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HomeMy WebLinkAboutMinutes - City Council - 03/19/2012CITY COUNCIL 19 MARCH 2012 The South Burlington City Council held a regular meeting on Monday, 19 March 2012, at 5:00 p.m., in the Conference Room, City Hall, 575 Dorset St. Councilors Present: R. Greco, P. Mackenzie, H. Riehle, P. Engels, S. Dooley Also Present: S. Miller, City Manager; R. Rusten, Deputy City Manager; P. Conner, Director of Planning & Zoning; J. Rabidoux, Public Works Director; T. Barritt, B. Stuono, M. Behr, Development Review Board; G. Baxter, VLCT; J. Dinklage, R. Hubbard, L. Bresee, M. Emery, L. Ravin, S. Dopp, E. Goldberg, M. Young, J. Floyd, M. Conner, M. Mittag, M. Townsend 1. Executive Session: Ms. Riehle moved the Council meet in executive session to discuss personnel, contract negotiations, and litigation. Mr. Engels seconded. Motion passed unanimously. Regular Session: Ms. Mackenzie moved the Council exit executive session. Ms. Riehle seconded. Motion passed unanimously. 1. Agenda Review: No changes were made. 2. Comments & Questions from the audience not related to Agenda items: No issues were raised. 3. Announcements & City Manager's Report: Mr. Miller reported on attending a legislative breakfast at which the Lt. Governor and others reported on health insurance, tax policy, and other issues. The School District will be organizing the city's next legislative breakfast scheduled for 2 April. Mr. Miller will attend the VLCT Board meeting on 22 March. Mr. Engels advised that last Thursday he met with the Eastwood Commons Condo Association. He commented that it is a great idea to talk with people in neighborhood associations. They feel a distance from city government and expressed issues with traffic and green space. Mr. Engels also attended the Shelburne Rd. Corridor Study meeting. He felt it was an excellent brainstorming sessions with very thoughtful people and good input. Mr. Engels also attended the CCTV Channel 17 advisory board meeting of which Ms. Emery is chair. She will remain as chair and Mr. Engels will serve as alternate. He noted that the city is allotted about 84 programs during the year. Last year, the city left 11 of these unused. He felt things such as budget meetings could have been televised and that the meeting schedule should be checked to be sure the city takes full advantage of these opportunities. 4. City Council Training re: Acting as a Deliberative Body in Reviewing Interim Bylaw Applications: Mr. Baxter explained that the City Council will become a quasi-judicial board for land use hearings. In this capacity they will interpret and apply land use regulations to specific applications. The parties involved in the application can present evidence and the Council can cross-examine the witnesses. The Council must then issue a written decision which is appealable. Mr. Baxter stressed that opinions must not affect the decision making process. The Council must determine compliance with applicable by-laws and state law, levy only conditions authorized by by-laws and state law, and grant approvals to projects that meet the applicable by-laws and state law. Interim Bylaw applications differ from other hearings in that the City Council acts much like a court. There are specific statutory notice requirements (the applicant can be asked to pay for notice to newspapers and to abutting property owners), and the hearings are about the parties (the applicant and interested parties). The hearings result in a written decision which may be appealed to the Environmental Court. Mr. Baxter noted the difference between "interest persons" and "persons who are interested. Interested persons include the landowner(s), the municipality that has a bylaw at issue, those persons owning property in the immediate neighborhood, any group of 10 voters/property owners who allege the permit will not be in accordance with the bylaws, and an agency of the State if it owns property in the community, and the Agency of Commerce and Community Development. Mr. Baxter stressed that protecting due process is critical and that there must be fair and impartial decision making free from conflict of interest. Similarly situated applicants must be treated the same. There must also be rules of procedure and rules of ethics. Mr. Baxter also stressed that the parties involved must have the opportunity to present testimony and evidence to an impartial and unbiased decision maker. For oral evidence, a record must be kept of who spoke and what was said. Use of a tape recorder is allowed as are written notes. Mr. Baxter then addressed conflicts of interest. He noted that these may include direct or indirect financial interests and direct or indirect personal interests. Conflicts of interest should be identified and conflict declared. The person with the conflict must then state whether he/she can act in an unbiased manner. The test should be whether "a reasonable person would believe that a conflict exists." If the answer is yes, then that person should recuse him/herself from the decision making process. Mr. Baxter also noted that prejudice or bias is any "inclination that inhibits impartial judgment." The focus must be on a fair and consistent hearing, the fundamental objective of which is to determine whether the application meets the requirements set forth in the provisions of zoning or subdivision bylaw or might do so with reasonable conditions." Mr. Baxter then addressed the issue of ex parte communication. He defined this as direct or indirect communication between a board member and any party, party's representative, party's counsel or any person interested in the outcome of any quasi-judicial proceeding which occurs outside the proceeding and concerns the substance or merits of the proceeding. The key to managing this is disclosure. Any such communication should be disclosed and noted in the minutes and provided to all parties to the proceeding. Discussion and consideration of recusal should follow and be recorded. Mr. Baxter cautioned the Council to err on the side of caution. Mr. Baxter next reviewed exemptions to interim bylaws including: alterations to single and 2-family dwellings, alterations to existing structures used for commercial or industrial purposes that don't increase square footage or building footprint, development for which there is a Master Plan; development on property currently involved in litigation, amendments to site plans involving a principal permitted use, PUDs or an approved conditional use if meeting one or more of certain criteria, and amendments to site plans involving enlarging of an existing building used for commercial or industrial purposes if the proposed amendment meets certain criteria. The standard of review shall consist of a finding by the City Council that a proposed use is consistent with the health, safety and welfare of the City and shall not result in an "undue adverse effect" on any of the following: 1. The capacity of existing planned community facilities, services or lands 2. The existing patterns and uses of development in the area 3. Traffic on roads and highways in the vicinity 4. Environmental limitations of the site or area and significant natural resource areas and sites 5. Utilization of renewable energy resources 6. Municipal plans and other municipal bylaws, ordinances or regulations in effect. Mr. Baxter then addressed the terms "adverse" and "undue." He noted that an impact is "adverse" when it is not in harmony with its surroundings and does not fit the context within which it will be located. An "adverse impact" is "undue" if the project violates a clear, written community standard intended to preserve the aesthetics or scenic natural beauty of the area; or if the project, when viewed as a whole, offends the sensibilities of the average person; or if the applicant fails to take generally available mitigating steps to improve the harmony of the project with its surroundings. Mr. Baxter then addressed the hearing process, including the roles of those involved in the hearing. He stressed the need to steer clear of "personalities" and history, including prior violations. These cannot be addressed at a hearing. The order of the proceeding should be as follows: 1. Request for presentation by the applicant 2. Questions from the City Council 3. Evidence from the public and response from applicant 4. Additional City Council questions 5. Final comments 6. Close of hearing. Mr. Baxter's presentation was interrupted at this time for a scheduled public hearing. 5. Public Hearing on Amendments to the Land Development Regulations: Mr. Conner noted these amendments had been inadvertently left off the last package of amendments considered by the City Council. However, there was an error in the public hearing announcements (an e-mail got lost in transit), so the warning is defective. Mr. Conner therefore asked the Council to postpone this hearing to 16 April to allow for full public knowledge. Ms. Dooley moved to open the public hearing. Ms. Riehle seconded. Motion passed unanimously. Ms. Mackenzie then moved to continue the public hearing until 16 April 2012. Ms. Riehle seconded. Motion passed unanimously. Mr. Baxter's presentation was then continued as follows. The City Council serves as both judge and jury in interim zoning hearings. They may ask factual questions which must be relevant to the application and to the bylaws. Councilors should not answer their own questions. The Council has 45 days from the close of a hearing to make a decision. Failure to issue a written decision within that time results in the application being approved. Should this occur, the Council should still render a written decision. The appeal time of a decision is 30 days from the date of the written decision. Mr. Baxter recommended that the Council deliberate in private. A deliberative decision need not be warned and no minutes are needed. Three votes (for or against) are required for a decision. Mr. Baxter cautioned against giving applicants an oral decision at the end of a hearing. The decision must indicate how the decision was arrived at, and the applicant must be given the appeal procedure. Decisions should be sent to the applicant via certified mail and to other interested parties by regular mail. Mr. Conner noted there will be both City Council and Development Review Board hearings, and a zoning permit may be issued only if both boards approve an application. Mr. Engels asked if the DRB ever has split decisions. Mr. Stuono said it is rare but it does happen. Ms. Dooley asked if the DRB uses deliberative sessions. Mr. Stuono said this is also uncommon. Ms. Riehle asked who can be present at a deliberative session. Mr. Baxter said that in addition to the City Council there can be staff and legal counsel. Mr. Engels asked who drafts DRB decisions. Mr. Connor said it is a combination of himself, Ray Belair and Cathy LaRose. Mr. Miller said the Council can ask staff to draft a decision for them. Mr. Stuono noted that using the "undue adverse impact" criteria is very challenging. Mr. Baxter suggested the City Attorney may be helpful in this regard. 6. Interim Zoning Bylaw - Report on Studies and Committees: A. Economic Analyses and Steering Committee B. Sustainable Agriculture C. Affordable Housing With regard to the economic analyses, Mr. Miller said that for each of the study elements they have identified at least one firm interested in pursuing the study. Prices range from $7500 (which would involve considerable staff assistance) to $60,000. Mr. Miller noted there is probably not a lot of staff assistance available with current staffing. Mr. Miller asked the Council if they want to proceed with studies and whether RFPs should be issued. He noted that the firms that responses anticipated an RFP process. If RFPs are to be issued, this should be done in the next few weeks in order to expect a response by early May. Ms. Mackenzie asked what is the risk of not utilizing an RFP. Mr. Miller said the city might not be able to negotiate successfully with a firm. Mr. Rusten also noted that they had asked for a broad scope of costs, and there may be a higher or lower figure. You also don't have a fair comparison between companies without an RFP. Ms. Dooley asked if it is clear whether the city will need more assistance. She said she was uncomfortable dealing with this piecemeal. Mr. Miller said he felt there is a need for at least 3 more studies (form-based codes, affordable housing, etc.). Mr. Engels said he didn't think they should wait on the RFP until they can do everything. Mr. Miller cited the need for additional Council meetings to work all of this out, including additional staff resources. He stressed that they are already short staffed and need additional resources now. He recommended the Council meet every Monday for the next few months at least, as this is too much for regular meetings. He added that getting the RFPs out will take a few weeks and he would report back by 7 April that they are going out. Mr. Rusten said the question where the money for all of these studies is going to come from. Mr. Dinklage suggested it would be prudent to decide how much staff the city is willing to contribute before they do an RFP. Ms. Goldberg asked what the Council has allotted for studies and the costs of interim zoning. She said she has heard nothing about the cost of all of this. Mr. Miller said staff identified an estimated cost of one cent on the tax rate or about $280,000. The City Council did not identify any cost for this work. City Council consensus was to issue the RFP. Ms. Mackenzie said the Council will also need an estimate of staff time. Mr. Miller said they won't know the full scope until RFPs are received, but they do know some of the needs already. Ms. Riehle asked if the RFP could include the limited amount of staff time available. Mr. Miller suggested asking for quotes with 3 different levels of staff support. Regarding sustainable agriculture, Ms. Greco said there are 31 organizations and individuals willing to partner with the city on this. Staff assistance will have to be determined. Mr. Miller reviewed Mr. Knapp's response regarding affordable housing. It will take to the beginning of April to put together the particulars. A number of individuals have expressed willingness to serve. The study will include looking at the demand for various types of housing and at financial institutions that are funding the purchase of homes. Members then reviewed a basic outline of the studies and study groups (staffing and financing) related to interim zoning. These include: 1. Economic Analysis Studies: a. Economic analysis of interim zoning (financial impact on city budget and on citizens, residents and businesses in the city b. Economic analysis on the cost of development in terms of cost of city services c. economic analysis of the costs of all services and infrastructure (including maintenance, upgrades, etc.) based on total build-out now allowed under land development regulations d. economic analysis of associated costs of pollution mitigation and environmental cleanup (air, water, land) resulting from build-out allowed under current land development regulations. 2, 3 & 4. Sustainable Agriculture Committee; Affordable Housing Committee, and Form Based Codes: a. studies to be completed as required under interim zoning b. update of regulations c. additional non-regulatory studies to be completed d. possible need for consultants to committee 5. Planning & Zoning Department: a. Project review: application administration, project staff review and Council notes, preparation of Council decision, appeals management b. Committee and project oversight (RFP preparation and management, management of consultants, review of studies, management of public process, project mapping and data analysis, implementation 6. City Council: a. finalize goals and activities of subcommittees and steering committee b. determine required studies c. review and possibly approve additional staffing needs d. review and approve subcommittee needs re: consultants e. review staff recommendations and possibly approve location of money to fund interim zoning 7. Consider Complete Streets Proposal: Ms. Greco reviewed the background including a study done by a consultant focusing on "livable streets." Mr. Miller noted that one issue that arose is how the city might evaluate the process if it goes ahead with the experiment. He added there are no funds in the FY13 budget for this. Mr. Rabidoux said the aim is to try to take advantage of the state's paving project to see if a "complete streets" concept can work on Williston Rd. east of Hinesburg Rd. Feedback will be needed by the end of March to get "no cost" changes in the paving project. Mr. Rabidoux noted that testimony of staff and the Regional Planning Commission is that this project will induce increased congestion. One option is to implement the experiment and observe what happens and to assess the public level of tolerance of the increased congestion. Anticipated problems include people becoming frustrated with the congestion and going off Williston Road into the residential side streets and affecting the quality of life and the safety of children on these streets. Mr. Rabidoux noted that this project has been compared to the Burlington project on Colchester Avenue. However, in Burlington there were far fewer side streets involved. Mr. Rabidoux proposed that if the Council decides to implement this, they could direct staff to come back with a proposal as to how to measure the results (this would be done in conjunction with the City of Burlington, Local Motion, etc.). Mr. Engels asked about business on Williston Road and whether anyone has talked to them. Mr. Rabidoux said they can do some direct solicitation. Mr. Engels observed that the thought of 4 lanes ending at Hinesburg Road and going into one lane is "frightening." Mr. Rabidoux noted there is no dedicated space for left turners at Hinesburg Rd. Ms. Mackenzie asked if a "flushed out process" is brought back to the Council, can the Council say no. Mr. Rabidoux said they can, but depending on the timing, there could be a cost to a change order. Mr. Engels asked what happens if it is an obvious failure in 2 months. Mr. Rabidoux said they would do this before a top course is put on. Mr. Engels noted that the consultant does not recommend this course of action. Mr. Rabidoux acknowledged it will induce congestion, but there are also quality of life issues. Mr. Engels also noted that everything the Council has heard has been from one advocacy group. He said this is one of the two main traffic corridors in Chittenden County. Ms. Dooley said it sounds like ideal conditions for a test. Ms. Riehle moved to go forward with the pilot. Ms. Dooley seconded. Public comment was then solicited: A resident of Myers Court was concerned his street will be the "backup street," and there are families with kids. Ms. Dooley said it is a good idea to try it. They will have to gauge the reaction of everyone involved. She suggested possibly surveying people through the Other Paper. Ms. Townsend was concerned with the Airport/White Street/Airport Parkway/Patchen Road neighborhood which already has problems. Ms. Conner supported the pilot. A Burlington resident said people need to use other means to get around. He felt there would be more people walking and biking. Mr. Mittag supported the experiment. Ms. Ravin said she prefers not to use her car to access Williston Rd. She encouraged people to find an alternative to "one person/one car." Ms. Emery said people from the potential "cut through" streets contacted her via Front Porch Forum to express concern with giving consideration to Chamberlin neighborhood. She said this is the most vulnerable neighborhood for "cut throughs," and it is a neighborhood with a "Safe Routes to School" initiative with children walking and biking. She felt CCTA should be brought into the discussion because if there are backups, buses will also be backed up. She stressed that painting lines on a road does not insure safety. Buses will be cutting into bike lanes to pick up and drop off passengers putting bikers at risk. She wanted to see a designated bus lane and something to protect bikes. Mr. Floyd noted that the route to Essex Junction was made "more civilized" by last year's project. He saw the possibility of such a line of cars that people won't be able to get out of Mayfair Park. But he still wanted to try it. Mr. Hubbard said the Rec Path Committee supports this. He understood there will be negative affects but also possible advantages. The purpose is to see if the advantages outweigh problems. He noted there are now no pedestrian crossings from Hinesburg Rd. on. He noted that the Rec Path Committee is willing to work with Justin Rabidoux to help get good evidence on which to base a decision. Dr. Luria said that from a health standpoint it is important to encourage other ways to get around. Mr. Young asked whether the city has the money if this doesn't work. He noted the city is just getting out of a situation where it spent money it didn't have. He felt people will be making turns and not knowing where they are going and using driveways to turn around to find another route. He also asked what will happen to cyclists when they have to go from Hinesburg Rd. to Dorset Street. A show of hands in the audience revealed overwhelming support for the pilot. In the vote that followed, the motion passed 4-1 with Mr. Engels voting against. 8. Consider Authorizing Re-financing of a Stormwater Mitigation Grant Application Note for $200,000: Mr. Miller asked to table this item. 9. Consideration of Approval of Entertainment Permits: Mr. Miller presented an entertainment permit application from Magic Hat Brewing Co. for three events: a benefit concert for Big Heavy World (19 May), an Urban Arts Competition (25 August), and a free community concert (14 July), and the annual entertainment permit of Franny O's. Ms. Mackenzie moved to approve the entertainment permits as presented. Ms. Riehle seconded. Motion passed unanimously. 10. Liquor Control Board: Ms. Dooley moved the Council convene as Liquor Control Board. Ms. Mackenzie seconded. Motion passed unanimously. Mr. Miller presented 2012-2013 annual liquor and/or tobacco license renewals from the following: Ms. Mackenzie moved to approve the renewals as presented. Mr. Engels commented that he is not thrilled with approving tobacco licenses, but he wasn't sure the Council has the right not to. Mr. Miller said he would research this. Mr. Engels also noted he has been told some places sell alcohol and/or tobacco products to minors. Mr. Miller said if Mr. Engels or anyone else knows specifics of this to let him know and staff will pass the information along to the state. In the vote that followed, the motion passed unanimously. Ms. Mackenzie moved to adjourn as Liquor Control Board and reconvene as City Council. Mr. Engels seconded. Motion passed unanimously. 11. Consider use of Consent Agenda as part of City Council Agenda: Mr. Miller said this could be done for non-controversial items such as Minutes or warrants. An item could be taken off a consent agenda by request. Members were OK with trying this. 12. Consider Dates to Review Development Applications Subject to Interim Bylaw: Mr. Miller drew attention to warning requirements. He said the Council will need to determine procedures, policies, etc., prior to holding application reviews. He suggested special meetings on 26 March, 9 April, 30 April and 14 May. 13. Sign Disbursements: Disbursement orders were signed. 14. Other Business: No issues were raised. 15. Review and Approve Minutes of 21 February and 5 March 2012: It was noted that in the minutes of 21 February, page 2, last paragraph, the figure should be 1.5%. On page 8, paragraph 6, the word "con" should read "can." Ms. Riehle moved to approve the Minutes of 21 February as amended. Ms. Mackenzie seconded. Motion passed unanimously. Mr. Engels moved to approve the Minutes of 5 March as written. Ms. Riehle seconded. Motion passed unanimously. As there was no further business to come before the Council, the meeting was adjourned at 9:30 p.m. Clerk Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works. CITY COUNCIL 19. MARCH 2012 PAGE 11 9. Consideration of Approval of Entertainment Permits: Mr. Miller presented an entertainment permit application from Magic Hat Brewing Co. for three events: a benefit concert for Big Heavy World (19 May), an Urban Arts Competition (25 August), and a free community concert (14 July), and the annual entertainment permit ofFranny O's. Ms. Mackenzie moved to approve the entertainment permits as presented. Ms. Riehle seconded. Motion passed unanimously. 10. Liquor Control Board: Ms. Dooley moved the Council convene as Liquor Control Board. Ms. MacKenzie seconded. Motion passed unanimously. Mr. Miller presented 2012-2013 annual liquor and/or tobacco license renewals from the following: Burlington Moose Lodge #1618 Doubletree Hotel FrannyO's Gracey's Store Gracey's Liquor Store Hannaford Food & Drug Healthy Living Hong Kong Jade Chinese Restaurant Interstate Shell Kinney Drugs Night Flight, Inc. Maplefield's @ Airport· Mill Market & Deli Short Stop #104 Uno's Restaurant Van Phan Sports Vermont National Golf Course VermontSportsgrill Walgreen's #11526 Waterfront Catering Group