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Home My WebLink AboutAgenda 07_SD-24-13_1580 Dorset St_JJJ South Burlington_FPCITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD SD-24-13_1580 Dorset St_Cider Mill_FP_SC_DRAFT DEPARTMENT OF PLANNING & ZONING Report preparation date: July 10, 2024 Plans received: June 14, 2024 1580 Dorset Street / 1699 Hinesburg Road – JJJ South Burlington, LLC Site Plan Application #SD-24-13 Meeting date: July 16, 2024 Owner JJJ South Burlington, LLC 21 Carmichael Street, Ste. 201 Essex Junction, VT 05452 Engineer O’Leary-Burke Civil Associates 13 Corporate Drive Essex Town, VT 05452 Property Information Tax Parcels 0570-R1580, 0860-01731, 0860-01625_R SEQ Zoning District- Neighborhood Residential, SEQ Zoning District- Village Residential, SEQ Zoning District- Natural Resource Protection 65.49 acres Applicants JJJ South Burlington, LLC & South Burlington DPW 21 Carmichael Street, Ste. 201 & 104 Landfill Road Essex Junction, VT 05452 & South Burlington, VT 05403 Location Map Project Area #SP-23-03 2 PROJECT DESCRIPTION Final plat application SD‐24-13 of JJJ South Burlington, LLC and the City of South Burlington to amend a previously approved 291 unit planned unit development in two (2) phases. The amendment is to Phase II (Cider Mill II) of the project and consists of removing a requirement to prepare a scoping study for the intersection of Cheesefactory Road & Route 116, and shifting that responsibility to VTrans as requested by VTrans, 1580 Dorset Street & 1699 Hinesburg Road. CONTEXT This project is subject to General Planned Unit Development Review Standards and the standards of the Southeast Quadrant – Neighborhood Residential, – Village Residential, and – Natural Resource Protection Zoning Districts. This project received final plat approval for Phase II in 2018 when JJJ South Burlington, LLC obtained approval to add 33 units to a previously approved 258-unit Planned Unit Development via final plat application #SD-18-28. That approval included a Condition of Approval (Condition #36) that requires JJJ South Burlington, LLC to prepare a scoping study of the Cheesefactory Road/Hinesburg Road intersection, prepare a cost estimate for any necessary improvements, and pay a mitigation contribution not to exceed 21.3% of the necessary improvement costs to the City of South Burlington prior to the issuance of the 26th Zoning Permit in the second phase of the PUD, known as Cider Mill II. JJJ South Burlington, LLC has obtained Zoning Permits for 24 units in Cider Mill II and is at risk of having to suspend construction of Cider Mill II until Condition of Approval #36 of #SD-18-28 is met. The application at hand proposes to modify #SD-18-28 by amending Condition of Approval #36 to reflect the changed factual circumstances applicable to the management of the intersection of Cheesefactory Road & Hinesburg Road. Specifically, the applicants (JJJ South Burlington, LLC and the City of South Burlington) are proposing to shift the responsibility for preparing a scoping study for the subject intersection from JJJ South Burlington, LLC to VTrans (as requested by VTrans), shift the recipient of JJJ South Burlington, LLC’s mitigation contribution not to exceed 21.3% of the necessary improvement costs from the City of South Burlington to VTrans (as requested by VTrans), and eliminate the requirement that these events take place prior to the issuance of the 26th Zoning Permit in Cider Mill II. Given the limited scope of the proposed change, Staff has determined this application constitutes a minor amendment to an existing PUD per Article 15.C.07.C(3). A minor amendment is defined as one which does not significantly alter the overall intent or scale of the PUD, or the relationship of the approved PUD to its surroundings. Staff has accordingly limited the scope of this review to criteria relevant to the minor amendment being sought. As a minor PUD, this application is not required to be preceded by a sketch plan or a preliminary subdivision and has therefore proceeded directly to final plat. COMMENTS Development Review Planners Marla Keene and Marty Gillies, hereinafter referred to as Staff, have reviewed the plans submitted on 6/14/2024 and offer the following comments. Numbered comments for the Board’s attention are indicated in red. #SP-23-03 3 A) ZONING DISTRICT & DIMENSIONAL REQUIREMENTS No Zoning District standards or dimensional requirements are proposed to be impacted as part of this application. B) STOWE CLUB HIGHLANDS ANALYSIS The Stowe Club Highlands Analysis (SCHA) identifies that previous permit condition or terms can only be modified or removed if a specific set of circumstances are met. Specifically, SCHA states that an applicant may only obtain relief from a permit condition or term if they can show one of the following. (a) changes in factual or regulatory circumstances beyond the control of a permittee; Staff considers that the facts at the time of the adoption of #SD-18-28 and associated Condition of Approval #36 include an assumption that the City of South Burlington would eventually make improvements to the intersection of Cheesefactory Road and Hinesburg Road, which is why the applicant was required to both perform a scoping study on behalf of the City of South Burlington and to make a payment to the City of South Burlington for a portion of the cost of any required improvements. This assumption was reflected in the corresponding Act 250 permit, which includes a condition identical to Condition of Approval #36 of #SD-18-28. The applicants have testified that, since the time of the adoption of #SD-18-28, the City has never developed plans for future improvements for the subject intersection. The State informed the applicants in April of 2024 that VTrans has plans to conduct a scoping study of the intersection in the fall of 2024, and that VTrans prefers to conduct the scoping study itself and finds no utility in having a redundant scoping study completed. Any necessary improvements to the intersection will be constructed by VTrans. Staff consider that these factual circumstances are beyond the control of JJJ South Burlington, LLC and that they have changed since the adoption of #SD-18-28 and associated Condition of Approval #36. As such, Staff considers that JJJ South Burlington, LLC may obtain relief from Condition of Approval #36 of #SD-18-28 as per this standard of SCHA. 1. Staff recommends the Board and applicants discuss whether the proposed minor amendment meets the above test of SCHA and is therefore eligible for modification. (b) changes in the construction or operation of the permittee’s project, not reasonably foreseeable at the time the permit was issued; or Not applicable. (c) changes in technology. Not applicable. Assuming the Board accepts that the proposed modification meets one or more conditions of SCHA, the applicants have proposed a draft version of a modified Condition that would supersede the existing Condition in the analogous Act 250 approval. That language is as follows. If the Vermont Agency of Transportation (“VTrans”) scoping study for improvements to the Cheesefactory Road/Vermont Route 116 intersection planned for the Fall of 2024 determines safety improvements are warranted to this intersection, the Permittee shall submit to VTrans a transportation impact fee equivalent to the Permittee’s “fair share” of the cost of improvements, as determined by VTrans, not to exceed 21.3 percent of the total cost of the improvements. The transportation impact fee shall be paid by the Permittee #SP-23-03 4 within six months of its establishment by VTrans. The Permittee shall submit to the Commission documentation that the transportation impact fee has been paid in accordance with this permit condition within two weeks of making payment to VTrans. 2. Staff recommends the Board and applicants discuss the above language and how it might be best modified to serve as a Condition of Approval for this Final Plat application. Staff considers that the elimination of Condition of Approval #36 of #SD-18-28 is also a potential solution, as the above proposed Condition of Approval has been proposed as a condition in the applicant’s updated associated Act 250 permit. C) SUBDIVISION REVIEW STANDARDS No Subdivision standards are proposed to be impacted as part of this application. RECOMMENDATION Staff recommends that the Board discuss the project with the applicant and close the hearing. Respectfully submitted, Marty Gillies, Development Review Planner I LAND USE PERMIT AMENDMENT State of Vermont Natural Resources Board District 4 Environmental Commission 111 West Street Essex Junction, VT 05452 [phone] 802-879-5614 https://nrb.vermont.gov/ This is a PROPOSED permit amendment. Please submit any written comments to Kevin Anderson at kevin.anderson@vermont.gov and to NRB.Act250Essex@vermont.gov, or by hardcopy to the District 4 Environmental Commission at 111 West Street, Essex Junction, VT 05452, on or before July 1, 2024. This permit amendment will NOT be issued until the Commission receives and reviews the following information: 1. Comment from the Vermont Agency of Transportation regarding proposed condition 7. JJJ South Burlington, LLC 21 Carmichael Street, Unit 201 Essex, VT 05452 PERMIT NUMBER: 4C1128-5A LAW/REGULATIONS INVOLVED: 10 V.S.A. §§ 6001 – 6111 (Act 250) The District 4 Environmental Commission hereby issues Land Use Permit Amendment 4C1128- 5A, pursuant to the authority vested in it by 10 V.S.A. §§ 6001-6111. This permit amendment applies to the lands identified in Book 1192, Pages 262 through 265, of the land records of the City of South Burlington, Vermont as the subject of a deed to JJJ South Burlington, LLC. This permit amendment specifically authorizes modification of permit condition 44 in permit amendment 4C1128-5 by requiring the Permittee to pay a transportation impact fee to the Vermont Agency of Transportation for safety improvements to the Cheesefactory Road/Vermont Route 116 intersection, if warranted, following the Agency of Transportation’s completion of a scoping study for this intersection. The project to which this permit amendment applies is referred to as Cider Mill, accessible from Sommerfield Avenue and Hinesburg Road (Vermont Route 116), in South Burlington, Vermont. Jurisdiction attaches because the Project constitutes a material change to a permitted development or subdivision, and thus requires a permit amendment pursuant to Act 250 Rule 34. Land Use Permit 4C1128-5A Page 2 The Permittee and its assigns and successors in interest are obligated by this permit amendment to complete, operate, and maintain the project as approved by the District Commission (the “Commission”) in accordance with the following conditions. 1. The project shall be completed, operated, and maintained in accordance with: (a) the conditions of this permit and (b) the permit application, plans, and exhibits on file with the Commission and other material representations. In the event of any conflict, the terms, and conditions of this permit amendment shall supersede the approved plans and exhibits. 2. All conditions of Land Use Permit 4C1128 and amendments are in full force and effect except as further amended herein. 3. Representatives of the State of Vermont shall have access to the property covered by this permit amendment, at reasonable times, for the purpose of ascertaining compliance with Vermont environmental and health statutes and regulations and with this permit amendment. 4. No change shall be made to the design, operation, or use of this project without a permit amendment issued by the Commission or a jurisdictional opinion from the District Coordinator that a permit amendment is not required. 5. Pursuant to 10 V.S.A. § 8005(c), the Commission or the Natural Resources Board may at any time require that the permit holder file an affidavit certifying that the project is in compliance with the terms of this permit amendment. 6. The conditions of this permit amendment and the land uses permitted herein shall run with the land and are binding upon and enforceable against the Permittee and its successors and assigns. The following condition 7 replaces condition 44 of permit amendment 4C1128-5: 7. If the Vermont Agency of Transportation ("VTrans") scoping study for improvements to the Cheesefactory Road/Vermont Route 116 intersection planned for the Fall of 2024 determines safety improvements are warranted to this intersection, the Permittee shall submit to VTrans a transportation impact fee equivalent to the Permittee's "fair share" of the cost of the improvements, as determined by VTrans, not to exceed 21.3 percent of the total cost of the improvements. The transportation impact fee shall be paid by the Permittee within six months of its establishment by VTrans. The Permittee shall submit to the Commission documentation that the transportation impact fee has been paid in accordance with this permit condition within two weeks of making payment to VTrans. 8. Pursuant to 10 V.S.A. § 6090(b)(1), this permit amendment is hereby issued for an indefinite term, as long as there is compliance with the conditions herein. Notwithstanding any other provision herein, this permit amendment shall expire three years from the date of issuance if the Permittee has not commenced construction and made substantial progress toward completion within the three-year period in accordance with 10 V.S.A. § 6091(b). Failure to comply with any condition herein may be grounds for permit revocation pursuant to 10 V.S.A. § 6027(g). Land Use Permit 4C1128-5A Page 3 Dated this July __, 2024. By__________________________ Thomas A. Little, Chair District 4 Commission Members participating in this decision: Kate Purcell Any party, or person denied party status, may file within 15 days from the date of a decision of the District Commission one and only one motion to alter with respect to the decision, pursuant to Act 250 Rule 31(A). Under Rule 31(A), no party, or person denied party status, may file a motion to alter a District Commission decision concerning or resulting from a motion to alter. Per Rule 31(A)(3), the running of the time for filing a notice of appeal is terminated as to all parties by a timely motion to alter. Any person aggrieved by an act or decision of a District Commission or District Coordinator, or any party by right, may appeal to the Environmental Division of Vermont Superior Court within 30 days of the act or decision pursuant to 10 V.S.A. § 8504. Such appeals are governed by Rule 5 of the Vermont Rules for Environmental Court Proceedings. The appellant must file a notice of appeal with the clerk of the court and pay any fee required under 32 V.S.A. § 1431. The appellant must also serve a copy of the Notice of Appeal on the Natural Resources Board and on other parties in accordance with Rule 5(b)(4)(B) of the Vermont Rules for Environmental Court Proceedings. The Natural Resources Board’s copy may be sent to NRB.Legal@vermont.gov and/or 10 Baldwin Street, Montpelier, VT 05633-3201. Note, there are certain limitations on the right to appeal, including on interlocutory appeals. See, e.g., 10 V.S.A. § 8504(k), 3 V.S.A. § 815, and Vermont Rule of Appellate Procedure 5. There shall be no appeal from a District Commission decision when the Commission has issued a permit and no hearing was requested or held, or no motion to alter was filed following the issuance of an administrative amendment. 10 V.S.A. § 8504(k)(1). If a District Commission issues a partial decision under 10 V.S.A. § 6086(b), any appeal of that decision must be taken with 30 days of the date of that decision. 10 V.S.A. § 8504(k)(3). For additional information on filing appeals, see the Court’s website at: http://www.vermontjudiciary.org/GTC/environmental/default.aspx or call (802) 951-1740. The Court’s mailing address is Vermont Superior Court, Environmental Division, 32 Cherry Street, 2nd Floor, Suite 303, Burlington, VT 05401. The foregoing statements regarding motions to alter and appeals are intended for informational purposes only. They neither supplant nor augment any rights or obligations provided for by law nor do they constitute a complete statement of the rights or obligations of any person or party. 31 30 29 28 27 26 25 24 23 22 21 20 19 18 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 53 54 55 56 57 58 59 60 61 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 32 33 34 35 6768697071727374 8281 8079 78 77 7675 87 88 89 90 91 92 93 94 95 96 97 98 99100 109110 111112113114 115116117118 119120 121 122 123124 125126 127128 129130131132 135136137138 139140 141 142 133134 52 10110210310410510686 85 84 83 66 65 63 64 107108 CIVIL ASSOCIATES, PLC O'LEARY-BURKE ESSEX JCT., VTPHONE: 878-9990FAX: 878-9989E-MAIL: obca@olearyburke.com 0200 200 400 800100 1"=200' PJO BJB OBCA OBCA 2013-82 2013-82-S1 10-05-13 Location Plan 2 185.91'186.25' 180.45' Cider Mill Phase II The Cider Mill CIDER MILL - Phase II South Burlington Vermont Overall Site PlanCider Mill Phase II 12-22-14 REVISED WETLAND IMPACTS PER ACOE COMMENTS BJB 04-17-15 REVISED PER 4-15-15 STAFF MEETING COMMENTS BJB 04-27-15 ADDED CULVERT TO WETLAND 'A' CROSSING, REVISED WETLAND PLANTINGS PER ANR COMMENTS BJB 06-01-15 REVISED E911 NUMBERING, LANDSCAPING, ADDRESSED COMMENTS FROM 05-08-15 PUBLIC WORKS REVIEWBJB STATE O F VERMO N T REGISTER E D P R O FESSIONAL E N G I NEER Notes Legend 13 CORPORATE DRIVE BWC11-02-17 REVISED FOR PRELIMINARY APPLICATION BWC12-26-17 REVISED IN RESPONSE TO CITY DPW COMMENTS BWC1-26-18 REVISED IN RESPONSE TO CITY PRELIMINARY PLAT COMMENTS BWC5-29-18 REVISED FOR FINAL PLAT SUBMITTAL RCM12-9-22 REVISED FOR FINAL PLAT AMENDMENT