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HomeMy WebLinkAboutAgenda 05_835 Hinesburg Rd_Atty LtrsAugust 30, 2021 E-MAIL AND MAIL South Burlington City Council 180 Market Street South Burlington, VT 05403 Re: Proposed Planning Commission Revisions to LDRs Dear Commission Members: This Firm represents 835 Hinesburg Road, LLC, and its principals, Jeff Davis and Jeff Nick, in connection with the lands known as the Hill Farm located on Hinesburg Road (the “Property”). Our clients are frustrated and disappointed at direction taken by the Planning Commission for the rezoning of their Property – a direction which is the complete opposite of what has been discussed and planned over the years. Our clients purchased the Property over 20 years ago. They bought it for development potential as it was located immediately next to I-89, fronted on VT Highway Rte. 116, and was on the route of the long planned Swift Street Extension. In addition, significant development had occurred (and continues to occur) on all 4 sides of the property. Our clients carefully watched development patterns in the area and awaited the fate of the long discussed Exit 12B (right on the property). They met frequently with South Burlington City officials and were repeatedly assured that South Burlington regarded this land as a high growth area. Their intent was to develop the property in a manner consistent with the above activity. Over the years they have spent millions of dollars acquiring and maintaining the property and paying the taxes. In 2015, our clients began working with the Planning Commission on a conceptual design and rezoning of the Property to promote the development of the Property in a manner consistent with the surrounding residential and mixed uses and the east-west Swift Street connector. While the City of South Burlington has previously zoned Hill Farm for industrial uses, both the City and my clients thought that the City should rezone the property for a number of reasons. First, the 2016 Official Map designates this Property as the location for the Swift Street extension – a long awaited east-west connection from the residential uses on Dorset Street to Hinesburg Road. Second, the Property is adjacent to lands that have been developed for residential and mixed uses. Third, the Chittenden Regional Planning Commission (“CCRPC”) designated the Hill Farm as an “Enterprise Zone” which is an area planned for “a future concentration of employment uses that Matthew B. Byrne Shareholder mbyrne@gravelshea.com A PROFESSIONAL CORPORATION 76 St. Paul Street P.O. Box 369 Burlington, Vermont 05402-0369 Telephone 802.658.0220 Facsimile 802.658-1456 www.gravelshea.com South Burlington City Council August 30, 2021 Page 2 attract workers from the County and multi-county region.” 2018 CCRPC Regional Plan at Map 2; Supplement 3 at 6. As a result, the exclusive development of the Property for industrial uses no longer appeared to be in the best interest of the land planning and zoning goals for the City or the CCRPC. As part of this process to change the zoning, our clients presented schematic designs and layouts for the Property to the Planning Commission, and the Planning Commission led our clients to believe that they would work, in good faith, on a zoning change that would promote the mixed- use development plan reflected in the schematic designs. The Planning Commission “Members liked the concept.” See Planning Commission Minutes, March 24, 2015, Item 6. The Planning Commission went so far as to hire a consultant to develop the framework for the zoning change. Our clients met with the consultant on more than one occasion to work on crafting new regulations. Encouraged by these efforts and wanting to work with the City in a fair and responsible manner, our clients specifically refrained from pursuing any industrial development on the Property during this time period. The Planning Commission’s work on this zoning change came to a halt when the City adopted Interim Bylaws on November 13, 2018, as extended November 2, 2020. The Interim Bylaws halted all progress on the collaborative work towards a zoning change to promote the mixed use development of the Hill Farm. In its place, the Planning Commission has been pursuing new regulations in an effort by private interests to take unconstitutionally a significant portion of the Property. Their efforts appear to be specifically focused on the Hill Farm. There is no legitimate public interest of the City as a whole to support this unconstitutional taking orchestrated by these individual interests. Our clients have a long history of working cooperatively with the City and other municipalities where they work. They strongly believe that a collaborative process is in the best interests of all parties, for both the short-term and long-term. And while they are not opposed to reasonable and narrowly tailored conservation areas in connection with a comprehensive zoning change that would promote the mixed use development of the Property consistent with their schematic designs, they are unwilling to consider those issues in a vacuum or in a piecemeal fashion. At this point in time, the Planning Commission’s sole focus appears to be on the conservation of large portions of the Property (now approximately 40 acres), and not on the creation of a new regulations to promote the mixed use development of this Property. Because the Planning Commission has not been willing to broaden its focus to work on a comprehensive zoning change promoting mixed use, our clients feel that they have no choice other than to immediately file an application for the full development of the Property for industrial uses under the current gravel & shea ATTORNEYS AT LAW South Burlington City Council August 30, 2021 Page 3 regulations. That, obviously, is not their first choice, but the Planning Commission has not provided them with any other. Very truly yours, Gravel & Shea PC Matthew B. Byrne MBBdbb South Burlington Planning Commission (e-mail) South Burlington Development Review Board (e-mail) cc: November 2, 2021 South Burlington Planning Commission 1800 Market Street South Burlington, VT 05403 South Burlington City Council 1800 Market Street South Burlington, VT 05403 Re: Proposed Amendments to South Burlington Land Development Regulations Dear Commissioners and Council Members: We write in opposition to some of the proposed amendments to South Burlington Land Development Regulations. We have previously written about our concerns in our earlier letter. We object to the proposed amendments because: (1) they are not faithful to the statutory definition of “Forest block,” (2) they represent inappropriate reverse spot zoning, and (3) they are an unconstitutional taking. First, we have reviewed the proposed regulations and have concluded that they do not properly implement state law. In particular, the concept of “Forest block” in the state statute means something different from the “Habitat block” that South Burlington has adopted.1 The state statute developed as an attempt to balance development with protection of “large areas of contiguous forest.” See 2014 Act 188 S 1(2); see also 24 V.S.A. § 4303(34) (defining “forest block” as “a contiguous area of forest . . . ). South Burlington’s own consultant, Arrowwood Environmental, concluded that “South Burlington does not contain large areas of continuous forest cover.” Arrowwood Environmental, LLC, “City of South Burlington Habitat Block Assessment & Ranking 2020,” (“Arrowwood 2020”) at 1. The consultant’s report also notes the “Habitat blocks” in South Burlington “are likely too small by themselves to support breeding populations of wide ranging wildlife species such as bobcat and fisher.” Arrowwood 2020 at 13. To make up for the obvious disconnect with the statute, South Burlington simply designated certain areas as “Habitat blocks” without reference to an intrinsic qualities associated with the land. Definition of “Habitat block” in LDRs. The City of South Burlington purported to 1 As you know, “Forest Block” is defined in 24 V.S.A. § 4303(34). The related concepts of “Forest fragmentation,” “Habitat connector,” and “Recreational trail” are defined in 24 V.S.A. § 4303(35), (36) & (37). The concept of “Habitat block” is found throughout the amendments, including the definition of “Habitat block” and Section 12.04 and 12.05. Matthew B. Byrne Shareholder mbyrne@gravelshea.com A PROFESSIONAL CORPORATION 76 St. Paul Street P.O. Box 369 Burlington, Vermont 05402-0369 Telephone 802.658.0220 Facsimile 802.658-1456 www.gravelshea.com South Burlington Planning Commission November 2, 2021 South Burlington City Council Page 2 use Arrowwood’s analysis, but Arrowwood’s analysis simply used a relative ranking system rather than any analysis of whether the land in question was a forest block. Arrowwood at 1. Moreover, Arrowwood’s own definition of “Habitat Block” did not look at whether there was any forest, but whether the size of the lot could potentially support certain wide ranging species. Id. Arrowwood has acknowledged that they did not walk the land to see what the conditions were on the land and whether there were any species present. In other words, the chief criteria to being designated a “Habitat block” is the size of the parcel, not any intrinsic values of the land itself. The proposed South Burlington regulations use the concept of “Habitat block” to block development without regard to whether there are any real forest blocks to protect. South Burlington’s use of “Habitat blocks” is an attempt to protect land that is already fragmented from the natural world -- not “large areas of contiguous forest.” In the case of my client’s piece of land, South Burlington’s attempt to describe areas of their property as a forest block or habitat block is misguided. One of the chief aims of the state statute is to maintain connections between forest blocks. 2015 Act 171 § 14. The idea is to allow species to move between various forest blocks. Here, no one should want species to move north of my client’s property. Interstate 89 sits just north of the property. In addition, there are no forest blocks on the property on the other side of Interstate 89. In fact, the Airport sits to the north. Encouraging species to move toward the Interstate and the property north of Interstate 89 puts them in danger of collisions with cars and trucks. It runs contrary to the purposes of the legislation adding the forest blocks. Moreover, animals tend to avoid areas near already existing development. Moreover, the quality of the “Habitat block” on my client’s land is low. Arrowwood’s own conclusions about the area prove this point. Arrowwood gave this habitat block the lowest score, a “1,” on whether the area was forested. It also gave low marks for whether there was surface water, whether it was a wetland, and whether there was “supporting habitat.” There appears to be no analysis of whether there are any animals that actually live on my client’s land, let alone the type of animal the “Habitat blocks” are designed to promote. Any points that Arrowwood gives the land seem again to be based on the size of the parcel. On a regional or state-wide basis, preventing my client from developing its land will have adverse effects on real forest blocks. As Arrowwood notes, “South Burlington is one of the most populous cities in Vermont. . . .” Arrowwood at 1. South Burlington made its decisions about whether it would support forest blocks a long time ago. It choose to have economic development. The maps from regional and town planners reflect these facts. Map 1 from the Chittenden County Regional Planning Commission labels the area as an employment zone with sewer service. Map 2 related to future land use gives the land an “Enterprise Designation.” The City’s Comprehensive Plan Map 11 labels the area as medium to high density and principally non-residential. The result of South Burlington’s land use decisions is that South Burlington is one of the wealthiest cities in Vermont. Given that its land has already been set aside for economic development, it makes sense that the land be used as efficiently as possible. Allowing development to occur in South Burlington will take development pressure off of towns further away from the gravel & shea ATTORNEYS AT LAW November 2, 2021 Page 3 South Burlington Planning Commission South Burlington City Council central economic center of Vermont - Chittenden County. My client would like to work with the City to employ smart growth principles to meet the City’s need to promote development and protect the environment. Vermont is under a severe housing shortage. It also lacks land to be used for job creation and industrial use. If one is truly concerned about maintaining Vermont’s real forest block, the best place to put that type of development is near where it already exists in South Burlington. Second, my client’s land is currently zoned “Industrial/Open Space.” The proposed amendments to South Burlington’s Land Development Regulations create an entirely new zoning district for my client’s property. See proposed Zoning map. This zoning change uniquely discriminates against my client’s property. Moreover, the land surrounding it was designated “Industrial/Open Space.” My client’s property is the only substantial piece of property that has been removed from that designation. As such, the City’s re-designation of the property constitutes illegal reverse spot zoning. In re Appeal of Realan Valley Forge Greenes Assocs., 576 Pa. 115 (1999). Third, the new Section 12.04 simply bars development in and around Habitat blocks. Section 12.04(F) states, “all lands within a Habitat Block must be left in an undisturbed, naturally vegetated condition.” Moreover, Section 12.05 expands the area in which the City of South Burlington is barring development. City of South Burlington is destroying all economic value of the land designated as a “Habitat block” or “Habitat Block connector.” The City’s actions are just a taking. Fortunately, the City has already assigned a value to the taking. In its Natural Capital Valuation of Interim Zoning Open Space Parcels, the City’s consultant, Earth Economics assigned my client’s property a high estimate value of the property of $16,346,000. If the City is serious about blocking development on my client’s property, it should pay what it says the property is worth. Very truly yours, G ravel & Shea ■yyAfAGd. Matthew B. Byrne MBBdbb Paul Conner, Director of Planning & Zoning (e-mail) Jessie Baker, City Manager (e-mail) cc: