 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 3T8 73 D 4385 432.2 393.E 399,7 32.5 38.6 74 D 4390 432.2 394.4 399.6 32.6 37.8 75 A 4380 422.1 394A 399,5 23.6 27.7 76 77 78 79 80 A A A A A 4415 4355 4350 4325 4300 422.0 422.2 422.2 422.3 422,5 394.5 394,E 394,9 394.9 394.9 399.2 399.0 39&6 398.5 398.4 j 1-2.8 23.2 23.6 23.8 24.1 27.5 27.6 27.3 27.4 27.6 Page 2 of 2 L.LEWELL.Y N • HOWL.EY •w I N C 0 N P 0 R L T! 0 A v Re graphics of Now England, Inc., So 'urlinyton, VT, he y cortifios that this map was rap. uced by the fixed lino photo9r is proc a. �Kmlt�alnwmmoaw,51>w rrl al n 11 "e r i"i Signature SHEET I OF 2 SHEET 2 OF 2 F---------_--- --- -- --� $ Ina I �� I Ix I IN I I i I ----- --- ----------- SHEET 1 OF 2 SHEET 2 OF 2 �rZ I, I p SL d I o 1 'pis Plat meats the requirements of "- VSA 1403. Signature DEKXrMW DRYd �s r_nnwt ".rcr ro mRrwcAftE orrER OF DEDCA7701V ro ENE CITY OIL SOWN &ALMorON 32211101--\ g CD/T _op- - - .am• �- rraae- - 17.fi'- ja In Y+ i •► _•�y ; nN w EgiRi wai kB.B �� x' 4Y 1 ^Y 7 .>► ."8 � g i �q � 1 � g �7� �8 � 1 1 7 p I i PN O Ey:9 `'' r ORR arS J t gyp' i i I I k ti f>i � Y88fMl� r� / NORTH IS't LEGEND G lal BASH 12L= O 2REM C a r Brow sewn —r: rt ---. — ST— maw DRAW — TD — GAIT WALK m N Krum exrm s0iN SEWER YAWOIL ()1^'n Qs. 1 sreR sERlcr —� sERER VI --a'r —Ps— uA rlrcnic - -up Nr[- - -_Q1V_- oWR nrcnw ---oM-- ucwr PaE O st I m"CE $F — M 11" DAY des, CCx,`D w ----11e--- __CI yet nzv 97.37 9737 Dias TRETIArR �• O •nWrux GRAIL SURFACE '1 - - -_ T'T'rf•j PAWED SURFACE EAYNC?0T ----------- PROPER" LAC cALnAArm Powr • Wax Pw SEr 0 OR TO BE SEr Rim Pro FOu1D • DU1ws1rR w RANOs t FENCE LANE x x ORAWAQ PAM SNl BMW tOEATION se ALL 5.0oLs Do wr APPEAR m Rxs RAN SET Approximate end of existing roadway construction, station 7+00 Stabilized construction entrance. — 1 see sheet 9 of 9 I 1 1 N/F Underwood I 1 -----�- I I I I t I I t I I f I I ' 1 3 f n ci nl- t I zlo ' I I j I I ,I I I .t I _ I r--- II II I I I I I I I 1 I � I I \ I T . Approximate station 21+20-�, I 1 1 Location of Pinnacle Drive is approximate only. See Attachment 2, Donald Hamlin record drawings, doted December 1995. --------------------------------I See sheet 5 of 9 1 I I I _ I m - - mh I 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// D ZONE r-50' Wetlands buffer zone I Burlington Delineated edge of wetlands. See FitzPatrick-Llewellyn Inc. plan set entitled "Nowland Two doted July 1992. Vr fi4 5 ............ �� -__ J -- ~ry -6. ® ` a?g i 02g ce,7 \aefi - 0 30.............� II ro I Ga ... 'J..., 0.98 oc I t `........`..3# _ I -----1� 45 Qr 68 'tomrlba.land>; 7Jer;e�llg2 J i- - - I =E o I �10. aiJ08'1'0;�1 375.72' I N/F Ishom / 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 1K US" 5NA 1 mssw nRs cDPr aDwIAwS nK A90w5 C nt axswcta I eo2-a5B-z1o0 "xR c OOt 7-D 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 COURT REPORTERS ASSOCIATES CCURT REPORTERS ASSOCIATES PAGE 5 SHEET 2 PAGE 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i 1 2 3 4 5 6 7 8 9 10 16 17 18 19 20 21 S 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. COURT REPORTERS ASSOCIATES 11 1 COURT REPORTERS ASSDCIATES PAGE 9 SHEET 3 — PAGE 11 1 2 3 4 5 6 7 8 9 10 1 2 3 4 5 6 7 8 9 10 9 11 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 COURT REPORTERS ASSOCIATES 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. COURT REPORTERS ASSOCIA'ES COURT REPORTERS ASSOCIATES 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 COURT REPORTERS ASSOCIA'ES PAGE 21 SHEET 6 DA^c on 1 2 3 4 5 6 7 s 9 11 12 13 14 15 16 17 18 i9 1 2 3 4 5 6 7 B 9 110 11 12 13 �14 23 24 21 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 COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES PAGE 25 SHEET 7 1 2 3 4 5 6 7 B 9 10 11 12 13 14 25 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 1 2 3 4 5 6 7 8 9 11 12 13 14 15 117 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 Both 20:24 copy 6:1013:24,25 22:10,11 23:14,18 adopted 9:13 22:20 brief 3:15 correct 5:22 6:16 7:5,17 9:3 '98 23:3 adoption 22:15 bring 4:12 10:16 12:113:17 16:14,20,21, after 2:24 4:4 9:4 19:15 20:8, building 3:24 4:5,13,13 7:4, 25 19:10,13 21:24 22:12,13, 0 22 21:11 22:10 again 8:20 18:1 19 8:2,2,5,8 11:13,14 13:16 16:17 18:13 19:14,17 20:7,22 22 24:1 Correct 16:15 054021:25 ago 22:7 22:9 23:17 corrections 25:7 1 ahead 6:22 18:8 alto,,►' 8:19 built 20:18 21:7 22:14 Burlington 1:14,25 3:9,12,17 cost 4:24 costs 15:19 1 1:14 3:1 26:8 10 4:22 already 5:2 9:7 5:8 6:10.19 8:21 26:10,11 Council 10:17 11:4 14:21 15: 13th 16:9 alterations 4:20,23 Butler 20:2,11 21:15 22:7,11, 15 140 20:21 among 2:21 17 23:9 Counsel 2:21 171 1:22 23:3 amount 13:5 15:17 byla►vs 3:18 6:19 8:21 counsel 16:18 1775 3:8 answer 622 15:11 County 25:20 C 17th 6:9 12:14 Answer 6:24 couple 22:4,5 Cairns 16:1 1993 19:21 anything 14:22 17:18 course 9:19 1994 8:2 apologize 13:23 calculated 17:9,13 COURT 1:24 26:3 1995 6:15,18 7:2,20 8:9 9:6, appeal 14:20 called 15:17 Crampton 16:9 13 10:17 11:3 18:15 19:15,25 applicant 4:7 calls 6:21 created 9:24 20:8,23 21:20 application 4:8 came 8:214:11 credit 12:21 33:10,11 14:10 1997 14:4 16:24 applications 8:7 can 3:6 6:22,25 10:7,21 11:11 Creek 18:20 20:3,10 21:15 1998 6:9 10:24 12:14 16:9 applied 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compliance 4:9 complicated 17:17 concluded 24:14 discrepancy 14:12 discussed 10:19 14:18 discussing 14:15,24 discussion 9:6,10,19 10:15 A about 5:24 6:5 7:24 9:6,16 10:311:8 14:11,23 15:2,11.22 16:19 21:14,20 22:6 23:8,22 become 14:23 !hcforc 4:2 8:23 20:7.22 21:11 conclusion 6:22 condition 7:14 8:4 12:20 13:8 15:2.22 discussions 9:11,15 10:3 11:' accurate 25:5 26:6 active 20:9 21:11 1-),.1(1 l 26:7 �14:9 16:17 13clair 17:10 conditions 12:18 dispute 17:25 COURT RE'PORIT'RS ASSOCIATES Page ] Docket 26:10.11 document 12:16 does 4:6 11:2 17:1,11 dollar 15:17 dollars 24:9 donation 24:8 done 5:9,11 8:23 17:20 Dorset 3:8 5:25 15:16,17.24 16:13,22 due 3:19 13:13 dulv 3:3 26:12 During 23:16 duties 3:15 E earlier 13:4 effect 7:7 either 9:16 10:8 employed 3:10 employees 9:16 enacted 6:14 10:6 enactment 6:17 ended 14:20 enforcement 3:19 entitled 19:3 errata 25:8 estimated 4:18 even 7:25 ever 5:16 everything 10:11 Exact 15:1 exacting 8:18 18:25 exactly 14:10 EXAMINATION 2:4 3:4 22: 2 exceeded 13:12 except 2:23 Excuse 4:12 excuse 12:3 exemat 7:23 8:919:7 22:19 final 12:17 finance 15:25 finding 11:25 25:5 findings 12:10.118,20.25 ;firm 16:10 'first 3:3 11:1 7 12:2,2 13:6,14 �21:23 FLETCHER 1:21 2:4,5 6:21, 25 15:9 18:8 22:3 23:5,8,21 24:12 focusing 12:8 following 25:6 follows 3:3 22:4 footage 4:15,17.23 (foregoing 25:4 26:5 ;form 2:23 15:9 ;formal 8:1 (format 17:9 formulas 4:17.19 four 21:14 front 14:20 full 3:6 fully 20:18 function 5:21 funds 8:12 16:2 further 9:6 23:5 24:12,13 G gave 13:10 19:5 generally 4:4,6 5:11 generating 15:4,5 Gerald 6:8 Gem 10:10 16:13 get -go 16:22 gets 4:21 give 3:15 given 17:3.5.14 19:8 good 13:24 grandfathered 10:12 11:9 17: 24 GR��'E[,1:18 exempted 9:8 18:15 19:25 21: 17,18,21 24:3 exemption 17:24 18:4,17 19: 3,11 21:1 23:10,23,25,25 Exhibit 6:8 10:23 12:14 13: 18,20, 23 16:5, 6,1317: 21 23 :2 exhibit 18:2 existed 7:24 8:21 expires 25:25 F fact 11:25 12:11,18 15:8 22: fall 16:24 familiar 6:12 far 5:14 8:22 Farms 5:25 15:25 16:13,22 20:2,11 21:15 22:7,31,18 23:9 fax 13:25 fees 4:9,15 6:1,10,17,20 7:3, 16,21 8:4,10,16 9:4,9 10:4,18 11:18 12:2213:6,13,16 14:17, 25 15:3, 7, 7,23 16:19.23 17:2, 2,14,21.23 18:16 20:1 21:17, 22 22:19,25 23:2,11,16.23 24: 1,4,9 field 4:1 figured 17:6 figures 15:21 18:25 fill 4:7 impact 6:1,10,17,20 7:3.16,21 8:4.10,15 9:4.9 10:4.18 11:18 12:22 13:6,12,16 14:16,25 15: 3.7.7.23 16:19.23 17:2.2.14, 21,23 18:16 20:1 21:17,22 22: 20,25 23:2.11 24:3,4 impetus 15:6 implemented 9:1 imposed 21:23 imposing 7:14 in -kind 8:17 19:8 20:5 24:7 included 22:11 inclusive 26:5 incorporated 17:16 independently 10:14 inspections 4:2 interpretation 11:24 13:11 interpreted 13:4 16:24 interpreting 15:2 involves 18:24 Isn't 12:1 issue 3:18 14:18,19,23 issued 14:8 16:16 19:15,17 20:7,22 22:10 issuing 3:21 4:2,5 7:4 8:5 13: 16 18:13 items 22:5 H Hafter 10:8 11:8 Harbor 20:12.13 21:15 22:8, 11,18 23:9 having 3:3 16:17 heard 10:13 hearing 10:10 heart 17:25 Heights 20:12,13 21:15 22:8, 12.18 23:9 helping 15:25 here 5:23 6:5 18:9 hereby 25:4 26:4 herein 11:23 Hinesburg 18:22 21:6 Hockev 16:1 home 7:19 8:3 houses 7:21 how 3:10 4:6 7:6 12:23 14:10, 11.23 15:20 16:19 18:23 20: 20 21:9 23:11 Ilo%% 3:13 4:19 7:24 18:23 I location 8:11 ki long 3:13 7:6 Oak 18:20 20:3,10 21:15 22: I'd 6: 1.1 1 12:12 13:22 14:1 looked 9:5 12:15 14:2 7,11,17 23:9 :16:S 17:22.25 lookin„ 18:4 Objection 6:21 15:9 Ice 16:1 looks 12:19 objections 2:22.23 idcntific:ition 13:21 16:7 lot 6:4 7:1`s.24 8:3 15:13 obligation 22:25 identil'N 12:15 14:2 16:10 I obtained 5:2 23:17 M machine 13:25 make 5:1 10:22 19:2 many 18:23,23 20:20 21:9 March 1:14 3:1 10:17 11:3 26:8 marked 6:7 10:23 12:13 13: 20,23 16:4,6 matters 5:17 17:15 26:9 maybe 5:6 7:8 Maybe 12:1 MBL 1:7 26:10 McLean 16:23 mean 3:23 8:1011:21 15:24 means 15:25 measure 4:16 meeting 10:17 11:4 22:23 23: 10,12 meetings 11:5 might 5:4 11:3,5 MILOT 1:3 6:8 10:10 26:9 Milot's 16:13 mind 13:3 Mind 18:6 mini 8:13 misunderstanding 12:1 modification 9:12,16,17 10:4, .T 6,11,18 modifying 11:8 January 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13.25 19:2 Oh 19:19 Okay 4:1.19,21 5:16 6:7 8:7, 14 9.11 10:14,21 11:7,21 12: 10,19 13:14 16:12 17:8.13 18: 11 20:18,25 21:25 22:17 23:5, 15,19 24:12 okay 21:14 One 4:17 one 4:18,21 7:8,21 11:6 19:5 20:2 21:23 ongoing 19:22 only 7:9 24:9 opposed 8:18 ordered 26:12 ordinance 6:10,12,18,18 7:1 8:21,23,24 9:5,12,24 10:5.10, 18 11:8 15:3 16:20.23 17:16, 2218:17 19:4 22:15,20,25 23: 2,11 24:1 originally 6:14 20:15 other 4:16,18 5:1 16:18 19:24 20:2,10 21:5 others 21:16 out 4:1,7 17:618:6 20:18 21: 7 22:15 outside 15:14 P P.0 1:21 p.m 1:15 24:14 26:8 P.M 3:1 PAGE 1:21 page 18:1 AGEILINE 25:10 pages 26:5 paid 12:2 21:19 paperwork 4:7 paragraph 12:19 13:7 14:6 Paragraph 13:9 Park 15:17 parks 8:13 21:2,3 particular 12:23 14:15 17:22 parties 2:21 4:25 7:14 9:11, 20,2212:7 PARTNERSHIP 1:3 26:9 passed 9.5 path 12:21 14:9 Paul 1:19 paying 18:16 20:1 21:21 22: 25 23:23,25 24:3,9,11 payment 8:18 12:5 15:8 PEARSON 3:5 13:18 16:4 18:6 21:25 22:7 23:7,19 24:13 people 15:14 period 8:8,9 10:5 11:18 permits 3:19,20,22,23,24,24, 25 43,6,15 7:3.4,15 8:2.5.8 11:14 13:16 14:8,19 16:17 18: 1319:14,17 20:7,22 22:9 23: 18 person 9:25 10:2 Pinnacle 5:24 11:12 12:12 13:15 15:24 16:19 place 21:23 plain 7:24 planner's 5:21 9:23 14:14 Planning 5:9,16 7:13 8:11 9: 2,8,18,20,22, 24 10:1 12:1 1 14:13 15:14 20:16 21:22 23: 17 planning 10:1 16:1S plans 4:12 5:6.S.15 plot 12:17 pocket 21:2 point 8:22 9:4 18:6 police 8:24 9:1 position 3:13 17:11 practice 7:2.6 prcapproved 11:9 21:20 predates 21:1 S preexisting 7:18 presence 10:9 present 3:6 previously -approved 11:9 12:13 Prior 6:17 prior 7:2.1,19 8:8 13:16 16: 17 18:14 19:17.25 21:13,14 22:15 23:14.18 Procedure 2:22 proceedings 5:11,12 process 4:5 8:1 projected 15:19,25 16:14,16 19:3.7.12.22.24 20:10 21:1.5 projects 5:25 6:2 10:12 11: 10,13 12:12.23 13:15 14:15 15:3.8.24 18:14.19 19:5 21: 15.26 22:6.9,23 23:10,12 24:5 provision 11:24 provisions 13:3 PUBLIC 25:25 26:4 purchase 15:18 purchasing 15:16 pursuant 1816 Q question 6:23.24 13:1 15:10 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inderstanding 12:22 24:11 snit 7:3,16 8:9 11:19 snits 11:13,18 12:2,3 13:6,14 18:23 19:11 20:20 21:9 inspecific 15:10 intil 2:23 up 9:12 11:14 13:18 14:20 22: 4:19 14:16 16:11 19:5 26: using 23:24 V vague 15:10 value 4:18 values 17:17 variance 5:7 various 17:15 verify 10:14 VERMONT 1:1,25 2:22 versus 4:20 very 13:24 VS 26:9,11 w want 4:13 13:2 wanted 7:19 Ward 2:10 3:2,6,8 11:2 13:22 16:8 22:4 23:8,22 25:3,18 26: warned 5:14,15 wasn't 14:17 wastewater 3:24 way 15:4,5 we're 5:23 6:5 13:1815:11 Weith 9:25 10:3,8 14:14,22 Well 9:18 11:23 23:14 what's 10:22,25 12:13 whatever 19:12 whether 11.3 14:22 19:12.114 Whether 15:6 whom 22:9 within 11:24 without 14:8 Woods 21:18 22:8,14 words 15:1 23:24 work 4:6 Y years 3:14 7:8,25,25 17:1,1,3, 6,7,14 yet 20:18 Yup 20:4 21:4 Z Zero 12:9 zero 13:7 Zoning 3:11,22 9:18,20,22 10:2 14:13 zoning 3:16,23 4:5 14:7 18:12 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