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Home My WebLink AboutAgenda 04_MS-21-01_1100 Dorset St_dog parkCITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD MS-21-01_1100 Dorset St_dog park_2021-06-15.docx DEPARTMENT OF PLANNING & ZONING Report preparation date: June 8, 2021 Application received: May 11, 2021 1100 Dorset Street Miscellaneous Application MS-21-01 Meeting date: June 15, 2021 Owner/Applicant City of South Burlington c/o Justin Rabidoux, Dept of Public Works 575 Dorset Street South Burlington, VT 05403 Engineer Lamoureux & Dickinson 14 Morse Drive Essex Junction, VT 05452 Property Information Tax Parcel ID 47-021-000 Park & Recreation Zoning District Project Location PROJECT DESCRIPTION Miscellaneous application #MS-21-01 of the City of South Burlington Department of Public Works to construct a dog park on the northwest corner of Wheeler Nature Park. The project involves impacts to Class III wetland and wetland buffers, 1100 Dorset Street. #MS-21-01 Staff Comments CONTEXT This project is subject to miscellaneous permit review because of the proposed class III wetland and wetland buffer impacts. PERMIT HISTORY The property most recently received final plat approval #SD-17-15 to subdivide a development parcel in support of a land exchange with the golf course. The approved plans for that project indicate an existing water service and prime agricultural soil mitigation area in the vicinity of the proposed project, discussed herein. COMMENTS Development Review Planner Marla Keene and Zoning Administrator Dalila Hall have reviewed the plans submitted on May 3, 2021 and offer the following comments. Numbered items for the Board’s attention are in red. Article 12: Surface Water Protection Standards The Project is proposing the following wetland impacts. Permanent Wetland Impact 6,402 sf Permanent Wetland Buffer Impact 31,769 sf Temporary Wetland Impact 306 sf Temporary Wetland Buffer Impact 1,223 sf The proposed temporary impacts are for the purpose of fence installation, while the permanent impacts are effected by their continued use as a dog park. The City Stormwater Section reviewed the application on 6/4/2021 and offers the following comments. The Stormwater Section has reviewed the “Wheeler Park – Dog Park” site plan prepared by Lamoureux & Dickinson, dated 8/19/2020. We would like to offer the following comments: 1. This project proposes 6,402 sf of permanent impacts to Class III wetlands and 31,769 sf of permanent impacts to Class III wetland buffers. 2. Encroachment into Class II wetland buffers, Class III wetlands and Class III wetland buffers, may be permitted by the DRB. The applicant should submit information on how the impact of the encroachment(s) on the specific wetland functions and values identified in the field delineation and wetland report is minimized and/or offset by appropriate landscaping, stormwater treatment, stream buffering, and/or other mitigation measures. 3. The plans show a 2-acre area dedicated for large dogs and a 0.5-acre area dedicated to small dogs. No narrative was provided to support why the size of these areas was selected or if these are minimum areas necessary to support large and small dogs respectively. According to the most recently available meeting minutes from the Dog Park Committee, dated 2/3/2020, it was noted that the engineer was requested to “maximize space available” for the dog park. Additionally, it was noted in the meeting minutes that “for wetlands that may be present within potential dog park, it may be possible to fence off area to protect wetland area.” 4. The applicant should take steps to reevaluate what area is actually necessary for the purposes of the dog park and minimize impacts to the wetland and wetland buffer. It seems appropriate to fence off the wetland area to protect it, which would still leave just over 1.5 acres of area for the dog park. Staff supports the comments of the Stormwater Section and notes that, for comparison, the waterfront dog park in Burlington has 0.75 acres for large dogs and around 0.25 acres for small dogs, while the Starr #MS-21-01 Staff Comments Farm dog park is 2 acres and not divided. Specific recommendations are as follows. 12.02E Standards for Wetland Protection (1) Consistent with the purposes of this Section, encroachment into wetlands and buffer areas is generally discouraged. (2) Encroachment into Class II wetlands is permitted by the City only in conjunction with issuance of a Conditional Use Determination (CUD) by the Vermont Department of Environmental Conservation and positive findings by the DRB pursuant to the criteria in (3) below. The applicant has submitted a letter from the State of Vermont Wetlands Program indicating that the wetlands are Class III and therefore are non-jurisdictional for State purposes. The Corps of Engineers has also provided a jurisdictional determination indicating that the impacted wetlands are not within their jurisdiction. Therefore the Board cannot make use of the findings of the another program for evaluating compliance with the standards for wetland protection. (3) Encroachment into Class II wetland buffers, Class III wetlands and Class III wetland buffers, may be permitted by the DRB upon finding that the proposed project’s overall development, erosion control, stormwater treatment system, provisions for stream buffering, and landscaping plan achieve the following standards for wetland protection: (a) The encroachment(s) will not adversely affect the ability of the property to carry or store flood waters adequately; The submitted functional evaluation provides the following information relevant to this criterion. Water Storage for Food Water and Storm Runoff: The wetlands’ ability to provide this function is small because of low capacity and small watershed, especially in the area to be impacted by the project. 1. Staff considers the provided information does not directly address whether in the applicant’s professional judgement the encroachment adversely affects the flood storage capacity of the wetland and that this criterion should be better addressed. (b) The encroachment(s) will not adversely affect the ability of the proposed stormwater treatment system to reduce sedimentation according to state standards; The submitted functional evaluation provides the following information relevant to this criterion. Erosion Control through Binding and Stabilizing the Soil: The wetlands are not subject to erosive flows of water so they do not provide this function. Staff considers that due to the limited size and stabilized nature of the wetland’s watershed, this criterion is met. (c) The impact of the encroachment(s) on the specific wetland functions and values identified in the field delineation and wetland report is minimized and/or offset by appropriate landscaping, stormwater treatment, stream buffering, and/or other mitigation measures. 2. As noted by the Stormwater Section above, Staff recommends the Board require the applicant to demonstrate how the impacts of the proposed project are mitigated by the measures referenced in this criterion. Such mitigation may require modification of the proposed park boundaries. RECOMMENDATION Staff recommends that the Board work with the applicant to address the issues identified herein. #MS-21-01 Staff Comments Respectfully submitted, ___________________________ Marla Keene, Development Review Planner Lamoureux & Dickinson Page 1 of 1 Consulting Engineers, Inc.P:\2020\20013 So Burl Dog Park\Wetlands\City\Memo-Wetland Functional Evaluation.docx MEMO Project:Wheeler Dog Park (20013) Date:March 25, 2021 From:Brian Tremback Subject:Functional evaluation for Wetlands ‘A’ and ‘B’ 1.Water Storage for Flood Water and Storm Runoff The wetlands’ ability to provide this function is small because of low capacity and small watershed, especially in the area to be impacted by the project. 2.Surface and Ground Water Protection Dense vegetation in the wetlands can provide water quality improvement. The main opportunity for this function is where runoff leaves the existing parking lot. The flow path of runoff away from the parking lot will remain unaffected by the proposed project. 3.Fish Habitat The wetlands do not contain water of sufficient depth or duration to support fish habitat. 4.Wildlife Habitat Because of regular mowing and close proximity to traffic and human activity, the wetlands do not provide this function. 5.Exemplary Wetland Natural Community The wetlands do not provide this function because they are not high-quality examples of any of Vermont’s natural communities. 6.Rare, Threatened, and Endangered Species Habitat Wheeler Park is included in a 1-mile radius zone designated on the ANR Atlas as potentially supporting Northern Long-Eared Bats. While forested portions of the park might have trees capable of providing roosting habitat, the small grouping of shrubs and small trees that are proposed to be impacted by the dog park project are unlikely to provide any bat habitat. 7.Education and Research in Natural Sciences The wetlands in the project area are not likely to provide this function because of their disturbed condition that includes regular mowing. 8.Recreational Value and Economic Benefits While they exist in a recreational area, the wetlands themselves do not contribute to this function. 9.Open Space and Aesthetics The wetlands possess no features that would distinguish them as aesthetically valuable, or even to visually differentiate them from the surrounding field. 10.Erosion Control through Binding and Stabilizing the Soil The wetlands are not subject to erosive flows of water so they do not provide this function. Summary. Of the ten functions considered, only two –Water Storage for Flood Water and Storm Runoff and Surface and Ground Water Protection – are present at a low level. The proposed project is not expected to significantly impact these functions. DEPARTMENT OF THE ARMY US ARMY CORPS OF ENGINEERS NEW ENGLAND DISTRICT 696 VIRGINIA ROAD CONCORD MA 01742-2751 April 30, 2021 Regulatory Division File Number: NAE-2020-02005 Mr. Justin Rabidoux Public Works Director City of South Burlington 104 Landfill Road South Burlington, Vermont 05403 Dear Mr. Rabidoux: This letter responds to a request submitted for a jurisdictional determination (JD) on the presence or absence of waters of the United States, including wetlands, located at the intersection of Swift and Dorset Streets in South Burlington, Vermont. Michael S. Adams of this office conducted a field inspection of the site on August 4, 2020. During this inspection, areas labeled on the enclosed plan sheet, titled “Wetland Site Plan” and dated “3/19/2021” as “REVIEW AREA” were reviewed for potential Federal jurisdiction. We have determined that “WETLAND A” and “WETLAND B” are not waters of the United States and therefore not within the jurisdiction of the Corps under Section 404 of the Clean Water Act. This approved JD determination is valid for a period of five years from the date of the letter, unless new information warrants revision of the determination before the expiration date or the District Engineer has identified, after public notice and comment, that specific geographic areas with rapidly changing environmental conditions merit re-verification on a more frequent basis. The delineation included herein has been conducted to identify the location and extent of the aquatic resource boundaries and/or the jurisdictional status of aquatic resources for purposes of the Clean Water Act for the particular site identified in this request. This delineation and/or jurisdictional determination may not be valid for the Wetland Conservation Provisions of the Food Security Act of 1985, as amended. If you or your tenant are USDA program participants, or anticipate participation in USDA programs, you should discuss the applicability of a certified wetland determination with the local USDA service center, prior to starting work. Should you disagree with this approved JD, the Corps has implemented an administrative appeals process for instances when you object to the terms and conditions of JDs, permit denials, and proffered permits. A combined Notification of Administrative Appeal Options and Process (NAP) and Request for Appeal (RFA) form and flow chart explaining the appeals process and your options are enclosed. However, in order to retain your right to appeal, you must submit the enclosed NAP form within 60 days of this letter’s date. 2 For appeals of approved JDs, you must complete Section II of the NAP form (“Request for Appeal”) and submit it along with any supporting or clarifying information to naomi.j.handell @usace.army.mil or the following address (Ms. Handell’s phone is (917) 789-4841): Ms. Naomi Handell, Regulatory Program Manager Operations and Regulatory Division U.S. Army Corps of Engineers, North Atlantic Division - Fort Hamilton 301 General Lee Avenue - First Floor Brooklyn, New York 11252-6700 In order for the Corps to accept an RFA, the Corps must determine that it is complete, that it meets the criteria for appeal under 33 CFR 331.5, and that our Division Office in Brooklyn, New York has received it within 60 days of the date of the NAP. Should you decide to submit an RFA form, it must be received at the above address by June 29, 2021. It is not necessary to submit an RFA form to the Division Office if you do not object to the jurisdictional decision in this letter. Enclosed is an “Approved JD Form” and supporting documentation explaining the basis for our jurisdictional determination. If you have any questions please contact Mr. Adams, of my staff, at 802-872-2893 Sincerely, Tammy R. Turley Chief, Regulatory Division Enclosures cc: Mr. Brian Tremback, Lamoureux & Dickinson, brian@ldengineering.com Mr. Justin Rabidoux, City of South Burlington, jrabidoux@sburl.com Ms. Jackie Leclair, U.S. EPA, leclair.jackie@epamail.epa.gov for 20013-WT1.dwg 3/19/2021 15:21:16 1 : 1 NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND REQUEST FOR APPEAL Applicant: City of South Burlington File Number: NAE-2020-02005 Date: April 30, 2021 Attached is:See Section below INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission)A PROFFERED PERMIT (Standard Permit or Letter of permission)B PERMIT DENIAL C X APPROVED JURISDICTIONAL DETERMINATION D PRELIMINARY JURISDICTIONAL DETERMINATION E SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision. Additional information may be found at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/appeals.aspx or Corps regulations at 33 CFR Part 331. A: INITIAL PROFFERED PERMIT: You may accept or object to the permit. x ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. x OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. Your objections must be received by the district engineer within 60 days of the date of this notice, or you will forfeit your right to appeal the permit in the future. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a) modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify the permit having determined that the permit should be issued as previously written. After evaluating your objections, the district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below. B: PROFFERED PERMIT: You may accept or appeal the permit x ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. x APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information. x ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD. x APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved JD (which may be appealed), by contacting the Corps district for further instruction. Also you may provide new information for further consideration by the Corps to reevaluate the JD. SECTION II - REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial proffered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons or objections are addressed in the administrative record.) ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide additional information to clarify the location of information that is already in the administrative record. POINT OF CONTACT FOR QUESTIONS OR INFORMATION: If you have questions regarding this decision and/or the appeal process you may contact: Mr. Robert J. DeSista Deputy Chief, Regulatory Division U.S. Army Corps of Engineers, New England District 696 Virginia Road Concord, MA 01742-2751 Phone: 978-318-8818 Email: robert.j.desista@usace.army.mil If you only have questions regarding the appeal process you may also contact: Ms. Naomi Handell, Regulatory Program Manager Operations and Regulatory Division U.S. Army Corps of Engineers, North Atlantic Division - Fort Hamilton 301 General Lee Avenue - First Floor Brooklyn, New York 11252-6700 Phone: (917) 789-4841 Email: naomi.j.handell@usace.army.mil RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day notice of any site investigation, and will have the opportunity to participate in all site investigations. _______________________________ Signature of appellant or agent. Date:Telephone number: Administrative Appeal Process for Approved Jurisdictional Determinations Does the appeal have merit? Division engineer or designee remands decision to district, with specific instructions, for reconsideration; appeal process completed. District's decision is upheld; appeal process completed. To continue with appeal process, appellant must revise RFA. See Appendix D. Applicant decides to appeal approved JD. Applicant submits RFA to division engineer within 60 days of date of NAP. Corps reviews RFA and notifies appellant within 30 days of receipt. 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