HomeMy WebLinkAboutMP-04-01 SD-05-92 - Decision - 1840 Spear StreetFILED
) De C:us Lcv)_-5
STATE OF VERMONT FEB 12 2007
ENVIRONMENTAL COURT
VERMONT
Docket TWIRONMENTAL COURT
IN RE: APPEAL of SKIP & DENISE ) 27-2-06 Vtec
VALLEE ) 111-5-06 Vtec
116-5-06 Vtec
74-4-05 Vtec
196-8-06 Vtec
Consent Decree & Order
The parties to the above -referenced appeals, SOUTH VILLAGE, LLC, R.M. "SKIP"
VALLEE, DENISE VALLEE, THE CITY OF SOUTH BURLINGTON, and THE STATE OF
VERMONT AGENCY OF NATURAL RESOURCES ("ANR"), have stipulated to this Consent
Decree and Order (the "Consent Decree"). Based upon the agreements and the stipulation of the
parties to the above -referenced appeals, it is hereby ORDERED and ADJUDGED as follows:
I. Within five days of acquisition of lands upon which the Project (as defined
below) is to be constructed, South Village LLC shall record a restrictive easement
providing for the following:
No Development Area. Except as provided in this paragraph, no housing units or other
above -ground structures shall be erected within the "No Development Area" shown on
Exhibit A. Subject to any applicable ANR permitting requirements, this paragraph shall
not prevent the following activities in the No Development Area: (1) the placement and
use of the recreational path, as shown on Exhibit A, to be located as shown on Exhibit A
or such other location as may be agreed to by the R.M. "Skip" Vallee or Denise Vallee
(the "Vallees") in writing and approved by the South Burlington Development Review
Board; (2) the placement of underground utilities, which includes stormwater systems,
and any above ground infrastructure (such as utility cabinets), to the extent necessary to
service the underground utilities and to the extent the same do not exceed the typical
height or size for such structures; (3) the use of the No Development Area for ingress and
egress to other portions of the project described herein (the "Project") by random
pedestrians and hikers and as reasonably necessary during maintenance and construction
of the Project; and (4) maintenance of the No Development Area as may be, and to the
extent, reasonably necessary (A) to implement with "South Village, a Conservancy
Community Ecological Restoration and Management [Program], South Burlington,
Vermont," dated December 17, 2004 by Applied Ecological Services, Inc.; (B) to comply
with any regulatory or legal requirement; (C) to remove from land vegetation that South
Village LLC reasonably determines to create a danger of injury to persons or property;
and (D) for emergency access.
Limited Development Corridor. Except as provided in this paragraph, no housing units
or other structures shall be constructed within the "Limited Development Corridor"
shown on Exhibit A. The restrictions of this paragraph shall not prevent the following in
the Limited Development Corridor: (1) the placement and use of the recreational path, as
shown on Exhibit A, to be located as shown on Exhibit A or such other location as may
be agreed to by the Vallees in writing and approved by the South Burlington
Development Review Board; (2) the placement and use of (i) a single through -road of a
width no greater than 26 feet (curb to curb), including shoulders, as well as underground
utilities, provided that such through -road shall be within 60 feet of the proposed road
labeled as "Allen Road East" shown on Exhibit A and (ii) a single access road to the so-
called "Northwest Pod of Phase 3" (as shown on Exhibit A) with a curb to curb width of
no more than 26 feet, including shoulders, and within 60 feet of the proposed road
labeled as "Stafford Street" (as shown on Exhibit A); (3) the placement of underground
utilities, which includes stormwater systems, and any above ground infrastructure (such
as utility cabinets), to the extent necessary to service the underground utilities and to the
extent the same do not exceed the typical height or size for such structures; (4) use of the
Limited Development Corridor for ingress and egress to other portions of the Project by
random pedestrians and hikers and as reasonably necessary during maintenance and
construction of the Project; and (5) maintenance of the Limited Development Corridor as
may be, and to the extent, reasonably necessary (A) to implement the "South Village, a
Conservancy Community Ecological Restoration and Management [Program], South
Burlington, Vermont," dated December 17, 2004 by Applied Ecological Services, Inc;
(B) to comply with any regulatory or legal requirement; (C) to remove from land
vegetation that South Village reasonably determines to create a danger of injury to
persons or property; and (D) for emergency access. As a further condition to any
development (including the construction of any road in the Limited Development
Corridor), street trees shall be planted on either side of such road at reasonable intervals
subject to approval by the South Burlington Development Review Board.
Further Limitations on Phase 3. No more than six total lots, with six total primary units,
will be constructed in the so-called "Southwest Pod of Phase 3" (as shown on Exhibit A),
with three of those six lots being located on each side of the planned road running
through the Southwest Pod of Phase 3 in the locations shown on Exhibit A. The
maximum height of the buildings to be constructed on such lots shall not exceed thirty-
one feet from the finished first floor of the buildings (which finished first floor shall be at
or near grade) to the top of the buildings' ridgelines, customary flues, vents and television
antennae excepted. The locations of the six building lots in the Southwest Pod of Phase
3, which are located in the immediate vicinity of where lots numbered two through six
were identified on previous Project plans, are marked as "S" on Exhibit A. Two of these
lots border the Limited Development Corridor and that the placement of these lots and
the buildings abutting the Limited Development Corridor shall not be considered a
violation of the restrictions otherwise applicable to the Limited Development Corridor, as
further described in the immediately preceding paragraph. No more than three primary
residences shall be constructed on each side of the road in the Southwest Pod of Phase 3
and all construction in Phase 3 shall comply with the height restrictions as set forth in the
City of South Burlington Land Development Regulations (the "Zoning Regulations")
existing on the date hereof and all Accessory Residential Units shall comply with the
requirements set forth in the Zoning Regulations, Section 3.10E existing on the date
hereof.
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II. Any recreational path located in the No Development Area or the Limited
Development Area shall be located as shown as on Exhibit A and Exhibit B or such other
location as may be agreed to by the Vallees in writing and approved by the South
Burlington Development Review Board. To the extent Exhibit A and Exhibit B are
inconsistent, the locations shown on Exhibit B shall be controlling. Any municipal
recreational path running in a generally north -south direction on lands abutting that are
owned by the Vallees shall not be constructed within 130 feet of the property owned by
the Vallees.
III. The "Decision" portion of the South Burlington Development Review Board
Order, dated February 10, 2006, to approve Master Plan Application #MP-04-01 (the
"February 10, 2006 Decision") is amended as follows:
A. Line 5 is amended to read "#MP-04-01 is hereby approved subject to the
Consent Decree which is controlling and the following conditions."
B. After the following:
a. Phase 1: Village Center: This phase of the Master Plan, as
proposed through this application, is approved as a
development area.
b. Phase 2: Fields Edge: This phase of the Master Plan, as
proposed through this application, is approved as a
development area.
C. Phase 3: The Ridge: This phase of the Master Plan, as
proposed through this application, is approved as a
development area.
the following is inserted: "The developable areas in each of Phases 1, 2,
and 3 are as shown on Exhibit C attached to the Consent Decree, which
shall be the approved Master Plan to which the Decision refers."
C. Condition 23 is modified to read as follows:
"23. The Recreation Path in Phase 3 (the Ridge Neighborhood) shall be
constructed when foundations and building -related site work are substantially
completed for the buildings on the southern -most lots in Phase 3. Surety for
completion of this portion of the Recreation Path shall be provided at the issuance
of the zoning permit for the 185`h market -rate unit."
IV. The "Decision" portion of the South Burlington Development Review Board
Order, dated May 3, 2006, to "approve Final Plat Application 4SD-05-92 (the "May 3,
2006 Decision") is amended as follows:
A. Condition 2 is deleted and the following is inserted in its place:
"This project shall be completed as shown on the plat entitled
Exhibit D attached to the Consent Decree."
K
B. After the following numbers — 3, 4, 5, 7, 9, 10, 11, 13, 14, 15, 16, 17, 22 —
and before the text of each condition, the following is inserted:
"In accordance with the Consent Decree which shall be
controlling".
C. The following is added to Condition 17: "The conveyances described in
such legal documents shall be subject to the terms and conditions of the
Consent Decree."
D. Condition 26 is amended to insert after "The final plat plan" the words "as
modified by the Consent Decree".
V. Except as modified by Paragraphs I, II, III and IV of this Consent Decree, the
February 10, 2006 Decision and the May 3, 2006 Decision shall be in full force and
effect.
VI. The District Four Environmental Commission's August 3, 2006 Findings of Fact,
Conclusions of Law and Order #4C1160 ("August 3, 2006 Order") is hereby vacated and
reversed with respect to the Commission's conclusion of law with respect to Act 250
Criterion 1[G] that the May 1, 2006 CUD and the Project do not comply with Criterion
1 [G] (wetlands). The August 3, 2006 Order is also hereby vacated and reversed with
respect to its conclusion of law that the Project does not comply with Criterion 10
(municipal plan). Docket No. 196-8-06 Vtec is remanded to the District Four
Environmental Commission for a finding that the May 1, 2006 CUD and the Project, as
modified herein, complies with Act 250 Criterion 1 [G] addressing wetlands and Criterion
10, addressing the municipal plan.
VII. The Conditional Use Determination No. 2001-274 issued by the State of Vermont
Agency of Natural Resources, Department of Environmental Conservation (VTDEC),
dated May 1, 2006 (hereinafter the May 1, 2006 CUD) shall remain in full force and
effect, except as amended to reflect certain descriptive and ministerial amendments which
shall be set forth by VTDEC in a letter of amendment which shall be attached to the May
1, 2006 CUD and made part thereof. Docket No. 116-5-06 Vtec is therefore remanded to
VTDEC for issuance of a letter amendment to the May 1, 2006 CUD which reflects the
following stipulated facts:
(A) Pursuant to the Settlement Agreement, dated 1$ , 2006,
among R.M. "Skip" Vallee, Denise Vallee and South Village,
LLC, the Applicant has proposed amendments to the May 1,
2006 CUD which VTDEC has determined, and which all parties
hereto hereby stipulate, result in less impacts to the subject
wetlands than the original proposal approved by VTDEC;
(B) Such changes reflect an overall density reduction in Phase
III, a reduction of units in Phase III, and the relocation of some
units to Phase II of the development;
(C) Overall impacts to Class Two wetlands remain unchanged
from the original approved proposal (19,844 sq ft) with a slight
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reduction of buffer impacts (170 sq ft less than the original
proposal);
(D) The changes reduce the overall footprint of the development
in Phase III, reduce the number of people living in the Phase III
development, and increase the buffers between the development
and the Class Two wetlands; and,
(E) VTDEC has accordingly found that the proposed
amendments will not result in an undue adverse effect to any of
the functions provided by the Class Two wetland complex on
the subject property.
IX. Docket No. 196-8-06 Vtec is remanded to the District 4 Environmental
Commission for issuance of master plan approval in accordance with the South Village's
application, as modified by this Consent Decree and Order and the attached Plans,
Exhibits A-D.
X. This Court's Decision on Pending Motions, dated July 6, 2006, in Docket No. 74-
4-05, and Decision on Appellee -Applicant's Motion to Reconsider and Amend, dated
September 14, 2006, Docket No. 74-4-05, are hereby vacated and shall have no force or
effect.
XI. This Order constitutes a full and final resolution of all appeals in the above -
captioned appeals, which, subject to compliance with terms of this Order, are hereby
terminated with prejudice. The intent of this Order to provide South Village, LLC with
such zoning and Act 250 permits and wetlands conditional use determinations as it has so
far applied for as necessary to enable construction in accordance with this Consent
Decree and Order. Notwithstanding the foregoing, in any future proceeding brought
pursuant to the reopening language contained in paragraph 8 of the Settlement
Agreement, dated 18 , 2006, among R.M. "Skip" Vallee, Denise Vallee and South
Village, LLC, between South Village, LLC including its successors and assigns, and
either R.M. "Skip" Vallee or Denise Vallee or both, including each of their heirs,
successors and assigns, none of the findings issued in any proceeding appealed in this
docket shall be referred to or admitted as evidence either to interpret this Order or to
support approval or disapproval of future proposals, if any.
XII. The State of Vermont and ANR maintain continuing jurisdiction over the Project
with respect to the terms and conditions of the May 1, 2006 CUD, and may at any time
order remedial measures be taken if it appears likely that adverse impacts to protected
wetland functions and values will occur, and to assure future compliance with all statutes,
rules and regulations applicable to the facts set forth in the May 1, 2006 CUD, or any
amendment(s) thereto. Nothing herein relieves the Applicant of the responsibility to
comply with any other applicable federal, state and local laws, regulations and permits.
R• G bDC--X_b
So ORDERED and ADJUDGED at B=rmont, thi t2'day of Jaooary, 2007
w7
The Hono ble Thomas Durkin
Date: 4 I (�z (t'o 6 i
Date: p210L/07
Date:
Date: 1r a-q--0 4-
521337 v1:8346-00005
SOUTH VILLAGE COMMUNITIES, LLC.
BY: PAUL FRANK + COLLINS P.C.
BY: -
Mark G. Hall, Esq.
PO Box 1307
Burlington, VT 05402-1307
CITY OF SOUTH BURLINGTON
BY: STITZEL, PAGE & FLETCHER, P.C.
BY: J. ?
Amanda S.E. Lafferty, Esq.
PO Box 1507
Burlington, VT 05402-1507
SKIP AND DENISE VALLEE
BY: BUR.AK ANDERSON & MELLONI, PLC
BY:
Jon T. Anderson, Esq.
PO Box 787
Burlington, VT 05402-0787
STATE OF VERMONT, AGENCY OF
NATURAL RESO
BY:
ar L. Lucas, Esq.
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P.O. BOX 485 SHELBURNE, VT 05482
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