HomeMy WebLinkAboutAgenda 09_SD-22-10 Reconsideration Request
VIA ELECTRONIC MAIL
January 11, 2023
South Burlington Development Review Board
C/O Marla Keene, Development Review Planner City of South Burlington 180 Market Street
South Burlington, VT 05403
Re: O’Brien Eastview Planned Unit Development Final Plat SD-22-10
Dear Chair Philibert and Board Members:
Final Plat permit SD-22-10 (the “Permit”) issued on December 21, 2022, after nearly three full years of public
hearings and conversations with stakeholders, city staff, neighbors, and the Development Review Board. The Permit is
nearly 50 pages in length, dealing with the details of a complex master planned project that will develop nearly 100
acres of land over the next decade. Over the years leading up to this Permit’s issuance, we discussed hundreds of topics and submitted hundreds of exhibits for review. While there are certainly aspects of the Permit that we wish were
decided differently, it speaks to the dedication of the Board, staff, and the Applicant, that as this permit issues only one
item has prompted this letter and a request for your review.
The specific finding in question is located on page 38 of the Permit. The finding is located within the review of
the Project under Section 13.16, Earth Products. The ledge removal being reviewed under Section 13.16 is specifically,
the ledge removal associated with the proposed “gravel extraction area,” and is not ledge removal incidental to
construction, which is not subject to the LDR in effect. The specific language follows:
2
Information discussed in this finding, including the proposed duration of 75 days, the proposed quantity of ledge at 70,000 cubic yards, and the estimated depth of cuts, is specific to the gravel extraction area only. The noise analysis
and blasting plan submitted at Exhibit 045 and Exhibit 046 are specific to the gravel extraction area and do not include details or analysis outside of that area. However, the wording of the second paragraph appears to connect the gravel extraction area with the necessary blasting for construction, for which limited information was submitted, and which
was not discussed in detail with the Board because the LDR in effect does not regulate blasting incidental to construction
of an approved project.
The Applicant discussed this exact issue with the Board on November 15th when we reviewed the draft findings
as part of a PowerPoint presentation during a Board meeting. At that time, the finding did not include a requirement for
blasting outside of the quarry area to be completed in winter, which is why the issue was not discussed. One of the
slides from that PowerPoint addressed this issue, noting that the blasting may need to “happen in summer.” With those
words on the screen, we discussed the finding above, and our feeling from that conversation was that all agreed the
above condition should be modified to allow summer work. Given this, no further discussion ensued. We are hopeful that this change restricting all blasting in and out of the quarry to winter was just an oversight in drafting the decision,
and not intentionally altered to be significantly more restrictive for blasting outside of the quarry area than the draft
finding of fact. Especially given that the nature of our conversation on 11/15, which all seemed to agree with, was to
allow blasting to proceed as needed. In this light, we hope it can be corrected with a simple revision of the permit
document to delete three words, “both,” and “and outside.” This would result in the finding reading: “The blasting shall
occur in the winter months (November-April) within the gravel extraction area.”
If the Board feels this revision is outside of their ability as a correction, we would make a request for
reconsideration. Such a request is appropriate if: “The Applicant believes that new information exists which the Board
did not have available at the time they issued their decision.”
We believe that this request meets that requirement. Specifically, the Board did not receive information with
regard to necessary blasting for construction of roadways, homes, parks and utilities proposed. Ledge on the project
site and incidental to construction was not included in the blasting plan or sound study provided. The extent of ledge
removal required for construction is not documented in the Project plans. The reason for this is that the LDR in effect
has no provision for review of such blasting by the DRB. Should the Board wish to regulate such blasting even though
the issue is not addressed by the LDR, it seems appropriate for the Board to review the extent of blasting, the
requirements of the Project related to such blasting, and testimony related to the complexity of regulating such
activities.
While the LDR does not address this issue, we did want to note that the topic of blasting is being closely reviewed by the District #4 Environmental Commission in connection with Act 250 review. Our Project is set to receive
full approval and commence in the end of February. We hope very much that a corrected decision can recognize the
character of past discussions and address what we hope was an unintentional outcome. However, the restriction
imposed, as currently written, is not viable, and so if a simple correction cannot be issued, we appreciate the
opportunity to present additional evidence and discuss a path forward that achieves the desired outcome of the Board
in a manner that can allow the Project to proceed. Thank you.
Sincerely,
Andrew Gill, Director of Development