HomeMy WebLinkAboutAgenda - Planning Commission - 09/30/2021South Burlington Planning Commission
180 Market Street
South Burlington, VT 05403
(802) 846-4106
www.sburl.com
Meeting Tuesday, September 28, 2021
City Hall, 180 Market Street, Auditorium
7:00 pm
The Planning Commission will attend this meeting in person. Members of the public may attend in
person or digitally via GoToMeeting. Participation Options:
In person: South Burlington City Hall Auditorium, 180 Market Street
Interactive Online (audio & video): https://global.gotomeeting.com/join/242749365
Telephone (audio only): (408) 650-3123; Access Code: 242-749-365
AGENDA:
1. *Agenda: Additions, deletions or changes in order of agenda items (7:00 pm)
2. Open to the public for items not related to the agenda (7:02 pm)
3. Announcements and staff report (7:05 pm)
4. *Continue review of draft amendments to the Land Development Regulations (7:20 pm)
The Planning Commission will be reviewing the complete Land Development Regulations at this and
upcoming meetings. Topics may cover all aspects of the Regulations as they relate to the work on Master
Plans, Subdivisions, Planned Unit Developments, Environmental Protection Standards, and others. Not all
topics below will be addressed at this meeting.
5. *Possible Action: Review / approve Planning Commission Report and warn Public Hearing on proposed
amendments to the Land Development Regulations
6. *Meeting Minutes: September 14, 2021
7. Other Business:
a. Review Project Schedule
8. Adjourn (9:00 pm)
Respectfully submitted,
Paul Conner, AICP,
Director of Planning & Zoning
* item has attachments
South Burlington Planning Commission Virtual Meeting Public Participation Guidelines
1. The Planning Commission Chair presents these guidelines for the public attending Planning Commission meetings to ensure
that everyone has a chance to speak and that meetings proceed smoothly.
2. In general, keep your video off and microphone on mute. Commission members, staff, and visitors currently presenting /
commenting will have their video on.
3. Initial discussion on an agenda item will generally be conducted by the Commission. As this is our opportunity to engage with
the subject, we would like to hear from all commissioners first. After the Commission has discussed an item, the Chair will ask
for public comment.
4. Please raise your hand identify yourself to be recognized to speak and the Chair will try to call on each participant in sequence.
To identify yourself, turn on your video and raise your hand, if participating by phone you may unmute yourself and verbally
state your interest in commenting, or type a message in the chat.
5. Once recognized by the Chair, please identify yourself to the Commission.
6. If the Commission suggests time limits, please respect them. Time limits will be used when they can aid in making sure
everyone is heard and sufficient time is available for Commission to to complete the agenda.
7. Please address the Chair. Please do not address other participants or staff or presenters and please do not interrupt others
when they are speaking.
8. Make every effort not to repeat the points made by others. You may indicate that you support a similar viewpoint. Indications
of support are most efficiently added to the chat.
9. The Chair will make reasonable efforts to allow all participants who are interested in speaking to speak once to allow other
participants to address the Commission before addressing the Commission for a second time.
10. The Planning Commission desires to be as open and informal as possible within the construct that the Planning Commission
meeting is an opportunity for commissioners to discuss, debate and decide upon policy matters. Regular Planning Commission
meetings are not “town meetings”. A warned public hearing is a fuller opportunity to explore an issue, provide input and
influence public opinion on the matter.
11. Comments may be submitted before, during or after the meeting to the Planning and Zoning Department. All written
comments will be circulated to the Planning Commission and kept as part of the City Planner's official records of meetings.
Comments must include your first and last name and a contact (e-mail, phone, address) to be included in the record. Email
submissions are most efficient and should be addressed to the Director of Planning and Zoning at pconner@sburl.com and
Chair at jlouisos@sburl.com.
12. The Chat message feature is new to the virtual meeting platform. The chat should only be used for items specifically related to
the agenda item under discussion. The chat should not be used to private message Commissioners or staff on policy items, as
this pulls people away from the main conversation underway. Messages on technical issues are welcome at any time. The Vice-
Chair will monitor the chat and bring to the attention of Commissioners comments or questions relevant to the discussion. Chat
messages will be part of the official meeting minutes.
13. In general discussions will follow the order presented in the agenda or as modified by the Commission.
14. The Chair, with assistance from staff, will give verbal cues as to where in the packet the discussion is currently focused to help
guide participants.
15. The Commission will try to keep items within the suggested timing published on the agenda, although published timing is a
guideline only. The Commission will make an effort to identify partway through a meeting if agenda items scheduled later in
the meeting are likely not be covered and communicate with meeting participants any expected change in the extent of the
agenda. There are times when meeting agendas include items at the end that will be covered “if time allows”.
South Burlington Planning Commission
180 Market Street
South Burlington, VT 05403
(802) 846-4106
www.sburl.com
Special Meeting Thursday, September 30, 2021
**IF NEEDED**
City Hall, 180 Market Street, Auditorium
7:00 pm
The Planning Commission will attend this meeting in person. Members of the public may attend in
person or digitally via GoToMeeting. Participation Options:
In person: City Hall Auditorium, 180 Market Street
Interactive Online (audio & video): https://www.gotomeet.me/SBCity/pc-2021-09-30
Telephone (audio only): (408) 650-3123; Access Code: 422-924-317
Note: this meeting is scheduled in the event the Commission does
not conclude its action items scheduled for 9/28.
AGENDA:
1. *Agenda: Additions, deletions or changes in order of agenda items (7:00 pm)
2. Open to the public for items not related to the agenda (7:02 pm)
3. Announcements and staff report (7:05 pm)
4. *Continue review of draft amendments to the Land Development Regulations (7:20 pm)
The Planning Commission will be reviewing the complete Land Development Regulations at this and
upcoming meetings. Topics may cover all aspects of the Regulations as they relate to the work on Master
Plans, Subdivisions, Planned Unit Developments, Environmental Protection Standards, and others. Not all
topics below will be addressed at this meeting.
5. *Possible Action: Review / approve Planning Commission Report and warn Public Hearing on proposed
amendments to the Land Development Regulations
6. *Meeting Minutes: September 14, 2021
7. Other Business:
a. Review Project Schedule
8. Adjourn (9:00 pm)
Respectfully submitted,
Paul Conner, AICP,
Director of Planning & Zoning
* item has attachments
South Burlington Planning Commission Virtual Meeting Public Participation Guidelines
1. The Planning Commission Chair presents these guidelines for the public attending Planning Commission meetings to ensure
that everyone has a chance to speak and that meetings proceed smoothly.
2. In general, keep your video off and microphone on mute. Commission members, staff, and visitors currently presenting /
commenting will have their video on.
3. Initial discussion on an agenda item will generally be conducted by the Commission. As this is our opportunity to engage with
the subject, we would like to hear from all commissioners first. After the Commission has discussed an item, the Chair will ask
for public comment.
4. Please raise your hand identify yourself to be recognized to speak and the Chair will try to call on each participant in sequence.
To identify yourself, turn on your video and raise your hand, if participating by phone you may unmute yourself and verbally
state your interest in commenting, or type a message in the chat.
5. Once recognized by the Chair, please identify yourself to the Commission.
6. If the Commission suggests time limits, please respect them. Time limits will be used when they can aid in making sure
everyone is heard and sufficient time is available for Commission to to complete the agenda.
7. Please address the Chair. Please do not address other participants or staff or presenters and please do not interrupt others
when they are speaking.
8. Make every effort not to repeat the points made by others. You may indicate that you support a similar viewpoint. Indications
of support are most efficiently added to the chat.
9. The Chair will make reasonable efforts to allow all participants who are interested in speaking to speak once to allow other
participants to address the Commission before addressing the Commission for a second time.
10. The Planning Commission desires to be as open and informal as possible within the construct that the Planning Commission
meeting is an opportunity for commissioners to discuss, debate and decide upon policy matters. Regular Planning Commission
meetings are not “town meetings”. A warned public hearing is a fuller opportunity to explore an issue, provide input and
influence public opinion on the matter.
11. Comments may be submitted before, during or after the meeting to the Planning and Zoning Department. All written
comments will be circulated to the Planning Commission and kept as part of the City Planner's official records of meetings.
Comments must include your first and last name and a contact (e-mail, phone, address) to be included in the record. Email
submissions are most efficient and should be addressed to the Director of Planning and Zoning at pconner@sburl.com and
Chair at jlouisos@sburl.com.
12. The Chat message feature is new to the virtual meeting platform. The chat should only be used for items specifically related to
the agenda item under discussion. The chat should not be used to private message Commissioners or staff on policy items, as
this pulls people away from the main conversation underway. Messages on technical issues are welcome at any time. The Vice-
Chair will monitor the chat and bring to the attention of Commissioners comments or questions relevant to the discussion. Chat
messages will be part of the official meeting minutes.
13. In general discussions will follow the order presented in the agenda or as modified by the Commission.
14. The Chair, with assistance from staff, will give verbal cues as to where in the packet the discussion is currently focused to help
guide participants.
15. The Commission will try to keep items within the suggested timing published on the agenda, although published timing is a
guideline only. The Commission will make an effort to identify partway through a meeting if agenda items scheduled later in
the meeting are likely not be covered and communicate with meeting participants any expected change in the extent of the
agenda. There are times when meeting agendas include items at the end that will be covered “if time allows”.
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
MEMORANDUM
TO: South Burlington Planning Commission
FROM: Paul Conner, Director of Planning & Zoning
SUBJECT: Planning Commission Meeting Memo
DATE: September 28, 2021 Planning Commission Special meeting
1. *Agenda: Additions, deletions or changes in order of agenda items (7:00 pm)
2. Open to the public for items not related to the agenda (7:02 pm)
3. Announcements and staff report (7:05 pm)
4. *Continue review of draft amendments to the Land Development Regulations (7:20 pm)
Included with this week’s packet are the remaining pieces of the draft LDRs:
- Planned Unit Development Section
- Traditional Neighborhood Development PUD
- Conservation PUD Type
- Building Types
The link below has these section, combined, in redline and clean version. The same webpage has last week’s
draft that was reviewed by the PC
https://cms6.revize.com/revize/southburlington/departments/planning_and_zoning/PUD_/_Master_Plan_P
roject.php
There are two meetings scheduled, to allow the PC to complete its review of:
-The above sections
-Applicability of PUDs outside the SEQ
-SEQ-NRP zoning district boundaries
-possible zoning change on west side of Hinesburg Road south of I-89 (Hill Farm and elsewhere)
5. Possible action to approve PC Report and warn public hearing on LDR amendments.
PC Report forthcoming!
6. *Meeting Minutes: September 14, 2021
7. Other Business:
a. Review Project Schedule
8. Adjourn
SOUTH BURLINGTON PLANNING COMMISSION
MEETING MINUTES
14 SEPTEMBER 2021
1
The South Burlington Planning Commission held a regular meeting on Tuesday, 14 September 2021, at
7:00 p.m., in the Auditorium, City Hall, 180 Market Street, and via Go to Meeting remote technology.
MEMBERS PRESENT: J. Louisos, Chair; B. Gagnon, T. Riehle, M. Ostby, M. Mittag, D. Macdonald, P.
Engels
ALSO PRESENT: P. Conner, Director of Planning and Zoning; S. Murray, Consultant; D. Seff, R. Greco, S.
Dooley, L. Kingsbury, C. Trombly, A. Chalnick, C. Jensen
1. Agenda: Additions, deletions or changes in order of agenda items:
No changes were made to the agenda.
2. Instructions on exiting the building in case of an emergency:
Ms. Louisos provided instruction on exiting the building in an emergency.
3. Open to the public for items not related to the Agenda:
An attorney representing UVM noted that he had sent a letter with a number of concerns regarding the
scope and effect of the proposed regulations on UVM lands. He also noted that earlier today he had
submitted a letter regarding UVM’s views of the regulations. Their concerns focus mainly on the scope
of environmental protection standards, especially habitation blocks in relation to UVM lands. The
wording of the regulations raises concerns regarding legal and statutory requirements. The hope is that
with additional clarification from the Planning Commission that UVM’s concerns can be alleviated. They
are particularly interested in Conservation PUDs.
Mr. Conner said he saw the letter briefly. He believed some comments date back to things that
happened in May and may have been modified. He will check on that. Ms. Louisos said she will make
sure the letter is distributed to all Commission members.
4. Planning Commissioner announcements and staff report:
Mr. Riehle noted a Tree Equity Campaign beginning in Burlington, Colchester and other communities
regarding tree planting. He thought South Burlington might have some people join in this tree-planting
process.
Ms. Ostby noted that Spear Meadows is beginning construction on 1 October and suggested some
residents might go in and transplant some greenery to their own parcels.
5. Continued Review of Draft Amendments to the Land Development Regulations:
a. Applicability by Zoning district:
2
Mr. Conner showed a map of “Conservation PUD Applicability by Zoning District (DRAFT)” indicating
where Conservation PUDs would be allowed. This gives a sense of the parcels being talked about.
Conservation PUDs would be mandatory in the Southeast Quadrant (SEQ) parcels indicated and would
incorporate the NRP part of the SEQ.
Mr. Conner then showed a second map with rough approximations of parcels that would be impacted (4
acres or more not already built out).
Mr. Mittag asked if there are any areas northeast of the Airport that would be eligible. Mr. Conner said
those areas could be TNDs.
Mr. Conner noted there are 2 properties along the Lake that are potentially open to a Conservation
PUD.
Mr. Conner then showed the same map with resources indicated and a map of TND applicability. He
noted that what is not shown is the NCD (Neighborhood Commercial). It would apply in places like
Williston Road, Shelburne Road and the intersection of Hinesburg Road and Kennedy Drive. The Hill
Farm could be an “either/or.” He recommended the Commission advance what they are comfortable
with and getting to the NCD and TDRs in the next few months.
Mr. Mittag asked if the Belter Farm were in a flood plain, could there be a Conservation PUD. Mr.
Conner said that area is Mixed Industrial/Commercial, similar to Ethan Allen Industrial Park.
Ms. Louisos noted 2 PUD types are applicable to the lakeshore so there could be a choice.
Ms. Louisos also noted that in the developable portion of a Conservation PUD with a TND in that area,
there would have to be a minimum density to make it viable for a developer and for the city. Mr. Mittag
said they can get about 8 units an acre. Mr. Conner said with a TND, there has to be civic space, roads,
etc., and with additional units for affordability, you get more design standards.
Ms. Ostby suggested that where a Conservation PUD is required, have the conserved portion be 60-70%
and give the owner up to 40% developable so you get about 5 units an acre and it isn’t so densely
developed. Mr. Conner said the more you can conserve of open space, the better. He had no issue with
6 units an acre. Ms. Ostby said when there is a choice, make it 70%.
Ms. Murray noted that the Town of Warren has a “hamlet” concept. She said you can have a pretty high
density development surrounded by conserved land, similar to South Village.
Mr. Gagnon said he would prefer something on the higher density side rather than 2 large “monster
houses.” Mr. Conner said there is an option to set a minimum density, not very high, but something so
you don’t get the 2 large houses. He said the plan is to have a Master Plan. The owner would have the
right to build for 10 years under the rules at the time the plan is drawn up. After that, the rules in place
at the later time would govern.
3
Mr. Mittag said 2 big houses in the 30% isn’t profitable. He added that in the southwest corner, there is
a new “McMansion” built almost every day.
Mr. Trombly, Chair of the Affordable Housing Committee, said the Committee had a discussion about
this topic. A developer told them that without a minimum density, they would probably build large
houses. He said the question is what kind of housing the city wants in the 30%. He added that at their
27 September meeting, the CCRPC will have a presentation of “housing inequality.” Mr. Trombly urged
the Commission to maximize the housing types in the 30% area and noted this was the unanimous
recommendation of the Affordable Housing Committee. They encouraged 4-plexes that fit into the
character of the neighborhood.
Mr. Gagnon encouraged a minimum density so there can be a combination of housing types.
Mr. Conner noted that with a “land-based” approach, density reverts to the underlying zoning. There is
a maximum of 4-plex units in a building. There could not be a 12-plex. With a TND approach, you can
have a mixture, but not a 20-plex. There would have to be at least 3 building types. In the land-based
approach, you would still need to have a mix of housing styles.
Ms. Ostby suggested some kind of minimum, possibly restricting the size of a single family house. Ms.
Murray said there could be a minimum density instead of a full-blown TND.
A straw poll of members showed that a majority favored requiring a variety of housing types.
Ms. Dooley, Vice Chair of the Affordable Housing Committee, reminded members that the
Comprehensive Plan’s vision is for affordable housing. She did not think this mean affordable
everywhere except the Southeast Quadrant. She also noted that people were unhappy not only with
the loss of natural resources but with how development has happened, specifically the absence of
“neighborhoods.” She encouraged the Commission to think more positively about a minimum density
as a way to counterbalance the 70% conservation of land. She stressed that if there is no minimum
density, the landowner is at the mercy of the neighbors.
Ms. Dooley then asked about the “carve-out” in a Conservation PUD. Mr. Conner explained that a
designated amount of land could be removed from a property without considering designing the rest of
the property. The size of the carve-out would be kept small, just enough to accommodate a house.
Ms. Louisos said she wasn’t sure where the minimum density went away as it was presented to both the
City Council and the public.
In a straw poll, the concept of having a minimum density in the 30% developable portion of
Conservation PUD passed 4-3.
Ms. Louisos then moved to include the minimum density of 4 units per acre in the developable portion
of a Conservation PUD. Ms. Ostby seconded.
4
Ms. Mittag moved to amend the motion to be only 2 units per acre. Mr. Riehle seconded.
Ms. Louisos said 4 units/acre would make for a walkable neighborhood.
Mr. Trombly questions whether 2 units/acre serves the city’s housing need or whether it would restrict
those houses to people who can afford them.
Mr. Chalnick asked if a minimum density is allowed. Ms. Murray said it is common around the country
and has been adopted largely to protect the investment and to create walkable neighborhoods.
Members voted on the amendment which failed 3-4.
Members then voted on the original motion to include a minimum density of 4 units per acre in the
developable portion of a Conservation PUD. The motion passed 4-3.
Regarding the “carve-out,” Mr. Gagnon asked if there would be a minimum acreage. Mr. Conner
suggested a 10-acre parcel or more with one carve-out of no more than 4 acres.
Mr. Gagnon moved to approve the language as currently written. There was no second to this motion.
Mr. Macdonald moved to retain the language but reduce the 4 acres to 2 acres to be carved out. Ms.
Ostby seconded. Motion failed 3-4
Mr. Mittag moved to allow a 4-acre carve-out from a parcel of 6 acres or more. Mr. Gagnon seconded.
Ms. Ostby noted you then can’t have a Conservation PUD.
Mr. Mittag then amended his motion to allow a 4-acre carve-out from a parcel of 8 acres or more. Mr.
Gagnon seconded. The motion failed 3-4.
Mr. Engels moved to eliminate carve-outs. Ms. Ostby seconded. The motion failed 3-4.
Ms. Louisos moved to allow one carve-out of 1 acre where there is a requirement for Conservation PUD.
Mr. Riehle seconded. Motion failed 3-5.
Mr. Ostby suggested creating a sliding scale to create a carve-out with a minimum one acre for 5 acres
or more with a sliding scale at increments of ½ an acre.
Mr. Conner then asked members what they would support in the way of a carve-out. The responses
were:
Mr. Engels – no carve-out; Mr. Mittag – 1 acre for every 10 acres of parcel size; Mr. Gagnon, Mr.
MacDonald, and Ms. Louisos – 2 acres with 6 acres or more; Ms. Ostby – 2 acres with no minimum
acreage; Mr. Riehle – at least one 1-acre carve-out with a minimum of 4 acres.
5
Ms. Louisos then moved that with a minimum of 4 acres, to allow a carve-out of up to 2 acres as long as
there are 4 acres remaining. Mr. Riehle seconded. Motion passed unanimously.
Members then considered whether to require a Conservation PUD in the SEQ. Mr. Conner said the draft
language is to require the Conservation PUD in the SEQ when there are 4 or more acres except for land
zoned Village Residential or Village Commercial, in which case the owner can choose.
Mr. Gagnon moved to approve the language as written with the noted exceptions of VR and VC zoning.
Mr. Mittag seconded.
Ms. Ostby asked how many parcels have 70% or more natural resources. Mr. Conner said not very
many. Ms. Ostby said the Conservation PUD is usually required where there are 70% resources. This
language says even land with those resources would have to have Conservation PUD. She felt Article 12
and the NRP are very robust, and she had an issue requiring a Conservation PUD that are so far from
70% natural resources. Mr. Chalnick noted that some resources (e.g., meadows) are not protected by
Article 12.
Ms. Jensen expressed concern with fairness and noted that conditions have not been verified on the
ground. She felt the Commission is severely restricting the rights of landowners. She said if the citizens
and the city are so concerned with resources, they should buy the land.
Mr. Mittag said it is important to keep open land for the health of those who follow us.
Mr. Gagnon then restated the motion to require a Conservation PUD on parcels of 4 or more acres in
the SEQ, NR, NRP, and NRN zones. Mr. Mittag seconded. Motion passed 6-1.
Mr. Gagnon then moved to allow the option for a Conservation PUD or a TND in the Village Residential
and Village Commercial zoning districts. Mr. Mittag seconded. Motion passed 6-1.
Mr. Conner confirmed that for parcels under 4 acres, the underlying zoning plus TDRs would apply. The
Commission could said that TDRs are not allowed. Mr. Gagnon was OK with allowing them if the
property is adjacent to a developed area.
Members were OK with the draft language as long as a landowner can’t get more than the 30% would
allow.
Mr. Engels noted he had sent in some suggested language changes including adding open meadows and
grasslands to 15.06C1 and requiring a Conservation PUD on 4 acres or more even if some is in the NRP
and requiring a Conservation PUD with 25% resources.
Mr. Conner noted the first suggestion has already been voted on. Mr. Gagnon suggested saving the
other suggestion for a future discussion.
6
Ms. Louisos noted that staff recommends that the Neighborhood Commercial not be included in these
LDRs but be taken up after Interim Zoning. Members felt they were not yet ready to discuss this.
Mr. Conner noted that Ms. Murry has added a “smaller TND” concept to the language, similar to the
“infill PUD” concept. Mr. Mittag said that is where affordable housing can be done. He suggested taking
this up after Interim Zoning. Mr. Conner suggested including this only
where TNDs are allowed.
Ms. Murray suggested having graphics where dealing with infill PUDs as there are concerns with design
standards.
Mr. Conner stressed that 2-4 acre parcels need more analysis when the Commission has time to look at
them in order to get a better product.
Mr. Conner then outlined the areas still to be done:
a. Zoning adjacent to the NRP
b. I-O area
c. Applicability of TNDs to the rest of the city
d. Lakeshore: what to require
e. “housekeeping” items
6. Other Business:
Mr. Conner noted the next 3 Commission meetings are on 23 September, 28 September, and 30
September.
As there was no further business to come before the Commission, the meeting was adjourned by
common consent at 10:28 p.m.
___________________________________
Clerk
Wm. Andrew MacIwaine, Esq.
amacilwaine@dinse.com
September 14, 2021
South Burlington Planning Commission
575 Dorset Street
South Burlington, VT 05403
(Via email only)
Re: Comments and Concerns Regarding Draft Amended Land
Development Regulations Affecting the University of
Vermont’s Real Property in South Burlington
Dear Commissioners,
Dinse P.C. represents the University of Vermont and State Agricultural
College in connection with certain real property that the University owns in South
Burlington. We write to express the University’s ongoing concerns regarding the
proposed draft amendments to the South Burlington Land Development
Regulations (“LDR”). These concerns were recently outlined in the May 11, 2021
letter you received from Vice President of Finance and Administration for the
University, Richard H. Cate. In addition to the many unanswered questions raised
in Mr. Cate’s letter, we also have questions about the scope and application of the
recent revisions to the draft Environmental Protection Standards (“EPS”) and the
proposed draft Conservation PUD regulations.
As you know, the University owns several properties in South Burlington,
most of which are currently zoned as Institutional and Agricultural (“I-A”). The
University has developed its Campus Master Plan in accordance with and in
reliance on the current zoning restrictions. However, the Planning Commission’s
(“PC”) proposed EPS regulations in Article 12 of the draft LDR propose further
restrictions on some University-owned parcels through the designation of so-called
Habitat Blocks and Connectors (“HB”). The HB designation, if lawful, would limit
future development of those parcels, placing substantial restraints on the
University’s ability to implement its Campus Master Plan and execute its
educational mission. While the draft regulations provide certain exemptions and
procedures for obtaining relief from HBs, it is not sufficiently clear from the current
wording of the draft amendments whether the PC deems University lands to be
qualifying.
DINSE P.C.
South Burlington Planning Commission
September 14, 2021
Page 2
Mr. Cate’s May 11, 2021 letter summarizes the University’s major concerns
regarding the proposed EPS regulations and their application to University lands.
Consistent with the Interim Zoning Committee’s recommendation that “the city
work with UVM to better understand their long-term goals for properties within
South Burlington,” UVM had hoped that the PC would consider the University’s
comments and attempt to address them through the draft revisions to the PUD
regulations under Article 15, which were recently completed. But after reviewing
the proposed draft Conservation PUD regulations and the further revised EPS
regulations, we were disappointed by the lack of any clear language, standards, or
provisions addressing University lands.
UVM is under the impression that the Planning Commission may be willing
to have further discussions regarding overall zoning and future use of its lands in
South Burlington consistent with the Interim Zoning Committee’s recommendation
and the University’s historical practice, and we welcome that future discussion.
However, the PC has also made it clear that its members intend to finish their work
on Articles 12 and 15 before having these discussions. We are hopeful that the PC
will not wait for the overall discussion of zoning on UVM lands to revisit the draft
amendments and will address the lack of clarity surrounding HB designation and
its problematic restrictions on University lands, its Campus Master Plan, and its
educational mission. While the University would prefer to address these issues in
collaboration with Planning and Zoning, given our concerns about the legality of the
draft amendments and the need to protect the University’s rights, we are currently
considering all available options including potential legal action.
As currently drafted, the restrictions that the proposed amendments would
place on the University’s right to use and develop its lands raise serious doubts
about their compliance with enabling legislation and the State and federal
constitutions. First, the designation of HBs affecting University lands appears to be
in conflict with the express limitations set forth in 24 V.S.A. § 4413 (“Limitations on
municipal bylaws”). See Town of Waterford v. Pike Industries, Inc., 135 Vt. 193,
195, 373 A.2d 528, 530 (1977) (PC’s authority to enact zoning regulations exists by
virtue of authority delegated from the state and may be exercised only in
accordance with that delegation). Under § 4413(a)(1)(B), public schools and
educational institutions “may be regulated only with respect to location, size,
height, building bulk, yards, courts, setbacks, density of buildings, off-street
parking, loading facilities, traffic, noise, lighting, landscaping, and screening
requirements, and only to the extent that regulations do not have the effect of
interfering with the intended functional use . . . .” (emphasis added). While Article
12(C) acknowledges that the regulations do not apply to uses that are “exempt”
under § 4413, nothing in the proposed regulations or related correspondence,
minutes, or notes from the PC addresses application to University land. To be
DINSE P.C.
South Burlington Planning Commission
September 14, 2021
Page 3
clear, HB designation is not a recognized category applicable to University lands,
and the proposed regulations appear to prohibit the intended functional use of those
lands. Nothing in § 4413(a) gives the PC authority to regulate University land in
this manner.
Second, even assuming (for the sake of argument only) that the PC were
authorized to regulate University lands in the manner proposed under the draft
amendments to the LDR, the proposed regulations lack meaningful clarity
concerning their intended scope and effect. The Vermont Supreme Court has held
that “all ordinances are subject to the limits of our Constitution” and the Vermont
Supreme Court “will not enforce laws that are vague or those that delegate
standardless discretion to town zoning boards.” In re Appeal of JAM Golf, LLC,
2008 VT 110, ¶ 17, 185 Vt. 201, 969 A.2d 47. Regulations are
unconstitutionally vague when they either fail to provide sufficient clarity around
prohibited conduct or allow for arbitrary enforcement. City of Chicago v.
Morales, 527 U.S. 41, 56 (1999); see also In re Handy, 171 Vt. 336, 345-46, 764 A.2d
1226, 1235-36 (2000).
Here, the proposed amendments to Articles 12 and 15 of the LDR (again,
assuming they would even apply to University lands under § 4413) are likely
unconstitutional because they lack sufficient clarity and standards. In addition to
numerous undefined terms, the proposed amendments lack clear guidance for the
University to determine how its lands would be affected by the EPS regulations.
For example, the general standard proposed for HBs is that “all lands within a [HB]
must be left in an undisturbed, naturally vegetated condition.” Article 12.04(F).
While Article 12.04(D) allows an applicant to request a modification of a mapped
HB, the modifications arguably would not apply to the University’s parcels because,
under subsection (D), land “owned by a public entity shall not be eligible for any of
the modification methods for habitat blocks subject to this section.” The wording of
subsection (D) could effectively preclude any modification of HBs for University
lands. At a minimum, Subsection (D)’s application to University land is unclear.
Another potential option for relief from the HB restrictions for the University
is under Article 12.04(E), which gives the DRB authority to “approve exclusion of an
area of land within the HB not to exceed thirty (30) percent of the total lot area.”
The problem with this provision is that it gives the DRB unfettered discretion to
decide whether to grant relief and, if granted, the extent of relief up to the 30% of
total land area maximum. The Vermont Supreme Court has previously rejected
standardless regulations that effectively permit municipal panels to decide on an ad
hoc basis what properties qualify for conservation restrictions. See, e.g., Handy, 171
Vt. at 349 (“Flexibility cannot be a synonym for ad-hoc decision making that is
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South Burlington Planning Commission
September 14, 2021
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essentially arbitrary.”); see also In re Programmatic Changes to Standard-Offer
Program, 2014 VT 29, 196 Vt. 175, 95 A3d 999.
The DRB may also exclude land from HB designation if it is part of a
Conservation PUD. Article 12.04(b)(3). Unfortunately, the proposed Conservation
PUD regulations do not give us confidence that the PC is attempting to address the
University’s concerns about the overbroad restrictions placed on University lands
under the EPS regulations. If the PC determines that a Conservation PUD should
not be allowed in the I-A district, then the amended regulations would purport to
deprive the University of virtually any development potential for the four parcels
that are subject to HB designation (Edlund, East Woods, Wheelock West, and
Centennial Woods).
Accordingly, the proposed regulations would effect regulatory takings for
which the University is entitled to just compensation. Although jurisprudence in
this area often requires a specific fact-based analysis, the United States Supreme
Court imposed a rare bright line rule for any regulation that “denies all
economically beneficial or productive use of land.” Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1016 (1992). As the Court explained, “when the owner of
real property has been called upon to sacrifice all economically beneficial uses in the
name of the common good, that is, to leave his property economically idle, he has
suffered a taking.” Id. at 1019. Requiring land to be left “substantially in its
natural state”—even when done with the goal of conferring significant benefits to
the public or protecting valuable natural resources—is a total regulatory taking
requiring compensation. Id. at 1016; see also Penn. Coal Co. v. Mahon, 260 U.S.
393, 416 (1922) (“[A] strong desire to improve the public condition is not enough to
warrant achieving the desire by a shorter cut than the constitutional way of paying
for the change.”).
Here, any area that is ultimately designated as an HB cannot be put to any
economic use because it must remain “undisturbed.” Like the regulation in Lucas,
imposition of an HB is effectively unconditional and will permanently deprive the
University’s use of the entire area. Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U.S. 302, 329-32 (2002). Although the University
would prefer to work with the City to avoid this result, it will have no choice but to
pursue compensation for the City’s regulatory taking if its concerns are not
addressed.
We appreciate your thoughtful consideration of the issues that we have
raised. While this letter is not intended to cover all of the potential deficiencies
concerning the scope and wording of the proposed amendments to the LDR, to avoid
litigation it is imperative that the University be provided with better clarity
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South Burlington Planning Commission
September 14, 2021
Page 5
regarding the intended scope of the above-referenced regulations and their
implications for University lands. We hope we will be able to work together to
resolve these important issues and concerns.
Sincerely,
Wm. Andrew MacIlwaine
cc: Helen Reihle, City Council Chair, City Council of South Burlington
John Collins, UVM Office of the General Counsel
Lisa Kingsbury, UVM Associate Director of Planning
Lani Ravin, UVM Associate Planner