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BATCH - Supplemental - 1975 Dorset Street (2)
GRAVEL AND SHEA CHARLES T. SHEA ATTORNEYS AT LAW AREA CODE 802 STEPHEN R. CRAMPTON 76 ST PAUL STREET TELEPHONE 658-0220 STEWART H. MCCONAUGHY FAX 658-1456 ROBERT B. HEMLEY POST OFFICE BOX 369 WILLIAM G. POST, JR. CRAIG WEATHERLY BURLINGTON, VERMONT 05402-0369 CLA A. GRAVEL JAMPs E. KNAPP COUNSEL CO JOHN R. PONSETRJ NORMAN WILLIAMS DENNIS R. PEARSON PETER S. ERLY SPECIAL COUNSEL ROBERT F. O'NEILL MARGARET L. MONTGOMERY WRITER'S E-MAIL: LUCY T BRowN STEPHEN P. MAGOWAN December 11, 1997 SCRAMPTON(IGRAVSHEA.COM ERIK B. FITZPATRICK LEIGH POLK COLE ROBERT H. RU Pom Richard Ward, Zoning Administrator City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Dorset Farms Dear Mr. Ward: This letter will confirm that MBL Associates will continue to use its best efforts to resolve the outstanding issues related to conveyance of the sewer force main easement through the golf course to the City. However, as you know, while we can attempt to expedite the conveyance we have no ability to force a negotiated conveyance. Further, while the obtaining of the easement is unrelated to the issuance of building permits, MBL Associates is aware and acknowledges that municipal sewage service will be necessary before homes in Dorset Park can be occupied. Similarly, MBL Associates is committed to seeking a solution to the water line reimbursement matter which is acceptable to the partnership and the City, and is aware that municipal water will be necessary before occupancy occurs. Nothing in this letter should be construed as a waiver of MBL Associates' rights to seek judicial relief from any unilateral action of the City which denies water or sewer disposal service to Dorset Farms or fails to provide reimbursement acceptable to MBL Associates. We appreciate your cooperation in these matters and can assure you both matters will be resolved one way or another so that municipal water and sewage disposal service is available before occupancy of houses at Dorset Farms occurs. On the other hand, we want it to be clear on the record that MBL Associates has fully complied with the prerequisites of the Planning Commission's Findings of Fact and Decision to enable building permits to be issued for houses at Dorset Farms. Accordingly, we understand that applications for permits will be accepted and standard building permits issued for houses at Dorset Farms without unusual conditions or requirements. GRAVEL AND SHEA Richard Ward, Zoning Administrator Please call me if you wish to discuss this matter further. Very truly yours, ;Stepdhen VELAND SHEA R. Crampto SRC:kel cc: Mr. Gerald C. Milot December 11, 1997 Page 2 MEMORANDUM To: Richard Ward, South Burlington Zoning Administrative Officer From: William I Szymanski, City Engineer Re: Dorset Farms Phase I - Infrastructure Status -Date: December 9, 1997 I have examined the pay requisitions for construction of the infrastructure improvements and general site work of Phase I of the Dorset Farms project as of November 1, 1997. I have relied on the certifications by Lamoreux, Stone & O'Leary confirming that the construction has occurred based on regular inspections of the work. The requisitions include payment for installed water and sewer lines, storm drainage improvements, partial construction of the roads serving Phase I, bikepath construction, and general site work. Some of the infrastructure improvements, including the water and sewer mains installed the length of. Dorset Street and the road serving as the main entrance road for the development will serve die entire project. I have also' reviewed the' cost estimates to- complete the remainder of the infrastructure improvements and general site work for Phase I prepared by Paul O'Leary of Lamoreux, ' - Stone & O'Leary; •' Th`e estrmate' is acceptable subject to increasing the estimate by $22,270.00 to a total of $644,613.00. This increase was discussed with Paul and he is in agreement with it. The estimate covers completion of the water, sewer, storm drainage, road, bike path and general site work which will serve Phase I. DRAfT Impact Fee Options on Dorset Farms Water Line • Cost of Line $27.40 per lineal foot installed • Length of Line 6,070 lineal feet • Total Project Cost $166,318 Assumption: that the water main is to be transferred from developer to City at no cost, impact fees collected will be utilized to repay developer for a portion of water line installation costs. Option 1: Based on full build --out potential of southeast quadrant, owners pay proportional share of line based on a per unit cost. Owners pay impact fee only for existing units or when a building permit is taken out for a unit. 1997 cost per unit is adjusted annually for inflation by %. • Total potential units 771 • Total project cost $166,318 • Cost per unit $215.72 Option 2: Based on full build -out potential of southeast quadrant, owners pay proportional share of line based on a per unit cost. Owners pay impact fee of 50% of total cost when hooking up first unit, remainder prorated. 1997 cost per unit is adjusted annually for inflation by %. • Cost per unit $215.72 Option 2 provides developer with quicker and greater surety of some return on investment. Option 3: Based on full build -out of the southeast quadrant, owners pay a proportional share of the line on a per unit cost. Option 3--hybrid of option 1 and option 2. Owners pay a unit cost of $215.72 at time of first hook -on to water main. The second hook -on is charged Ca? 50% of the total build -out cost, with remaining units' costs pro -rated based on remaining amount due. This option does not penalize the owner who only wants to serve his single residence with no development plans and it does not provide an economic incentive to subdivide. 1997 unit cost is adjusted annually for inflation by %. Office of the Assistant City Manager 12!8/97 DRIFT Option 4: Based on full build -out of the southeast quadrant, owners pay a proportional share of the line on a per unit cost with the developer assuming a minimum of 50% of the total cost. Option 4 is option 3 with the developer expected to pick up 50% of the line installation cost. • Total project cost • Developer's share • Other owners' share • Other units • Cost per unit $166,318 $83,159 $83,159 529 potential units $157.20 Owners pay a unit cost of $157.20 at the time of first hook-up to water main. The second hook-up is charged (a� 50% of the total build -out cost, with other remaining units' costs pro -rated based on remaining amount due. This option requires the developer to bear more of the final cost of the project. However, to the extent that full build -out will never be achieved, the developer will probably bear at least 50% of the cost of the water main installation under any of these options. 1997 unit cost adjusted annually for inflation by %. Note: In addition to the above impact fee, property owners need to pay standard tap -on charges to the Water Department and cost to run service to their private property. Examples of Impact Fee for First Unit on Property Option 1 Option 2 Option 3 Option 4 One house/one potential unit $215.72 $215.72 $215.72 $157.20 One house/two potential units $215.72 $215.72 $215.72 $157.20 One house/ten potential units $215.72 $1,078.60 $215.72 $157.20 One house/20 potential units $215.72 $2,157.20 $215.72 $157.20 One house/50 potential units $215.72 $5,393.00 $215.72 $157.20 Examples of Impact Fee for Second Unit on Property Option 1 Option 2 Option 3 Option 4 2nd House/2 potential units $215.72 $215.72 $215.72 $157.20 2nd House/ 10 potential units $215.72 $1,078.60 $1,078.60 $786.00 2nd House/20 potential units $215.72 $2,157.20 $2,157.20 $1,572.00 2nd House/50 potential units $215.72 $5,093.00 $5,393.00 $3,930.00 Office of the Assistant City Manager 12/ R/97 CITY OF SOUTH BURLINGTON SOUTH BURLINGTON CITY COUNCIL NOTICE OF DECISION This matter came before the South Burlington City Council on the appeal of MBL Associates from a determination by the South Burlington Zoning Administrative Officer on January 13,. 1998, regarding payment of recreation impact fees for development of lots on the westerly side of Dorset Street in the vicinity of Allen Street. The City Council met on February 16, 1998, to take testimony and receive information regarding this appeal and to afford Appellant an opportunity to provide information and comment. Based upon the evidence presented and information provided the Council during said meeting, the Council makes the following findings of fact and conclusions regarding the appeal of MBL Associates. FINDINGS OF FACT 1. By decision dated January 11, 1994, the Planning Commission granted approval to MBL Associates to undertake development of a planned residential development consisting of 161 single-family lots and 60 multi -family units, which development is now known as "Dorset Farms". 2. At the time of such approval, the City routinely collected a recreation fee of $200 upon issuance of a zoning permit for the construction of any dwelling unit. 3. In January of 1994, the City was in the process of reviewing the amount of its recreation fee for residential 1 development. Indeed, in September of 1993, the City received a report prepared by RESV., Inc., dated September 1, 1993, which set forth a formula for establishing a new, increased recreation fee. 4. On January 9, 1995, the City Council adopted an Impact Fee Ordinance which established a recreation impact fee based on the September 1, 1993 report prepared by RESV., Inc. 5. On April 17, 1995, the City Council amended the Impact Fee Ordinance, including the portion governing recreation impact fees. The recreation impact fee amendments exempted from the payment of the recreation impact fee lots located in any subdivision which had received final plat approval prior to January 9, 1995 provided that final plat approval contained a condition requiring payment of a specific recreation impact fee. For those specific lots, the recreation fee payable is the fee specified in the approval for the particular project. 6. By condition number 5 in its December 21, 1993 approval of "Dorset Farms", the South Burlington Planning Commission approved granting the Appellant a credit of $75 per residential unit which "may be applied toward required recreation fees." Specifically, the Planning Commission required that at the time of application for a zoning/building permit (for development of a residential unit in Dorset Farms), the applicant must "pay the difference between the recreation impact fee and the $75 per unit credit." See Application of MBL Associates for PRD Approval, Findings of Fact & Decision, Condition 5 (1/11/94). 7. The Findings of Fact, at Paragraph 26, explains that 2 "[t]he applicant will be required to pay the difference between the $75 credit and the recreation fee in effect at the time of permit." Id., Finding of Fact 26. 8. To date, several building or zoning permits for development of lots within Dorset Farms have been applied for, and recreation impact fees at the level specified in the Impact Fee Ordinance less the $75 credit have been assessed and collected. CONCLUSIONS 1. "Dorset Farms" received final plat approval prior to January 9, 1995. The final approval contained a condition (Condition #5) requiring payment of a recreation fee to the City for the development of residential units within Dorset Farms. This condition specified that the amount of the recreation impact fee payable with respect to the development of each residential unit was to be the recreation fee in effect at the time of application for a zoning/building permit for the unit, less a credit of $75. 2. Based on condition number 5 of the "Dorset Farms" approval and the April, 1995 amendment of the South Burlington Impact Fee Ordinance, the amount of the recreation fee due and payable to the City at the time of issuance of a zoning/building permit with respect to lots within Dorset Farms is that recreation impact fee set forth in the 1995 Impact Fee Ordinance. 3. Based on the conclusions set forth above, the City is entitled to collect the recreation impact fee set forth in the 1995 Impact Fee Ordinance less a $75 credit, as it issues 3 building/zoning permits approving development of residential units at "Dorset Farms". 4. At the time of issuance of any permit for development of a residential unit at "Dorset Farms", the Zoning Administrative Officer shall recover a recreation impact fee with respect to that residential unit in an amount equal to the recreation impact fee specified in the 1995 Impact Fee Ordinance, or any amendment thereof, less a credit of $75. Dated at South Burlington, Vermont this ��° day of March, 1998. SOUTH BURLINGTON CITY COUNCIL SON200.FOR William Cimonetti C. Condos Terrence J Sheahan David T. Austin Joan C. Britt 4 GRAVEL AND SHEA CHARLES T. SHEA ATTORNEYS AT LAW AREA CODE 802 STEPHEN R. CRAMPTON 76 ST. PAUL STREET TELEPHONE 638-0220 STEWART H. MCCONAUGHY FAX 658-1456 ROBERT & HEMLEY POST OFFICE BOX 369 VAUTAM G. POST, JR. CRAIG W_ BuRLINGTON, VERMONT 05402-0369 CLARKE A. GRAVEL. JAMES E. KNAPP COUNSEL JOHN R. PONSETTO DENNIS R. PEAR.SON NORMAN WLLuAMS PETER S. ERLY SPECIAL COUNSEL ROBERT F. O'NEILL MARGARET L. MONIGOMERY E-MAIL:Y, WRITER'S dvl LUCY T. BROWN STFPHEN P. MAGOWAN January 27, 1998 [I SCRAMPTONGRAVSHEA.COM ERIK B. FITZPATRICK LEIGH POLK COLE ROBERT H. RUSHPORD HAND DELIVERED Ms. Margaret A. Picard, City Clerk City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Dorset Farms - Appeal of Impact fee Assessment 0 Dear Ms. Picard: Pursuant to Section 9 of the South Burlington Impact Fee Ordinance, enclosed please find a Notice of Appeal to the South Burlington City Council from the January 13, 1998 assessment of impact fees by the Zoning Administrator, together with a copy of the Zoning Administrator's written decision. Very truly yours, GRAVEL ANUSHEA Stephen R. Crampton SRC:kel Enclosures cc: Mr. Gerald C. Milot (w/enclosures) Richard Ward, Zoning Administrator (w/enclosures) Joseph S. McLean, Esq. (w/enclosures) CITY OF SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT IN RE: ) MBL Associates ) Dorset Farms ) NOTICE OF APPEAL NOW COMES MBL Associates, by and through its attorneys, Gravel and Shea, and hereby appeals the January 13, 1998 assessment of impact fees by the Zoning Administrative Officer. Dated: Burlington, Vermont January 27, 1997 GRAVEL AND SHEA Attorneys f r Appellant By: Ste en R. Crampt sq. GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 <NML Nonce of Appeal m Zmmg Bowd/42163hy7011. WPSRC> ;URLINGTON. VERMONT 05402-0369 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 558.4746 PLANNER 658-7955 January 13, 1998 Stephen Crampton, Esquire 76 St. Paul Street P.C. Box 369 Burlington, Vermont 05402 Rc: Impact Fees for Dorset Farms Dear Steve: ZONING ADMINISTRATOR 658-7958 Confirming our conversation of yesterday regarding the impact fees which are due upon application for a zoning permit. They are as follows: a) Rccreation impact fee per unit - $1,413.33 less a $75.00 credit. b) Sewer impact fee per unit - $2.50 x 150 gpd x number of bedrooms Q bedrooms = S 1,125.00 and 4 bedrooms = $1,500.00). c) Zoning permit fee permit -ten cents (.10) a square foot of living area and garage. Unfinished areas, i.e., attics and basements are excluded. Be advised that multi -family units are different for recreation impact fors. They are $657.91 less a S75.00 credit. The recreation impact fee will change effective February 1, 1998. The fee will increase to $1.441.02 for single family units and $676.30 for multi -family units less a $75.00 credit. All other fees remain the same. If you have any questions, please don't hesitate to call me. Very truly, Richard Ward, Zoning Administrative Officer RW/mcp City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 January 13, 1998 Stephen Crampton, Esquire 76 St. Paul Street P.O. Box 369 Burlington, Vermont 05402 Re: Impact Fees for Dorset Farms Dear Steve: ZONING ADMINISTRATOR 658-7958 Confirming our conversation of yesterday regarding the impact fees which are due upon application for a zoning permit. They are as follows: a) Recreation impact fee per unit - $1,413.33 less a $75.00 credit. b) Sewer impact fee per unit - $2.50 x 150 gpd x number of bedrooms (3 bedrooms = $1,125.00 and 4 bedrooms = $1,500.00), c) Zoning permit fee permit - ten cents (10) a square foot of living area and garage. Unfinished areas, i.e., attics and basements are excluded. Be advised that multi -family units are different for recreation impact fees. They are $657.91 less a $75.00 credit. The recreation impact fee will change effective February 1, 1998. The fee will increase to $1,441.02 for single family units and $676.30 for multi -family units less a $75.00 credit. All other fees remain the same. If you have any questions, please don't hesitate to call me. Very truly, Richard Ward, Zoning Administrative Officer RW/mcp STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (RFLETCHER@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-9119 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) August 28, 2001 Stephen R. Crampton, Esq. Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402-0369 RE: MBL Associates v. City of South Burlington Larkin-Milot Partnership v. City of South Burlington Dear Steve: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I wrote to you August 1 on this matter, and enclosed documentation of the recreation impact fees "overpaid" by developers of lots/units within Pinnacle and Dorset Farms. Based on those "overpayments", the City proposed to satisfy the judgement orders entered by Judge Katz. To date, I have had no response to my letter. I understand that you have been out of the office, but your attention to this matter would be appreciated. The City wishes to have this matter resolved. Please advise me of your clients' response to the City's proposal. I look forward to hearing from you. S' e el , 7 obert E. Fletcher /ref Enclosure cc: C. Hafter R. Belair Son4628.cor.mb1_1mp STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/rDD) ST'EVEN F. STITZEL FAX (802) 660-2552 or 660-91 l9 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (RFLETCHER@FIRMSPFCOM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-9119 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) August 28, 2001 Stephen R. Crampton, Esq. Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402-0369 RE: MBL Associates v. City of South Burlington Larkin-Milot Partnership v. City of South Burlington Dear Steve: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I wrote to you August 1 on this matter, and enclosed documentation of the recreation impact fees "overpaid" by developers of lots/units within Pinnacle and Dorset Farms. Based on those "overpayments", the City proposed to satisfy the judgement orders entered by Judge Katz. To date, I have had no response to my letter. I understand that you have been out of the office, but your attention to this matter would be appreciated. The City wishes to have this matter resolved. Please advise me of your clients' response to the City's proposal. I look forward to hearing from you. S' e el , obert E. Fletcher /ref Enclosure. CC: C. Hafter R. Belair Son4628.cor.mb1_1mp STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (RFLETCHER@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-9119 TIMOTHY M.EUSTACE (*ALSO ADMITTED IN N.Y.) August 1, 2001 VIA FACSIMILE AND FIRST CLASS MAIL Stephen R. Crampton, Esq. Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402-0369 RE: MBL Associates v. City of South Burlington Larkin-Milot Partnership v. City of South Burlington Dear Steve: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN As indicated in our telephone conversation, the City of South Burlington has computed what it believes to be the amount to be refunded to the various lot/unit developers within the Pinnacle at Spear and Dorset Farm subdivisions. I am enclosing a summary sheet, and a supporting spreadsheet listing the amounts "overpaid" to the City by the various developers. The figures on the spreadsheet are based on records of the Planning and Zoning Office for permits issued and fees collected. Consistent with the judgement orders entered by the Chittenden Superior Court, the City is obligated to refund such interest as was earned on the impact fees paid "under protest." These fees are shown in the column marked "Deposits" on the summary sheet, and match up with the totals on the second page of the spreadsheet. The blended interest rate earned on the escrowed funds has been 4.19% through July 31. Hence, the City is prepared to immediately refund to the various developers the fees "overpaid" by them, plus interest earned on those "overpayments" through July 31, in full satisfaction of the judgements entered by the trial court. The City trusts that this will meet with your clients, approval. Stephen R. Crampton, Esq. August 1, 2001 Page 2 After you and your client have reviewed this material, please call me to discuss logistics. I look forward to hearing from you shortly. Sincere , i 'Ro ert rletcher /ref Enclosure cc• C. Hafter R. Belair son4617.cor.mb1_1mp City of South Burlington Calculation of Refunds of Recreation Impact Fees and Interest Due Deposits (1) Interest Total Refunds MBL Assoc 155,648.41 13,013.29 168,661.70 A&M Constr 17,125.53 1,477.89 18,603.42 Bradley 941.02 118.07 1,059.09 Lesage 2,563.05 203.19 2,766.24 Ireland 2,536.42 214.03 2,750.45 Wulfson 1,268.21 115.13 1,383.34 Bartlett Const 2,589.14 134.64 2,723.78 Faucett Bldrs 1,268.22 109.97 1,378.19 Shover 1,268.21 105.69 1,373.90 Peet 1,268.21 101.85 1,370.06 Lakeforest 1,294.84 87.11 1,381.95 Taft Builders 1,294.84 85.30 1,380.14 Fitzgerald Const 9,116.06 408.96 9,525.02 Hergenrother 2,589.68 136.39 2,726.07 Rouille's Const 1,294.84 78.22 1,373.06 Larkin Realty 2,589.68 133.07 2,722.75 Gralowski 1,294.84 52.75 1,347.59 205,951.20 16,575.53 222,526.73 (1) Deposits made; deducted $125 Dorset Farms, $200 Pinnacle dpg 08/01/01 City of South Burlington ACC[:[:11d101LJl-4U.00 Analysis of Pinnacle/Dorset Farms Impact fee collection # of parcels Deposit MBL Others Amount MBL Assoc A&M Constr Bradle Lesage Ireland Wulfson Bartlett Const Faucett Bldrs Shover Peet Lakeforest Taft Builders Fitzgerald Const Hergenrother Rouille's Const Larkin Realty Gralowski 1997 12/10/97 2 $2,426.00 $2,426.00 1998 1/13/98 3 $3.639.99 $3,639.99 1/19/98 1 $1,213.33 $1,213.33 2/3/98 1 $1,213.33 $1,213.33 3/19/98 1 $1,241.02 $1,241.02 4/8/98 1 $1,241.02 $1,241.02 4/10198 1 $1,241-02 $1,241.02 4/27/98 1 $1,241.02 $1,241.02 5/7/98 5 $6,205.10 $6,205.10 5/14/98 3 $3,723.00 $3,723.00 5/26/98 1 $941.02 $941.02 6/2198 1 $1,241.02 $1,241.02 6/12/98 1 $941.02 $941.02 6/30/98 4 $4,473.82 $4,473-82 7/1/98 1 $1,241.02 $1,241.02 7120/98 5 $6,754.02 $6,754.02 8/3/98 1 $941.02 $941.02 9/18/98 4 $4,964.08 $4,964.08 11/12/98 2 $2,482.04 $2,482.04 11/13/98 2 $2,482.04 $2,482.04 12/7/98 3 $3,723.06 $3,723.06 12/29/98 1 $1,241.02 $1,241.02 12/31/98 1 $1,241-02 $1,241.02 1999 213/99 1 $1,268.21 $1,268.21 2116/99 1 $1,241.02 $1,241.02 2/18/99 1 $1,241.02 $1,241.02 3/5/99 1 $1,268.21 $1,268.21 3/8/99 1 $1,268.21 $1,268.21 3/16/99 1 $1,343.21 $1,343.21 3/25199 1 $1,268.21 $1,268.21 415/99 1 $1,268.21 $1,26821 4/16199 2 $2,686.42 $2,686.42 4/22/99 4 $5,372.84 $5,372.84 4/27/99 1 $1,343-21 $1,343.21 6/1/99 1 $1,268.21 $1,268.21 6/15/99 3 $4.029.63 $4,029.63 6/15/99 1 $1,268.21 $1,268.21 7/6199 1 $1,268.22 $1,268.22 7/9/99 3 $4,029.63 $4,029.63 8/5/99 6 $8,059.26 $8,059.26 815/99 1 $1,268.21 $1,268.21 8/13/99 4 $5,061.28 $5,061.28 8118/99 1 $1,268.21 $1,268.21 8/27/99 6 $7,591.92 $7,591.92 9/l/99 1 $1,268.21 $1,268.21 10/18/99 1 $1,343.21 $1.343.21 11/17/99 2 $2,686.42 $2,686.42 11/17/99 1 $1,268.21 $1,268.21 11/18/99 1 $1,268.21 $1,268.21 11/19/99 1 $1,268.21 $1.268.21 11/24/99 1 $1,268.21 $1,268.21 12/10/99 2 $3.030.64 $3,030.64 12/23/99 1 $1,294.84 $1,294.84 12/23/99 1 $1,268.21 $1,268.21 2000 115/00 1 $1,294.84 $1,294.84 1/6/00 1 $1,294.84 $1,294.84 mfunds1 1 8/1/01 City of South Burlington Analysis of Pinnacle/Dorset Farms Impact fee collection AmF.231-0&2231-00.00 2/7/00 1 $1,265.32 $1,265.32 2/22100 1 $1,294.84 318/00 1 $1,294.84 $1,294.84 3/13/00 1 $1,294.84 3113/00 1 $1,294.84 3116/00 4 $5,479.36 $5,479.36 3/24/00 1 $1,369.84 $1,369.84 4/5100 1 $1.294.84 4/14/00 3 $3,907.02 $3,907.02 4/21/00 3 $4,109.52 $4,109.52 6/5/00 1 $1,294.84 615/00 6 $7,814.04 $7,814.04 6/14/00 1 $1,294.84 6/14/00 1 $1,294.84 8/11/00 1 $1.294.84 9/14/00 1 $1,369.84 $1,369.84 10/19/00 1 $1.369.84 $1,369.84 10/19/00 1 $1,294.84 $1,294.84 10/19/00 1 $1,294.84 11/2100 3 $4,109.52 $4,109.52 11/2100 1 $1,294.84 12/21/00 3 $4,109.52 $4,109.52 2001 2122101 1 $1,320.93 3/1/01 2 $2,791.86 $2.791.86 4/5101 2 $2,791.86 $2,791.86 5111/01 1 $1,320.93 $1,320.93 5/11/01 5 $6,979.65 $6,979.65 5/16/01 1 $1,320.93 6/12/01 1 $1,320.93 $1,320.93 6/19/01 4 $5,583.72 $5,583.72 6/29101 2 $2,791.86 $2,791.86 Grand Total 119 40 $205,951.20 $155,648.41 $17,125.53 $941.02 $2,563.05 $2.536.42 $1,268.21 $2,589.14 $1,268.22 $1,268.21 $1,268.21 $1,294.84 $1,294,84 FY 97/98 $34,456.71 FY 98/99 $56,879.14 FY 99/00 $90,154.60 FY 00/01 $46,835.75 $228,326.20 $1,294.84 $1,294.84 $1,294.84 $1,294.84 $1,294.84 $1,294.84 $1,294.84 $1,320.93 $1,320.93 $1,294.84 $1.294.84 $1,294.84 $9.116.06 $2,589.68 $1,294.84 $2,589.68 $1,294.84 relundsl ' d%/01 49/2001 FRI 10:44 FAX 3026609119 STITZEL PACE & FLETCHER STITZEL,, PAGF- & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.OBOX 1507 BLTRUNGTON, VERMONT 05402-1507 (301) 660-2355 (VOTC507DD) MVEN F. STITZ,SZ FAX 902) M-2552 or 6601119 PATr1 & ?,AGE' E-MAlL0lRMM5@FiRM5PF.CQ1-P R.OBERT w FLETCHER WRITER'S E-MAIL (RFLE1CHER®rF1FNlSPr•,C0M) 141S8Pld $. McI.FA)d WRITER'S FAX (202) 66(0119 TIMOTHY M. ELIC7ACE (+ALSO ADAt17T&D IN N Y ) FACSIMILE TRANSMITTAL SHEET Date: June 29, 2001 To: Charles Hafter Juli Beth Hoover Fax: 945-4101 Re: MBL/Larkin Milot Sender: Robert E. Fletcher, Esq. AMANDA S.E. LAFFERTY EDWARD G- ADRIAN You should receive 7 Page(s), including this cover sheet. It you do not receive all the pages, please call (802) 660-2555, MESSAGE Transmitted herewith is my letter of today, together with its enclosure, in connection with the above -referenced matter. This megsage is intended only for the use of the addressee and may contain inf5miation that is privileged and cont[dential. If you are not ibe intended recipient. you are hereby notified that any disserrination of this Communication it %trictly prohibited_ If you have received this communiisation in error, pleuc notify uc im=diatcly by telephone (302- 660-2555). Thank you. 29/2001 FRI 10:45 FAX 30 5609119 STITZEv PAGE &. FLETtiHER Z(wz' TITZEL, PAGE & FLETCHER., P.C,', ATTORNEYS AT LAW 171 BATTERY STREET P.D. BOX 1507 BURLINGTON, VERMONT 05402-1507 (302) "0-2555 (VOICFJTIOD) RTE3V'rfNr.ti'f1'C11+. FAX(902)Fb0.552 or 660A119 PATTI P. PAGE" 5-'LIAR.{PiRN(7.555(} FINMSPF.!:(:IM) ROBERT E. FLETCHER WRITER'S E-MA1 . (RFL 0M1LaMMSPF.CO" JOSEPH & MUZAN W R1TOUR , FAX (802) 66t.9119 17IDTHY M,EUSTACE 1"ALSO ADW-MD 1N KY.) rune 29, 2001 Charles Rafter City Manager City of South Burlington 575 Dorset Street South Burlington, VT OS403 Dear Chuck: I regret that I have "bad" news. AVANDA S.E. 14FFERTY EDWARD 0..'MRIAN Enclosed is the decision .in the MBL/Larkin Milot cases, which was iesued this morning by the Vermont Supreme Court. The Court affirmed the decision of the Trial court determining both subdivisions to be benefited by the grandfather clause. I imagine we will hear from MBL and Larking Milot shortly about refunds. You should also expect calls from the media. I have taken the liberty of racnding a copy of this latter aimi& tntk encloaure to Juli Beth, as well. I am available to discuss the decision and its implications fcr the City at your convenience. 7v 7cere ert E. �letche.r REF/jp Encloourc CC, Juli Seth Hoover Wn46t].ear bla- Z. d r `�15 ,/219/2001 FRI 10:45 F U 902$6u9119 STIT?EL PAGE & FLETCHER Pabe 1 al` 5 RAM MEL Associates v. City of South Burlington t2000-073 & 2000-074) [Filed 29-Jun-20013 NOTICE: This opinion is subject to motions for reargument under 4o as well as formal revision before publication in. the Vermont Reports. Readers are roquested to notify the Reporter of Decisions, Vermont Supreme Court, 1'39 State Street, Montpelier, Vermont 05609-0801 of any errors in order that correct_onS May be made before this opinion goes to press. MBL ASSOCiatas v. City of South 8ur1 1.Yi9Lutt Larkin-Milot ?artnership V. City of South Burlington Matthew I. Katz, J. Nos- 2000-073 & 2000-074 Supreme Court Ozx Appeal from Chittenden :Superior Court March Term, 2001 Dennie R, Pearson and Stephens R- Crampton of Gravel and Shea, Burlington, for P.laintiffB-Appel,lees . Robert E. Fletcher and Joseph S. McLeam mi stitzel, Page & Fletcher, P.C, for Defazdant-Appellant PRESRNTA Amestoy, C-J-, noolay, Morse, Johnson and Skoglund, JJ. SKOGLLWD, J. In these consolidated appeals, the City of South Burlington challenges related judgments of the superior court in favor of plai.titiffs M3L Associates and the Larkila-Milat Partnership. The City contends the court erred in concluding that plaintiffs were exempt from the city's .recreation impact -fee ordinance. We affirm, The materiel facts are undisputed. in 1993, the City's planning commission gave final subdivision map approval to Larkin-MLlot's application for a planned residential development consisting of seventy-three single-family lots on the east side of Spear Street. A condition of <Page 2> approval required Larkin -Milos to pay $22,000, cr the equivalent of $300 per uniC, fax csVtlsLruc L1Vu of a V_Lls Dui LLc icet+�cLLy, wlii:la the City credited against the $200 per -unit recreation fee it then t,rpically imposed on such projects. This condition of approval was memorialized in the platniug C*Mmisaion'c findings as follows. A credit of $22,000 should be gi;ren the applicant for construction of the portion of the proposed recreation path located outside of r littp:/h ol.state.vt_uslgogher root3lsupeticurrentl2000-073.op 6/29i01 ,j,'29/2001 FRI 10_48 FAX 3026609119 3TITZEL PAGE & FLETCHER �-A 1)o4 Page 2 of 5 any public street [right-of-wayl. . . . This translates to $300 per lot. Based or. the current recreation impact fee Ot $200, the applicant would not pair a recreation fee since the credit is more than the actual zee. If in the future the City adopts a recreation fee of more than $3oo per lot, then the appliant would be required to pair the difference. (FNI) In January 1994, the City,$ planning commission also gave final plat approval to plaintiff MBL's application for a planned residential development consisting of 151 single-family lots and sixty multi -family units off of Dorset Street. As explained in its findings, the planning commission required MBL to construct a recreation path located outside of the public right-of-way, and provided that $is per unit would he credited against °the recreation fee in effect at the time of permit." (FN2) In January 1995, the City Council adopted an ordinance that imposed considerably higher recreation impact -fees than the $200 per -unit fee the City had custow ily imposed in the past. .gPage 3r Three months later, the City Council amended the ordinance} to temporarily exempt certain su-bdivisions from payment of the higher fees. Under this so-called "grandfather clause," lots would not be subject to the new fees if they met three criteria: (1) the subdivision received final plat approval prior to January 9, 1995, "which subdivision approval contained a conditions requiring payment of fees to the City for the purpose of fundir_g recreation improvementsr" (2) "the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval;#p and {3) zoning permits issued for the development "on or before January S, 2005.11 Larkin-MilOt began development late in 1995, and received twenty-cne ;mooning permits ov+,r the course of two years, paying no recreation -impact fees because of the $300 per lot credit in its subdivision approval. Thereafter, the City's zoning administrator advised Larkin-Milot that it was required to pay the higher fees under the ordinance, less the $3+00 credit. Larkin-Milot appealed to the City Council, which affirmed the administrator. MEL also commenced development of its Dorset Street project after adoption of the ordinance. The zoning administrator assessed the fee specified in the ordinance, less a $75 per unit credit, I,= each zoning permit issued. M8L paid the fees under protest and appealed to the City council, which upheld the administrator's assessment. In February 1998, :,arkin-Milot filed this action for declaratory relief in the superior court, seeking a declaration that it was exempt from the fees under the grandfather clause of the amended. ordinance. The City moved for summary judgment. In a written decision, the trial court denied the motion, concluding that Larkin-Milot's project satisfied the criteria set forth in the grandfather clause and, therefore, was exempt from the higher impact fees for any unit that received a zoning permit before the cutoff date of January 9, 2005. The court oubsequexntly denied the City's motion to alter <Page 4> or amend, and issued a judgment granting the requested declaratory relief and ordering the city to :refund monism previously collected under the ordinance. (FN3) MEL filed a similar action against the City for declaratory relief, :.uid Llim ClLy wuvLed fur aueruwaiy auL1VmcuL. TZ1C Liixl uuutL dt:uilted Llac motion for the same reasons stated in its earlier dec.i3ion in the Larkin-Milot case, and entered judgment in favor of MEL. The City appealed http:/,'dol.state.vt.us/gophcrr root3/supcVcurrent/2000-073.op 6/29/01 j,,29/2001 FRI 10,41 FAI 5012UO9119 STITZEL PAGE & FLFm"HER Z 0 o 5 Page 3 of 5 both decisions, which we consolidated for review. The city contends the trial court erred in conaluding that plaintiffs' prcjectS satisfied the first criterion of the grandfather clause requiring an approved MUbdiV45ion with a condition fo- 11pa, eMent Of fees. 11 The City's arqumen_ is two -Zola. First, it claims that the Projects failed tc qualify lor the exemption because the Conditions of approval did not impoee a dollar -specific fee, but rather provided for a °1=edicll against the impau-t fee "in affact" when the zoning permit was approved, Second, the City argues the subdivision approvals did not contain conditions 'Per the "payment of fees," but rather payments in -kind, i.e, the construction of a recreation path. in ccnstruimg the ordinance, we apply the usual rules of statutory const.raction. Wasco, inc. v. City of "Montpelier, 169 Vt. 320, 525, 739 A.2d 1241, 1245 (1999). Thus, if the meaning of an ordinance is plain, it will be amerced according to its terms, without resort tc ancillary rules of ccnatruction. Houston v. Town of Waitsfield, 162 Vt. 476, 479, 649 A.2d 964, 865 (1994)- "Cpage 5.-) Analyzed in this light, the City's arSumamr-s are unpersuasive. T1,* ordinance contains no requirement-expreeia or implied -that d quellifying subdivision approval contain a dollar -specific impact -fee assessment fee rather than one based on the fee in effect when the zoning permit issues. ITor ig there any indication in the ordinance that an assessment through in -kind contributicna-which the planning commission plainly considered to be the equivalent of impact fees -was meant to be excluded from the grandfather -clause exemption. indeed, the ordinance itself treats fees and in -kind contri:Dut4ons as equivalent, confarring- express authority on the planning commissluL i-o xvuuiimi"_LiL1 "a ay4iAioL aLLy lwpauL f..* 16Vi63 under this ordinance for the value of 'in Kind, contributions." Although the City points to language in the grandfather clause re-5orring to the "fees specified in the subdivision aloprova-7,11 this does not by its terms require a dollar -specific amount, nor does it preclude ;fin -kind contributicrns characterized as fee equivalents in the plariiing commission findings, the conditions of approval, and the impact -fee ordinance. The City next contends that even if the grandfather clause applies, its purpose was to roinstato the terms of the MBL and Larkin-Milot subdivision approvals requirIng uie payment of recreation impact fees -less the credit -"in effect" when the zoning permit issued. Thus, the city argues that plaintiffs remain subject to the higher too& for all zoning permits issued subsequent to the ordinance, despite application of the exemption. This argument also falls. The grandfather clause Plainly exempts previously approved, qTialifyitt; subdivisiona from payment of the higher impact fees for any zoning permit issued before the closing date of January 9, 2005, Nothing in the clause purports to incorporate the specific conditions of approval set forth in subdivisions previously approved by the planning commission. Since the city could have, but failed to include such a provision, it is not the Court's place to insert it. LeCours v. Nationwide Ins. Co., 163 Vt. 157, 161, 657 A.2d 177, 1$0 <Page 6;), (1993) Odhere legislature omitted II'miting language from azatute, "we are ccinsnrainad not to rewrite fit]"? - Although we rely on the plain terms of 'the ordinance, we noto that this interpretation is also consistent with the record evidence indicating that the City's purpose in ado-pting the grandfather clause was to accord "Ea.lrness" to dc�vellopers of approved oubdivisions which -except for final building permits -had all pians and permits in place prior to enactment o:6 6/29/01 �ittp:/Jdol.state-,,t.us/gopher-Mot3/�t,upcUc-irrent/2000-073.op d/29,'2001 FRI 10,47 FAX S,1`06609119 STITZEL PAGE & FLU'"'HER Pa,ge 4 of 5 the ordinance. Reimposing the substantially higher fees on subdivisions the amended ordinance wag dasigned tc axampt-ocrangibly under the terms of the txtmption clauee itself -defeats this pur1:oa* entirely. The city also argues that the trial court failed to accord "proper weight" to the City Council's ruling that plaint-iffs were subject to the higher fees under the ordinance. see in re Duncan, 155 Vt.. 402, 408, 584 A,2d 1140, 1244 (1990) (court will sustain interpretation of statute by administrative body responsible for Its execution absent compelling; indication of er=ar) . Whatever deference was due to the City Council yc its aL;VljCat4oU Of the higher fees to plaintiffs' projects was nlaarly erroneous, and properl'y reversed by the trial court. Finally, the City contends the court erred in ordering the City to refund to MBL and Larkin-Milot all recreation impact fees collected under the ordinance. Having concluded that plaintiffs were exempt from payment or the ;.higher fees -under the ordimanoo, wc find no baoio fcr overturning those portions of the judgmento requiring the City to refund to KBL and Larkin-Milot all fee(s) collected by the City of South Burlington under Section 3t5) �tw the im ordinance.- naiatiffu. Qt wiawv, om4in subject to the original requirements set forth in the planning commission's findings and conditions of approval prov-'ding, in the case of Larkin-milot, for a $3oa credit <Page 7> a,41.ni"mL Lhx: %=at6141&1J,1 0200 pet-ullit re'r,"dation iffiract-ted, And tn the case rof MPL, for a $15 credit acjainst the CUStOMa--Y $200 fee. (FQ41 Af f iM6d, von T=2 Associate Justice --------------------I----.-,.----_--------------------------------------------- Fcottoted FNI. The impact -fee Arrangement wa.5 reflected in condit,on 5 of the final plLaz approval as follows: "The Planning Commission granter a credit of $300 per lot for construction of the portion of the proposed recreation path located outside of any public street right-of-way. This credit may be applied toward required recreation fees. At time of application for a zoning/building permit, the applicant shall .pay the difference between the recreation iWact fae and the 9300 per lot credit.,, PM2. The condition of approval provided, in full, as follows; "The Plannina COMMi5SIOn &PPrOveS a Credit Of $75 per residential unit for construction of the portion of the proposed recreation path located outside of the public street right-of-way. This credit may be applied toward required recreation fees. At the time of application for a zoning/building permit, the applicant Shall pay the difference between the recreation impact tee http:/,Idol.state.vt.us/gopher_root3/supct/cu=n-U2000-073.op 6/29/01 a/29i2001 FRI 10:43 FAX 8026609119 9TIT?EL PAGE & FLETCHER 'Q 007 I I page a of and the $75 per unit credit." FN3. In 1398, three }rears alter the City enacted the amended .impact -fee ordinances, the planning cowntission amended the Larkin-Miiot subdivision approval to deletes the recreation -path construction provision and recpiired the developer to dedicates a new recreation easement shifted to the west to meander through the center of the common land rather than adjacent to houses, in denying the City,s motion to alter or amend, the court noted that the planning commissionI8 decision to alter the Larkin-Milot conditions of approval did not operate to retroactively disqualify the project from the grandfather clause exemption, since it still plainly qualified as a subdivisior that had received final plat approval prior- to January 9, 1395, which approval contained a coxzditioaa requiring payment of fees for funding recreation improvements. FN4. Although the findings and final plat approval for the MBL project did not, unlike the 1Larkin-milot project, expressly reference the $200 impact -fee in effect at the time, the City acknowledged in its statement of undisputed facts that this was the impact fee at the time of the final plat approval http://dol.state..vt.us/gopher root3/supeVcurrent/2000-O'jlop 6129101 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (RFLETCHER@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-9119 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y) June 29, 2001 VIA FACSIMILE AND FIRST CLASS MAIL Charles Hafter City Manager City of South Burlington 575 Dorset Street South Burlington, VT 05403 Dear Chuck: I regret that I have "bad" news. AMANDA S.E. LAFFERTY EDWARD G. ADRIAN was issued this morning b the"rmont Su rilot case.,. whichEnalosed is the decision i� t MBL LarkinpMeme Court. The Court affirmed the decision of the Trial Court determining both subdivisions to be benefited by the grandfather clause. I imagine we will hear from MBL and Larking Milot shortly about refunds. You should also expect calls from the media. I have taken the liberty of sending a copy of this letter and the enclosure to Juli Beth, as well. I am available to discuss the decision and its implications for the City at your convenience. ncere , o ert E. Fletcher REF/jp Enclosure CC: Juli Beth Hoover son4603.cor Page 1 of 5 MBL Associates v. City of South Burlington (2000-073 & 2000-074) [Filed 29-Jun-20011 NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press. MBL Associates w City of South Burlington Larkin-Milot Partnership V. City of South Burlington Matthew I. Katz, J. Nos. 2000-073 & 2000-074 Supreme Court On Appeal from Chittenden Superior Court March Term, 2001 Dennis R. Pearson and Stephen R. Crampton of Gravel and Shea, Burlington, for Plaintiffs -Appellees. Robert E. Fletcher and Joseph S. McLean of Stitzel, Page & Fletcher, P.C, for Defendant -Appellant. PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ. SKOGLUND, J. In these consolidated appeals, the City of South Burlington challenges related judgments of the superior court in favor of plaintiffs MBL Associates and the Larkin-Milot Partnership. The City contends the court erred in concluding that plaintiffs were exempt from the City's recreation impact -fee ordinance. We affirm. The material facts are undisputed. In 1993, the City's planning commission gave final subdivision map approval to Larkin-Milot's application for a planned residential development consisting of seventy-three single-family lots on the east side of Spear Street. A condition of <Page 2> approval required Larkin-Milot to pay $22,000, or the equivalent of $300 per unit, for construction of a recreation path on the property, which the City credited against the $200 per -unit recreation fee it then typically imposed on such projects. This condition of approval was memorialized in the planning commission's findings as follows: A credit of $22,000 should be given the applicant for construction of the portion of the proposed recreation path located outside of http://dol.state.vt.us/gopher_root3/supct/current/2000-073.op 6/29/01 Page 2 of 5 any public street [right-of-way]. . . . This translates to $300 per lot. Based on the current recreation impact fee of $200, the applicant would not pay a recreation fee since the credit is more than the actual fee. If in the future the City adopts a recreation fee of more than $300 per lot, then the applicant would be required to pay the difference. (FN1) In January 1994, the City's planning commission also gave final plat approval to plaintiff MBL's application for a planned residential development consisting of 161 single-family lots and sixty multi -family units off of Dorset Street. As explained in its findings, the planning commission required MBL to construct a recreation path located outside of the public right-of-way, and provided that $75 per unit would be credited against "the recreation fee in effect at the time of permit." (FN2) In January 1995, the City Council adopted an ordinance that imposed considerably higher recreation impact -fees than the $200 per -unit fee the City had customarily imposed in the past. <Page 3> Three months later, the City Council amended the ordinance to temporarily exempt certain subdivisions from payment of the higher fees. Under this so-called "grandfather clause," lots would not be subject to the new fees if they met three criteria: (1) the subdivision received final plat approval prior to January 9, 1995, "which subdivision approval contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements;" (2) "the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval;" and (3) zoning permits issued for the development "on or before January 9, 2005." Larkin-Milot began development late in 1995, and received twenty-one zoning permits over the course of two years, paying no recreation -impact fees because of the $300 per lot credit in its subdivision approval. Thereafter, the City's zoning administrator advised Larkin-Milot that it was required to pay the higher fees under the ordinance, less the $300 credit. Larkin-Milot appealed to the City Council, which affirmed the administrator. MBL also commenced development of its Dorset Street project after adoption of the ordinance. The zoning administrator assessed the fee specified in the ordinance, less a $75 per unit credit, for each zoning permit issued. MBL paid the fees under protest and appealed to the City Council, which upheld the administrator's assessment. In February 1998, Larkin-Milot filed this action for declaratory relief in the superior court, seeking a declaration that it was exempt from the fees under the grandfather clause of the amended ordinance. The City moved for summary judgment. In a written decision, the trial court denied the motion, concluding that Larkin-Milot's project satisfied the criteria set forth in the grandfather clause and, therefore, was exempt from the higher impact fees for any unit that received a zoning permit before the cutoff date of January 9, 2005. The court subsequently denied the City's motion to alter <Page 4> or amend, and issued a judgment granting the requested declaratory relief and ordering the City to refund monies previously collected under the ordinance. (FN3) MBL filed a similar action against the City for declaratory relief, and the City moved for summary judgment. The trial court denied the motion for the same reasons stated in its earlier decision in the Larkin-Milot case, and entered judgment in favor of MBL. The City appealed http://dol.state.vt.us/gopher_root3/supct/current/2000-073.op 6/29/01 Page 3 of 5 both decisions, which we consolidated for review. The City contends the trial court erred in concluding that plaintiffs' projects satisfied the first criterion of the grandfather clause requiring an approved subdivision with a condition for "payment of fees." The City's argument is two -fold. First, it claims that the projects failed to qualify for the exemption because the conditions of approval did not impose a dollar -specific fee, but rather provided for a "credit" against the impact fee "in effect" when the zoning permit was approved. Second, the City argues the subdivision approvals did not contain conditions for the "payment of fees," but rather payments in -kind, i.e, the construction of a recreation path. In construing the ordinance, we apply the usual rules of statutory construction. Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 525, 739 A.2d 1241, 1245 (1999). Thus, if the meaning of an ordinance is plain, it will be enforced according to its terms, without resort to ancillary rules of construction. Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994). <Page 5> Analyzed in this light, the City's arguments are unpersuasive. The ordinance contains no requirement -express or implied -that a qualifying subdivision approval contain a dollar -specific impact -fee assessment fee rather than one based on the fee in effect when the zoning permit issues. Nor is there any indication in the ordinance that an assessment through in -kind contributions -which the planning commission plainly considered to be the equivalent of impact fees -was meant to be excluded from the grandfather -clause exemption. Indeed, the ordinance itself treats fees and in -kind contributions as equivalent, conferring express authority on the planning commission to recommend "a credit against any impact fee levied under this ordinance for the value of 'In Kind' contributions." Although the City points to language in the grandfather clause referring to the "fees specified in the subdivision approval," this does not by its terms require a dollar -specific amount, nor does it preclude in -kind contributions characterized as fee equivalents in the planning commission findings, the conditions of approval, and the impact -fee ordinance. The City next contends that even if the grandfather clause applies, its purpose was to reinstate the terms of the MBL and Larkin-Milot subdivision approvals requiring the payment of recreation impact fees -less the credit -"in effect" when the zoning permit issued. Thus, the City argues that plaintiffs remain subject to the higher fees for all zoning permits issued subsequent to the ordinance, despite application of the exemption. This argument also fails. The grandfather clause plainly exempts previously approved, qualifying subdivisions from payment of the higher impact fees for any zoning permit issued before the closing date of January 9, 2005. Nothing in the clause purports to incorporate the specific conditions of approval set forth in subdivisions previously approved by the planning commission. Since the City could have, but failed to include such a provision, it is not the Court's place to insert it. LeCours v. Nationwide Ins. Co., 163 Vt. 157, 161, 657 A.2d 177, 180 <Page 6> (1995) (where legislature omitted limiting language from statute, "we are constrained not to rewrite [it]"). Although we rely on the plain terms of the ordinance, we note that this interpretation is also consistent with the record evidence indicating that the City's purpose in adopting the grandfather clause was to accord "fairness" to developers of approved subdivisions which -except for final building permits -had all plans and permits in place prior to enactment of http://dol.state.vt.us/gopher_root3/supct/current/2000-073.op 6/29/01 Page 4 of 5 the ordinance. Reimposing the substantially higher fees on subdivisions the amended ordinance was designed to exempt -ostensibly under the terms of the exemption clause itself -defeats this purpose entirely. The City also argues that the trial court failed to accord "proper weight" to the City Council's ruling that plaintiffs were subject to the higher fees under the ordinance. See In re Duncan, 155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990) (court will sustain interpretation of statute by administrative body responsible for its execution absent compelling indication of error). whatever deference was due to the City Council's ruling, its application of the higher fees to plaintiffs' projects was clearly erroneous, and properly reversed by the trial court. Finally, the City contends the court erred in ordering the City to refund to MBL and Larkin-Milot all recreation impact fees collected under the ordinance. Having concluded that plaintiffs were exempt from payment of the higher fees under the ordinance, we find no basis for overturning those portions of the judgments requiring the City to refund to MBL and Larkin-Milot all "impact fee(s) collected by the City of South Burlington under Section 3(B) of the 1995 Ordinance." Plaintiffs, of course, remain subject to the original requirements set forth in the planning commission's findings and conditions of approval providing, in the case of Larkin-Milot, for a $300 credit <Page 7> against the customary $200 per -unit recreation impact -fee, and in the case of MBL, for a $75 credit against the customary $200 fee. (FN4) Affirmed. FOR THE COURT: Associate Justice ------------------------------------------------------------------------------ Footnotes FN1. The impact -fee arrangement was reflected in condition 5 of the final plat approval as follows: "The Planning Commission grants a credit of $300 per lot for construction of the portion of the proposed recreation path located outside of any public street right-of-way. This credit may be applied toward required recreation fees. At time of application for a zoning/building permit, the applicant shall pay the difference between the recreation impact fee and the $300 per lot credit." FN2. The condition of approval provided, in full, as follows: "The Planning Commission approves a credit of $75 per residential unit for construction of the portion of the proposed recreation path located outside of the public street right-of-way. This credit may be applied toward required recreation fees. At the time of application for a zoning/building permit, the applicant shall pay the difference between the recreation impact fee http://dol.state.vt.us/gopher—root3/supct/current/2000-073.op 6/29/01 Page 5 of 5 and the $75 per unit credit." FN3. In 1998, three years after the City enacted the amended impact -fee ordinance, the planning commission amended the Larkin-Milot subdivision approval to delete the recreation -path construction provision and required the developer to dedicate a new recreation easement shifted to the west to meander through the center of the common land rather than adjacent to houses. In denying the City's motion to alter or amend, the court noted that the planning commission's decision to alter the Larkin-Milot conditions of approval did not operate to retroactively disqualify the project from the grandfather clause exemption, since it still plainly qualified as a subdivision that had received final plat approval prior to January 9, 1995, which approval contained a condition requiring payment of fees for funding recreation improvements. FN4. Although the findings and final plat approval for the MEL project did not, unlike the Larkin-Milot project, expressly reference the $200 impact -fee in effect at the time, the City acknowledged in its statement of undisputed facts that this was the impact fee at the time of the final plat approval. http://dol.state.vt.us/gopher—root3/supct/current/2000-073.op 6/29/01 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 OF COUNSEL PATTIR PAGE'S E-MAIL(FUtM2555@FLRMSPF.COM) ARTHUR W. CERNOSIA ROBERT E. FLETCHER WRITER'S E-MAIL (RFLETCHER@FIRMSPF.COM) WRITER'S FAX (802) 660-9119 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARV ONIDES AMANDA S.E. LAFFERTY (*ALSO ADM=D IN N.Y.) February 28, 2000 Martha Hicks -Robinson, Docket Clerk Vermont Supreme Court 109 State Street Montpelier, VT 05609-0801 Re: MBL Associates v. City of South Burlington City Council Docket No. 2000-073 Dear Ms. Hicks -Robinson: Enclosed for filing with regard to the above -captioned matter is Appellant City of South Burlington's Docketing Statement. Thank you. REFJgmt Enclosure cc: Dennis R. Pearson, Esq. Joseph Weith SON4257.COR VERMONT SUPREME COURT MBL ASSOCIATES, Plaintiff ) Appealed from: Chittenden Superior Court V. ) Docket No. S392-98CnC CITY OF SOUTH BURLINGTON ) CITY COUNCIL, ) Supreme Court Defendant. ) Docket No. 2000-073 APPELLANT CITY OF SOUTH BURLINGTON'S DOCKETING STATEMENT A. Court, Counsel 1) Trial Judge: Hon. Matthew I. Katz 2) Trial counsel for plaintiff/appellee: Dennis R. Pearson, Esq. 3) Trial counsel for defendant/appellant: Robert E. Fletcher, Esq. 4) Counsel in Supreme Court for plaintiff/appellee: Unknown. 5) Counsel in Supreme Court for defendant/appellant: Robert E. Fletcher, Esq. 6) Please list other parties and their counsel: N/A. 7) Date of decision being appealed: February 2, 2000 8) Date notice of appeal filed: February 14, 2000 B. Criminal Cases 1) Was defendant given a sentence of imprisonment? N/A _ 2) If so, what is the sentence? N/A 3) If so, has the sentence been stayed pending appeal? N/A 4) If the sentence has not been stayed, when did the defendant begin service of the sentence? N/A 5) What penalty other than a sentence has been imposed? N/A Please describe: 6) Was trial counsel appointed or retained? N/A C. Brief Description of Nature of Case and Result In January 1994, MBL Associates (the "Plaintiff") received final plat approval from the City of South Burlington Planning Commission for a planned residential development consisting of 161 single-family lots and sixty multi -family units (the "Project"). The final plat approval obligated the Plaintiff to pay the City the recreation impact fee "in effect" as each residential unit in the Project was developed. Because Plaintiff was also obligated to construct, at its own expense, a recreation path on its property adjacent to Dorset Street, the Plaintiff was given a $75 credit to be "applied toward required recreation fees." At the time of the final plat approval, the City customarily charged an impact fee of $200 per unit. On January 9, 1995, the City Council adopted an impact fee ordinance which included provisions pertaining to recreation impacts (the "Ordinance"). The impact fees in the Ordinance are considerably higher than the historically customary fee. In April 1995, the City Council amended the Ordinance to make certain projects exempt from the impact fees specified in the Ordinance. Such exempt projects remained liable for the recreation impact fees specified in their respective final plat approvals. The Plaintiff began developing individual units within the Project after adoption of the Ordinance. As the building/zoning permit for each unit was applied for, the City's Zoning Administrator assessed and collected the recreation impact fee specified in the Ordinance less the $75.00 per unit credit. The Plaintiff appealed the Zoning Administrator's assessment of recreation impact fees with respect to units in the Project to the City Council. The City Council upheld the Zoning Administrator's actions. The Plaintiff filed an action in the Chittenden Superior Court seeking declaratory and injunctive relief. The City filed a Motion for Summary Judgment, which was opposed by Plaintiff. The City's Motion was ultimately denied by the Court in a written decision dated January 12, 2000. The Court determined that the "exemption clause" in the Ordinance is applicable to units in the Project, and the same are/will be exempt from impact fees under the Ordinance provided Plaintiff satisfies the other criteria for exemption. A judgment order was entered February 2, 2000 granting the Plaintiff its requested declaratory relief and ordering the Defendant to repay to Plaintiff all amounts collected as recreation impact fees. 2 D. Statement of Issues To Be Raised on Appeal 1. Did the trial court err in concluding that units in the Project developed to date are, and the remaining units may be, exempt from the imposition of recreation impact fees under the Ordinance in light of the plain language of the Ordinance and the final plat approval for the Project? 2. Did the trial court err in ordering the City to refund to the Plaintiff the recreation impact fees collected to date? E. Photocopies of Documents to be Attached Was there a written decision? Yes (See attached Entry dated December 1, 1999 in Chittenden Superior Court Docket No. 168-98CnC.) F. Inventory of Hearings; Transcripts Ordered. None. Date of Length of Type of Reporter's name Transcript Date necss. hearing hearing hearing (or "TAPE") necessary transcript days/hours for appeal? ordered Does the appellee agree as to which transcript(s) are essential for the appeal? Yes No If not, indicate name(s), date(s), and reports) of additional transcript(s) needed. G. Conference; Summary Disposition 1) Do you request a conference with a staff attorney to discuss either settlement or expedited resolution? (Most conferences are done by phone) Yes( No circle 2) Is this matter appropriate for disposition by a three -justice V.R.A.P. 33.1 and the criteria V.R.A.P. 33.2? Yes No circle 3 expedited panel pursuant to set forth in Please explain: This appeal involves matters of significant public interest. Submitted by: APPELLANT CITY OF SOUTH By and TZELau2 STITZE PAg2 Dated: February 28, 2000 By: Son636.1it 4 BURLINGTON STATE OF VERMONT CHITTENDEN COUNTY, SS. MBL ASSOCIATES, ) Plaintiff, ) V. ) ) CITY OF SOUTH BURLINGTON, ) Defendant. ) CHITTENDEN SUPERIOR COURT DOCKET NO. 392-98 CnC -- ---- --- - rl CHITTENDEN COUNTY f1 FILED IN CLEPRKS 0HI FEB - 2 M DIANL A. L'-. JUDGMENT FOR DECLARATORY RELIEF IT IS HEREBY ORDERED AND ADJUDGED, pursuant to 12 V.S.A. 4711 et seq., and Rule 57, V.R.Civ.P., and based upon the Court's decision and Entry, dated January 12, 2000: 1. The two hundred and twenty-one (221) building lots and/or housing units located off Dorset Street in the City of South Burlington, Vermont, also known as "Dorset Farms," as proposed and developed by Plaintiff MBL Associates and approved by the South Burlington Planning Commission by written decision of January 11, 1994, are not subject to, and are exempted from payment of recreation impact fee(s) which would otherwise be imposed by the South Burlington Impact Fee Ordinance adopted January 9, 1995, provided that Dorset Farms is developed in conformance with any condition(s) of the January 11, 1994 written final plat approval, and/of any amendment(s) thereto, related to any required improvement, contribution or dedication with respect to recreation or recreation paths, and that the lots/units therein meet the requirements of § 3(B)(5)(c) of said Ordinance. 2. The City of South Burlington shall refund to MBL Associates, LLC all recreation impact fee(s) collected by the City of South Burlington under Section 3(B) of the 1995 Ordinance with respect to the Dorset Farms project, which fees have been paid under protest and have been held in escrow by the City of South Burlington, together with any interest earned by or allocated to said escrowed recreation impact fees. Dated, at Burlington, Vermont, this 2! day of , 2000. Nesiding Judge Chittenden Superior Court <MBL: Judgmcm for D Iamlory Re1ie095115/21#X0II.WP/DRP> 4TTENDEN SUPERIOR 17 � �'cT NUMBER: 50392-95 CnC MBL Associates VS. City of -So. Burlington MATTER SCHEDULED ON: 1112100 AT 11:00 FOR { CONFERENCE { j PRE-TRIAL CONF. { j MERITS { { MERITS - BACKUP { } JURY DRAW { l JURY TRIAL { j JURY TRIAL - BACKUP (X) MOTION(S): { j MOTION - BACKUP: DEF'S MOTION FOR SUMMARY JUDGMENT { I OTHER: ENTRY ORDER ATTORNEYS PLAINTIFF: 1nis R. Pearson, Esq. PRESENT: / DEFENDANT: Rd�ert E. Fletcher, Esq. HEARING Y IN CHAMBERS IN COURT oM,mENCED CON' { { j { ) �' � ,PLETED { j THIS MATTER DID' NOT TAKE PLACE AS SCHEDULED, DUE TO: Coo VA(AA ` 0% C_ e-� i tc ��oL �o ",Y-*'; 10u'6� o �r'o �.�. �� ✓ or�vr- vvue e o4 a C ( r Q4 rt, e ✓Q l0votr O v. CASE SCHEDULED FOR { j CASE CLOSED VIDE( / rOFF REPORTER Lam{ , 11Z 0 L/— SCHEDULING CLERK DATE 01.1 ��* Z JUDGE ASSISTANT JUDGE ASSISTANT JUDGE STATE OF VERMONT Chittenden County, ss.: LARKIN-MILOT PRTNSHP V. CITY OF SOUTH BURLINGTON ENTRY SUPERIOR COURT Docket No. 168-98 CnC t CHITiftaDEN ''LERK FILED IN i fL .S 0`::-GE DEC - I Im DIANL % I. ' IALLIE CLEA Pursuant to 24 V.S.A. ch. 131, South Burlington has enacted an impact fee ordinance. The parties dispute its proper application to plain- tiff's development, which somewhat predates the ordinance enactment in 1995. We are therefore faced with the legal issue of interpreting the ordinance, in the context of an evolving subdivision process. Plaintiff submitted an application for plat approval on its Spear Street development and received subdivision approval in 1992. At that time, South Burlington had no ordinance providing for impact fees, but had initiated a practice of "routinely including" $200 per lot fees on final permit issuance. It had "begun developing an impact fee that same year, but did not actually adopt such a fee ordinance until January, 1995. Prior to that official adoption, South Burlington officials negotiated with plaintiff on the subject of its contribution to what we might call the City's "recreation capital." Specifically, officials sought the developer's contribution of land and costs for extending its recreation path through the new development. An agreement was reached, reflected in ¶20 of the Planning Commission's "Findings:" A credit of $22,000 should be given the applicant for con- struction of the portion of the proposed recreation path ... This translates to $300 per lot. Based on the current recre- ation impact fee of $200, the applicant would not pay a recreation fee since the credit is more than the actual fee. If in the future the City adopts a recreation fee of more than $300 per lot, then the applicant would be required to pay the differ- ence. % The final "Condition" of the subdivision approval required plaintiff to V construct the recreation path. Apparently, it did. That subdivision approval was formally issued in December, 1993. After the January, 1995 enactment of the impact fee ordinance, South Burlington quickly took up some amendments thereto. It now agrees that these amendments were developed to deal with the issue of fairness to developments which were already ongoing under the earlier impact fee arrangement. In April, 1995, an amendment was passed which included paragraph 3(B)(5): This impact fee shall not apply to land development as de- scribed in subparagraph (1) which: (a) is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regula- tions prior to January 9, 1994, which subdivision approval 2 contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements, and (b) the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval; and (c) a permit is issued for the development under South Burlington Zoning Regulations on or before January 9, 2005. The parties refer to this amendment as the "Grandfather Clause." Plaintiff began obtaining zoning permits later in 1995, and received 21 such permits over the course of two years, always benefitting from the ' $300 credit" it had against the old "$200 fee," before City officials concluded that it should pay the much higher impact fees enacted under the ordinance. So the issue is joined: Plaintiff developer maintains it is entitled to the benefits of the Grandfather Clause; South Burlington contends that plaintiffs only payment under the old Subdivision Approval was the application of a credit which was always understood to be good only so far as it went, it the fee went up, the credit was only for $300. Initially, we conclude that this is an appropriate case for summary judgment. The court's obligation is to interpret and apply written instru- ments, in one instance the subdivision approval, in the other the later, Grandfather Clause ordinance. The interpretation of such documents is pre- eminently a question of law, unless one of them is found to be ambiguous. But we decline to find that either is ambiguous, although there may be some level of conflict between the two. Neither party argues that one or the other cited instrument, standing alone, is capable of two reasonable interpreta- tions, which requires resort to extraneous sources in order to reach a proper understanding. 3 The Grandfather Clause ordinance is as binding on the City and its inhabitants as are the general laws of the State on its citizens. 5 E_ McQuil- lin, Municipal Corporations (3d ed. 1996), § 15.14. Words in ordinances are to be given their plain meaning. Badger v. Town of Ferrisburgh, 712 A.2d 911 913 (1998). If the meaning of the ordinance is clear from its plain language, it will be enforced according to its terms. Houston v. Town of Waitsfield, 162 Vt. 476, 479 (1994). South Burlington does not argue that the Grandfather Clause, standing by itself, somehow excludes plaintiff's development. We accept its implicit concession that the Clause's language does apply to the Spear Street project. That project constitutes land deve- lopment which • is within a subdivision which received final plat approval prior to January 9, 1995; • within that approval required payment of fees to the City for the purpose of funding recreation improvements; • the specified fees were paid; and • final permit has been issued before the 2005 cutoff date. What the City contests is whether the middle two elements are vitiated by the subdivision approval language anticipating future fees higher than the $300 credit. When the Planning Commission determined to require plaintiff to construct a recreation path within its development, it was clearly and ✓� explicitly in lieu of the then -customary $200 fee. It is uncontested that the construction was completed. Hence, the question for us is whether a "fee in kind" should somehow be treated differently than one in cash_ We certainly see no reason to do so. South Burlington could, presumably, have extracted a simple $200 per lot from plaintiffs, as it apparently did from all other applicants. Instead, it reached an agreement seemingly more favorable to the City, for path construction. Indeed, the City concluded the agreement was worth fully 50 percent more than the contemporaneous fee. We therefore conclude that, in 1993, a fee was charged and, subsequently, it 12 was paid. We do not overlook the qualification included in the subdivision approval that the $300 path credit was something less than a "Paid in Full." The City reserved the right to increase the fee at some future time, and plaintiff evidently accepted that qualification, for it failed to appeal the approval. But inclusion of the qualification does not mean that no fee was f exacted, or none paid. Something was exacted, and what was so wrested was indeed paid. It is against this background that the Grandfather Clause was crafted and enacted. South Burlington also argues extensively that the fee is not actually imposed until a permit is issued, and that its regimen provides for only one permit —the zoning/building permit. We have in mind that subparagraph (b) of the Grandfather Clause is written in the past tense ("were"), suggesting that it might not govern cases in which the fee has not yet been paid. But such an interpretation would put (b) at odds with (c), which looks forward until 2005 for the period in which lots could be grandfathered. Reading the (b) and (c) as part of a whole, as we must, it must be interpreted as provid- ing protection to lots for which the predetermined fee is paid, when due. In sum, we conclude that South Burlington could have written a different Grandfather Clause, or could have (Iegally) declined to enact one at all. Instead, it enacted one which plaintiff's project satisfies. As it comes later than the subdivision qualification, and binds the City, we conclude that the Clause must govern, standing on its own. As such, it exempts plaintiffs Spear Street project from further impact fees. 5 Plaintiff's request for declaratory relief is granted_ If a formal declaratory judgment is required, plaintiff should submit a proposal within ten days. Dated at Burlington, Vermont, December I , 1999. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 ) 660-2555STEVEN F. STITZEL (802 FAX (802)( 60� 552DD) PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (RFLE CHER@FIRMSPF.COM) JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) June 14, 1999 Diane A. Lavallee, Clerk Chittenden Superior Court 175 Main Street PO Box 187 Burlington VT 05402-0187 Re: MBL Associates v. City of South Burlington Docket No. S392-98 CnC Dear Diane: Enclosed for filing with regard to the above -captioned matter please find the following: OF COUNSEL ARTHUR W. CERNOSIA 1. Defendant's Supplemental Memorandum in Support of Defendant's Motion for Summary Judgment; 2. Defendant's Response to Plaintiff's Counter -Statement of Material; Undisputed Facts, with attachments; 3. My Certificate of Service. Thank you for your attention to ese ma ters. there are any questions, please feel free ca inc el , Robert E. Flet er REF/bj1 Enclosures cc: D. Pearson,Esq. C. Hafter J. Weith scn4060.cor STATE OF VERMONT CHITTENDEN COUNTY, SS MBL ASSOCIATES, Plaintiff, V. CITY OF SOUTH BURLINGTON, Defendant Chittenden Superior Court Docket No. 392-98 CnC CERTIFICATE OF SERVICE I, ROBERT E. FLETCHER, ESQ., do hereby certify that I served a copy of Defendant's Supplemental Memorandum in Support of Defendant's Motion for Summary Judgment, dated June 14, 1999, upon Plaintiff's counsel, Dennis Pearson, Esq., by causing a copy to be placed in the U.S. Mail, postage pre -paid this 14th day of June, 1999. Dated at Burlington, in the County of Chittenden, State of Vermont, this 141-h day of June, 1999. son5B5.1it STITZF_L, PAGE K PLETCHER, P.C. ATTORNPYS AT I.A" .7i li: IF'.I?) S110AIT By: 1 Stitzel, Page & Fletcher, P.C. PO Box 1507 Burlington, VT 05402-1507 STITZEL. PAGE & F'LETCHER, P.C. ATTORNEYS AT LAka' H ev sri¢ia:r STATE OF VERMONT CHITTENDEN COUNTY, SS MBL ASSOCIATES, Plaintiff, V. CITY OF SOUTH BURLINGTON, Defendant. Chittenden Superior Court Docket No. 392-98 CnC DEFENDANT'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The City of South Burlington, Defendant, responds to the Memorandum of Plaintiff in Opposition to Defendant's Motion for Summary Judgment and supplements its earlier Memorandum in Support of Defendant's Motion for Summary Judgment as follows. I. THE IMPACT FEE ORDINANCE IS NOT AMBIGUOUS AND SHOULD BE ENFORCED AS WRITTEN. A. Plaintiff Has Failed to Prove The Ordinance Is Ambiguous. The Plaintiff concedes, as it must, that the City's impact fee ordinance (the "Ordinance") is, on its face, clear and unambiguous. It then asserts that as applied the Ordinance is ambiguous. Its only bases for this assertion are a mis- characterization of a condensed version of a statement made by the City Manager and an initial administrative error in the application of the Ordinance to this project. These two events are portrayed by Plaintiff as "prima facie" evidence of ambiguity STITZEL. PACE, C FLETCHER. P.C. ;vTTORNEVS AT i.A%N 1'11. W0, L-di' inherent in applying the Ordinance. The City believes that neither of these events, either alone or in combination, satisfy Plaintiff's burden nor create any ambiguity in the Ordinance. 1. Plaintiff Bears the Burden of Proving that The Ordinance is Ambiguous. It is not enough for Plaintiff to simply assert that the Ordinance is unclear and ambiguous, Plaintiff must prove it. "Itl is for the plaintiff to demonstrate why confusion or ambiguity beclouds a statute that appears clear on its face." Sanders v. St. Paul Mercury Ins. Co., 148 Vt. 496, 504, 536 A.2d 914, 919 (1987); see also, 2A Sutherland Statutory Construction §46.01, p.82 (Plaintiff "must show either that some other section of the act expands or restricts its meaning, that the provision itself is repugnant to the general purview of the act, or that the act considered in pari materia with other acts, or with the legislative history of the subject matter, imports a different meaning."). Ambiguity exists where the instrument or enactment is reasonably susceptible to two or more interpretations. Towns v. Vermont Mut. Ins. Co., 1999 WL 50274, 2 (Vt. 1999) (insurance contract is ambiguous if language is reasonably or fairly susceptible to different interpretations). The mere fact that a -2- STITZEL, PAGE & FLETCHER, P.C. ATTORNEAS AT LAW Ili Ii!.I\l; 10" 1'I.HMO\'I dispute has arisen over the proper interpretation of a contract does not render the language ambiguous. Id., citing Isbrandtsen v. North Branch Corp., 150 Vt. 575, 581, 556 A.2d 81, 85 (1988). The same is true of disputed legislation. The Plaintiff's alleged evidence of the City's "intent" which occupies so much of Plaintiff's Memorandum does not prove the Ordinance to be ambiguous. 2. The "Extraneous" Evidence Relied Upon by the Plaintiff is Irrelevant and Miscast. The ultimate goal of interpreting an ordinance is to give effect to the legislative intent. Appeal of Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998) (quoting Lubinsky v. Fair Haven Zoning Board, 148 Vt. 47, 527 A.2d 227 (1986)). The Plaintiff alleges that an abbreviated version of comments made by the City Manager, as reproduced in the minutes of a City Council meeting, is evidence of the City's "admitted intent" concerning the April 1995 amendments. The Plaintiff attaches considerable significance to this capsulized distillation, insinuating that it constitutes some form of "legislative history" or admission by the City of the intent of the April 1995 amendment. The Plaintiff not only misconstrues these statements, it oversells them. -3- STITZEL. PAGE & FLETCHER, Y.C. A'1 0IiSIt S V1'1,AN' .7I Ba P'r1 0 ,I .1"I P.n R11a IS!17 Only the Defendant City Council is vested with authority to enact ordinances and to formulate policy for the City. Hence, only the actions and statements of the City Council can be relevant evidence of the City Council's "legislative intent." The City Manager is not a member of the City Council; he is an employee of the City responsible for implementation of the policies adopted and enacted by the City Council, and for day -to -I day management of the City. His comments cannot fairly be characterized as the conscious or intent of the City Council. Moreover, the statements attributed to the City Manager were) an explanation to the City Council of the comments made by developers concerning the enactment and implementation of the Ordinance in its original form. This point was made by Mr. Hafter during the course of his deposition. Deposition of Charles Hafter, pp. 11-12, Exhibit 3 (Dec. 3, 1998)(attached hereto). For the Plaintiff to characterize those comments as indicative of the intent of the City is disingenuous, at best. Finally, the significance, if any, of the City Manager's statement is undercut when put in context. The statement at issue was made at the March 6, 1995 City Council meeting, fully a month before the date on which the Ordinance was amended. Id. At that same meeting, the Chair suggested soliciting input from STITZEL, PAGE 8 FLETCHER. P.C. ATTORNEYS AT LAN" 171 J NN I I'l M IItl A l 1�11_IR)X If,07 VI PNIOVI the Planning Commission before the matter was considered further, and the matter was dropped. Deposition of Charles Hafter, Exhibit) 3. Mr. Hafter's statements are not, in any real sense, compelling evidence of the intent of the City Council. The Plaintiff also attempts to make an issue of an administrative error by the City Zoning Administrator to demonstrate that the City interpreted the Ordinance to require that an impact fee of $200 per lot be assessed for lot development within the instant project. It suggests, without substantiation, that the City changed its policy on the fees assessable with respect to development in this project in a surreptitious attempt to increase City revenues, Nothing could be further from the truth, and the Plaintiff knows that. The City has never denied that the Zoning Administrator erred in the assessment of recreation impact fees with respect to the first 21 building/zoning permits issued for lots in a project known as Pinnacle at Spear. He erroneously assumed that the fee assessable for recreation impacts associated with the project were $200 per lot. Based on that erroneous assumption, he collected nothing from lot developers as they applied for the first 21 land development permits for lots in Pinnacle at Spear. When the error was discovered, the Zoning Administrator wrote to -5- STITZEL. PAGE, X FLETCHER. Y.C. ATTORSE:}'S AT LAXN 171 H V'f'I'1 �1iV �I'H I:I'"I' the developer informing it of the error and advising that henceforth he would be assessing the correct fee under the Ordinance. Deposition of Richard Ward, pp. 11-14, Ex. 6 (March 1,1 1999) (attached). This administrative error is not proof of anything other than the fact that the Zoning Administrator made a mistake. The Plaintiff suggests that it is evidence of a broader conspiracy byl the City, but it has no proof thereof. Indeed, in his deposition) testimony, Richard Ward, the City's Zoning Administrator at the time, refuted that suggestion. Id., at pp. 14-15. The City believes that the Plaintiff's resort to innuendo is both malicious and desperate. The motivation and intent of the City Council in enacting the amendment can best be discerned from a review of the plain language of the enactment itself. The City's views on the meaning and proper interpretation of the amendment are set forth in detail in the City's Memorandum in Support of its Motion for Summary Judgment. The plain language of the Ordinance conveys clearly the intent of the City Council. As such, the City is entitled to have the Ordinance enforced in accordance with that plain language. W STITZEL, PAGE & FLETCHER, P.C. ATT0RNE1YS AT LAN' 171 li 1l"1'Y.R1 .59'HLIiT is it ti If "confusion or ambiguity does not appear [from the language of the enactment], then the statute is not construed buts rather enforced in accordance with its express terms." Cavanaugh) v. Abbott Laboratories, 145 Vt. 516, 529, 496 A.2d 154, 162 (1985), quoting Heisse v. State, 143 Vt. 87, 89, 460 A.2d 444, 445 (1983); see also, Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994); see also, Bisson v. Ward, 160 Vt. 343, 348, 628 A.2d 1256, 1260 (1993). Indeed, interpretation is not required, or permitted, where the language of the enactment is plain. Smith v. Winhall Planning Commission, 140 Vt. 178, 183, 436 A.2d 760, 762 (1981), citing Kalakowski v. John A. Russell Corp., 137 Vt. 219, 223, 401 A.2d 906, 909 (1979). These tenets of statutory construction apply with full force to zoning ordinances. Blundon v. Town of Stamford, 154 Vt. 227, 229, 576 A.2d 437, 439 (1990); Kalakowski v. John A. Russell Corp., 137 Vt. 219, 223, 401 A.2d 906, 909 (1979). The cases relied on by Plaintiff are not at odds with these principles. A recent decision written by Chief Justice Amestoy puts them in perspective: Our paramount goal in statutory construction is to give effect to the Legislature's intent. See, Burlington Elec. Dep't. v. Vermont Dep't of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990). We apply the plain meaning of a statute where the language is clear and unambiguous, see, Conn v. -7- STITZEL. PAGE K FLETCHER.P.C. ATTORNEYS A71,A%k -. a ��;•riuty sriter-r I:: IiiJ AG'I'U ♦. � ICH ?1t1'�"�. Middlebury Union High School Dist. #3, 162 Vt. 498, 501, 648 A.2d 1385, 1387 (1994), and where there is ambiguity, we look to the general context of the statutory language, the subject matter, and the effects and consequences of our interpretation. See, Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985). Shea v. Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998). The City is not concerned about the outcome of a broad -based) analysis of the Ordinance, but it contends that such an analysis is unnecessary and unwarranted. The Ordinance language is plain and unambiguous; it needs no interpretation or further analysis. The Ordinance should be enforced, not interpreted, by this court. II. THE DECISION OF THE CITY COUNCIL ON THE PLAINTIFF'S APPEAL IS ENTITLED TO DEFERENCE FROM THE COURT. The Plaintiff takes issue with the notion that the decision reached by the City Council on the Plaintiff's appeal from the Zoning Administrator's decision should be afforded considerable deference absent proof that it was the product of compelling error. The City recommends to the Court the decisions cited in its original Memorandum and the decisions in Mountain Cable Co. v. Vermont Department of Taxes, Vt. , 721 A.2d 507 (1998), Secretary, Agency of Natural Resources v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001 (1997), and Lemieux v. Tri-State Lotto Comm'n, 164 Vt. 110, 112-13, 666 A.2d 1170, 1172 -8- STITZEL. PAGE 8; FLETCHER, P.C. A"PTORNEYS Al LAW i ) HATTIJO SAO-) I 1-11 BON 160: (1995). Although these Supreme Court decisions involve appeals from decisions of administrative agencies, the City contends that the decision of a municipal body charged by statute with responsibility for entertaining appeals, 24 V.S.A. §5203 (ordinance shall include a provision for administrative appeal of the impact fee assessed), interpreting its own impact fee ordinance is tantamount to an administrative agency interpreting statutes it has been charged to execute or regulations it has adopted pertaining to its area of responsibility. The decision of the City Council in this instance should be afforded considerable weight, and should be upheld absent a compelling indication of error. III. PLAINTIFF HAS NO "VESTED RIGHTS" IN THE $200 RECREATION IMPACT FEE. Application of the Ordinance, upon its effective date, to the Project is not a violation of any rights of the Plaintiff, vested or otherwise. Even though Vermont has adopted the minority rule on "vested rights" in land use regulation, see, Smith v. Winhall Planning Commission, 140 Vt. 178, 181-82, 436 A.2d 760, 761 (1981), the Vermont Supreme Court has been careful to limit the doctrine to cases involving changes to or enforcement of zoning and land use -9- STITZEL, PAGE K FLETCHER, P.C. ATI0RNF-:YS AT LAW lily I,07 regulations, and then only in instances where application of the doctrine is appropriate. See, In re Ross, 151 Vt. 54, 57-58, 5571 A.2d 490 (1989); In re McCormick Management Co., Inc., 149 Vt. 585, 588-90, 547 A.2d 1319 (1988); see also, Petition of Department of Public Service, 157 Vt. 120, 127-128, 596 A.2d 1303, (1991)("[w]e will not apply vested rights to change the [public benefit and public burden] equation to expand private rights at the expense of an added public burden.") This case does not involve a change in zoning regulations, as Plaintiff concedes. Nonetheless, the Plaintiff asserts that the Ordinance is "land use control" legislation, enacted to serve traditional zoning purposes, Plaintiff's Memorandum in Opposition to Motion for Summary Judgment, at 12, and on that basis the "vested rights" doctrine should apply and entitle Dorset Farms lots to be assessed, in perpetuity, the $200 recreation impact fee. There is no legal or logical basis for the Plaintiff's contention, and the argument runs counter to the plain language of the Conditions of Approval imposed on the Plaintiff's project. First, the Ordinance is an exercise of the City's police power, enacted pursuant to the authority granted to it by the State through 24 V.S.A. §5200, to further the health, safety or welfare of the citizens of the City. It is a means by which the sm ST1T7,EL. PAGE K FLE,TCHER, P.C. ATTORNEYS AT LAN0 BOX i 0- City can equitably distribute the costs of the impact of development within the City on infrastructure and other public amenities between existing residents, who have been and will continue supporting City services through the payment of taxes, and developers/new residents whose development activity or in - migration, respectively, accelerate the deterioration of existing) services or necessitate the development of new sources of such services. The Ordinance is not a zoning regulation, and does noti affect a change in the City's zoning regulations. Neither is the) Ordinance a land use regulation. Second, final plat or subdivision approval authorizes a landowner to subdivide his/her land and to subject the development thereof to the zoning and subdivision by-laws of the City. It gives the landowner the ability to apply for building permits for each individual lot; it does not mandate the issuance of building permits. The final plat approval for this project, like so many others, imposed conditions on the project. Included among the conditions imposed in this case was a requirement that the City collect the recreation impact fee in effect at the time that each zoning/building permit was applied for. The City believes that the controlling and operative event for determination of the -I1- STITZEL, PAGE h FLETCHER. P.C. ATPORNEYti AT LAW I,(, BOX 150- � � Ili'_' 1. 0- "vested rights" of the Plaintiff to any particular recreation impact fee is the date of the application for a zoning/building permit. The zoning/building permit is the lynchpin to actual land development on a particular site. Hence, the date of filing a complete application for each such permit determines, as it should, the recreation impact fees payable for the affected lot, The Plaintiff apparently believes that impact fees are determined at the time of final plat approval, regardless of when development, and the associated impacts on municipal services, occurs'.. But final plat approval does not, in and of itself, authorize any land development in the City; a zoning/building permit must be obtained from the City before any actual land development may occur within the City. Zoning Regulations, City of South Burlington, §27.10; see also, 24 V.S.A. §§4441, 4443. In this case, the express language of Condition #5 of final plat approval granted by the Planning Commission specified that the impact fee in effect at the time that each building/zoning permit is issued shall be assessed and collected by the City. Approval, Condition #5. The Ordinance became effective January I "If I read this document as a developer and I was going through the conditions, as was standard practice in the City of South Burlington, we didn't pay a rec fee until we had impact, but the rec fee was determined at the time of the issuance of the permit, not the building permit, the final plat permit." Deposition of Gerald Milot, p. 25, lines 4-13 (Dec. 17, 1998). -12- STITZEL. PAGE & FLETCHER, P.C. VFTORNFEYS A.T LAW p.(1.Iiox 1'07 9, 1995. If zoning/building permits for lots in Pinnacle at Spear had been applied for and issued prior to that time, the appropriate recreation impact fee for the City to have assessed and collected would have been $200. After January 9, 1995, however, the appropriate recreation impact fee to be assessed wasl the fee provided for in the Ordinance. Whatever "entitlement" Plaintiff may have had to a $200 per lot recreation impact fee ceased to exist on January 9, 1995, with the adoption of the Ordinance. That "entitlement" ceased not in derogation of some right vested in the Plaintiff, but specifically because the express language of Condition #5 requires that the impact fee in effect at the time that each building/zoning permit is issued is to be assessed and collected by the City. The final plat approval in this case gave Plaintiff the right to subdivide its land subject to several conditions. Among those conditions is the requirement that as a building/zoning permit was "pulled" for each lot in the project, the applicant for that permit must pay the recreation impact fee in effect at that time. On and after January 9, 1995, "the recreation fee" in effect was the fee determined by the formula set forth in the Ordinance. The obligation to pay that fee is established by the plain language of the Ordinance and of Condition #5 of the final -13- STITZEL, PAGE h FLETCI3ER. P.C. .STTORNRYS',T LAI1 1'n, RUA i:dG W t).—AWN A'Ii i;A1nA, plat approval. The Plaintiff had no "vested right" to pay any other fee. CONCLUSION The Ordinance as originally enacted, and as amended, is clear and unambiguous. The Plaintiff has failed to meet its burden to establish an ambiguity therein. Hence, the Ordinance, as amended, should be enforced in accordance with its terms. The Ordinance and the final plat approval for the instant project, in combination, mandate that as building/zoning permits for each individual lot within the project are applied for, the applicant must pay the recreation impact fee calculated in accordance with the formula specified in the Ordinance, less any per lot credit specified in the final plat approval for the project. The Plaintiff has no vested rights in any other recreation impact fee. For all of the foregoing reasons, and those set out in the City's earlier Memorandum in Support of Motion for Summary Judgement, the City respectfully asserts that there are no material facts in dispute in this case and that the City is entitled to judgment as a matter of law. The City respectfully requests that the Court grant the City's Motion for Summary Judgment. -14- Dated this 14th day of June 1999, at Burlington, Vermont. son582.lit.MBLreplymem STITZEL, PAGE & FLETCHER, P.C. ATTOHVICY.4 AT 1„%4k 4OA Ibu; CITY OF Robert E. Fletcher, Esq. STITZEL, PAGE & FLETCHER, P.C. 171 Battery Street P.O. Box 1507 Burlington, Vermont 05402-1507 (802) 660-2555 -15- STITZEL. PAGE & FLETCHER, P.C. ATT(1RNEYS AT LAW i-i I�crrce� �rner;r STATE OF VERMONT CHITTENDEN COUNTY, SS MBL ASSOCIATES, Plaintiff V. CITY OF SOUTH BURLINGTON, Defendant Chittenden Superior Court Docket No. 392-98 CnC DEFENDANT'S RESPONSE TO PLAINTIFF'S COUNTER -STATEMENT OF MATERIAL UNDISPUTED FACTS 1. Disputed as irrelevant and immaterial, and as a matter of fact -- the principals of the Plaintiff were never affirmatively led to believe that §3(B)(5) exempted Dorset Farms from the recreation impact fees. Supplemental Affidavit of Joseph Weith attached hereto. 2. Disputed as a matter of fact. There is no indication of what specific language, if any, was being discussed at the March 6, 1995 meeting. Further, Mr. Hafter's comments convey the substance of the comments he had received from persons affected by the adoption of the Ordinance. Deposition of Charles Hafter attached hereto. 3. Disputed as irrelevant and immaterial, 4. Disputed both as irrelevant and immaterial - the action of the Zoning Administrator of issuing 21 building/zoning permits for lots in an unrelated project is irrelevant and immaterial to this project -- and as a matter of fact. The action of the Zoning Administrator in issuing 21 building/zoning permits for 1 lots in Pinnacle at Spear was an administrative error, Supplemental Affidavit of Joseph Weith attached hereto. 5. Disputed as a matter of fact. Deposition of Richard Ward attached hereto; Supplemental Affidavit of Joseph Weith attached hereto. 6. Disputed as a matter of fact. The assertion is unsupported by the materials cited by Plaintiff. 7. Conceded with respect to portions of the recreation path already built. � C/ Dated at Burlington, Vermont this / day of June, 1999. son583.1it.MBLrespmat1facts STITZEL, PAGE & FLETCHER, P.C. MORNLYS AT LAN' 171 HATTEH1 P.0 HOX IS07 I ItLiNG 1`()^'. VF Il0.11I\" I - M STITZEL, PAGE & FLETCHER, P.C. 171 Battery Street P.O. Box 1507 Burlington, Vermont 05402-1507 (802) 660-2555 2 STATE OF VERMONT CHITTENDEN COUNTY, SS MBL ASSOCIATES, Plaintiff V. CITY OF SOUTH BURLINGTON, Defendant Chittenden Superior Court Docket No. 392-98 CnC SUPPLEMENTAL AFFIDAVIT OF JOSEPH WEITH I, JOSEPH WEITH, being duly sworn, hereby depose and state on my personal knowledge: 1. I am the Director of Planning and Zoning for the City of South Burlington, Vermont, and I am familiar with the above - referenced matter. 2. It has always been my understanding that the fees specified in section 3(B)(5) of the Ordinance applied fully to lot/unit development within Dorset Farms. 3. Gerald Milot and I discussed by telephone the applicability of the Impact Fee Ordinance ("Ordinance") to Dorset Farms. 4. I specifically recall indicating to Mr. Milot that Dorset Farms was only exempt from, or "grandfathered" with respect to, the school impact fees in the Ordinance. STITZEL, PAGE R FLETCHER. P.C. 1,TTO INE'YS Al' J AA4' 7 i W1 1,1 110 1-11M "I -..It r_ I:"IT Farms have been developed as required by the Ordinance without exception. 6. The issuance by the Zoning Administrator of 21 building permits for lots within Pinnacle at Spear for which he assessed al recreation impact fee of $200/lot was erroneous. DATED at South Burlington, Vermont, this ( /II —day of June 1999. Joseth Weil Subscribed and sworn to before me this day of June 1999. Notary Public son579.1it.MBLaffid2 STITZEL. PAGE & FLETCHER, P.C. ATTORNEYS Al LAW is 10_ 1:,(1i 2 CHARLES E. HAFTER STATE OF VERMONT CF:ITTENDEN COUNTY, SS. -------------- MBL ASSOCIATES 1 Plaintiff, j Vermont Superior Cour, v. ) Docket No. S392-98Cnc CITY OF SOUTH BURLINGTON, ) Defendant. ) kA.KINZAb6ir, Plaintiff, ) Docket No. S166-98CnC v. ) CITY OF SOUTH BURL'NGTON, ) Defendant. ) ------------------------------------------------------- D E P O S I T I O N OF CHARLES E. HAFTER ..a n ..... e 1_ 1:20 p.m., at City of South Burlington City Hall, South Burlington, Vermont. R A} R R R R R R R}} A R R} R R} A R A R R A R A APPEARANCES: ROBERT F. O'NEILL, ESQUIRE Gravel 6 Shea, Esqs. 76 St. Paul Street, P.O. Box 369 Burlington, Vermont 05402 On behalf of the Plaintiffs. ROBERT E. FLETCHER, ESQUIRE Stitzel, Page 6 Fletcher, P.C. 171 Battery Street, P.O. Box 1507 Burlington, Vermont 05402 On behalf of the Defendants. REPORTER: M. Paula Mecke, RPR COURT REPORTERS ASSOCIATES 117 Bank Street Burlington, Vermont 05401 802-862-4593 2 L I N D E X Witness Pace 2 Z'Eiar s E. Hafter--------------------------------4 3 Examination by Mr. O'Neill ---------------------- 4 4 Exhibit Marked For Identification 5 i—iwers to Interrogatories ------------------------- 2 - Original set of Answers to Interrogatories---5 6 3 - Meeting minutes ----------------------------- 13 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 3 1 S T I P U L A T I O N S 2 It is hereby stipulated and agreed by and 3 between the attorneys of record for the respective 4 parties hereto as follows: 5 6 1. THAT the testimony of CHARLES E. HAFTER 7 may be taken and treated as if taken pursuant to notice 8 and order to take depositions and that all formalities of 9 notice and order are waived by the parties, and the 10 signatures to this stipulation are in like manner waived; 11 12 2. THAT all objections except as to matters 13 of form are reserved until the deposition or any part 14 thereof is offered in evidence; 15 16 3. THAT the deposition may be signed by the 17 said CHARLES E. HAFTER before any Notary Public; 18 19 4. THAT all exhibits offered for 20 identification may be retained by counsel until the time 21 of trial. 22 23 24 25 4 1 CH ARLE S E. HAFTER, 2 having been duly sworn to tell the truth, deposes 3 and says as follows: 4 EXAMINATION BY MR. O'NEILL: 5 Q would you give us your full name? 6 A Charles Eliot, E-L-I-O-T, Hafter, H-A-F-T-E-R. 7 Q And would you very briefly tell us what your 8 title and responsibilities are for the City of South 9 Burlington? 10 A I'm the city manager for South Burlington. 11 I've been employed in that job since May of 1989. My 12 jobs are to supervise the day-to-day operations of the 13 City of South Burlington and to implement the policies of 14 the City Council. 15 Q I received yesterday new answers to 16 interrogatories. Did you have anything to do with them? 17 A I reviewed it. 18 Q Are they truly accurate to the best of your 19 knowledge? 20 A Yes, they are. 21 MR. O'NEILL: why don't we have them marked. 22 (Deposition Exhibit 1 was marked for identification,.) 23 Q Are these the interrogatories -- or answers to 24 interrogatories that you reviewed? That would be Exhibit 25 1. HAFTER Pages 1 to 4 CHARLES E. HAFTER 9 1 want to be heard about it, come talk to us? 2 A I have no knowledge of how the public notice 3 was -- I don't remember how the public notice was 4 written. 5 Q Just in general? 6 A Just in general I would say the City would be 7 conducting a public hearing on the impact fee ordinance. 8 Q And -- 9 A And I don't know what specific fee it got 10 into. 11 Q But just as a practical matter, the public 12 hearing wouldn't have been to tell the public we have a 13 new fee; the hearing would have been to say we are 14 considering a new fee? 15 A I don't understand the difference. 16 Q Well, since the vote hadn't occurred yet, you 17 couldn't -- there's no certainty that in fact the fee 18 would have been enacted, right? 19 A That's the purpose of the public hearing, 20 that's correct. 21 Q The purpose of the public hearing is for the 22 public to make comments to the board members so the board 23 members can consider their comments when they vote on the 24 matter before them? 25 A That's correct. That's correct. 10 1 Q All right. And so there was nothing that the 2 City had done or that the City had done either through 3 the board or through any of its employees prior to the 4 actual vote that advised the public that there was going 5 to be a hundred percent positive certain a new impact 6 fee? 7 A No, the public hearing introduces the 8 ordinance and the proposed impact fee. 9 Q All right. And do you remember when that was? 10 A 1995. 11 Q Like January? 12 A Early 1995. 13 Q And that was subsequently amended, was that 14 right? 15 A Yes, following its adoption of the impact fees 16 it was amended. 17 Q And that was in April of 195? 18 A To the best of my recollection. 19 Q And do you remember why that was amended? 20 A Following the adoption of the impact fee, the 21 city manager was approached by several developers who 22 requested that the City Council reconsider the effect of 23 the impact fee on their developments. 24 Q when you say "the city manager," that's you? 25 A That's me. r 11 1 Q who approached you? 2 A I received a letter from David white 3 representing Ernie Pomerleau who is concerned about a 4 development called the Southland Development. 5 Q Southland? 6 A Okay. Where the Hanraford Center is. I was 7 also -- that's the only one I specifically recall. 8 Q And what was David's last name? 9 A white. 10 Q In addition to him were there other people who 11 you just don't remember now? 12 A I don't remember. 13 Q But would it be accurate to say that after it 14 was enacted, developers who had projects already in place 15 or who had already received final plot approval came 16 forward and said, gee, we didn't think this is fair, why 17 aren't we grandfathered in or words to that effect? 18 MR. FLETCHER: I object to the form of the 19 question. 20 Q Go ahead. You have to answer it. 21 A Yes. 22 Q And reading over what you testified to before 23 the board, you were sympathetic to that? 24 A The minutes are difficult to construe. I was 25 presenting the argument as presented to me by the 12 1 developers. 2 Q well, what do you remember? were you 3 sympathetic or not? 4 A Yes. 5 Q Okay. Because you could have simply told 6 them, forget it, you make your pitch to the City Council, 7 I'm not getting involved? 8 A I will not do that if I'm requested to -- I 9 believe you have an opportunity to go before City Council 10 and some people do not want to go before the City Council 11 and ask me to represent their position. 12 Q Did the developers ask you to represent their 13 position in this matter? 14 A Mr. White did not. I don't remember anybody. 15 Q And at the meeting, you said, or the minutes 16 said that you said there is a question of when impact 17 fees are charged, the language of the ordinance says it 18 is when the developer gets a building permit. The City 19 has, however, a number of approved projects for which all 20 permits have been obtained except a building permit and 21 some of these go back a long time. would that -- is that 22 accurate so far? 23 A Yes. 24 Q This raises a question of fairness. The city 25 attorney has proposed language which would grandfather RAFTER Pages 9 to 12 PAGE 1 SHEET 1 PAGE 3 1 2 3 4 5 6 7 B 9 10 11 12 4 STATE OF VERMONT CHITTENDEN COUNIY, SS. --------------------------- LARKIN MILOT PARTNERSHIP ) Plaintiff,) VS. ) CITY OF SO. BURLING70N ) Defendant.) ---------------- ------ MBL ASSOCIATES ) Plaintiff,) VS. ) I CITY OF SO. BURLINGTON ) Defendant.) --------------------------- Chittenden Superior Court Docket No. S168-98 On' Chittenden Superior Court Docket No. 5392-98 CnC DEP0SIII0N -of- RICHARD WARD taken on behalf of the Plaintiffs on Monday. March 1. 1999. at the So. Burlington Municipal Offices, So. Burlington, Vermont, commencing at 1:00 P.m. 17 APPEARANCES: ON BEHALF OF THE PLAINTIFFS: 1s GRAVEL AND SHEA BY: DENNIS R. PEARSON. ESQUIRE 19 76 St. Paul Street Burlington, Vermont 05402-0369 20 ON BEHALF OF THE DEFENDANT: 21 STITZEL, PAGE 6 FLETCHER, P.C. BY: ROBERI E. FLETCHER, ESQUIRE 22 171 Battery Street Burlington, Vermont 05402-1507 23 DARLENE G. LITTLEFIELD 24 COURT REPORTERS ASSOCIATES 117 BANK STREET 25 BURLINGTON, VERMONT 05402 (802) 862-4593 nwr_r e 2 1 INDEX PAGE 2 RICHARD WARD 3 EXAMINATION BY MR. PEARSON: 3 4 EXAMINATION BY MR. FLETCHER: 22 RE-EXAMINATION BY MR. PEARSON: 23 5 RE-EXAMINATION BY MR. FLETCHER: 23 6 EXHIBITS 7 8 DEPOSITION EXHIBITS DESCRIPTION PAGE 9 No. 6 11-16-97 letter to Larkin 13 10 from Ward I No. 7 1-13-98 letter to Cranpton 16 111 112 (Original exhibits retained by Mr. Pearson.) o • o • • 19 STIPULATION 20 IT IS HEREBY STIPULATED AND AGREED 21 by and among Counsel for the respective parties that this deposition is being taken in accordance with the 22 Vermont Rules of Civil Procedure; that all objections as to Notice of this deposition are hereby uaived; that ,23 all objections except as to forn are reserved until the tine of trial; and that the witness has reserved the 24 right to read and sign the deposition after review by counsel. COURI REPORTERS ASSOCIATES 3 1 MONDAY, MARCH 1, 1999; 1:00 P.M. 2 RICHARD LARD, 3 having first been duly sworn, testified as follows: 4 EXAMINAIION 5 BY MR. PEARSON: 6 Q. Mr. Ward, Can you state your full name and present 7 address, for the record? 8 A. Richard Ward, 1775 Dorset Street. South 9 Burlington. 10 Q. And how are you currently employed? )1 A. Zoning administrator for the City of South 12 Burlington. 13 0. How long have you had that position? 14 A. 32 years. 15 0. Can you give me a brief summary of the duties and 16 responsibilities of a zoning administrator in South 17 Burlington? 18 A. I administer all aspects of the bylaws, issue 19 pernits, and due code enforcement. 20 Q. What kind of permits is your, office responsible 21 for issuing? 22 A. Zoning permits. 23 0. And what do you mean by zoning permits? 24 A. That's a building permit, sign permits, vasteualer 25 permits. COURT REPORTERS ASSOCIATES rarr w 4 1 Q. Okay. Do you have to go out and do any field 2 inspections before issuing any of those types of 3 permits? 4 A. Not generally. They do then after. 5 Q. The process for issuing a zoning or building 6 permit, hou does that generally work? 7 A. An applicant would request the paperwork, fill out 8 the application. Then we would review it ,for 9 compliance, assess appropriate fees -- 10 Q. Do they have -- 11 A. -- and complete it. 12 0. Excuse me. Do they have to bring in plans of the 13 building that they want to build? 14 A. Sometimes. 15 Q. Is the fee for the permit based on square footage 16 or some other measure? 17 A. We have two formulas. One is square footage, and is the other one is on an estimated value. 19 Q. Okay. How do you know when to use which formula? 20 A. Neu construction versus alterations and additions. 21 Q. Okay. Which one gets which? 22 A. The new construction is the 10 cents a square 23 foot, and the alterations and additions are by the 124 construction cost. 125 0. If it's new construction, is it part of your COURT REPORTERS AS RT. REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 1 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 1119 1;24 PAGE 5 SHEET 2 PAGE 7 S 7 responsibility to make sure that all other required i A. I don't believe it's an ordinance. approvals have already been obtained? 2 C. was it the practice prior to January 1995 to A. Normally. 3 collect a $200 per unit recreation impact fee prior to 0. And what kinds of approvals night that be? 4 issuing a building permit? A. There's a series of them. And you could have a 5 A. That's correct. subdivision; you could have a site plan, or maybe a 6 Q. Do you know how long that practice had been in variance. 7 effect? 0. In South Burlington, are subdivision and site plan 8 A. The $200 one, three years maybe. approvals done by the Planning Commission? 9 Q. Would that have been only in connection with new A. Yes, sir. 10 developments that had to go through subdivision 0. Are those generally done In separate proceedings 11 approval? or combined proceedings? 12 A. Yes. A. Separate. 13 0. So it was -- it was as a result of the Planning 0. They're separately warned, as far as you know? 14 Commission Imposing a condition as part of its A. Site plans are warned. 15 subdivision approval that you then collected a $200 per 0. Okay. Do you ever assist the Planning Commission 16 unit recreation impact fee? in any subdivision matters? 17 A. That's correct. A. Not much. 18 C. So if there was a preexisting lot that somebody Q. But that's -- 19 Just wanted to build a single-family home on, prior to A. No more. 20 January 1995, you would not have collected a recreation 0. That's the city planner's function? 21 impact fee on one of those houses? A. That's correct. 22 A. Depending which subdivision it was in. Some were Q. Do you understand that we're here today to talk 23 exempt. about two subdivision developments, the Pinnacle at 24 0. How about a -- Just a plain lot that say existed Spear and the Dorset Farms projects and, more 25 on the city records for years and years, had never even COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES c ar_r r 6 Specifically, the recreation impact fee as it relates to those two projects? A. Yes, sir. 0. So I don't need to go into a lot of background about why we're here? A. No, sir. 0. Okay. I'd like to show you what has been marked I believe Deposition Exhibit 4 at the Gerald Milot deposition taken December 17th, 199B. I believe it's a copy of the South Burlington impact fee ordinance, and I'd like to show that to you and ask you if you are familiar with the ordinance? A. Yes, I an. Q. Do you recall that that was originally enacted In January of 1995? A. I believe that's correct. 0. Prior to the enactment of this impact fee ordinance in January of 1995, was there an ordinance or bylaw in South Burlington that authorized collection of any impact fees? MR. FLETCHER: Objection; calls for a legal conclusion. Dick, you can go ahead and answer that question. THE DEPONENT: Answer the question? MR. FLETCHER: Yeah, you can. nler o 8 1 gone through a formal subdivision process, and they 2 came in say in 1994 for a building permit to build a 3 single-family home on a lot like that; would you have 4 collected a s200 recreation impact fee as a condition 5 of issuing a building permit? 6 A. No. 7 Q. Okay. Now, when you say that some applications 8 for building permits in that period prior to January 9 1995 were exempt from the S200 per unit recreation 10 impact fee, what did you mean by that? 11 A. The Planning Commission would consider location of 12 a subdivision and, in lieu of funds, would take land 13 for nini parks. 14 Q. Okay. 15 A. So if they took the land, that was their impact 16 fee. 17 Q. So it was an in -kind contribution of land as 1B opposed to exacting payment of money? 19 A. Yes. Statutes allow for that. 20 0. But again, that determination was not the result 21 of a South Burlington ordinance or bylaw that existed 22 at that point, as far as you know? 23 A. As I recall, before the ordinance it was done by 24 resolution or by policy, so there was no ordinance on 25 the books. COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES PAGE 9 SHEET 3 PAGE 11 9 11 1 Q. And that was a policy that was Implemented by the 1 it. 2 Planning Commission? 2 Mr. Ward, does that refresh your recollection 3 A. That's correct. 3 whether you night have attended that March 1995 City 4 Q. Do you recall at some point after the impact fee 4 Council meeting? 5 ordinance that we've Just looked at was passed in 5 A. I attended some of those meetings. Yeah, I night 6 January 1995, there was some further discussion about 6 have been at that one. 7 subdivisions or developments that had already seen 7 Q. Okay. Did you have any discussions with Mr. 8 Planning Commission approval being somehow exempted 8 Hafter about the subject of modifying the ordinance to 9 from the impact fees? 9 grandfather any Preapproved -- or previously -approved 10 A. I recall some discussion, yeah. 10 subdivision projects? ll 0. Okay. Were you part of any of the discussions i11 A. Not that I can remember. 12 leading up to a modification of the ordinance which was 12 0. Do you recall that subsequently the Pinnacle at 13 adopted in April of 1995? 13 Spear project, they actually started building the units 14 A. No, I was not. 14 up there and coning in to get building permits from 15 Q. Did you have any discussions with any city 15 you? 16 employees about either the nature of the modification 16 A. Yes, I do. 17 or the reason for the modification? 17 0. And do you recall that for the first 21 of those 18 A. Well, Planning and Zoning staff would have 18 units you collected a recreation impact fee of $200 per 19 discussion, of course. 19 unit? 20 Q. And were you part of the Planning and Zoning 20 A. I did not. I didn't collect any. 21 staff? 21 Q. Okay. What 00 you mean by you didn't actually 22 A. I an Part of the Planning and Zoning staff, but 22 collect it? 23 the subdivision and site plan and that kind of 23 A. Well, that's -- herein lies the case. I have a 24 ordinance is administered and created by the Planning 24 different interpretation of a provision within the 25 Commission. and Joe Weith is the staff person to the 25 decision and finding of fact for the subdivision. COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES PAGE 10 10 1 Planning Commission. so I'm the planning -- I•m the 2 Zoning Board of Adjustment staff person. 3 Q. Did you have any discussions with Mr. Weith about 4 this modification to the recreation impact fee 5 ordinance in that period between January 95 and when 6 the modification was enacted? 7 A. None that I can really recall. 8 Q. Do you recall either Mr. Weith or Mr. Hefter 9 saying to you or in your presence that they had told 10 Gerry Milot not to cone to the hearing on the ordinance 11 modification because everything was all set, the 12 Projects were going to be granCfathered? 13 A. No. I never heard that. 14 C. Okay. So you can't independently verify that that 15 kind of discussion was had? 16 A. That's correct. 17 0. Were you at the March 1995 City Council meeting in 18 which the modification to the impact fee ordinance was 19 discussed? 20 A. Not that I recall. 21 0. Okay. And just to see if we can refresh your 22 recollection to make sure. I'm going to show you what's 23 been marked as Deposition Exhibit 3 at the December 24 3rd, 1998 deposition, and ask you if you -- to read 25 through what's been circled and has an asterisk next to COURT REPORTERS ASSOCIATES nrr_r In 12 1 Q. Maybe my misunderstanding is correct. Isn't $200 2 what they paid for those first two units -- first 21 3 units, excuse me? 4 A. No. 5 Q. What did they pay? 6 A. For recreation? 7 Q. Just for the recreation part. That's all I,n 8 focusing on. 9 A. Zero. 10 Q. Okay. I believe you referred to the findings of 11 fact and decision of the Planning Commission as it 12 related to the Pinnacle at Spear project, and I'd like 13 to show you uhat-s previously been marked as Deposition 14 Exhibit 3 at the December 17th, 1998 deposition, and 15 ask you to look at that and see if you can identify the 16 document? 17 A. It's the final plot subdivision approval and 18 decision and findings of fact and conditions. 19 Q. Okay. It looks to me like it's Paragraph 20 of 20 the findings and condition 5 of the decision that 21 relate to the recreation Path and a credit for 22 recreation impact fee. Is that your understanding of 23 how it applied to that Particular Project? 24 A. 20. you said? 25 Q. I believe 20 in the findings. COURT REPORTERS ASSOCIATES PAGE 13 SHEET 4 PAGE 15 1 2 3 4 5 6 7 8 9 1e 11 12 13 14 15 16 17 18 1 2 3 4 5 6 7 8 9 14 15 16 17 1B 19 21 22 13 15 A. What was the question? 1 Exact words, no. Q. I just want to confirm that those are the ;wo 2 0. Do you recall any discussion about interpreting provisions of the decision you had in mind when you 3 and applying the impact fee ordinance to these projects testified earlier that you interpreted the decision as 4 as a way of generating more revenue for the city? requiring you to collect a certain amount of recreation 5 A. No, not as a way of generating more revenue. impact fee on those first 21 units, which you later 6 Q. Whether that was the impetus for reexamining the testified was actually zero. So it would be paragraph 7 impact fees -- recreation impact fee that these 20 and condition S. 8 projects would pay, was in fact that a consideration? A. Paragraph 20 is, as I recall, and if you read it, 9 MR. FLETCHER: Object to the form of the you'll see that they gave them a 5300 credit. So my 10 question. It's vague, unspecific as to whose interpretation was that because the $300 credit 11 motivation ue're talking about. You can answer it if exceeded the 3200 requirement, that there vas no impact 12 you call. fee due. 13 A. There was a lot of study going on by different Q. Okay. And so for the first 21 units of the 14 people, outside consultants; and between the Planning Pinnacle project you didn't collect any recreation 15 Commission and the Council, they decided that we would impact fee prior to issuing the building permits? 16 start purchasing lands on Dorset Street for what is now A. That's correct. 17 called Dorset Park, and there was a dollar amount set MR. PEARSON: I think we're up to Exhibit 18 aside for seed money to purchase the land, and there 6 from our side. 19 was also some projected costs for developing the land, (Deposition Exhibit No. 6 was marked for 20 and based on those numbers was how some of these identification.) 21 figures were arrived at. Q. Mr. Ward, I'd like to show you what I've just had 22 Q. Was there any discussion about collecting marked as Deposition Exhibit 6, and I apologize that 23 additional recreation impact fees from these two it's such a not very good copy because it s a 24 projects, and by that I mean Pinnacle and the Dorset third -generation copy off a fax machine, but it's all 25 Farms project, as a means of helping to finance the COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES PAGE 14 PAGE 16 14 16 that I have. I think it's still readable. I'd ask you i Cairns Ice Hockey Arena? 10 look at that and see if you can identify it? 2 A. Not that I recall. That was a separate fund A. That's my letter to John Larkin. 3 raiser. Q. And it's dated November 6th, 1997? 4 MR. PEARSON: Could I have this marked as A. Yes, it is. 5 Deposition Exhibit 7? Q. In the third paragraph of the letter it says: 6 (Deposition Exhibit No. 7 was marked for Recently the city staff discovered the 21 zoning 7 identification.) Permits were issued without consideration of the 8 Q. Mr. Ward, I'd like to show you a letter dated condition relating to the recreation path and the 9 January 131h, 1998, addressed to Steve Cranpton in our credit. DO you -- can you recall today exactly now 10 firm. Ask you to read through that and identify it for that was discovered, how it cane about that you noticed 11 US? this discrepancy? 12 A. Okay. A. The assistant Planning and Zoning director and Joe 13 Q. Exhibit 7 relates to Gerry Milot's Dorset Farms Weith, the citv's planner at the tine. and myself were 14 project, correct? discussing this particular project, and Joe kind of led 15 A. Correct. us to believe that they were subject to the new impact 16 Q. And with respect to that project, you never issued fee, and because I wasn't collecting any, it became an 17 any building permits prior to having the discussions issue which was discussed with the city attorney. As a 18 with counsel and other planning staff that you had with result, the 21 permits became the issue; and from that, 19 regard to Pinnacle about how to apply the impact fee we went into an appeal which ended up in front of the 20 ordinance; is that correct? City Council. 21 A. That's correct. Yes. Q. Do you recall whether Mr. Weith said anything more 122 Q. So right from the get -go on Dorset Farms you were specific about how this had become an issue for him? 123 applying the impact fee ordinance as Mr. McLean had A. I think we were just discussing subdivisions at 24 recently interpreted it for you in the fall of 1997? the tine and impact fees. They were relatively new, so - 25 A. That's correct. COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 7 19 25 1 2 3 4 5 6 7 8 9 10 11 12 13 25 PAGE 17 SHEET 5 PAGE 19 17 19 0. Yho does the year to year recalculation of what 1 number. the impact fee -- the recreation impact fee is king to 2 Q. Did you or your office make a determination that be in a given year? 3 that project was entitled to the exemption stated in A. I don't know. 4 the ordinance? Q. Is that Just a number that's given to you? 5 A. This was one of the projects that gave us the A. There's a schedule, and it's figured out year to 6 land. It was approved in 193, I believe. Year. 7 0. So the reason that project was exempt was because Q. Okay. 8 they had given the city an in -kind contribution of A. Most of the numbers are calculated on that format 9 land? by Ray Belair. 10 A. That's correct. 0. And what position does he have? 11 0. So the exemption applied to all of the units in A. He's our assistant. 12 the project, whether it's 250 or whatever it is? Q. Okay. So as you understand it, to calculate the 13 A. That's correct. actual recreation impact fee for a given year, it's 14 Q. Do you recall whether all of the building permits just a matter of applying the various schedules that 15 were issued after 1995? are attached to and incorporated into the ordinance? 16 A. There's still some going. A. It's a little bit complicated. There's values. 17 0. But none of the building permits were issued prior 0. But that's not something you have anything to do 18 to January of 195? with? 19 A. Oh, yeah. A. I've never done It. no. 20 0. Some were? 0. Going back to Deposition Exhibit 4, the impact fee 21 A. It started back in 1993. ordinance, I'd like to direct your attention to part B, 22 Q. So it was an ongoing project? section 5, which deals with the recreation impact fee 23 A. Still going, yeah. and the so-called grandfather or exemption section 24 0. Do you recall any other subdivision project that which is at the heart of this dispute. I'd like you to 25 was approved prior to 1995 but has been exempted from COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES PAGE 18 18 just read through that section 5 again, it's on page 3 of the exhibit, and refresh your recollection of what that says. A. You're looking for an exemption? Q. It starts -- MR. PEARSON: Mind if I point it out to him. Bob? MR. FLETCHER: Go ahead. Q. It starts at number 5 here and reads through. It has A. B and C subparts. A. Okay. Q. In your capacity as zoning administrator and responsible for issuing building permits, are you aware of any subdivision projects that were approved prior to January 1995 which since then have been exempted from paying any recreation impact fee pursuant to the exemption language in the ordinance? A. I an. Q. And can you name those projects for me? A. Oak Creek subdivision. Q. And where is that located? A. On Hinesburg Road. Q. How many -- do you recall how many units that involves? A. In round figures, 250. I don't know the exact COURT REPORTERS ASSOCIATES MWnc na 20 1 paying a recreation impact fee? 2 A. The other one is Butler Farms. The sane street. 3 Q. And is it the same kind of situation as Oak Creek? 4 A. YUP. they're adjoining subdivisions. 5 Q. It was an in -kind contribution of land? 6 A. Yes, it was. 7 Q. And the building permits were issued both before 8 and after January of 1995? 9 A. Yes, still active. 10 Q. Any other subdivision project besides Oak Creek or 11 Butler Farms that you can think of? 12 A. Harbor Heights. 13 Q. Harbor Heights? 14 A. On Spear Street. 15 Q. Do you recall when that was originally approved by 16 the Planning Commission? 17 A. No. I don't. 18 Q. Okay. Is it fully built out yet? 19 A. Yes. 20 0. Do you recall how many units? 21 A. 140 rings a bell. 22 Q. were those building permits issued before or after 23 January 19957 24 A. Both. 25 Q. Okay. And do you recall uhat the reason was for COURT REPORTERS ASSOCIATES PAGE 21 SHEET 6 PAGE 23 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 1 2 3 4 5 6 7 8 19 11 12 13 14 I 15 116 17 In 1 1124 21 that Project receiving an exemption from the -- A. We had some Pocket Parks. C. They contributed land for the parks? A. Yup. 0. Any other project you can think of? A. Ledge Knoll on Hinesburg Road. C. Is that built out? A. Yes, it is. Q. Do you recall how many units, approximately? A. 60, I think. Q. And vas that active both before and after January •9c? A. No, all Prior to. 0. All Prior to •85. okay. We talked about four Projects, oak Creek, Butler Farms, Harbor Heights, and Ledge Knell. Can you think of any others that were exempted from recreation impact fees? A. Not that were exempted, but Summer Woods predates this •95. They Paid the $200. 0. So when you're talking about Pre 1995 Projects that were not exempted but didn't pay a recreation Impact fee, that's because the Planning Commission never imposed one in the first place? A. That's correct. MR. PEARSON: Okay. I think that's all Pit= 77 I have. COURT REPORTERS ASSOCIATES EXAMINATION 22 BY MR. FLETCHER: 0. Mr. Ward, just a couple questions to follow up on the last couple of items. I believe -- strike that. The Projects that you were speaking about just moments ago with Mr. Pearson, Oak Creek, Butler Farms, Harbor Heights, Ledge Knoll, Summer Woods, those Projects that -- for whom or for which building Permits were issued both before January •85 and after January of •95 included Oak Creek, Butler Farms, and Harbor Heights; is that correct? A. That's correct. 0. And Ledge Knoll and Summer Woods were both built out prior to the adoption of the ordinance? A. That's true. 0. Okay. And with respect to Oak Creek, Butler Farms, and Harbor Heights, I believe the characterization was that they Were exempt from fees under the rec impact ordinance as adopted because of their contribution of land to the city? A. That's correct. 0. In fact, do those projects meet the criteria under 5B or B5, rather, for being relieved of the obligation to pay the Impact fee under the ordinance? 23 i A. BE? 2 Q. The impact fee ordinance. Depo Exhibit 4 from 3 December 17, •98. 4 A. I believe so. 5 MR. FLETCHER: Okay, nothing further. 6 RE-EXAMINATION 7 BY MR. PEARSON: 8 0. Mr. Ward, when Mr. Fletcher Just asked you about 9 the Oak Creek. Butler Farms, and Harbor Heights 10 projects also meeting the three criteria for exemption 11 under the impact fee ordinance, can you tell me how it 12 is that those three projects do meet all three of those 13 criteria A, B and C under 57 14 A. Well, A is they were approved prior to '95. 15 0. Okay. 16 A. During approval, no fees were specified by the 17 Planning Commission. And they obtained the building 18 permits Prior to 95, actually, for number 3 -- or C. 19 MR. PEARSON: Okay, thank you. 20 RE-EXAMINATION 21 BY MR. FLETCHER: 22 0. Mr. Ward, you were asked about being -- the 23 exemption from Paying the fee, and choosing for a 24 moment to continue with that line using the word 25 exemption, the exemption is the -- is from paying the COURT REPORTERS ASSOCIATES PAGE 24 24 1 fee under the ordinance; is that correct? 2 A. Yes. 3 Q. Are they exempted from paying any impact -- 4 recreation impact fee? 5 A. Those projects? 6 Q. Yes. 7 A. That's -- they're exempt because of the in -kind 8 donation. 9 Q. So the only reason they don't pay a fee in dollars 10 is because they have contributed land to the city? 11 A. That's my understanding, yeah, they don't Pay. 12 MR. FLETCHER: Okay, nothing further. 13 MR. PEARSON: Nothing further. 14 (The deposition concluded at 1:46 p.m.) 15 16 8 1 24 COURT REPORTERS ASSOCIATES COURT REPORTERS ASSOCIATES PAGE 25 SHEET 7 25 1 2 3 4 S 6 7 8 9 12 13 14 15 16 17 1 2 3 4 5 6 7 8 9 13 14 15 16 17 11 22 i23 SIGNATURE OF DEPONENT I, the undersigned, RICHARD LARD, do hereby certify that I have read the foregoing deposition and find it to be a true and accurate transcription of my testimony, with the following corrections, if any: (If necessary, attach separate errata sheet) PAGE/LINE CHANGE Date: REASON RICHARD WARD State of County of Subscribed and sworn to before me this day of , 1999. Commission expires: NOTARY PUBLIC COURT REPORTERS ASSOCIATES nnrc = CERTIFICATE 26 I, Darlene G. Littlefield, Court Reporter and Notary Public, do hereby certify that the foregoing pages, numbered 3 through 24, inclusive, are a true and accurate transcription of my stenographic notes of the Deposition of RICHARD 1JARD, taken before me on Monday, March 1, 1999. commencing at 1:00 p.m., for use in the matter of LARKIN MILOT PARTNERSHIP VS. CITY OF SO. BURLINGTON, Docket No. S168-98 CnC, and MBL ASSOCIATES VS. CITY OF SO. BURLINGTON, Docket No. S392-98 CnC, as to which a transcript was duly ordered. DARLENE G. LITTLEFIELD. RM, CRR COURT REPORTERS ASSOCIATES dually 11:13,21 13:7 17:14 23:18 additional 15:23 $200 7:3,8,15 8:4,9 11:18 12: 1 13:12 21:19 additions 4:20.23 $300 13:10,11 address 3:7 16:9 adjoining 20:4 & laddressed & 1:21 Adjustment 10:2 administer 3:18 administered 9:24 '93 19:6 '95 10:5 19:18 21:12,14,19 administrator 3:11,16 18:12 22:10,11 23:14,18 adopted 9:13 22:20 '98 23:3 adoption 22:15 after 2:24 4:4 9:4 19:15 20:8, 22 21:11 22:10 again 8:20 18:1 0 05402 1:25 ago 22:7 ahead 6:2218:8 allow 8:19 1 1 1:14 3:1 26:8 10 4:22 already 5:2 9:7 13th 16:9 alterations 4:20,23 140 20:21 among 2:21 171 1:22 23:3 amount 13:5 15:17 1775 3:8 ans-.ycr 6:2215:11 17th 6:9 12:14 Answer 6:24 1993 19:21 anything 14:22 17:18 1994 8:2 apologize 13:23 1995 6:15,18 7:2,20 8:9 9:6, appeal 14:20 13 10:17 11:3 18:15 19:15,25 appl►cant 4:7 20:8,23 21:20 application 4:8 1997 14:4 16:24 applications 8:7 1998 6:9 10:24 12:14 R . applied 12:23 ] 9:11 1999 1:14 3:1 26:8 applying 15:3 16:19,23 17:15 1:001:15 3:1 26:8 appropriate 4:9 1:46 24:14 approvals 5:2,4,9 7:11,15 9:8 12:17 23:16 approved 18:14 19:6,25 20: 15 23:14 2 2012:19,24,25 13:8,9 21 11:17 12:2 13:6.14 14:7,19 approximately 21:9 22 2:4 April 9:13 23 2:5 Arena 16:1 24 26:5 arrived 15:21 250 18:25 19:12 aside 15:18 ask 6:11 10:24 12:15 14:1 3 Ask 16:10 asked 23:8,22 32 3:14 10:23 12:14 18:1 23: 18 26:5 aspects 3:18 3rd 10:24 assess 4:9 assist 5:16 4 assistant 14:13 17:12 ASSOCIATES 1:7.24 26:11 asterisk 10:25 4 6:8 17:21 23:2 5 attached 17:16 25:8 attended l 1:3.5 512:2013:8 17:23 18:1,9 23: 13 attention 17:22 5B 22:24 attorney 14:18 6 6 13:19,20,23 60 21:10 6th 14:4 7 76 1:19 36:5.6,13 A about 5:24 6:5 7:24 9:6.16 10:3 11:8 14:11.23 15:2.11.22 16:19 21:14,20 22:6 23:8.22 accurate 25:5 26:6 ;active 20:9 21:11 authorized 6:19 aware 18:13 191 BS 22:24 23:1 background 6:4 17:21 19:21 based 4:15 15:20 Battery 1:22 became 14:17,19 because 10:11 13:11.24 14:17 19: 7 21:22 22:20 24:7,10 become 14:23 hcforc 4:2 8:23 20:7.22 21:11 122:10 25:21 26:7 Bclair 1 10 believe 6:8,9,. �1 12:10,25 14:16 19:6 22:5.18 23:4 bell 20:21 besides 20:10 between 10:5 15:14 bit 17:17 Board 10:2 Bob 18:7 books 8:25 both 20:7 21:11 22:10,14 Both 20:24 brief 3:15 bring 4:12 building 3:24 4:5,13,13 7:4, 19 8:2,2,5,8 11:13,14 13:16 16:1718:13 19:14,17 20:7,22 22:9 23:17 built 20:18 21:7 22:14 Burlington 1:14,25 3:9,12,17 5:8 6:10.19 8:21 26:10,11 Butler 20:2,11 21:15 22:7,11, 17 23:9 bylaws 3:18 6:19 8:21 C Cairns 16:1 calculated 17:9,13 called 15:17 calls 6:21 came 8:2 14:11 can 3:6 6:22.25 10:7,21 11:11 12:15 14:2.10 15:11,12 18:19 20:11 21:5 23:11 Can 3:15 21:16 can't 10:14 capacity ISA2 case 11:23 cents 4:22 certain 13:5 certify 25:4 26:4 CHANGE 25:10 characterization 22:19 choosing 23:23 circled 10:25 City 3:11 10:17 11:3 14:21 200,11 city 5:21 7:25 9:15 14:7,18 15.4 19:8 22:21 24:10 city's 14:14 Civil 2:22 CnC 26:10,12 code 3:19 collected 7:15,20 8:4 11:18, 20.2213:5,15 collecting 14:17 15:22 collection 6:19 7:3 combined 5:12 come 10:10 coming 11:14 commencing 1:15 26:8 Commission 5:9,16 7:14 8:11 9:2.8,25 10:1 12:11 15:15 20: 16 21:22 23:17 25:25 complete 4:11 compliance 4:9 complicated 17:17 concluded 24:14 (conclusion 6:22 condition 7:14 8:4 12:20 13:8 ;1a:y conditions 12:18 confirm 13:2 connection 7:9 consider 8:11 consideration 14:8 15:8 construction 4:20,22,24,25 consultants 15:14 continue 23:24 contributed 21:3 24:10 contribution 8:17 19:8 20:5 22:21 copy 6:10 13:24,25 correct 5:22 6:16 7:5,17 9:3 10:16 12:113:17 16:14.20,21, 25 19:10,13 21:24 22:12,13, 22 24:1 Correct 16:15 corrections 25:7 cost 4:24 costs 15:19 Council 10:17 11:4 14:21 15: 15 Counsel 2:21 counsel 16:18 County 25:20 couple 22:4,5 course 9:19 COURT 1:24 26:3 Crampton 16:9 created 9:24 credit 12:21 13:10,11 14:10 Creek 18:20 20:3,10 21:15 22:7,31,17 23:9 criteria 22:23 23:10,13 CRR 26:16 currently 3:10 D Darlene 26:3,16 Date 25:17 dated 14:4 16:8 day 25:22 deals 17:23 December 6:9 10:23 12:14 23:3 decided 15:15 decision 11:25 12:11,18,20 13:3,4 Defendant 1:6,10 Depending 7:22 DEPONENT 6:24 23:2 DEPOSITION 2:8 6:8 10:23 12:13 13:20,23 16:5, 617:21 26:7 deposition 2:24 6:9 10:24 12: 14 24:14 25:5 determination 8:20 19:2 developing 15:19 developments 5:24 7:10 9:7 Dick 6:22 didn't 11:20,21 13:15 21:21 different 11:24 15:13 director 14:13 17:22 discovered 14:7,11 discrepancy 14:12 discussed 10:19 14:18 discussing 14:15,24 discussion 9:6,10,19 10:15 15:2.22 discussions 9:11,15 10:3 11:7 16:17 ,dispute 17:25 COURT RL'PORTI:RS ASSOCIATES Page I Docket 26:10,11 document 12:16 does 4:6 11:2 17:1,11 dollar 15:17 dollars 24:9 donation 24:8 done 5:9,11 8:23 17:20 Dorset 3:8 5:25 15:16,17.24 16:13,22 due 3:19 13:13 duly 3:3 26:12 During 23:16 duties 3:15 E earlier 13:4 effect 7:7 either 9:16 10:8 emploved 3:10 employees 9:16 enacted 6:14 10:6 enactment 6:17 ended 14:20 enforcement 3:19 entitled 19:3 errata 25:8 estimated 4:18 even 7:25 ever 5:16 everything 10:11 Exact 15:1 exacting 8:18 18:25 exactly 14:10 EXAMINATION 2:4 3:4 22: :d 13:12 2:23 4:12 12:3 7:23 8:9 19:7 22:19 24:7 exempted 9:8 18:15 19:25 21: 17,18,21 24:3 exemption 17:24 18:4,17 19: 3,11 21:1 23:10,23,25,25 Exhibit 6:8 10:23 12:14 13: 18,20,23 16:5, 6,1317:21 23:2 exhibit 18:2 existed 7:24 8:21 expires 25:25 F fact 11:25 12:11,18 15:8 22: 23 fall 16:24 familiar 6:12 far 5:14 8:22 Farms 5:25 15:25 16:13.22 20:2,11 21:15 22:7,11,18 23:9 fax 13:25 fees 4:9,15 6:1,10,17,20 7:3, 16,21 8:4,10,16 9:4,9 10:4,18 1 l :18 12:2213:6,13,16 14:17, 25 15:3,7,7,23 16:19,23 17:2, 2,14,21,23 18:16 20:1 21:17, 22 22:19,25 23:2,11,16.23 24: 1,4,9 field 4:1 figured 17:6 ;figures 15:21 18:25 fill 4:7 final 12:17 inance 15:25 inding 11:25 25:5 indings 12:10.18.20,25 arm 16:10 first 3:3 11:17 12:2,2 13:6,14 21:23 FLETCHER 1:21 2:4,5 6:21, 25 15:9 18:8 22:3 23:5,8,21 24:12 focusing 12:8 following 25:6 follows 3:3 22:4 footage 4:15.17.23 foregoing 25:4 26:5 form 2:23 15:9 formal 8:1 format 17:9 formulas 4:17,19 four 211:14 front 14:20 full 3:6 fully 20:18 function 5:21 funds 8:12 16:2 further 9:6 23:5 24:12,13 G gave 13:10 19:5 generally 4:4.6 5:11 generating 15:4,5 Gerald 6:8 Gerry 10:10 16:13 get -go 16:22 gets 4:21 give 3:15 given 17:3,5,14 19:8 good 13:24 grandfathered 10:12 11:9 17: RANTA.1:18 H Hafter 10:8 11:8 Harbor 20:12.13 21:15 22:8, 11,18 23:9 having 3:3 16:17 heard 10:13 hearing 10:10 heart 1 7:25 Heights 20:12,13 21:15 22:8, 32,18 23:9 helping 15:25 here 5:23 6:5 18:9 hereby 25:4 26:4 herein 11:23 Hinesburg 18:22 21:6 Hockey 16:1 home 7:19 8:3 houses 7:21 how 3:10 4:6 7:6 12:23 14:10, 11.23 15:20 16:19 18:23 20: 20 21:9 23:11 I 1 ow 3:13 4:19 7:24 18:23 I'd 6:7.11 12:12 13:22 14:1 16:8 17:22.25 Ice 16:1 lidentilication 13:21 16:7 �identik 12:15 14:216:10 impact 6:1,1C 120 7:3,16,21 3:4.10,15 9:4.9 10:4.18 11:18 12:22 13:6.12.16 14:16.25 15: 3,7,7,23 M:19.23 17:2.2,14, 21,23 18:16 20:1 21:17,22 22: 20,25 23:2,11 24:3,4 impetus 15:6 implemented 9:1 imposed 21:23 imposing 7:14 in -kind 8:17 19:8 20:5 24:7 included 22:11 inclusive 26:5 incorporated 17:16 independently 10:14 inspections 4:2 interpretation 11:24 13:11 interpreted 33:4 16:24 interpreting 15:2 involves 18:24 Isn't 12:1 issue 3:18 14:18.19,23 issued 14:8 16:16 19:15,17 20:7.22 22:10 issuing 3:21 4:2,5 7:4 8:5 13: 16 18:13 items 22:5 M machine 13:25 make 5:1 10:22 19:2 many 18:23,23 20:20 21:9 March 1:14 3:1 10:17 11:3 2 6:8 marked 6:7 10:23 12:13 13: 20,23 16:4,6 matters 5:17 17:15 26:9 maybe 5:6 7:8 Maybe 12:1 MBL 1:7 26:10 McLean 16:23 mean 3:23 8:1011:21 15:24 means 15:25 measure 4:16 meeting 30:17 11:4 22:23 23: 10,12 meetings 11:5 might 5:4 11:3,5 MILOT 1:3 6:8 10:10 26:9 Milot's 16:13 mind 13:3 Mind 18:6 mini 8:13 misunderstanding 12:1 t modification 9:12,36,17 10:4, J 6,11,18 modifying 11:8 .January 6:15,18 7:2,20 8:8 9: 610:5 16:9 18:15 19:18 20:8, moments 22:7 23:24 23 21:11 22:10,10 Monday 1:14 3:1 26:8 Joe 9:25 14:13,15 money 8:18 15:18 John 14:3 more 5:20,25 14:2215:4,5 Most 17:9 K motivation 15:11 much 5:18 kind 3:20 9:23 10:15 14:15 20:3 k' d - 4 myself 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Knoll 21:6,16 22:8,14 know 4:19 5:14 7:6 8:22 17:4 18:25 L land 8:12,15,17 15:18,19 19: 6,9 20:5 21:3 22:21 24:10 lands 15:16 language 18:17 LARKIN 1:3 14:3 26:9 last 22:5 later 13:6 leading 9:12 led 14:15 Ledge 21:6,16 22:8,14 legal 6:22 letter 14:3,6 16:8 lies 11:23 lieu 8:12 like 6:7,11 8:3 12:12,19 13:22 16:8 17:22,25 line 23:24 little 17:17 Littlefield 26:3,16 located 18:21 location 8:11 Ion-, 3:13 7:6 looked 9:5 12:15 14:2 looking 18:4 (looks 12:19 clot 6:4 7:18.24 8:3 15:13 N name 3:6 18:19 nature 9:16 necessary 25:8 need 6:4 never 7:25 10:13 16:16 17:20 21:23 New 4:20 new 4:22.25 7:9 14:16,25 next 10:25 None 10:7 none 19:17 Normally 5:3 NOTARY 25:25 26:4 notes 26:7 nothing 23:5 24:12 Nothing 24:13 noticed 14:11 November 14:4 Now 8:7 now 15:16 numbered 26:5 numbers 15:20 17:5,9 18:9 19:1 23:18 Oak 18:20 20:3,10 21:15 22: 7,11,17 23:9 Objection 6:21 15:9 objections 2:22,23 obligation 22:25 obtained 5:2 23:17 office 3:20 13:25 19:2 Oh 19:19 Okay 4:1,19,21 5:16 6:7 8:7, 14 9:11 10:14,21 11:7,21 12: 10,19 13:14 16:12 17:8.13 18: 11 20:18,25 21:25 22:17 23:5, 15,19 24:12 okay 21:14 One 4:17 one 4:18,21 7:8,21 11:619:5 20:2 21:23 'ongoing 19:22 only 7:9 24:9 opposed 8:18 ordered 26:12 ordinance 6:10,12,18,18 7:1 8:21,23,24 9:5,12,24 10:5,10, 18 11:8 15:3 16:20,23 17:16, 2218:1719:4 22:15,20.25 23: 2.11 24:1 originally 6:14 20:15 other 4:16,18 5:1 16:18 19:24 20:2,10 21:5 others 21:16 out 4:1,7 17:6 18:6 20:18 21: 7 22:15 outside 15:14 planning 10:1 16:18 plans 4:12 5:6.S.15 plot 12:17 pocket 21:2 point 8:22 9:4 1S:6 police 8:24 9:1 position 3:13 17:11 practice 7:2.6 preapproved 11:9 21:20 predates 21:18 preexisting 7:18 presence 10:9 present 3:6 previously -approved 11:9 12:13 Prior 6:17 prior 7:2.3.19 8:8 13:16 16: 17 18:14 19:17,25 21:13,14 22:15 23:14.18 Procedure 2:22 proceedings 5:11,12 process 4:5 8:1 projected 15:19.25 16:14,16 19:3,7,12.22,24 20:10 21:1,5 projects 5:25 6:2 10:12 11: 10,13 12:12.23 13:15 14:15 15:3.8.24 18:14.19 19:5 21: P 15,20 22:6,9,23 23:10,12 24:5 provision 11:24 P.0 1:21 provisions 13:3 p.m 1:15 24:14 26:8 PUBLIC 25:25 26:4 P.M 3:1 purchase 15:18 PAGE 1:21 purchasing 15:16 page 18:1 pursuant 18:16 PAGE/LINE 25:10 pages 26:5 paid 12:2 21:19 paperwork 4:7 paragraph 12:19 13:7 14:6 Paragraph 13:9 Park 15:17 parks 8:13 21:2,3 (particular 12:23 14:15 17:22 parties 2:21 4:25 7:14 9:11, 20,2212:7 PARTNERSHIP 1:3 26:9 passed 9:5 path 12:21 14:9 Paul 1:19 paying 18:16 20:1 21:21 22: 25 23:23,25 24:3,9,11 payment 8:18 12:5 15:8 PEARSON 3:5 13:18 16:4 18:6 21:25 22:7 23:7,19 24:13 people 15:14 period 8:8,9 10:5 11:18 permits 3:19,20,22,23,24,24, 25 4:3,6,15 7:3,4,15 8:2,5,8 11:14 13:16 14:8,19 16:17 18: 1319:14,17 20:7,22 22:9 23: 18 person 9:25 10:2 Pinnacle 5:24 11:12 12:12 13:15 15:24 16:19 place 21:23 plain 7:24 planner's 5:21 9:23 14:14 Planning 5:9,16 7:13 8:11 9: 2,8,18.20122,24 10:1 12:11 14:1315:1420:1621:2223: 17 question 6:23.24 13:1 15:10 questions 22:4 R raiser 16:3 rather 22:24 related 12:12, 1 relates 6:1 16:13 relating 14:9 relatively 14:25 relieved 22:24 remember 11:11 REPORTERS 1:24 26:4 request 4:7 required 5:1 requirement 13:12 requiring 13:5 reserved 2:23 resolution 8:24 respective 2:21 16:16 22:17 responsibilities 3:16 responsibility 5:1 responsible 3:20 18:13 result 7:13 8:20 14:19 revenue 15:4,5 review 2:24 4:8 RICIIARD 3:2.8 25:3,18 26:7 right 2:24 16:22 rings 20:21 101 26:16 Road 18:22 21:6 round 18:25 Rules 2:22 S S168-98 26:10 S392-98 26:12 said 12:24 14:22 same 20:2,3 say 7:24 8:2,7 saying 10:9 says 14:6 18:3 schedule 17:6 schedules 17:15 section 17:23,24 18:1 seed 15:18 seen 9:7 10:21 12:15 13:10 14:2 Ray ]7:]0 separate 5:11 16:2 25:8 RE -EXAM NATION 2:5 23: Separate 5:13 6.20 separately 5:14 read 2:24 10:24 13:9 16:10 series 5:5 18:1 25:4 set 10:11 15:17 readable 14:1 SIIEA 1:18 reads 18:9 sheet 25:8 really 10:7 show 6:7,11 10:22 12:13 13: reason 9:17 19:7 20:25 24:9 22 16:8 REASON 25:10 side 13:19 recalculation 17:1 22:20 sign 2:24 3:24 recall 6:14 8:23 9:4,10 10:7,8, since 18:15 20 11:12.17 13:9 14:10,22 15: single-family 7:19 8:3 2 16:2 18:23 19:14,24 20:15, sir 5:10 6:3,6 20,25 21:9 site 5:6,8 9:23 receiving 21:1 Site 5:15 Recently 14:7 situation 20:3 recently 16:24 so-called 17:24 recollection 10:22 11:218:2 sonic 4:16 8:7 9:4,6,10 11:5 record 3:7 15:19.20 19:16 21:2 records 7:25 sonicbodv 7:18 recreation 6:1 7:3.16,20 8:4,9 somehow 9:8 10:4 11:1S 12:6,7.21.2213:5, something 17:18 15 14:9 15:7.23 1 7:2,14,23 �15:16 2U:1 21:17.21 24:4 Sometimes 4:14 7:22 19:20 rc �•uu'r ' , 1 ` 6 South 3:8.11.16 5:8 6:10,19 � square 4:15,17,22 staff 9:18,21,22,25 10:2 14:7 16:18 started 11:13 15:16 19:21 starts 18:5,9 STATE 1:1,19 25:20 state 3:6 stated 19:3 Statutes 8:19 stenographic 26:6 Steve 16:9 still 14:1 19:16 20:9 Still 19:23 STITZEL 1:21 Street 1:19,22 3:8 15:16 20: 14 street 20:2 strike 22:5 study 15:13 subdivision 5:6,8,17,24 7:10, 15,22 8:1,12 9:23 11:10,25 12:17 18:14,20 19:24 20:10 subdivisions 9:7 14:24 20:4 subject 11:8 14:16 subparts 18:10 Subscribed 25:21 subsequently 11:12 such 13:24 summary 3:15 Summer 21:18 22:8,14 sure 5:1 10:22 sworn 3:3 25:21 T Liken 6:9 8:12 26:7 talk 5:23 talked 21:14 talking 15:11 21:20 tell 23:11 testified 3:3 13:4,7 testimony 25:6 thank 23:19 That's 3:24 5:21,22 7:5,17 9: 3 10:16 12:7 13:17 14:3 16: 21,25 19:10,13 21:24 22:13, 16,22 24:7,11 that's 5:19 6:16 11:23 17:5, 18 21:22,25 There's 5:5 17:6,17 19:16 think 13:18 14:1,24 20:11 21: 5,10,16,25 third -generation 13:25 14:6 those 4:2 5:11 6:2 7:21 11:5, 17 12:2 13:2,6 15:2018:19 20:22 22:8.23 23:12,12 Those 24:5 three 7:8 23:10,12,12 time 14:14.25 today 5:23 14:10 told 10:9 took 8:15 transcription 25:6 26:6,12 true 22:16 25:5 26:6 two 4:17 5:24 6:2 12:2 13:2 15:23 types 4:2 ern„ ,S:_I� T 1 ;referred 12:10 ��speaking 22:6 lJ refresh 10*21 1) :2 18:2 Spear 5:25 11:13 12:12 20:14 undersigned 25:3 rc and 16:ly specifically 6:1 ]a:23 ;understand 5:23 17:13 22: 20,24,25 23:11,13 24:1 understanding 12:22 24:11 unit 7:3,16 8:9 11:19 units 11:13,1812:2.3 13:6,14 18:23 19:11 20:20 21:9 unspecific 15:10 until 2:23 up 9:12 11:14 13:18 14:20 22: 4 use 4:19 14:16 16:11 19:5 26: 9 using 23:24 V vague 15:10 value 4:18 values 17:17 variance 5:7 various 17:15 verify 10:14 VERMONT 1:1,25 2:22 versus4:20 very 13:24 VS 26:9,11 w want 4:13 13:2 wanted 7:19 Ward 2:10 3:2,6,8 11:213:22 16:8 22:4 23:8,22 25:3,18 26: 7 warned 5:14,15 wasn't 14:17 wastewater 3:24 way 15:4,5 we're 5:23 6:5 13:18 15:11 Weith 9:25 10:3,814:14,22 Well 9:18 11:23 23:14 what's 10:22,25 12:13 whatever 19:12 whether 11:3 14:22 19:12,14 Whether 15:6 whom 22:9 within 11:24 without 14:8 Woods 21:18 22:8,14 words 15:1 23:24 work 4:6 Y years 3:14 7:8,25,25 17:1,1,3, 6,7,14 yet 20:18 Yup 20:4 21:4 Z Zero 12:9 zero 13:7 Zoning 3:11,22 9:18,20.22 10:214:13 zoning 3:16,23 4:5 14:7 18:1 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT CHITTENDEN COUNTY, SS. LARKIN-MILOT PARTNERSHIP, ) Plaintiff ) CITY OF SOUTH BURLINGTON, ) Defendant. ) Chittenden Superior Court Docket No. S168-98CnC SUPPLEMENTAL AFFIDAVIT OF JOSEPH WEITH I, JOSEPH WEITH, being duly sworn, hereby depose and state on my personal knowledge: 1. I am the Director of Planning and Zoning for the City of South Burlington, Vermont, and I am familiar with the above - referenced matter. 2. It has always been my understanding that the fees specified in section 3(B)(5) of the Ordinance applied fully to lot/unit development within Pinnacle at Spear. 3. Gerald Milot and I discussed by telephone the applicability of the Impact Fee Ordinance ("Ordinance") to Pinnacle at Spear. 4. I specifically recall indicating to Mr. Milot that Pinnacle at Spear was only exempt from or "grandfathered" with respect to, the school impact fees set out in the Ordinance. 5. The fees specified in section 3(B)(5) of the Ordinance should have been assessed and collected as lots/units within Pinnacle at Spear were developed. 1 6. The issuance by the Zoning Administrator of 21 building permits for lots within Pinnacle at Spear for which he assessed a recreation impact fee of $200/lot was erroneous. DATED at South Burlington, Vermont, this day of June 1999. Jos Wei -eh Subscribed and sworn to before me this day of June 1999. " ' - a 0 --z Notary Public son580.1it.LMPaffid2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLWGTON, VERMONT 05402-1507 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT CHITTENDEN COUNTY, SS MBL ASSOCIATES, Plaintiff V. CITY OF SOUTH BURLINGTON, Defendant Chittenden Superior Court Docket No. 392-98 CnC SUPPLEMENTAL AFFIDAVIT OF JOSEPH WEITH I, JOSEPH WEITH, being duly sworn, hereby depose and state on my personal knowledge: 1. I am the Director of Planning and Zoning for the City of South Burlington, Vermont, and I am familiar with the above - referenced matter. 2. It has always been my understanding that the fees specified in section 3(B)(5) of the Ordinance applied fully to lot/unit development within Dorset Farms. 3. Gerald Milot and I discussed by telephone the applicability of the Impact Fee Ordinance ("Ordinance") to Dorset Farms. 4. I specifically recall indicating to Mr. Milot that Dorset Farms was only exempt from, or "grandfathered" with respect to, the school impact fees in the Ordinance. 1 Farms have been developed as required by the Ordinance without exception. 6. The issuance by the Zoning Administrator of 21 building permits for lots within Pinnacle at Spear for which he assessed a recreation impact fee of $200/lot was erroneous/. DATED at South Burlington, Vermont, this I I day of June 1999. JoseMh Wei Subscribed and sworn to before me this /l7 day of June 1999. / �' Z" � /0' W 3 Notary Public son579.1it.MBLaffid2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 17'. BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURL.INGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE./TDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAIL(FIRM2555@AOL.COM) ROBERTE.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) December 30, 1998 Joe Weith Director of Planning and Zoning City of South Burlington 575 Dorset Street South Burlington, VT 05403 Dear Joe: OF COUNSEL ARTHUR W. CERNOSIA Enclosed you will find a photocopy of the deposition of Gerry Milot. Please review pages 20 through 23 of the deposition. First, Gerry testified that based upon a conversation he had with you, neither the MBL nor Larkin-Milot projects were subject to the fees under the new ordinance. He does acknowledge, however, that you do not agree with the representation. I would be interested in your recollection of the conversation or conversations with Gerry. Also, I draw your attention to the question and answer which appears at the bottom of page 24 and the top of page 25. Gerry testified that the "permit" referred to in the final plat approvals for these projects is the final plat approval itself, as opposed to the building permit for individual units. Is there any historical basis for this opinion, or any other facts supportive of Gerry's view? Finally, I want you to be aware of what appears in the later portions of the deposition. I tried to get Gerry to tell me precisely how much of the impact fee on any individual lot he may have paid himself, rather than passing on to the buyer. Gerry maintains that the additional fees cut into his profit margin. Without an accounting, however, it is unlikely that we will be able to prove that, or more importantly, disprove it. I had two thoughts on the subject. We can serve additional discovery on Gerry directed at the accounting for the sales of units in both developments and hope he specifically identifies either a CPA or someone in his organization who can speak to these issues. Or, we can seek out individuals or builders who bought homes or lots from Gerry and see if they would be willing to disclose to us the terms and conditions for their respective purchases. I would be interested in your thoughts on this latter option, and whether you think it would be utterly fruitless. If so, we will go the first route and see what we can find. Bob O'Neill is anxious to depose Dick Ward and has asked me a couple of times to see about convenient times. Would you Joe Weith December 29, 1998 Page 2 please inquire of Dick as to his availability after the 1st of the year, and either get back to me directly, or have Dick call me. Thank you for your help. Please call me after ou have reviewed Gerry's deposition. incer , ert E. Fletcher REF/jp cc: Charles Hafter, City Manager (w/out enclosure) SON3851.cor IL/I!/Jti 2 1 STATE OF VERMONT 2 CHITTENDEN COUNTY, SS. ------------------------- 3 MBLASSOCIATES CHITTENDEN SUPERIOR COURT 4 VS. 5 CITY OF SOUTH BURLINGTON 6 ------------------------- 7LARKIN MILOT PARTNERSHIP VS. 8 CITY OF SOUTH BURLINGTON 9 CITY COUNCIL 10 11 DEPOSITION -of- 12 JERRY MILOT 13 Taken on Thursday, December 17, 1998, at the offices of GPavel & Shea 14 Burlington, Vermont. 15 16 APP RANC S ON B HALF 0� 1 HE PLAINTIFF: 17 RO T F. O'NEILL, ESQUIRE GRAY & �SHEA 18 Burlington�Street VTt054b2-0369ox 369 19 200N BEHALRO�ERT E. FLETOHEER EESQUIRE STITZEEL PAGE & FLETCHER, P.C. 21 171 Battery Street P.O. Box 1507 22 Burlington, VT 054b2-1507 23 MMIILLLL 24 COURT �POR. S ASSOCIATES 25 117 BANK S FEET URLINGTON, VT 05401 (802) 862-4563 1 2 INDEX 3EXAMINATION BY ROBERT E. FLETCHER, ESQ. 4 5 6 7 8 9 EXHIBITS 10 1 Findings of Fact & Decision dated 5/25/93 11 2 Findings of Fact & Decision dated 1/11/94 12 3 Document Re Pinnacle at Spear 31 13 4 South Burlington Impact Fee Ordinance 14 15 16 17 18 19 20 21 22 23 24 25 8 8 45 4 4 1 2 STIPULATIONS 3 IT IS HEREBY STIPULATED AND AGREED by and between 4 the attorneys of record for the respective parties 5 hereto, as follows: 6 1. That the testimony of JERRY MILOT 7 may be taken and treated as if taken pursuant to notice 8 and order to take deposition, and that all formalities 9 of notice and order are waived by the parties, and 10 the signatures to this stipulation are in like manner 11 waived; 12 2. That all objections except as to matters of 13 form are reserved until the deposition, or any part 14 thereof, is offered in evidence; 15 3. That the deposition may be signed by the 16 said JERRY MILOT before any Notary Public. 17 18 19 20 21 22 23 24 25 1 9:05 a.m., Thursday, December 17, 1998 2 JERRY MILOT, being duly sworn by 3 the Notary to tell the whole truth and nothing 4 but the truth, deposes and says as follows: 5 EXAMINATION 6 BY MR. FLETCHER: 7 Q Mr. Milot, for the record, your name and 8 current address, please? 9 A Jerry Milot, 40 College Street. 10 Q Okay. We're trying to deal with two 11 separate cases for sake of order. Let's see if we 12 can deal with Dorset Farms first, the MBL project. 13 Can you tell me what MBL Associates is? 14 A It's -- MBL Associates is a limited 15 liability corporation that consists of three 16 members. 17 Q Okay, and who are those members besides 18 yourself? 19 A John Larkin and Alan Bartlett. 20 Q And when was it formed? 21 A I don't know the exact date. Nine, ten 22 years ago. 23 Q Okay. And the purpose for its 24 organization? 25 A We acquired a piece of land and we were rvnwt - 12/17/98 6 1 going to develop that piece of property. 2 Q And which piece of land is that? 3 A Commonly known as the Ramsey Farms, 4 approximately 205 acres on the southeast quadrant of 5 the City of South Burlington. 6 Q And is that the property upon which there 7 is now being developed the project known as Dorset 8 Farms? 9 A Yes. 10 Q And was that project also known as 11 Southeast Summit? 12 A Yes. 13 Q So if we're referring to Southest Summit 14 or Dorset Farms, we're talking about the same 15 project? 16 A Right. 17 Q Other than being one of the principals at 18 MBL, what is your relationship with MBL, if you have 19 one? 20 A I don't know if I've got a specific 21 relationship. What is my responsibility? 22 Q That would be fine. 23 A Typically I shepherd the permit process. 24 1 line up the financing and do the marketing. 25 Q Okay, and what is Mr. Larkin responsible 1 for? 2 A He signs the notes. 3 Q An excellent division of labor. 4 A It is. 5 Q Does he have any responsibilities other 6 than taking all the financial risk? 7 A Well, of course he's a partner, and we 8 certainly consult with him in everything we're going 9 to do, but he didn't participate in an active basis 10 in the development. 11 Q Okay, and the third member? 12 A Alan Bartlett is in charge of 13 construction. 14 Q The development that's occurring at the 15 present time on the subject property, the MBL 16 property? 17 A Mm-hmm. 18 MR. O'NEILL: You have to say yes or 19 no. 20 BY MR. FLETCHER: 21 Q Is that construction being undertaken by 22 Mr. Bartlett? 23 A Yes. 24 Q Are you selling any of the lots within 25 the Dorset Farms subdivision to contractors, so that 8 1 they can build homes on their own? 2 A We haven't. 3 Q Do you have any plans to do that? 4 A Of course we would. 5 Q Okay. But at this time you haven't been 6 approached by a contractor who wishes to do that at 7 the right price? 8 A We would only sell to a contractor who 9 was building a house for a prospective buyer. We 10 wouldn't sell to a contractor who is building a 11 house as a speculative house to compete with us. 12 And nobody's been able to find a contractor that can 13 build as efficiently as we can. 14 Q All right, so all of the construction 15 that's occurred so far at Dorset Farms has been 16 undertaken by Mr. Bartlett? 17 A Yes. 18 Q Is that undertaken under the name of MBL 19 Associates or some other entity? 20 A It's MBLAssociates. 21 Q Okay. So MBL Associates is the developer 22 and contractor for Dorset Farms? 23 A The general contractor, yes. 24 (Deposition Exhibits 1 and 2 were 25 marked for identification.) 1 BY MR. FLETCHER: 2 Q Mr. Milot, let me show you what's been 3 marked as Deposition Exhibit 1, entitled at the top 4 Findings of Fact and Decision, consisting of nine 5 pages and bearing a date of May 25, '93. Do you 6 recognize that document? 7 A I believe so. 8 Q Can you tell me what it is, please? 9 A It appears to be -- I have to read it -- 10 it appears to be the findings of fact and decision, 11 preliminary plat approval, for the MBL Associates 12 project. 13 Q Okay. Issued by whom? 14 A City of South Burlington, 15 Q Specifically by its Planning Commission? 16 A Yes. 17 Q All right. And let me show you what has 18 been marked as Deposition Exhibit 2, also headed 19 Findings of Fact and Decision, this one being dated 20 January 11 of 1994. Ask you if you recognize that 21 document. 22 A Yes. 23 Q Can you tell us what it is, please? 24 A It also appears to be -- have to read 25 it -- final plat approval, same development, issued Court Reporters Associates 9 Milot - 12/17/98 11 E 1 by the City of South Burlington. 2 Q Okay. Again issued by the City of South 3 Burlington Planning Commission? 4 A Planning Commission. 5 Q So Depo Exhibit 1, as far as you know, is 6 the preliminary approval, and Depo Exhibit 2 is the 7 final approval for the Dorset Farms project? 8 A That's correct. 9 Q Are you familiar with both of those 10 documents? 11 A Intimately, no. 12 Q Were you responsible for securing those 13 documents for this project? 14 A I was responsible for securing the 15 permits, yes. 16 Q Okay. And the permits for this project 17 would include local plat approval; is that correct? 18 A That's true. 19 Q Act 250 approval, as well? 20 A Yes. 21 Q Are you responsible for securing permits 22 related to the development of each of the individual 23 units? 24 A No. 25 Q To whom does that responsibility fall? 1 A Usually the general contractor. 2 Q So in this case it would be MBL 3 Associates in its capacity as general contractor? 4 A That's correct. 5 Q And that presumably would be Mr. Bartlett 6 who would know the most about pulling local permits 7 for that process? 8 A Typically what is done, you give a call 9 to the City, they give you a checklist of items you 10 need, and you go in and pick up your building 11 permit. 12 Q Would Mr. Bartlett be the one who would 13 typically make that trip into the City? 14 A Or one of his designees. 15 Q Could you tell us who else works with 16 Mr. Bartlett in that capacity? 17 A Kurt Montgomery. 18 Q I think you told us earlier that one of 19 your responsibilities for MBL Associates is to 20 market these units after the buildings are 21 constructed? 22 A That's correct. 23 Q Are the houses that are out there built 24 on spec and then marketed? 25 A Some. 12 1 Q And some are contracted in advance and 2 built to custom design? 3 A That's correct, yeah. 4 Q Okay. So you have the flexibility to do 5 either? 6 A That's true. 7 Q Okay. And in fact, at Dorset Farms, both 8 have been done? 9 A That's correct. 10 Q In marketing the units at Dorset Farms 11 that are built on spec, how is it that you price 12 those units? 13 A Well, Dorset Farms is a complicated 14 project, because we have an affordability limitation 15 in the project, so that we have to price the product 16 so that it meets the guidelines for affordable 17 housing in the State of Vermont. We also have to 18 price the product to be competitive with resale 19 product in the surrounding areas. So there's two 20 limitations: First it has to appraise, and we have 21 to meet the guidelines from the State of Vermont. 22 Q Okay. Are there guidelines actually 23 issued by the State of Vermont, or are there -- 24 A Yes. 25 Q -- income limitations that are dictated? 1 A No, there's no income limitation. You 2 can't sell a house to an individual if the total 3 principal, interest, taxes and insurance payment 4 exceeds 30 percent of their median income. 5 Q Okay. And that's the affordability 6 standard that you're trying to meet? 7 A Yes. 8 Q How are the fees assessed by the City of 9 South Burlington for the impact of an individual 10 unit reflected in the price of a home in Dorset 11 Farms? 12 A We would add up all our costs and price 13 the product accordingly. Of course, you run into 14 two limitations; one, market and two, income -- 15 affordability limitations, and it's not a 16 never-ending pot that we can just go to every time 17 we incur a new cost. 18 Q Okay, so when you say you add up all your 19 costs, you take your land cost, your development 20 cost? 21 A Yes. 22 Q You have construction -related expense, 23 overhead? 24 A Yes. 25 0 You have marketing overhead? 13 Milot - 12/17/98 15 14 1 A Yes. 2 Q You have financing costs? 3 A Yes. 4 Q Both for the development and the 5 construction? 6 A Yes. 7 Q You have local impact fees? 8 A Yes. 9 Q Permitting costs? 10 A Yes. 11 Q And all of those things are factored into 12 the price at which you sell the home to the ultimate 13 homeowner; is that correct? 14 A Yes. 15 Q Do you know whether there have been 16 occasions when MBL Associates has not recouped from 17 the ultimate homeowner all of the costs associated 18 with the rec impact fee associated -- 19 A Our prices haven't changed because of the 20 increase in the impact fee. Did we increase our 21 prices to recoup the cost of the impact fee? No. 22 We think our impact fee should be $200 less the 23 credit, and that's what our understanding's been 24 since day one, and we expect to recover those costs 25 that way. 16 1 Q So when you've marketed Dorset Farms 2 products, you have passed through to the homeowner 3 the costs associated with taking that raw land and 4 turning it into a finished home, including the rec 5 impact fee? 6 A No. You've forgot one component of that 7 cost, and that's profit, and when you have an 8 unexpected cost in a project and you have 9 limitations of what you can sell that project for, 10 those unexpected costs come out of profit and that 11 erodes the profitability of the project. 12 Q Okay, at the time of final plat approval 13 for the Dorset Farms project -- 14 A Mm-hmm. 15 Q -- you had an expectation -- you being 16 MBL -- had an expectation of what your profit would 17 be per unit, true? 18 A At the time of final plat? 19 Q Yes. 20 A No. We had Act 250 to go through. 21 Q All right, at the time that you received 22 Act 250 approval for the Dorset Farms project, you 23 then had an estimate or an expectation of what your 24 average profit would be on a per -unit basis at 25 Dorset Farms? 1 A Yes. 2 Q And what was that expectation? 3 A It's a percentage, and if I'm looking at 4 it, it's about, gross profit margin, about 15 5 percent, it's typical. You can only finance 85 6 percent of a sales price on a product, and so you 7 typically have 15 percent -plus. 8 Q Okay. And with respect to specifically 9 the Dorset Farms project, your expectation was you'd 10 have roughly a 15 percent gross profit margin? 11 A Yes, 12 Q Following your discovery that there was a 13 change in the rec impact fee -- 14 A Mm-hmm. 15 Q -- what has been your gross profit 16 margin? 17 A We haven't made our 15 percent. We 18 aren't even close to our 15 percent. One of the 19 causes of that is a rec impact fee and what we 20 consider a water meter impact fee, two charges that 21 were unanticipated by us from the City of South 22 Burlington. 23 Q When precisely did you receive your Act 24 250 approval for the Dorset Farms project? 25 A Through the Supreme Court? The first 1 time or the second time? I don't know the precise 2 date, I'm sorry. 3 Q You remember the year? 4 A Within the last two years. 5 Q So if we're at the end of '98, sometime 6 close to '96? 7 A '96, maybe '97. 1 think probably '96. 8 Q Can you tell me the specific impact on 9 the gross profit margin at Dorset Farms related to 10 what you call the water meter impact fee? 11 A The former water meter cost was 75 to a 12 hundred dollars to install it, which was reflective 13 of the actual costs to install the meter, plus the 14 cost of the meter itself. The City changed it to 15 $500, and as far as I'm concerned it's not a duly 16 enacted impact fee. We're paying for a service and 17 we're getting a service and we're paying five times 18 what the service costs the City to produce, so we're 19 in the process of trying to recover that, also. 20 Q That fee, that $500 represents what 21 percent of the selling price of a home at Dorset 22 Farms? 23 A I don't have a calculator with me. You 24 know, figure an average price of 150, 160 thousand 25 dollars for a base price of a house, and 500 is that Court Reporters Associates M IVIBUI 12/17/98 19 1 percent. 2 Q So the average Dorset Farms home is being 3 marketed at somewhere between 150 and 160 thousand 4 dollars? 5 A Mm-hmm. 6 Q Are there some -- 7 A Yes. Yes. I say base price. People 8 have a list of options they can put in a house, and 9 we still have to stay within the affordability 10 standards. 11 Q Okay, what's the most expensive home 12 that's been sold in Dorset Farms to date, if you 13 know? 14 A I don't know. 15 Q Would you have a ballpark of what the 16 price would be? 17 A Four -bedroom house, fairly large, 25-, 18 2600 square feet, $185,000. 19 Q But you don't have in mind any particular 20 home that perhaps sold -- 21 A No. We have a marketing group in our 22 office that does all the marketing. I don't pay 23 that close attention to the marketing aspect of it. 24 Q Have there been any homes in Dorset Farms 25 that have sold for $150,000; do you know? 1 A Yes. 2 Q Do you know how many? 3 A No. 4 Q More than five? 5 A When I say 150, in the 150s. I don't 6 know specifically 150,000. 1 don't know more than 7 five, I don't know more than one. The initial 8 houses that were sold were all in that price range. 9 Q Okay. The rec impact fee, you went 10 through an analysis for us on what you perceived to 11 be the change in the water meter fee and its impact 12 on this project. Can you do the same for the rec 13 impact fee? 14 A We expected not to have any impact fee. 15 We thought our credit, because of the bike path that 16 we were installing, was in excess of what the 17 development's obligation would have been at the time 18 we got the final plat approval. And in fact, if I'd 19 walked in the next day and picked up all the 20 building permits, that's exactly what I would have 21 paid. 22 Q So your expectation with respect to 23 Dorset Farms was that there would be no rec impact 24 fee; is that correct? 25 A I expected that we would not have a rec 20 1 impact fee. I thought that what we were willing to 2 put in that constituted a credit towards recreation 3 was in excess of the then -existing rec impact fee, 4 and had I walked into Dick Ward's office the day 5 after I got my approvals from Act 250, and was 6 somewhat penalized by the fact that it took four 7 years to go through Act 250, had I walked in that 8 day and applied for a permit, I would not have had a 9 rec impact fee. 10 Q You say you would not have had a rec 11 impact fee. What's the basis for that? 12 A I think the existing rec impact fee at 13 that time was $200, and I had a $300 credit, and 14 that's happened, I believe, in other developments 15 that I've done, too, where we've donated, for 16 example, Overlook Park to the City, and that was in 17 excess of our requirement under the probably $50-a- 18 unit rec impact fee at that time, so there have been 19 other instances where we've had credits that are in 20 excess of the actual impact that we had and that was 21 negotiated and agreed upon. 22 Q Did you negotiate and agree upon any 23 particular impact fee with respect to Dorset Farms? 24 A We knew the rec impact fee was $200 at 25 the time, we anticipated it would be in that 1 ballpark. We asked the City, through the permit 2 process, to assess our impact at the time of the 3 issuance of permits. We'd go through a complete 4 analysis with the Planning Commission and what the 5 impacts are with regard to every impact fee and 6 every City service, and if they determine there is 7 an impact, they assess a fee. At the time we 8 received our final plat approval, it was $200. 9 Q Is there anyone who is an employee of the 10 City of South Burlington who represented to you that 11 your impact fee would be $200? 12 A It was $200. 1 mean I didn't need a 13 representation. That's what it was. 14 Q But to your recollection, there was no 15 one in City government -- 16 A At the time we got our final plat 17 approval, the impact fee was $200 in the City of 18 South Burlington. We had general knowledge of that, 19 that it was $200. That's what they were charging 20 everybody. 21 Q When did you first learn that the City of 22 South Burlington was considering changing its rec 23 impact fee? 24 A Sometime after I got my final plat. 1 25 saw the warnings in the paper, I called the City Court Reporters Associates 21 M110t 12/17/98 23 22 1 very alarmed, for two reasons: One, it appeared to 2 me that they were trying to pay for the Dorset Park 3 project on the backs of future development, and 1 4 didn't believe there was any justification for that, 5 since we had already done the study when we sold 6 them the Dorset Park property, that the City was 7 overparked with regards to land, and because they 8 wanted a park was not enough reason to either 9 condemn the site, take it by eminent domain, or 10 certainly assess for the acquisition of that site 11 and the construction thereon for future landowners, 12 other than through the tax system. That was my 13 initial concern, that the rec fee was way out of 14 whack, and I talked to Joe Wyeth and Joe says well, 15 they're putting it on the agenda for the City 16 Council because everybody has come in with the same 17 concern, that our impacts were assessed at the time 18 we received our final plat. Because the City wants 19 a park is no reason to charge individuals for the 20 impact fee. And they waived, they waived the impact 21 fee on developments approved prior to a certain 22 date. I made a phone call the next day, Ernie 23 Pomerleau was really the emissary for the developers 24 that went to the meeting that night, I couldn't be 25 there, and I called City Hall and I was told my 1 impact fees had been waived. 2 Q Who told you that? 3 A Joe Wyeth. He disagrees with that. He 4 told me that he has a different interpretation of 5 what he said. My question was, How did we do last 6 night? And he says, Not to worry, your fees have 7 been waived. 8 Q That's your recollection of the 9 conversation? 10 A Yes. Because I would have followed 11 through immediately, and may still, in opposing the 12 method in which they came forward to even assess a 13 rec fee. They have to show that this development is 14 the impetus for the necessity in the City for a new 15 park. This new park has been on the City drawing 16 boards as a desirable item for a decade, two 17 decades. We were intimate with the acquisition of 18 the land in the City, and it was planned and the 19 City was going to do it through tax dollars, and 20 this rec fee became a nice vehicle for them to try 21 to recover their costs, so we didn't agree that we 22 had -- in 221 units, had stimulated the need to 23 contribute $300,000 to a new park. 24 Q The rec impact fee ordinance, do you 25 recall when that was first proposed in the City of 24 1 South Burlington? 2 A No. 3 Q Were you aware of its consideration 4 during the time that the Dorset Farms project was 5 also being considered by the Planning Commission? 6 A Might have been. I'm not sure the actual 7 time frame. To be honest with you, I wasn't overly 8 concerned with it, because the City had gone through 9 an analysis of what the recreation impact was going 10 to be based on future development for the community 11 and what a fair share of a per -unit cost would have 12 been, and they had to raise those impact fees, as 13 they demonstrated to themselves that, you know, it's 14 not $50 anymore, it's a hundred dollars, it's 200. 15 Nobody would have anticipated a leap from two 16 hundred dollars to 15 or 16 hundred dollars a unit 17 in the same time frame, so I wouldn't have been 18 paying that much attention to it. I was not 19 concerned about fifty or a hundred dollars one way 20 or another. 21 Q So is it a fair characterization that you 22 were generally aware that the ordinance was under 23 consideration, but you weren't concerned about it? 24 A I don't know that I was aware that it was 25 under consideration, but I wasn't concerned about 1 it. 2 Q If you had known about it, you wouldn't 3 have been concerned about it? 4 A I wouldn't have anticipated this level of 5 impact fee, given the fact that they had established 6 an impact fee prior to that, and I assumed that was 7 based on some logical impact. 8 Q Can you show me in Deposition Exhibit 2 9 where you believe that your project, Dorset Farms, 10 was approved with a $200-per-unit rec impact fee? 11 A Want to know how I came to that 12 conclusion? 13 Q Well, I'd like to know first if you can 14 show me where in there, in that approval, there's a 15 basis for the $200-a-unit rec impact fee that you 16 believe is appropriate for Dorset Farms. 17 A Can you save me some time and tell me the 18 section? 19 Q There's reference to recreation in 20 paragraph 26 on page 5 and page 7, item 5. 21 A Okay. 22 Q And page 7, numbered paragraph 5. 23 A Okay. You want my interpretation of 24 that? 25 Q Yeah, you asked me if there were sections Court Reporters Associates 25 wnFui - 12/17/98 27 26 1 that refer to the rec impact fee. Those are the 2 sections I'm aware of, but if you know of something 3 else. 4 A If I read this document as a developer 5 and I was going through the conditions, as was 6 standard practice in the City of South Burlington, 7 we didn't pay a rec fee until we had impact, but the 8 rec fee was determined at the time of the issuance 9 of the permit, not the building permit, the final 10 plat permit. And this paragraph says: The 11 applicant will be required to pay the difference 12 between the $75 credit and the recreation fee in 13 effect at the time of the permit. The final plat 14 permit is -- my anticipation is what they were 15 talking about. Then they talk about the time in the 16 next paragraph at which it's collected. We pay that 17 fee assessed at the time that the permit is issued, 18 the final plat permit is issued, we pay that fee at 19 the time that we go in and pick up our zoning 20 permit. That was not a change from what was normal. 21 That was not a change in policy. So nothing would 22 have told me that I had anything other than the 23 existing impact fee to pay at the time of issuance 24 of this permit. Which I believe this does say 25 findings of fact and decision, it's my final plat 1 permit. 2 Q Is there a permit issued by the City of 3 South Burlington at the time of final plat approval? 4 A It's called a final plat permit. You 5 pick up a -- you have the ability to go in and pick 6 up a zoning permit after that, but this is the 7 permit. When we refer to permits, this is the 8 permit we're talking about. We're not talking about 9 a building permit. You know, the building permit 10 they call a zoning permit. 11 Q Earlier you made reference to a $300 12 credit. Is there reference to a -- 13 A It's a $75 credit. This was my mistake. 14 Q I think we'll get to the $300 credit when 15 we move closer into town. 16 A It was one development or another. 1 17 don't always understand why they come to those 18 conclusions. Joe Wyeth does all the math on that, 19 or the Planning Department does. 20 Q It's your interpretation that the permit 21 referred to in the final plat approval as being the 22 operative time for determining the rec impact fee 23 assessable against individual units is the final 24 plat approval itself and not the building permits as 25 they are issued subsequently? 1 A You asked me at the beginning of the 2 deposition what my responsibility was, and I told 3 you it was the acquisition of permits. Then you 4 asked me if I went in and picked up the building 5 permit and I said no, the acquisition of permits is 6 this, it's the final plat permit, preliminary plat 7 permit, and the Act 250 permit. That's my 8 responsibility. I think that the Planning 9 Commission has a responsibility to determine the 10 impact of a development when it goes through the 11 subdivision. I don't think they've got the 12 capability of anticipating what the impact of a 13 development will be for future generations and that 14 they tie that recreation impact fee at the time of 15 the permit. This is the permit. 16 MR. FLETCHER: Can you read my last 17 question back, please? 18 (The question was read back by the 19 court reporter.) 20 A Yes. 21 Q Obviously MBL Associates has brought a 22 civil action against the City of South Burlington 23 with respect to this rec impact fee issue? 24 A Mm-hmm. 25 Q Would MBL Associates have taken the same 28 1 action if the City had not amended its rec impact 2 fee in April of 1995? 3 A If I understand your question to mean 4 that if it hadn't changed the impact fee amount from 5 the time I got my final plat permit from the City, 6 would I have brought an action to try to recover 7 that amount of money? No. 8 Q My question was -- 9 A I guess I didn't understand your 10 question. 11 Q My question was poorly framed, and 1 12 don't want to take advantage of a miscommunication. 13 If you'll accept my representations, the City 14 adopted its rec impact fee ordinance in January of 15 1995. It subsequently amended that rec impact fee 16 in April of 1995 to provide for the so-called 17 grandfather clause or the exemption clause, whatever 18 terminology you wish to use. My question to you is, 19 if the City had not amended its rec impact fee 20 ordinance in April of 1995, would we be involved in 21 this lawsuit today? 22 A Yes. 23 Q So the adoption of the grandfather 24 amendment, and I'll use that phrase just for ease of 25 reference, made no difference to MBL one way or the Court Reporters Associates 29 Milot - 12/17/98 31 30 1 other in determining whether or not it felt it had 2 been fairly treated by the City in this case? 3 A It made me feel fairly treated by the 4 City at that time, because I didn't have to go 5 forward with an action like this. And the 6 representation to me was that I wasn't going to have 7 an impact fee, I was grandfathered along with 8 everybody else, and that was a solution to the 9 problem that was caused by the adoption of an impact 10 fee that they tried to apply to developments that 11 were approved prior to the adoption of the impact 12 fee. 13 Q So you -- 14 MR. O'NEILL: Let me interrupt. I 15 assume you're both, when -- your question is 16 premised on the assumption that the City 17 would in fact impose the higher fee? 18 MR. FLETCHER: Yes. 19 MR. O'NEILL: Okay, because it could 20 change the fee and not impose it, and then 21 they wouldn't care, right? 22 MR. FLETCHER: Let's assume for the 23 moment that it adopted an ordinance for a 24 purpose and it intended to enforce that 25 ordinance by imposing the higher fee. 32 1 BY MR. FLETCHER: 2 Q My follow-up question, Mr. Milot, would 3 be, am I correct in understanding that although you 4 felt that MBL Associates had been disadvantaged by 5 the adoption of the original impact fee ordinance in 6 January, it felt that the April amendment had 7 quote -unquote cured the problem? Is that your 8 interpretation of the April amendment? 9 A That's correct. 10 Q Okay. 11 A If -- 12 Q So that's a correct characterization of 13 your views? 14 A I thought that the -- my objection to the 15 first adoption would have been that I would have 16 approached it from the standpoint that No. 1, the 17 impact fee that should be assessed to me was at the 18 time of the approval by the City, and that's what 1 19 should be paying. I wouldn't be concerned -- 1 20 think the City, if they adopt an impact fee, has to 21 look forward, not backwards. The second issue 1 22 would have had is even when we're doing future 23 developments, what is the validity of that impact 24 fee, how does it apply. 25 Q Thank you. Let's shift gears for a 1 minute and focus on the other project. Pinnacle at 2 Spear? 3 A Yes. 4 (Deposition Exhibit 3 was marked for 5 identification.) 6 BY MR. FLETCHER: 7 Q Before you get worrying about that, 8 Mr. Milot, let's get oriented. Larkin Milot 9 Partnership, who are the partners? 10 A John Larkin, Jerry Milot. 11 Q Limited or general? 12 A General. 13 Q Who's the managing partner? 14 A Now or then? 15 Q At the time of the application. 16 A I was. 17 Q Now? 18 A We've divided the remaining lots and we 19 just build houses as we sell them. 20 Q Okay. Was Larkin Milot Partnership 21 formed for the sole purpose of developing the 22 project that's known as Pinnacle at Spear? 23 A No. 24 Q It developed other projects? 25 A Yes. 1 Q Is it fair to say that one of the 2 objectives of the partnership was to develop 3 Pinnacle at Spear? 4 A Yes. 5 Q Pinnacle at Spear, we're referring to 6 Pinnacle at Spear, also known as Nowland II? 7 A Yes. 8 Q Project on Spear Street. What, on the 9 east side of Spear Street? 10 A Yes. 11 Q How many acres, roughly? 12 A 72. 13 Q Okay. And that project is a development, 14 1 think, of now 80 single-family units; is that 15 correct? 16 A It's been enlarged to 80, yes. 17 Q Originally approved at 73? 18 A 73, that's correct. 19 Q What projects other than Pinnacle at 20 Spear has Larkin Milot been involved in? 21 A Old Orchard Park, which is a 210-unit 22 apartment project off Shelburne Road. McDonald's on 23 Shelburne Road, Cinema 9 on Shelburne Road, and 24 various other ground leases. 25 Q Old Orchard Park is the only other -- Court Reporters Associates 33 Milot - 12/17/98 35 34 1 A Residential, 2 Q — residential development that Larkin 3 Milot Partnership has been directly involved? 4 A Right. 5 Q Okay. Back at the inception of the 6 Nowland II project or the Pinnacle at Spear project, 7 what were your responsibilities for the partnership? 8 A The same as under the earlier. I was -- 9 In that case, I was responsible for the acquisition 10 of the land, permits, financing, marketing, same 11 responsibilities as MBL. 12 Q Now, you say there's been a split of the 13 remaining lots; you and Mr. Larkin have divided the 14 remaining lots between yourselves? 15 A Yes. 16 Q And you are each responsible now for 17 development on your own lots; is that correct? 18 A Yes, 19 Q How many lots do each of you have 20 remaining? 21 A John has 30, I've got 13. 22 Q The development of Pinnacle at Spear, my 23 understanding, has been different from the way in 24 which Dorset Farms was developed, meaning that in 25 fact there has not been an entity or subsidiary of 1 Larkin Milot Partnership actually doing the general 2 construction work; is that correct? 3 A No, in some lots we did. 4 Q Oh, did you? 5 A Yeah. It's the same, only a little bit 6 in reverse. We initially, as we did across the 7 street on Nowland I, we initially sought to find 8 quality builders, and basically what we'd do is we'd 9 sell a lot and a house package to people, and 10 builders would come in and put options or actually 11 purchase lots from us and they would take the lot 12 from that standpoint and go forward and build the 13 house. 14 Q Okay. And with respect to some lots, 15 were you GCing the work, general contracting the 16 work? 17 A I never did, but John did for the 18 partnership. We built houses together, we built 19 spec houses separately, and we sold lots to other 20 developers. 21 Q Okay. Those that were built for Larkin 22 Milot Partnership, how many of those were there? 23 A I don't know. I think maybe two or 24 three. It wasn't many. 25 Q Were those early on? 36 1 A No, they were probably mid -project. We 2 initially had an onslaught of lot sales to our 3 builders, and then we had some contracted houses 4 that we sold with the lots. And then sales slowed 5 down, so we started building our own houses. 6 Q Okay. For the lots that were sold to 7 contractors, did the contractor assume 8 responsibility for going forward with all aspects of 9 development from that point forward? 10 A That's correct. 11 Q They would be the ones who would be 12 responsible for building to code, for pulling 13 building permits, for selling, marketing and doing 14 everything that was related to whatever they built 15 on that lot; is that correct? 16 A That's correct. 17 Q And meaning the Larkin Milot Partnership 18 had no further responsibilities once it transferred 19 title to those lots? 20 A That's correct. 21 Q With respect to those projects or those 22 properties that Larkin Milot Partnership developed, 23 were these units spec units or built to order? 24 A Both. 25 Q With respect to the spec units, did 1 Larkin Milot Partnership go forward with all the 2 associated responsibilities to get the home finished 3 and then transfer the whole package to the 4 homeowner? 5 A With regards to the spec units? 6 Q Spec units, yes. 7 A Typically what happens is the homeowner 8 will come along and buy the spec while it's under 9 construction. You know, somebody who needs a house 10 in a month, and that's who you sell your spec houses 11 to. 12 Q But they don't take delivery? 13 A It's turnkey to them. 14 Q And they pay a single price and they're 15 not responsible for permits, for instance, from the 16 City? 17 A That's correct. 18 Q That's part of the package that you sell 19 them in the turnkey? 20 A That's correct. 21 Q Is that also true of the units that you 22 built to order? 23 A The ones that John and I would have built 24 together to order, yes. 25 Q And with respect to the units that you've Court Reporters Associates 37 IP R= 12/17/98 39 38 1 built subsequently on your own lots, are those the 2 same type of package? 3 A We've built one spec house up there 4 without John. 5 Q The rest are built when you have a buyer? 6 A I'm not building any houses. I'm selling 7 lots now. 8 Q All right. 9 A Yup. 10 Q And you're not taking responsibility for 11 pulling any permits from the City or anything? 12 A No. 13 Q That's all the contractor/homeowners' 14 responsibility? 15 A I have to make a representation to him 16 when I sell them what the permit costs will be and 17 that is indicated in the sales price. 18 Q Okay. It's indicated in the sales price? 19 Explain that. 20 A If I had a $20,000 rec fee, I wouldn't be 21 able to get $80,000 for a lot, for example, so 22 the -- a developer coming in or a builder coming in 23 has the ability to pay X number of dollars. If you 24 can sell a house for $300,000, your lot's got to be 25 a certain percentage of that cost, and they just 1 don't go above that, so it eats into the profit. 2 Unless you're in an unbridled market that you can 3 recover all costs. 4 Q Earlier you were saying that with respect 5 to the Dorset Farms project, that your expected 6 gross profit margin on that Dorset Farms project was 7 15 percent. Did you have a similar expectation with 8 respect to the Pinnacle at Spear project? 9 A No. 10 Q What was your expectation with respect to 11 gross profit margin on the Pinnacle at Spear 12 project? 13 A The houses were more expensive. We're 14 probably in the 20 percent gross profit margin. 15 It's much riskier. The land cost was much more 16 expensive on a per -unit basis. The absorption rate 17 in the marketplace is a lot longer, so you have to 18 build a lot larger gross profit margin. 19 Unfortunately we don't have the ability to just 20 change prices every year and get it. It would be 21 nice if we did. 22 Q Maybe that market's coming back. 23 A I don't think so. 24 Q So if you've got a lot at Pinnacle at 25 Spear now and the City's going to assess a rec 40 1 impact fee when the building permit is pulled under 2 the current scenario, how does that affect the price 3 of your lot? 4 A I'd have to discount, I would imagine. 5 We've sold lots at discounts because of that. 6 Q Precisely because of the rec impact fee, 7 or because of the general cost to develop that lot? 8 A Well, I'll give you an example. We had 9 an offer to purchase the 30 lots in the back, which 10 John subsequently bought from me, okay? As a part 11 of that offer was a subtraction from value for the 12 recreation impact fee, because at the time that this 13 individual went forward, they were applying the rec 14 impact fee to this development. They didn't for the 15 first 25 lots, because we were told we were 16 grandfathered in and they believed we were 17 grandfathered in, and it was only at some point 18 during that development that we started getting hit 19 for an impact fee, so it has an impact on value, it 20 had an impact on price. You know, the assumption, 1 21 think, would be is if we could attain a certain 22 price and we're entitled to any profit in between 23 that. The City's not entitled to any profit off of 24 that. It's our risk and our dollars. 25 Q Are you able to quantity, specifically 1 for the Pinnacle at Spear project, what, if you 2 will, the impact of the recreation impact fee has 3 been on your profit? 4 A Subtract whatever the difference in what 5 we owed and what we have to pay. I mean it's simple 6 mathematics. Because if I didn't have to pay that, 7 it would be my profit. 8 Q Have you done that quantification? 9 A Do I know what the number is off the top 10 of my head? No. I would guess it's somewhere 11 around 14, 15 hundred dollars. Just guestimating 12 it. Understand, when we started this project, the 13 City did not assess us a fee. You know, we went in 14 and picked up the building permits and there was no 15 recreation fee other than what was on the permit, 16 and at the time we got the permits, the fee was 17 assessed at that time, and then all of a sudden 18 somebody in your office or the City's office decided 19 what a great idea, and here we are. 20 Q What do you understand, looking at 21 Deposition Exhibit 3, to be the rec impact fee 22 assessable against units in Pinnacle at Spear? 23 A Do you have a paragraph and page for me? 24 Q I don't. 25 A Okay, here it is. Court Reporters Associates 41 Milot - 12/17/98 43 42 1 A Okay. I believe that the impact fee was 2 $200 at the time this was adopted, and I would 3 believe that I would not have paid a recreation 4 impact fee, okay? My interpretation of this 5 paragraph. 6 Q Which paragraph are you referring to, by 7 the way? 8 A Page 6, paragraph 5 is that 1 get a $300 9 fee per lot for putting in a portion of the proposed 10 recreation path, and the math for that is simple. 11 They determine what that path costs and they divide 12 it by the number of units and that's a finite 13 number. That's not one that's negotiated; that's an 14 actual number. Then it says this credit may be. 15 Then they go on to say, when I pay it, which was not 16 out of the norm, we always paid it at the time we 17 picked up our building permit. That was City 18 practice. So that's -- it would have been -- 1 19 would have assumed I had no recreation impact fee 20 here. 21 Q For sake of clarity of the record, 1 22 think you referred at one point, Mr. Milot, to -- 23 you meant to refer to a credit of $300. You called 24 it a fee of $300? 25 A Credit. 1 Q In fact it's a credit, is it not? 2 A Against the fee, yeah. 3 Q And that was calculated based upon the 4 contribution of the work that you were doing to put 5 in an independent rec path? 6 A That's correct. 7 Q Just didn't want you to leave with the 8 wrong record here. So it's fair to say, I take it, 9 that based upon your interpretation, units at 10 Pinnacle at Spear should be assessed no rec impact 11 fee whatsoever, given the credit of $300 per unit 12 and what you have stated to be the $200-per-unit rec 13 impact fee then in place? 14 A If it was then in place, the 200. This 15 development was approved well in advance of MBL. If 16 it was $200 at that time, then that would be my idea 17 of what we should have been paying for a rec impact 18 fee. 19 Q Okay. You're not -- I take it that 20 you're not maintaining that you're entitled to a 21 $100 refund from the City? 22 A No. No. I mean this has happened 23 before. It's a finite number they come up with, and 24 1 believe the other place it happened was in the 25 other development on Spear Street, where our 44 1 contribution towards recreation had a much greater 2 value than the actual requirement under the law on a 3 per -unit basis, and that's typically negotiated at 4 that time. We don't expect the City to write us a 5 check. 6 Q Okay. 7 A It would be nice. Never occurred to me. 8 Maybe we should. 9 Q I suppose I should ask you the same 10 somewhat convoluted question that I asked you 11 earlier concerning the Dorset Farms project, and 12 that is, your views on this subject and the fact 13 that we're in litigation at this point in time is 14 not affected by the fact that the City amended its 15 rec impact fee ordinance; is that correct? 16 A You mean the first amendment before they 17 grandfathered it? 18 Q Yes, the April, '95 amendment would make 19 no difference? 20 A I didn't think it affected me. The 21 April, '95 was the amendment to grandfather? 22 Q Yes. 23 A Oh, I thought that affected me. 1 24 thought that was putting me back where I thought 1 25 was before they adopted the new fee and applied it 1 to me. Now, you have to understand that we went 2 along and developed -- they adopted the impact fee, 3 we didn't think it had any effect on us at that 4 time, but we were concerned, because we wanted to be 5 grandfathered. We wanted to make sure everybody was 6 grandfathered. We go back in, they grandfathered 7 us. We go out and start this development, we didn't 8 pay any recreation impact fees, because that was the 9 understanding at the time. 10 1 mean the clarity was the fact that we'd 11 walk in, pick up a building permit and there were no 12 recreation impact fees. So it wasn't us making this 13 up. Everybody felt at that place and time that 14 that's what it was. The impact fee at the time of 15 the approval and collected at the time of the zoning 16 permit. In this case, there wouldn't have been any 17 impact fee. And it happened for 25 lots. 18 Q Okay. But this lawsuit is not 19 precipitated by the fact that the City amended the 20 rec impact fee in April of 1995? 21 A This lawsuit is precipitated by the fact 22 that they're trying to charge me an impact fee that 23 shouldn't have been assessed. 24 Q And that's a function, you believe, of 25 the original -- 45 1G/I//= 47 46 1 A Permit. 2 Q -- permit, the final plat approval -- 3 A That's correct. 4 Q -- language; is that correct? 5 A Yes. Or the impact fee in place at the 6 time I received my permits. Had I walked in the 7 door to Dick Ward's office and pulled every one of 8 my building permits the next day, that's the fee 9 that was assessed. 10 (Deposition Exhibit 4 was marked for 11 identification.) 12 BY MR, FLETCHER: 13 Q Mr. Milot, I'm going to show you what's 14 been marked now as Depo Exhibit 4. Front page, 15 heading, South Burlington Impact Fee Ordinance, 16 concludes with a Schedule C, which is education 17 impact fee credits for residential development and 18 consists of seven numbered pages ending with a 19 Section 11, Severability, and I would ask you if 20 you've had an opportunity to see that ordinance 21 document. 22 A I really haven't read it. 23 Q Okay. 24 A It's the first time I've seen it, as a 25 matter of fact. 1 Q Okay. On the bottom of page 2, there's a 2 reference to the recreation impact fee, carries over 3 to page 3. The so-called grandfather provision 4 appears here at Subsection 5 on page 3. If you'd 5 take a moment just to read that through. 6 A Yes. 7 Q The complaint filed in each of these 8 cases, both with respect to Dorset Farms and 9 Pinnacle at Spear, contains an allegation that I 10 will paraphrase by saying that plaintiff's project 11 falls within the amended grandfather exception under 12 the ordinance. 13 A Mm-hmm. 14 Q Can you tell me how you interpret that 15 Subsection 5 as causing your project to fall 16 therein? 17 A The Subsection (a), we received our 18 permits prior to January 9th, 1995, and there was a 19 condition in our approval that we pay a recreation 20 impact fee. 21 Q Okay. 22 A Okay? The fee specified in the 23 subdivision approval, paid to the City in accordance 24 with the terms of the approval, correct, and a 25 permit is issued for the development under South 1 Burlington by January 9th, 2005, so if we don't 2 build it out to 2005, we're not subject to this 3 anymore. 4 Q Okay. With respect to Subsection (b), 5 that the fees specified in the subdivision approval 6 were paid to the City? 7 A Mm-hmm. 8 Q I take it from your earlier testimony 9 that it's your opinion that the fees specified in 10 the subdivision approval from the $200 fees -- 11 A That's correct. 12 Q -- rec impact fee; is that correct? 13 A That's correct. 14 MR. FLETCHER: I have nothing further. 15 MR. O'NEILL: It was a pleasure. 16 (The deposition concluded at 10:06 17 a.m.) 18 19 20 21 22 23 24 25 48 1 SIGNATURE OF DEPONENT 2 3 I, the undersigned, do hereby certify that 4 1 have read the foregoing deposition and find it to 5 be a true and accurate transcription of my testimony, 6 with the following corrections, if any: 7 (if necessary, attach a separate errata sheet.) 8 PAGE/LINE CHANGE REASON 9 10 11 12 13 14 15 16 17 18 Date: MILOI 19 20 TATE OF COUNTY OF ,SS. 22 Subscribed and sworn to before me this 23 day of 1998. 24 25 Court Reporters Associates 12/17/98 1 2 CERTIFICATE 3 4 I, Norma J. Miller, RPR, Court Reporter and Notary 5 Public, hereby certify that the foregoing pages, 6 numbered 4 through 47, inclusive, are a true and 7 accurate transcription of my stenographic notes of 8 the deposition of JERRY MILOT, taken before 9 me on the 17th day of December, 1998, at the offices of 10 Gravel & Shea, 76 St. Paul Street, Burlington, 11 Vermont, and transcribed by me for use in the matter 12 of MBL Associates v. City of South Burlington, and 13 Larkin Milot Partnership v. City of South Burlington 14 City Council, now pending in the Chittenden 15 Superior Court. 16 Dated this 23rd day of December, 1998. 17 18 19 Norma J. Miller 20 21 22 23 24 25 Court Reporters Associates Milot - 12/17/98 $100 42:21 $150,000 17:25 $185,000 17:18 $20,000 37:20 $200 13:22 19:13,24 20:8,11,12,17,19 41:2 42:16 47:10 $200-a-unit 24:15 $200-per-unit 24:10 42:12 $300 19:13 26:11,14 41:8,23,24 42:11 $300,000 22:23 37:24 $50-a 19:17 23:14 $500 16:15,20 $75 25:12 26:13 $80,000 37:21 OC & 2:10,11 49:10 '93 8:5 '95 43:18,21 '96 16:6,7,7 '97 16:7 '98 16:5 * 3:19,19,19 05401 1:25 1 /11 /94 2:11 3:6 7:24 8:3 9: 5 30:16 10:06 47:16 117 1:25 2:10 8:20 45:19 13 33:21 14 40:11 150,000 18:6 23:16 38:7 40:11 1507 1:21 15:4,7,10,17,18 16:24 17:3 18:5 150s 18:5 160 16:24 17:3 23:16 17 1:134:1 171 1:21 17th 49:9 1994 8:20 1995 28:2.15,16,20 44:20 46:18 1998 1:13 4:1 49:9,16 2 22:11 3:12 7:24 8:18 9:6 24:8 46:1 200 23:14 38:14 42:14 2005 47:1,2 205 5:4 210-unit 32:21 221 22:22 23rd 49:16 25 8:5 17:17 39:15 44:17 250 9:19 14:20,22 15:24 19:5,7 27:7 2600 17:18 24:20 3 30 12:4 31:4 33:21 39:9 40:21 46:3,4 31 2:123:15 369 1:18 2:12 4 4 2:13 45:10,14 49:6 40 4:9 45 2:13 47 49:6 5 5/25/93 2:10 24:20,20,22 41:8 46:4,15 500 16:25 6 6 41:8 72 32:12 73 32:17,18 75 16:11 24:20,22 76 1:18 49:10 8 8 2:10,11 80 32:14,16 85 15:5 E 9:05 4:1 32:23 9th 46:18 47:1 A a.m 4:1 47:17 ability 26:5 37:23 38:19 able 7:12 37:21 39:25 about 5:14 10:6 15:4,4 23:19,23,25 24:2,3 25: 15,15 26:8,8 31:7 above 38:1 absorption 38:16 accept 28:13 accordance 46:23 accordingly 12:13 accurate 48:5 49:7 acquired 4:25 acquisition 21:10 22:17 27:3,5 33:9 acres 5:4 32:11 across 34:6 Act 9:19 14:20,22 15:23 19:5,7 27:7 action 27:22 28:1,6 29:5 active 6:9 actually 11:22 16:13 19:20 23:6 34:1,10 41:14 43:2 address 4:8 12:12,18 adopted 28:14 29:23 30:20 41:2 43:25 44:2 adoption 28:23 29:9,11 30:5,15 advance 11:1 42:15 advantage 28:12 affect 39:2 affected 43:14,20,23 affordability 11:14 12:5.15 17:9 affordable 11:16 after 10:20 19:5 20:24 26:6 Again 9:2 against 26:23 27:22 40:22 Against 42:2 agenda 21:15 ago 4:22 AGREED 3:3 agreed 19:21,2222:21 Alan 4:19 6:12 alarmed 21:1 allegation 46:9 along 29:7 36:8 44:2 already 21:5 although 30:3 always 26:17 41:16 amended 28:1,15,19 43:14 44:19 46:11 amendment 28:24 30:6,8 43:16,18,21 amount 28:4,7 analysis 18:10 20:4 23:9 another 23:20 26:16 anticipated 19:25 23:15 24:4 anticipating 27:12 anticipation 25:14 anymore 23:14 47:3 anyone 20:9 anything 25:22 37:11 apartment 32:22 APPEARANCES 1:16 appeared 21:1 appears 8:9,10,24 46:4 applicant 25:11 application 31:15 applied 19:8 43:25 apply 29:10 30:24 applying 39:13 appraise 11:20 approached 7:6 30:16 appropriate 24:16 approval 8:11.25 9:6,7,17,19 14:12,22 15:24 18:18 20:8,17 24:14 26:3,21.24 30:18 44:15 45:2 46:19,23,24 47:5,10 approvals 19:5 approved 21:21 24:10 29:11 32:17 42:15 approximately 5:4 April 28:2,16,20 30:6,8 43:18,21 44:20 areas 11:19 aren't 15:18 around 40:11 Ask 8:20 asked 20:1 24:25 27:1,4 43:9.10 45:19 aspect 17:23 aspects 35:8 assessable 26:23 38:25 40:13,22 assessed 12:8 20:2,7 21:10,17 22:12 25:17 30:17 40:17 42:10 44:23 45:9 associated 13:17,18 14:3 36:2 ASSOCIATES 1:3 4:13,14 7:19,20,21 8:11 10: 3,19 13:16 27:21,25 30:4 49:12 assumed 24:6 29:15,22 35:7 41:19 assumption 29:16 39:20 attach 48:7 attain 39:21 attention 17:23 23:18 attorneys 3:4 average 14:24 16:24 17:2 aware 23:3,22,24 25:2 B Back 33:5 backs 21:3 27:17,18 38:22 39:9 43:24 44:6 backwards 30:21 ballpark 17:15 20:1 BANK 1:25 Bartlett 4:19 6:12,22 7:16 10:5,12,16 base 16:25 17:7 based 23:10 24:7 42:3,9 basically 34:8 basis 6:9 14:24 19:11 24:15 38:16 43:3 Battery 1:21 bearing 8:5 became 22:20 because 11:14 13:19 18:15 21:7,16 23:8 29:4, 19 39:5,6,7,12,15 44:4,8 Because 21:18 22:10 40:6 before 3:16 42:23 43:16,25 48:22 49:8 Before 31:7 beginning 27:1 believe 8:7 19:14 21:4 24:9,16 25:24 41:1,3 42:24 44:24 believed 39:16 besides 4:17 between 3:3 17:3 25:12 33:14 39:22 bike 18:15 bit 34:5 boards 22:16 both 9:9 11:7 29:15 46:8 Both 13:4 35:24 bottom 46:1 bought 39:10 Box 1:18,21 brought 27:21 28:6 build 7:1,13 31:19 34:12 38:18 47:2 builders 34:8,10 35:3 37:22 building 7:9,10 10:10 18:20 25:9 26:9,9,24 27: 4 35:5,12,13 37:6 39:1 40:14 41:17 44:11 45:8 buildings 10:20 built 10:23 11:2,11 34:18,18,21 35:14,23 36: 22,23 37:1,3,5 BURLINGTON 1:5,14,25 2:13 5:5 8:14 9:1,3 12:9 15:22 20:10,18,22 23:1 25:6 26:3 27:22 45:15 47:1 49:10,12,13 buyer 7:9 36:8 37:5 C calculated 42:3 calculator 16:23 call 10:8 16:10 21:22 26:10 called 20:25 21:25 26:4 41:23 came 22:12 24:11 can 4:12 7:1,12,13 12:16 14:9 15:5 17:8 24:13 37:24 38:2 Can 4:13 8:8,23 16:8 18:12 24:8,17 27:16 46: 14 can't 12:2 capability 27:12 capacity 10:3,16 care 29:21 carries 46:2 cases 4:11 10:2 29:2 33:9 44:16 46:8 caused 29:9 causes 15:19 causing 46:15 certainly 6:8 21:10,21 37:25 39:21 certify 48:3 49:5 CHANGE 48:8 changed 13:19 15:13 16:14 18:11 25:20,21 28:4 29:20 38:20 changing 20:22 characterization 23:21 30:12 charge 6:12 21:19 44:22 charges 15:20 charging 20:19 checklist 10:9 43:5 CHITTENDEN 1:3 49:14 Court Reporters Associates Page 1 Milot - 12/17/98 Cinema 32:23 CITY 1:5,9 5:5 8:14 9:1,2 10:9,13 12:8 15:21 16:14,18 19:16 20:1,6,10,15,17,21,25 21:6,15, 18,25 22:14,15,13,19,25 23:8 25:6 26:2 27:22 28:1,5,13,19 29:2,4,16 30:18,20 36:16 37:11 40:13 41:17 42:21 43:4,14 44:19 46:23 47:6 49:12,13,14 City's 38:25 39:23 40:18 civil 27:22 clarity 41:21 44:10 clause 28:17,17 close 15:18 16:6 17:23 closer 26:15 code 35:12 collected 25:16 44:15 College 4:9 come 14:10 21:16 26:17 34:10 36:8 42:23 coming 37:22,22 38:22 Commission 8:15 9:3,4 20:4 23:5 27:9 Commonly 5:3 community 23:10 compete 7:11 competitive 11:18 complaint 46:7 complete 20:3 complicated 11:13 component 14:6 concerned 16:15 21:13,17 23:8,19,23,25 24:3 30:19 44:4 concerning 43:11 concluded 47:16 concludes 45:16 conclusion 24:12 conclusions 26:18 condemn 21:9 conditions 25:5 46:19 consider 15:20 consideration 23:3,23,25 considered 23:5 considering 20:22 consisting 8:4 consists 4:15 45:18 constituted 19:2 constructed 10:21 construction 6:13,21 7:14 13:5 21:11 34:2 36: construction -related 12:22 consult 6:8 contains 46:9 contracted 11:1 35:3 contracting 34:15 contractor/homeowners' 37:13 contractors 6:25 7:6,8,10,12,22,23 10:1,3 35: 7,7 contribute 22:23 contribution 42:4 43:1 conversation 22:9 convoluted 43:10 corporation 4:15 correct 9:8,17 10:4,22 11:3,9 13:13 18:24 30: 3,9,12 32:15,18 33:17 34:2 35:10,15,16,20 36: 17,20 42:6 43:15 45:3,4 46:24 47:11,12,13 corrections 48:6 costs 12:12,17,19,19,20 13:2,9,17,21,24 14:3, 7,8,10 16:11,13,14.18 22:21 23:11 37:16,25 38:3,15 39:7 41:11 couldn't 21:24 COUNCIL 1:9 21:16 49:14 course 6:7 7:4 12:13 COURT 1:3 15:25 49:4,15 court 27:19 credit 13:23 18:15 19:2,13 25:12 26:12,13,14 41:14,23 42:1,11 Credit 41:25 credits 19:19 45:17 cured 30:7 current 4:8 39:2 custom 11:2 D Date 48:18 dated 2:10,11 4:21 8:5,19 16:2 17:12 21:22 Dated 49:16 day 13:24 18:19 19:4,8 21:22 45:8 48:23 49:9, 16 eal 4:10,12 ecade 22:16 ecades 22:17 ecember 1:13 4:1 49:9,16 ecided 40:18 ecision 2:10,11 8:4,19 ecision 8:10 25:25 elivery 36:12 Department 26:19 DEPONENT 48:1 deposes 4:4 deposition 3:8,13,15 27:2 47:16 48:4 49:8 Deposition 7:24 8:3,18 9:5,6 24:8 31:4 40:21 45:10,14 designees 10:14 11:2 desirable 22:16 determine 20:6 27:9 41:11 exactly 18:20 EXAMINATION 4:5 example 19:16 37:21 39:8 exceeds 12:4 excellent 6:3 except 3:12 exception 46:11 excess 18:16 19:3,17,20 exemption 28:17 Exhibits 7:24 8:3,18 9:5,6 24:8 31:4 40:21 45: determined 25:8 10,14 determining 26:22 29:1 existing 19:12 25:23 develop 5:1 32:2 39:7 expect 13:24 43:4 developed 5:7 31:24 33:24 35:22 44:2 expectation 14:15,16,23 15:2,9 18:22 38:7,10 developer 7:21 25:4 37:22 expected 18:14,25 38:5 developers 21:23 34:20 expense 12:22 developing 31:21 expensive 17:11 38:13,16 development 6:10,14 8:25 9:22 12:19 13:4 Explain 37:19 21:3 22:13 23:10 26:16 27:10.13 32:13 33:2, 17,22 35:9 39:14.18 42:15,25 44:7 45:17 46:25 development's 18:17 developments 19:14 21:21 29:10 30:23 Fact 2:10,11 8:4,19 Dick 19:4 45:7 fact 8:10 11:7 18:18 19:6 24:5 25:25 29:17 33: dictated 11:25 25 42:1 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1:4 VT 1:25 ' A, YY waived 3:9,11 21:20,20 22:1,7 walked 18:19 19:4,7 44:11 45:6 Want 24:11 wanted 21:8 24:23 23:12 42:7 44:4,5 wants 21:18 Ward's 19:4 45:7 warnings 20:25 wasn't 23:7,25 29:6 34:24 44:12 water 15:20 16:10,11 18:11 way 13:25 21:13 23:19 28:25 33:23 41:7 we II 26:14 We're 4:10 16:16 26:8 38:13 we're 5:13,14 6:8 16:5,17,17,18 26:8 30:22 32:5 39:22 43:13 47:2 Well 6:7 11:13 24:13 39:8 well 9:19 21:14 42:15 whack 21:14 what's 8:2 17:11 45:13 What's 19:11 whatever 28:17 35:14 40:4 whatsoever 42:11 whether 13:15 29:1 Who's 31:13 whole 4:3 36:3 whom 8:13 9:25 willing 19:1 25:11 27:13 36:8 37:16 40:2 46: 10 wishes 7:6 28:18 within 6:24 17:9 46:11 Within 16:4 without 37:4 works 10:15 34:2,15,16 42:4 worry 22:6 worrying 31:7 wouldn't 7:10 23:17 24:2,4 29:21 30:19 37:20 44:16 write 43:4 wrong 42:8 Wyeth 21:14 22:3 26:18 Y years 4:22 16:3,4 19:7 38:20 yourself 4:18 yourselves 33:14 Yuo 37:9 N 25:19 26:6,10 44:15 Court Reporters Associates Page 5 STITZEL, PAGE & FLEMIER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEITDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE' E-MAIL(FIRM2555 AOL.COM) ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) December 14, 1998 Michael Munson, Ph.D. RESV, Inc. 11 Pearl Street Essex Junction, VT 05452 Re: MBL v. City of South Burlington and Larkin-Milot v. City of South Burlington Dear Mike: OF COUNSEL ARTHUR W. CERNOSIA On December 3, 1998 attorney Robert O'Neill representing MBL and Larkin-Milot took the depositions of Chuck Hafter and Joe Weith. In each case, it seemed that O'Neill was focused on the process for the impact fee change and the "equity" thereof. On the process issue, O'Neill tried to establish a particular point in time at which the Planning Commission began inserting into final plat approvals language to the effect that the applicant would pay impact fees as specified by the ordinance once it was adopted. It seems that he has a concern about how and whether applicants were informed of this change in language and whether ultimately it was fair and equitable to make that change without providing some advance notice. I don't see this as being your issue, or an issue about which you can provide much insight. Nonetheless I wanted you to be aware of it. In the same vein, O'Neill was also interested in the precise intent and meaning of the grandfather clause. Again, this does not seem to be an issue about which you can offer much in the way of an explanation. As to the recreation impact fee ordinance, O'Neill spent some time asking Chuck Hafter questions about whether it is equitable to impose an impact fee in any circumstance, how does it impact new homeowners versus existing homeowners, and what effect does it have on the tax base. These seem to be more mechanical questions to which you probably can address yourself. The City has rejected the notion of bifurcating these cases (with an initial determination being made concerning the validity of the grandfather provision and its applicability, and a subsequent decision being made about the validity of the ordinance). Consequently, I believe that it won't be long before the Plaintiffs' want to schedule your deposition. I'll let you know as soon as they are in touch with me. Fletcher REF/jp CC: Charles Hafter, City Manager Joseph Weith, Director, Planning and Zoning S=3837.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL (802 F6AX (802) 660-25560-2555 2 DD) PATTI R. PAGE' E-MA L(FIRM2555@AOL.COM) ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) December 7, 1998 Charles Hafter, City Manager City of South Burlington 575 Dorset Street South Burlington, VT 05403 Joe Weith Director, Planning and zoning City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: MBL v. City of South Burlington and Larkin-Milot Partnership v. City of South Burlington Dear Chuck and Joe: OF COUNSEL ARTHUR W. CERNOSIA Enclosed are your respective original depositions. As the accompanying cover sheet indicates, you should each read your depositions carefully, keeping a list of any errata which you uncover. If you have any questions about how to handle a particular circumstance feel free to call. Once you have compiled the errata information (indicate the page and line number of the desired change and the reason for the change) you should have the information typed onto the enclosed errata sheet. When that is done, you should sign the deposition in front of a notary public, have your signature notarized and return the deposition and the original errata sheet to me. You should each retain a copy of the fully executed deposition and errata sheet for your files. When your deposition reaches me, I will make a copy and then forward the originals to Bob O'Neill. Please feel free to call me with any questions or concerns. i' Robert E. F`etcher REF/jp Enclosures Son3834.cor COURT REPORTERS ASSOCIATES 117 Bank Street Burlington, Vermont 05401 Re: MBL Associates v. City of South Burlington Larkin-Milot Partnership v. City of South Burlington Deposition of Joseph Weith Date of Deposition: December 3, 1998 Date of Changes: ------------------------------------------------------- * * * ERRATA SHEET * * * --------------------------------------------------------- Page Line Change Requested Reason for Chancre 30 1 Change "Arbor" to' "Harbor". Harbor is correct name 30 3 change "Arbor" to "Harbor". Signature: 2 1 2 3 4 5 6 7 8 9 10 11 12 { 13 14 15 16 17 18 19 20 21 22 23 24 t 25 I N D E X Witness Page Joseph Weith--------------------------------------- 4 Examination by Mr. O'Neill ----------------------- 4 Exhibit Marked For Identification 4 - July 26, 1993 memo ---------------------------- 5 3 I 1 ST I 2 It is hereby stipulated and agreed by and 3 between the attorneys of record for the respective 4 parties hereto as follows: 5 6 1. THAT the testimony of JOSEPH WEITH 7 may be taken and treated as if taken pursuant to notice 8 and order to take depositions and that all formalities of 9 notice and order are waived by the parties, and the 10 signatures to this stipulation are in like manner waived; 11 12 2. THAT all objections except as to matters 13 of form are reserved until the deposition or any part 14 thereof is offered in evidence; 15 16 3. THAT the deposition may be signed by the 17 said JOSEPH WEITH before any Notary Public; 18 19 4. THAT all exhibits offered for 20 identification may be retained by counsel until the time 21 of trial. 22 23 24 25 4 J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOSEPH WE I T H, having been duly sworn to tell the truth, deposes and says as follows: EXAMINATION BY MR. O'NEILL: Q Could you give us your full name, please? A It's Joseph James Weith. Q Joe -- A Joe. Q -- my name is Bob O'Neill. Glad to meet you. A Nice to meet you. Q And your title? A I'm the director of Planning and Zoning for the City. Q And how long have you been doing that? A Ten years. Q You were around then, I take it, when the impact fee ordinance was put into place? A Yes. Q You also during the ten years you were here -- I guess you started out when they had a 200 recreational fee? A Yes. Q Was that a lawful fee? MR. FLETCHER: Objection. Calls for a legal conclusion. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You have to answer the question. A I don't know. It was in effect when I got here and I really don't know. Q Did you ever go back to look to see? A I have not. Q Would you agree with this analysis, this figure was not derived on the basis of anticipated costs for any specific projects? A I don't know. Again, I don't know the origin of that fee. Q Joe, that's your note? A Is it, okay. Q I would like to show you your July 26, 1993 memo. Let me have it marked. (Deposition Exhibit 4 was marked for identification.) Q Is that your memo? A No, it's not. Q Whose is it? A This is from Mike Munson. It is to me. Q To you. I'm sorry. I misspoke, but finish reading it. Do you disagree with him? A Again, I don't know the origin of the fee so I don't know if it was originally based on specific projects. Q Well, it says, "I have reviewed the material C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you sent to me," so -- A Uh-huh. Q -- Munson is not -- this is based on -- on your documents, not his, right? A Yup. Q And is there something -- am I missing something? I thought everybody -- I thought it was universally accepted that this was, if you will, not a properly enacted fee and it needed to be corrected and that's what was going on? Wasn't that understood within the City? MR. FLETCHER: Objection to the form. A We, again -- I don't know what the origin of that fee was or what it was based on or how it was actually adopted or filed originally, but we did determine later in the years that we needed to create a fee that was prepared in accordance with the new impact fee law that came into effect under the state statute several years ago. Q And what existed before the new impact fee law, was there any previous law that required impact fees? A I'm not sure. Q You have no idea? A No. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q But wasn't this what you did for a living? A Yes, it is. Q And you're telling me that you in 1993, you didn't know whether the fees you were enforcing were in fact lawful or not? A They were never challenged. Q That's not my question. I mean this is an area that you're an expert in. So if somebody would call you, I mean you would be the person that somebody would go to and tell us if this fee has got a problem with it, right? A I assume so. Q So, it really is a very -- was there a problem with the impact fee back then? Was it -- in your opinion was it lawful or not? MR. FLETCHER: Objection. Calls for a legal conclusion. A We had determined that after the new impact fee law was adopted by -- was adopted into state statute that we needed to create a new one that met those parameters, that is what was explained to me. Q I'm asking before? A That's the process we went under. Q I'm asking before the new impact fee statute was enacted, did you have an opinion as to the lawfulness n 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the fee? A I did not. This was a policy that was in place when I arrived and the Planning Commission continued to apply it. Q Do you have any -- did you review Mike's work? A Yes. Q And do you have -- are you in a position to be able to form an opinion as to whether it is -- his work is accurate or not? MR. FLETCHER: Objection, vague. A Could you explain what you mean by that. Q By accurate? A Yes. Q Well, when you look it over, do you say -- are you able to say, yes, this is fact, he has used the proper methodology, that his facts are accurate, I've looked at the underlying data that he uses and he has compiled with all the regulatory and statutory requirements? MR. FLETCHER: Objection. Calls for legal conclusion. A Well, as far as the legal part of it, I rely on our city attorney to provide that opinion. Q Okay. A And as far as the analysis, I relied on Mike 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Munson who was the expert to do whatever work he felt was appropriate to prepare a proper impact fee so to the best Of my knowledge it appeared to be an accurate impact fee. Q And as far as the database, you never went to look at his database? A Not in great detail. Q And what I heard you just say is, look, I can't tell you whether it was proper or not because it's just not -- I relied upon him and the city attorney to do it; is that right? A True. Q All right. This was Exhibit 1, the answers to the interrogatories that we received yesterday. You had something to do with them, did you not? A Yes. Q What was your involvement? A I met with Bob Fletcher to review the questions that were being asked and worked with Bob to draft some responses. Q I would like to show you Exhibit 2 which is the earlier set. You had involvement with that also, did you not? A Yes. Q What are the differences between the first and second set? 10 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I believe there are some differences in the answers to Number 2 and Number 3. Q And what's the basis for those differences? A The answers in Number 2 are expanded and in more detail than in Number 1. Q When you say "Number 1," you're talking about the first set? A Yes, the first set. Q So if we look at Interrogatory Number 2, it says, "Please describe by date of issuance of approval of permit and it goes on -- no, I'm saying approval or permit, and there's an objection basically saying, it would be overly burdensome for you all to do this and, therefore, we can come look at your minutes. Is that an accurate characterization? A Uh-huh. Yes. Q And now you're saying it's still overly burdensome, but by the way here is the answer; is that accurate? A Yes. Q Now on Page 3 we have two, four, six, seven? That was the seven projects; is that right? A Sorry. Q Seven projects are listed? A Yes. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I Q Was that done from memory? A No. Q How was it done? A I had some discussions with Dick Ward, the zoning administrator, who was here when some of these projects were approved because they were before my time and then I also did a quick review of the minutes from these meetings. Q Now, is this list suppose to be of all projects that actually received the -- or were granted the grandfather status, or are these projects that you believe are entitled to receive that status? MR. FLETCHER: I'm sorry. Can I have the question read back. Q Yes. Is this based on your opinion that these projects are in fact grandfathered, or is it that these people have asked to be grandfathered and have been grandfathered? A What do you mean by "grandfathered"? Q Well, the second amendment to the ordinance carves out an exception, right? It says it doesn't apply to a category of projects? A Okay. Yeah. This is Section B5 that you're talking about? Q Section B5, that's correct. 12 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So my question is: Is this list -- is this the City's list of all projects that are in fact grandfathered under B5, or is this a list of projects that have asked to be grandfathered and have been in fact grandfathered? A They were not asked -- Q They never asked? A -- to be grandfathered. You mean asked by the developers who did these projects, is that what you mean? Q Who else would have done the asking? A I'm not sure. No, they did not ask us to be grandfathered. These were projects that were approved prior to January '95 which is the date that falls under B5 and they were projects that are still not built out. They are still applying for building permits to build houses. Q What about projects that weren't approved prior to January of 195, but in fact have already been all built out since then -- A Uh-huh. Q -- are they included in this list? A They are not. Q So this is not meant to be a list of all projects that have been grandfathered? A True. 13 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And I was told earlier that, at least it was his belief, that there was some point in time when the zoning people stopped putting the $200 in permits and started putting in language about something about whatever the fee is. Do you have any knowledge of that? A Yes. Q When did that happen and why did it happen? A I believe as far as I can recall the Planning Commission started adding that new language just before the -- I guess it was during the development of this new impact fee ordinance because they knew that a new ordinance was going to be coming into effect and that there would most likely be a fee that's different than the $200 per unit fee that had been charged in the past. Q Now, when do you think that began? When did the study -- A The impact fee study? Q Yes. A I don't know. I don't know the exact dates. Q This Exhibit 4 has a date of July twenty something, 1993, so I take it it was at least prior to that? A Yes, I would agree with that. Q And do you know how much before that? A I don't. 14 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And when you did that, do you know whether the planning people told the applicants that that's what the purpose of this new language change was? A I don't recall if we did or not. I would assume that we did, but I can't prove that. Q Is there any manual or city document that is given to people like, you know, how to get through the zoning permitting process, you have to do X, you have to do Y? Is there such a document? A No. Q So, it is only by word of mouth, people call up -- A Right. Q -- and they are told what to do? A Right. Q And I'm trying to see what the documents you all produced if there is what the first date is. Do you know if there have been any projects that were grandfathered in that used the language that we just spoke about, the language that came into existence after the studies started to be done? A I believe you're talking about the language that was attached to the Pinnacle at Spear and the Southeast Summit projects? Q No, as I understand the earlier testimony, 15 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether it was attached to that -- those projects or not isn't what I'm talking about. As I understand it there came to be and I think -- in fact I know you just told me that's true. There came to be a point in time when 300 or $200 no longer was put in the permit, instead it said something to the effect of the fee shall be the fee in effect at the time of the permit application, and I guess I assume you all meant the building permit application; is that right? A Yes. Can I ask you what you're reading from? Q Not yet. A Okay. All right. MR. FLETCHER: Off the record. (An off-the-record discussion was held.) A Could you restate the question, please. Q If you look at Exhibit 1 it tells us on Page 3 that these projects all are in your opinion grandfathered in and one of them there was absolutely no language about an impact fee? A Correct. Q Now, that one, by the way, it was 5B. Was there any time limit to 5B? A To 5B, I don't understand what that means, time limit? Q Yes, it went back forever. It would just have 16 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be -- before I think the city manager said it was to ten years, but was the permit -- any permit that had been issued prior to January 1 -- January of whatever, of '95? A I think it states for projects that were approved prior to January 9, 195. Q And so this first, for example, was approved almost 30 years earlier? A Right. Q And it had no language about a rec permit? A Correct. Q And so none of those projects even up until the time of the change in the impact fee, none of the Sunny View projects paid the $200 -- A Correct. Q -- am I right? A Uh-huh. Q So, if it was done five years earlier, two years earlier, they never paid a fee and they will never pay a fee? A Correct. Q And the next one is the Butler Farm, and Butler Farm because the language there didn't say $200, it simply says that there was land dedicated? A Uh-huh. Q It doesn't tell us what the value of that land 17 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is, right? A Correct. Q It simply says there is a swap of land? A Right. Q So they get grandfathered? A Okay. Q Am I right so far? A Yes. Q The next one says -- I'm jumping down to White Rock Point -- A Yup. Q -- and that is where it specifically said $200? A Uh-huh. Q You have to say yes or no. A Per unit, yes. Q And you all say that that's covered, that gets grandfathered? A Correct. Q All right. Now, there came a time when language similar to the fee to be paid shall be the fee in effect at the time of permit application was used? A Yes. Q And when did that happen and why did it happen? 18 U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FLETCHER: Objection. Asked and answered. A I can't give you the exact date. I don't know the exact date of when that was first started; however, the reason why the Planning Commission started using that language was because as I recall there was an impact fee ordinance being worked on by a consultant with the City and they had a good idea that there was going to be a different fee required under the new impact fee ordinance and, therefore, they decided to require that applicants pay whatever fee was required by the ordinance that's in effect at the time they apply for a building permit. Q Now -- and so that would have been utilized with every applicant from then on in? A I would think so. Q It would be unfair not to have, right? A I would think so, but I would have to -- it's hard just to say that offhand because we review all cases on a case -by -case basis. Q How could you review an impact fee on a case -by -case basis? I mean everybody -- it has to be done equal across the board, right? A Correct. Q Okay. So everybody either gets the 200 or from that point on, everybody gets whatever the fee is at 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 the time, that's the fee? A Uh-huh. Q Right? A Correct. Q Okay. And to your knowledge 1'here wasn't any public education on that issue? A On which issue? Q That in fact there was a charrje that was being made? A Change in terms of? Q Well, you were changing your position? A The impact fee, the recreatio-a impact fee? Q That's right. A Okay. Q At that point in time, you sa.,:i we're no longer going to use 200, we're now going to use whatever exists at the time you get your building permit? A Correct. Q And was there any education to the general public on that issue? A What do you mean by "education"? Q Some notice of public hearing where there was some opportunity for people to be heard on the issue? A It was discussed at public hearings for specific projects. HE v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q No, that was right. I'm talking about, you changed your enforcement procedure at that point in time; you went from $200 or land dedicated to no, we're not deciding this today, it will be whenever your building permit -- MR. FLETCHER: Object to the form. Q -- right? A Correct. Q Okay. And was there any -- was there ever any meetings on that so that the public could have an input into that discussion? A On that specific issue? Q Yes. A No. Q All right. And did the City Council ever approve that change? A No. Q If you had changed the fee, wouldn't you have had to get the City Council's approval? MR. FLETCHER: Objection. Calls for a legal conclusion. A I don't know. That's a legal question that I don't know the answer to. MR. O'NEILL: I always laugh when a lawyer says that's a legal thing. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Could you have -- this is what you do. The court will let you answer this question. This is what you do. Could you have that week changed it to $500 without input from the City Council? A I don't know. Q Would you have? A I don't know. Q Okay. Would you have told the city manager that you were going to change it to $500? A I might have. Q Do you see you made a change, didn't you? A The Planning Commission made a change. Q It changed its fee. It changed its impact fee, but it never held a hearing on it, right? A Correct. Q And it never got the City Council's approval to do it, correct? A Correct. Q And now it wants to make the people who got -- who are under that change be treated differently than the people who had the $200, right? A Correct. Q Okay. Did you attend the City Council hearing in March of 195 when the city manager spoke about the reason why -- about the issue of amending the impact fee 22 u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinance? A I don't know if I did or not. Q I'm going to read to you the minutes and I'll represent to you that he testified that this is accurate. A Okay. Q He said that there is a question of when impact fees are charged. The language of the ordinance -- I'm speaking about the first ordinance -- says it is when the developer gets a building permit. The City has, however, a number of approved projects for which all permits have been obtained except a building permit and some of these go back a long time. This raises a question of fairness. Would you agree with me so far that this presentation does not make any different distinction between people who have got $200 or people who have got the other language in there? A Say that again. I don't understand the question. Q What I'm trying -- if you were one of these -- if you were in this group of people who already had your permits but you didn't have your building permits -- let's start all over again. On March 6th of 1995 there was this class of developments out there that had everything but a building permit, right? 23 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q But as far as you're concerned, that class really was centered into two, one of them was those groups that had the $200 and the other was that group that had the language that said it is whatever it is when you get your final building permit? A Correct, or land dedication. Q Okay. And what I'm trying to figure out is when you read this and maybe you should read it to yourself, do you see is anybody being told that two separate groups exist out there, or doesn't this really address the entire group; that is, both A and B? A He just seems to be talking about a number of projects that have been approved but have not yet -- Q Which includes both? A -- received a building permit. Q It doesn't say we're only talking about the group that have the $200 language in it? A He seems to be talking about all, all projects. Q He does. So if you were in the audience and you were Jerry Milot, wouldn't you believe that they were addressing your project at that point in time? MR. FLETCHER: Objection. A Jerry Milot's projects fell into the group of 24 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 projects that had been approved, but have not yet applied for building permits. Q Well, that's everybody. His projects fell in the group that had been approved, didn't have the building permits but had the new language, not the $200 language? A Yes. Q So he was in the second group, not the first group, but the presentation never told anybody that there were two groups? A Apparently not. Q Okay. A When I read that, it sounds like Chuck is talking about all projects that received approval, but had not yet applied for building permits. Q That's the way I read it too. A Okay. I guess I'm confused where you're going with this. Q So if you were Jerry Milot, would you say I was grandfathered? MR. FLETCHER: Objection. It calls for speculation. Q It doesn't call for speculation. If he gets up and says these things and they said, yeah, we're going to grandfather the people in there, wouldn't it be 25 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reasonable for Jerry Milot not to get up and say, wait a second, you're not including me? MR. FLETCHER: Objection. It calls for facts not in evidence. A I have no idea what Jerry Milot finds to be reasonable or not. Q Let me ask you this: Did you get up and say wait a second -- were you there that day? A I don't know. I might have been, but I don't know. Q Well, assume for a second that Mr. Milot or one of Jerry's representatives was there or a representative was there, would you understand their surprise when they were denied the grandfather status based on this hearing testimony -- presentation? MR. FLETCHER: Objection. Calls for speculation. A I can't answer for Jerry Milot. Q Well, I'm asking you -- A You're asking me if I would think they would be surprised. I don't know. Q Well, assume that he was. I'm telling you he was surprised, he was horrified and my question to you is: Do you think that was an unreasonable response given what was said at the meeting? 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q You think that was an unreasonable response? A As long as this language of the ordinance was being discussed at the meeting -- I guess my question is, was the current language under B5, was that presented at the meeting? Was that known to Jerry Milot? Q Well, why don't you read the next sentence and tell us what the audience is told by the City Council, what are you all told. A Which sentence? Q Right after he says, "The city attorney"? A "The city attorney has proposed language which would grandfather for three years projects approved before the impact fee ordinance." Q Now, is there any discussion about the impact fee ordinance? They have just been told that the city's lawyer has in fact drafted something that will accomplish this, right? A Correct, but I don't know if this was this language that was actually adopted into the ordinance, and also this is just a summary of what was said. These minutes don't contain every word that was said and discussed at this meeting. It wasn't recorded like this is. Q That's right. Look at the minutes, though, 27 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the minutes usually get the highlights and -- A Without knowing what was actually discussed and presented at the meeting, I can't say if he would be surprised or not. Q But you agree that the presentation -- well, you already testified. What about the 5B -- B5 would tell somebody like Mr. Milot that he wasn't covered? A Say that again. Q What's in the ordinance that would tell Jerry Milot that he is not covered? A That he is not covered? Q That he is not grandfathered? Do you want to see the ordinance? A I don't think there is any language in there that would say that. Q In fact, I'm going to show -- we don't have to mark it. Doesn't it say in here that it only applies to properties in which there is a requirement -- a condition requiring payment of fees to the City for the purpose of funding recreational improvement? A It does say that. Q So Sunny View shouldn't be grandfathered under the ordinance, should it? A Under our interpretation, it is. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Well, wait. It specifically says which subdivision approval contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements. You must find that in there, right? A My understanding from discussions with the zoning administrator is that his interpretation of Sunny View is that since there is no mention of any kind of recreation land dedication or fee, that the fee is in effect zero dollars. Q Well, Milot, doesn't he have a condition requiring payment of fees to the City? A He does. Q So why isn't he covered by this? A He is. You have to read the rest of the -- you have to read all the provisions. Q It's not B, is it? A It is B. Q The fee? A This section, Section 5B provides that for projects approved before January '95 that contain a condition that they pay a rec impact fee, it requires that the developer pay that fee that was specified in the condition. Q Well, actually that's not the way you're 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R enforcing it, because we have here, first, there must be a fee and we've got Sunny View with no fee, with no language at all? A Correct, and I told you how the zoning administrator is interpreting it. Q And so you're saying that B says that it has to say $200? A I didn't say that. Q Well, it says the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval, so the fees specified, fees is dollars? A We don't interpret fees to be dollars. Q What is fees? A It could be land dedication or it could be -- Q Can you show me where in the ordinance fees is defined to be other than money? A No. Q Do you know if -- okay. But you've interpreted fees to mean land? A In effect we have. That was the interpretation for Butler Farms and Oak Creek Village. Q Do you know if -- what the value of the land was originally? A I don't. 30 v 1 Q And what about for Arbor Heights, did I get 2 that right? 3 A Yup, Arbor Heights. 4 Q Do you know what the value of that land was? 5 A I don't. 6 Q So it's because there isn't an actual dollar, 7 $200 or land swap that Milot's property doesn't apply and 8 Larkin's properties don't apply; is that right? 9 A Well, they do apply. They are required to pay 10 the fee that's specified in the approval. In this case 11 the fee that's specified is the fee that's in effect at 12 the time that they apply for a building permit. 13 Q I'm a little confused by that. That 14 doesn't -- this is a grandfathering so this says you 15 would get excluded from the process? 16 A I don't know what you mean by a 17 "grandfathering." 18 Q Well, this says this impact fee shall not 19 apply, right? 20 A Yes. 21 Q And what I heard you just say, it does apply 22 to them? 23 A It happens to apply to them because of the 24 language of the condition. 25 Q Well, couldn't this be -- since you've already 31 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 read out this Paragraph A -- A Yes. Q -- you said it doesn't apply to Sunny View; even though, there is no way you can get around the actual words saying Sunny View gets it applied to it, right? A Say that again. Q There is no way you can read these words without applying them to Sunny View's approval contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements; it says it has to specifically have that in there and Sunny View doesn't, and we all interpret we're going to ignore this language and apply it different, right? A I don't think we're ignoring the language. Q What are you doing with it? A I think we are interpreting that language to mean that by not having a specified fee, the fee was zero dollars. Q Why isn't that by not having a specified fee, it's the fee whatever it is at the time that you have applied for it? A Say that again. Q Well, if it's silent, why isn't it whatever the fee is when you actually apply for the building 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 permit? A That's just the interpretation that the zoning administrator has taken on. Q It's not like that new owner of that piece of property is putting any less demands on the City than the person who is building across the street, right? A Sure, you're right. That applies to all projects approved before January 1995. Q Well, no, it doesn't because you've carved out this one little group that you say it doesn't apply to. Now, let's finish this analysis. It says you're saying that B actually says that the impact fee does apply because it is the fee in the permit? A It's the fee that's specified in the condition of approval. Q So in fact this is not -- you're not exempt under 5? A Milot? Q Or anybody else who has got that language there, right? A You're not exempt from meeting that condition. Q Isn't another way of reading this is that what you were requiring is that they actually had to pay the fee so if they hadn't paid the fee, they filed the permit and tried to do it without paying the fee, then they lost 33 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the exemption, it was a penalty, that you got to pay it right now or you lose it? A Correct, the intent is that you have to pay the fee prior to getting a building permit. You have to pay the fee that was specified in the condition of approval before you get a building permit. Q Do you ever give building permits before people have paid all their fees? A No. Q Can you help me with the David DuBrul petition? Do you have -- sitting here today, do you remember it? A I remember that he got approval for some lots, but I don't remember. Q Do you know what fees were charged? A I don't. Q Is that something you can easily find for us today? A I could find it. Q How long would it take? A Ten, fifteen minutes maybe, maybe even quicker. Q What about Dorset? A No more than fifteen minutes. Q What about Dorset Land Company? 34 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Dorset Land, is that -- which one is that? Q I'll just show you this. A Okay. Q Do you know what fee they have been required to pay? MR. FLETCHER: You're talking about Dorset Land Company? A I think this was a commercial project. They don't pay a recreational impact fee typically. I don't think they ever have. Q Do you know why their permit requires them to pay one? A A recreation fee? Q Yes. A I would have to -- I would have to research this one because I'm not familiar with the project offhand. Q Okay. Well, assuming that our photocopy is correct, right? A Right. Q It does suggest that the Dorset Land Company under Paragraph 20 was required to pay the -- applicant paid the appropriate sewer and recreational fee? A Is there a residential component to that project? 35 e 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q I have no idea. A I don't know the answer to that. Q And it says "The appropriate recreational fee," what does that mean? A I'm not sure. Q It's not the one in effect at the time that they applied or is it? A Are you talking about that same application, the Dorset land? Q It says the appropriate as opposed to the one in effect at the time that you apply? A I don't know. Q Well, the request I would make is could you find out and this is April of '93, so it definitely is after you started your study by your outside expert? A Okay. Q If you could look for those two files and that will be the end. A Which one DuBrul? Q DuBrul one is subdivide a 4.76 parcel into 7 lots. A Okay. MR. FLETCHER: What's the date on that one? MR. O'NEILL: April of '94. A And the other one? 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And the other one, would it be easier for you to just take that? A That would be great. Q Okay. You got it. A And you want the -- Q I want to know if they have in fact received any building permits for these lots and what the recreational fee charged them was? A Okay. Q Unless there's something you think I should ought to know. (Whereupon there is a brief recess.) A The Dorset Land project included the creation of a 0.6 acre residential lot. That's what I was confused about earlier and a building permit has not been applied for yet for that lot. Q Has not been. But that one had the language that said appropriate; it didn't say the fee at the time of the -- A The appropriate fee? Q So what fee do they get charged? A I would interpret that to mean the fee that's in place. Q It seems to me they are pretty much at your guy's whim? 37 v U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I think it means the same thing, it was just worded differently. Q Now, what about the other one? A And then the DuBrul subdivision, they for the new Victorian that they put up paid a rec fee of $1,413.33, October 10, '97. Q So they would have paid -- they were not grandfathered in? A Well, they paid. Q We have a disagreement whether it was grandfathered or not? A They paid the fee that was required by the condition. Q They didn't pay $200? A Correct. Q All right. A They paid the fee that was calculated by the current -- calculated under the current ordinance. Q Can I have this? A Can I make a copy? Q Yes. How would one go about determining the universe of projects out there that qualify for -- I'm sorry, projects out there that were permitted before January of 1995 and had been completed since then and, therefore, are not included in your list? 38 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That have been completed since? Q Because your list is only of those that are still -- A Right. We would have -- we can speak with Dick Ward. He is the one who issues the permits so he could tell you whether or not they built out. A couple of these have. Q Are completed, built out? A Yeah. Well, Queensbury Road is built out. That's the only one I know of. Q And Dick Ward -- so this is not meant to be a complete list and the only way would be to speak to Dick? A A complete list? Q Of all projects that qualify for the exemption and wind up only having to pay 200 or swap land? A I believe so. Let me just say that my understanding is that this is a list of projects that were not built out -- that had been approved prior to '95, January '95, but had not yet been entirely built out. Q Then why isn't Milot's property on that? A Well, we do talk about Milot's properties down here. Apparently there's a couple that had been missed. For example, this one that you just pulled out for me, this single family lot, and also DuBrul, yes, we did 39 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 miss. It's not a complete list, you're correct. Q But, Joe, Milot's property isn't discussed in this answer you just pointed to it. Maybe -- am I reading -- is it something that I'm not reading? You pointed to this paragraph, were you meaning to point to the total package of documents as opposed -- you said Milot is discussed there and I don't see that. It doesn't mean -- A We're talking about the plaintiff's project. Q Oh, I see. Okay. Other than taking -- interviewing the gentleman you just spoke of, there isn't any way of really -- there is no database that we can go to to get this information as to all of the properties that had permits prior to January of 1995 but had not been built out prior to that date; is that correct, or -- A There are sources out there, but there is not one quick and easy source. Q What sources? A You can go through all the Planning Commission minutes to find out what projects were approved prior to. Q And what would that tell us? A Well, I'm not done yet. You can go through those minutes and find out which projects were approved prior to January, '95, and then you could go through all 40 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 copies of our building permits to see if a building permit was issued for each one of those lots that was approved. Q So there isn't a master checklist that is maintained, for example, that would say Bob O'Neill has come in and he has filed, he has done X, Y and Z and he gets checked off there, but he hasn't got anything else yet so he just stays hanging on that list? A Not that I'm aware of. Q And none of this is in a computer? A Sporadically. Q What does that mean? A We do have some of our zoning permits on computer, zoning permits, but I think that's only from approximately 1991 through the middle of 1997. Q What happened after the middle of 1997? A We've been backed up. We just haven't been able to get it in the computer. Q And how is that database searched? A The Planning and Zoning staff can bring it up on their computers. It's under Q & A. Q It is Q & A? A Yes. Q But can I get a copy of what the fields are? A Copy of the fields? 41 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Yes, so there is some way of printing -- there is a way of printing out what the fields are, because you can search under different fields? A I'm not an expert of Q & A. You can talk with Ray Belair. He is the one that set it up and maintains it and he can tell you what you can print out. Q Ray Belair? A B-E-L-A-I-R. MR. O'NEILL: That's it. (The deposition was adjourned at approximately 3:45 p.m.) 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I have carefully read the foregoing transcript of my deposition giv and the answers made by me are DATE: ZI 16 STATE OF • At ��,�U��)�Af��. in said County, this A-, day of , , 1998, personally appeared before me the above -named JOSEPH WEITH, and made oath that the foregoing answers subscribed by him are true. ; 00 WIPP;00. '02 92 M WIMP A Commission expires: 4:::R - % D ' ;::5167 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C E R T I F I C A T E I, M. Paula Mecke, Registered Professional Reporter and Notary Public, do hereby certify that the foregoing pages, numbered 4 through 41 inclusive, are a true and accurate transcription of my stenographic notes of the deposition of JOSEPH WEITH, taken before me on December 3, 1998, at 2:12 p.m., for use in the matter of MBL ASSOCIATES v. CITY OF SOUTH BURLING70N and LARKIN-MILOT PARTNERSHIP v. CITY OF SOUTH BURLINGTON. %44�L M. Paula Mecke, RPR Commission Expires: February 1999 STITZEL, PAGE & FLETUMR, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE• ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) HAND DELIVERED Robert F. O'Neill, Esq. Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402-0369 (802) 660-2555 (VOICErIDD) FAX (802) 660-2552 E-MAIL(FIRM2 5 5 5 @A OL. COM) December 2, 1998 RE: MBL Associates v. City of South Burlington Docket No. 392-98 CnC Larkin-Milot Partnership v. City of South Burlington Docket No. S168-98 CnC Dear Bob: OF COUNSEL ARTHUR W. CERNOSIA Enclosed you will find the City's Responses to the Plaintiff's Revised Interrogatories and Requests For Production served on the City in the above -entitled cases. Thank you for your attention to this matter. cc: C. Hafter, City Manager J. Weith, Director of Planning & Zoning. Son3827.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOY. 1507 BURLINGTON, VERMONT 05402 7507 STATE OF VERMONT CHITTENDEN COUNTY, SS: MBL ASSOCIATES, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) DOCKET NO. S392-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DEFENDANT'S ANSWERS TO PLAINTIFF'S REVISED INTERROGATORIES AND REQUESTS FOR PRODUCTION NOW COMES the Defendant, City of South Burlington, by and through its attorneys, Stitzel, Page and Fletcher, P.C., and says as follows in response to Plaintiff's Revised.Interrogatories and Requests for Production: Interrogatories 1. Please state the name, address and position with the Defendant of the person responding to these Interrogatories on behalf of the City of South Burlington. Answer: Joseph Weith, Director Planning & Zoning City of South Burlington City Hall 575 Dorset Street South Burlington, VT 2. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, which the City contends, or admits, qualify for an exemption from the recreation impact fee ordinance STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 054021507 adopted January 9, 1995 (as amended April 17, 1995), pursuant to Section (B)(5) of said ordinance. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Furthermore, Plaintiff posed the exact same interrogatory in its first set of discovery requests. Defendant, without waiving its objection, provides the following answer and supplements and amends its answer to Interrogatory #2 of Plaintiff's First Set of Discovery Requests. There are no land development or subdivision developments (collectively "projects") "exempt" from the recreation impact fee ordinance adopted January 9, 1995, as subsequently amended, (the "Ordinance") pursuant to section (B)(5) thereof. Section (B)(5) provides only that the recreation impact fee established by the Ordinance does not apply to certain projects; rather, the fee or other condition imposed upon a project developer by the terms of the final plat approval issued for the particular project controls. Defendant interprets section (B)(5) of the Ordinance to apply to projects which received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, which were not yet fully built -out, with respect to which the final plat approval EITHER did not require the payment of a recreation fee OR contained a condition requiring payment to the Defendant of a recreation impact fee as each lot/unit within the project receives a building/zoning permit OR required the conveyance of land to the City in lieu of the payment of a recreation impact fee, provided the specified fee is paid or the land conveyance occurs prior to or simultaneous with the application for a building permit for an individual lot/unit within the development. The City believes that the following approved, partially completed projects met the criteria under (B)(5) of the Ordinance as of March 1, 1995: C STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402 1507 Date Rec Impact Project Approved Units Condition Sunnyview 9/66 117 None Butler Farms 7/85 145 Land dedication Oak Creek 9/86 115 Land dedication White Rock Pt 3/88 36 $200/unit Queensbury Road 2/91 25 $200/unit Harbor Heights 1/82 155 Land dedication L&M P'ship 12/90 150 $200/unit It is irrelevant whether the Plaintiff's project meets the criteria of section (B)(5) or not. If the Plaintiff's project is within the scope of (B)(5), the Plaintiff is obligated to pay the recreation impact fee specified in the final plat approval. In this case, the final plat approval requires payment to the City of the recreation impact fee (as determined under the Ordinance) at the time of application for each individual zoning/building permit less the specified credit. If the Plaintiff's project is not within the scope of (B)(5), the result is the same; the fee payable will be the recreation impact fee determined by application of the Ordinance less the same credit. 3. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved before January 9, 1995, as to which the City contends that (a) the recreation impact fee ordinance adopted January 9, 1995 (amended April 17, 1995) is fully applicable, and (b) the exemption provided by section (B)(5) thereof is not applicable. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Furthermore, Plaintiff posed 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402 7507 virtually the exact same interrogatory in its first set of discovery requests. Defendant, without waiving its objection, supplements its answer to Interrogatory #3 in the Plaintiff's First Set of Discovery Requests by stating that it is irrelevant whether the Plaintiff's project meets the criteria of section (B)(5) or not. If the Plaintiff's project is within the scope of (B)(5), the Plaintiff is obligated to pay the recreation impact fee specified in the final plat approval. In this case, the final plat approval requires payment to the City of the recreation impact fee (as determined under the Ordinance) at the,time of application for each individual zoning/building'permit less the specified credit. If the Plaintiff's project is not within the scope of (B)(5), the result is the same; the fee payable will be the recreation impact fee determined by application of the Ordinance less the same credit. Requests for Production 1. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 2, above. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 2. Copies of (a) all zoning (or building) permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 identified in response to Interrogatory 2, above; and (b) all documents in connection with any separate recreation impact fee calculation, assessment, or payment for that lot or housing unit if not contained in the zoning (or building) permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 3. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 3, above. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 4. Copies of (a) all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 3, above, and (b) all 5 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 documents in connection with any separate recreation impact fee calculation, assessment, or payment for that lot or housing unit if not contained or reflected in the zoning, or building permit itself . Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. Dated in South Burlington this Z day of December, 1998. CITY SOUTH BURLINGTON By: J STATE OF VERMONT } } ss COUNTY OF CHITTENDEN } At South Burlington, Vermont, this '!n`� day of December, 1998, personally appeared Joseph Weith, and he acknowledged the foregoing instrument, by him signed, to be his free act and deed and the free act and deed of the City of South Burlington. Before me:J�:! My commission expires: llokQ2 Sons i0.l11 As to Objections: By: D.C. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT CHITTENDEN COUNTY, SS: LARRIN-MILOT PARTNERSHIP, Plaintiff, ) CHITTENDEN SUPERIOR COURT V• ) DOCKET NO. S168-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DEFENDANT'S ANSWERS TO PLAINTIFF'S REVISED INTERROGATORIES AND REQUESTS FOR PRODUCTION NOW COMES the Defendant, City of South Burlington, by and through its attorneys, Stitzel, Page and Fletcher, P.C., and says as follows in response to Plaintiff's Revised.Interrogatories and Requests To Produce: Interrogatories 1. Please state the name, address and position with the Defendant of the person responding to these Interrogatories on behalf of the City of South Burlington. Answer: Joseph Weith, Director Planning & Zoning City of South Burlington City Hall 575 Dorset Street South Burlington, VT 2. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, which the City contends, or admits, qualify for an exemption from the recreation impact fee ordinance STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 054021507 adopted January 9, 1995 (as amended April 17, 1995), pursuant to Section (B)(5) of said ordinance. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Furthermore, Plaintiff posed the exact same interrogatory in its first set of discovery requests. Defendant, without waiving its objection, provides the following answer and supplements and amends its answer to Interrogatory #2 of Plaintiff's First Set of Discovery Requests. There are no land development or subdivision developments (collectively "projects") "exempt" from the recreation impact fee ordinance adopted January 9, 1995, as subsequently amended, (the "Ordinance") pursuant to section (B)(5) thereof. Section (B)(5) provides only that the recreation impact fee established by the Ordinance does not apply to certain projects; rather, the fee or other* condition imposed upon a project developer by the terms of the final plat approval issued for the particular project controls. Defendant interprets section (B)(5) of the Ordinance to apply to projects which received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, which were not yet fully built -out, with respect to which the final plat approval EITHER did not require the payment of a recreation fee OR contained a condition requiring payment to the Defendant of a recreation impact fee as each lot/unit within the project receives a building/zoning permit OR required the conveyance of land to the City in lieu of the payment of a recreation impact fee, provided the specified fee is paid or the land conveyance occurs prior to or simultaneous with the application for a building permit for an individual lot/unit within the development. The City believes that the following approved, partially completed projects met the criteria under (B)(5) of the Ordinance as of March 1, 1995: 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Date Rec Impact Project Approved Units Condition Sunnyview 9/66 117 None Butler Farms 7/85 145 Land dedication Oak Creek 9/86 115 Land dedication White Rock Pt 3/88 36 $200/unit Queensbury Road 2/91 25 $200/unit Harbor Heights 1/82 155 Land dedication L&M P'ship 12/90 150 $200/unit It is irrelevant whether the Plaintiff's project meets the criteria of section (B)(5) or not. If the Plaintiff's project is within the scope of (B)(5), the Plaintiff is obligated to pay the recreation impact fee specified in the final plat approval. In this case, the final plat approval requires payment to the City of the recreation impact fee (as determined under the Ordinance) at the time of application for each individual zoning/building permit less the specified credit. If the Plaintiff's project is not within the scope of (B)(5), the result is the same; the fee payable will be the recreation impact fee determined by application of the Ordinance less the same credit. 3. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved before January 9, 1995, as to which the City contends that (a) the recreation impact fee ordinance adopted January 9, 1995 (amended April 17, 1995) is fully applicable, and (b) the exemption provided by section (B)(5) thereof is not applicable. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Furthermore, Plaintiff posed 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402 1507 virtually the exact same interrogatory in its first set of discovery requests. Defendant, without waiving its objection, supplements its answer to Interrogatory #3 in the Plaintiff's First Set of Discovery Requests by stating that it is irrelevant whether the Plaintiff's project meets the criteria of section (B)(5) or not. If the Plaintiff's project is within the scope of (B)(5), the Plaintiff is obligated to pay the recreation impact fee specified in the final plat approval. In this case, the final plat approval requires payment to the City of the recreation impact fee (as determined under the Ordinance) at the,time of application for each individual zoning/building'permit less the specified credit. If the Plaintiff's project is not within the scope of (B)(5), the result is the same; the fee payable will be the recreation impact fee determined by application of the Ordinance less the same credit. Requests for Production 1. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 2, above. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 2. Copies of (a) all zoning (or building) permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 371 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 identified in response to Interrogatory 2, above; and (b) all documents in connection with any separate recreation impact fee calculation, assessment, or payment for that lot or housing unit if not contained in the zoning (or building) permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 3. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 3, above. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 4. Copies of (a) all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 3, above, and (b) all G STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 documents in connection with any separate recreation impact fee calculation, assessment, or payment for that lot or housing unit if not contained or reflected in the zoning, or building permit itself . Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. Dated in South Burlington this 2 day of December, 1998. STATE OF VERMONT } } ss COUNTY OF CHITTENDEN } CITY QF- SOUTH BURLINGTON ",7 By: ,6G'/, c, 1,41k-1 r� At South Burlington, Vermont, this day of December, 1998, personally appeared Joseph Weith, and he acknowledged the foregoing instrument, by him signed, to be his free act and deed and the free act and deed of the City of South Burlington. Son529.1it As to Objections: Before me: v My commission expires: 1--) li0J M .C. rM STATE OF VERMONT CHITTENDEN COUNTY, SS: MBL ASSOCIATES, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) DOCKET NO. S392-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DEFENDANT'S ANSWERS TO PLAINTIFF'S INTERROGATORIES AND REQUESTS FOR PRODUCTION NOW COMES the Defendant, City of South Burlington, and says as follows in response to Plaintiff's Interrogatories and Requests To Produce: Interrogatories 1. Please state the name, address and position with the Defendant of the person responding to these Interrogatories on behalf of the City of South Burlington. Answer: Joseph Weith, Director Planning & Zoning City of South Burlington City Hall 575 Dorset Street South Burlington, VT Richard Ward Zoning Administrator City of South Burlington City Hall 575 Dorset Street South Burlington, VT 2. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, which the City contends, or admits, qualify for an exemption from the recreation impact fee ordinance adopted January 9, 1995 (as amended April 17, 1995), pursuant to Section (B)(5) of said ordinance. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the forgoing objection, the Defendant responds that there are no land development or subdivision developments (collectively "projects") exempt from the recreation impact fee ordinance adopted January 9, 1995, as subsequently amended, (the "Ordinance") pursuant to section (B)(5) thereof; section (B)(5) provides only that the recreation impact fee established in the Ordinance does not apply to certain projects. Defendant contends that projects receiving final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, for which: (i) the final plat approval contained a condition requiring payment to the Defendant of a recreation impact fee, expressed in a specific dollar amount, as each lot/unit within the project receives a building/zoning permit; and (ii) building/zoning permits for some of the lots/units within the project had been issued and the specified fee paid prior to January 9, 1995, fall within the scope of Section (B)(5) of the Ordinance. The information requested with respect to approved projects can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Hence, Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the office's usual and customary charge for photocopying. E 3. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved before January 9, 1995, as to which the City contends the recreation impact fee ordinance is fully applicable. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the foregoing objection, the Defendant contends that the Ordinance is fully applicable to all such projects. The information requested with respect to approved projects can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Hence, Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the office's usual and customary charge for photocopying. 4. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved after January 9, 1995, as to which the City contends the recreation impact fee ordinance is fully applicable. 3 Answer: See Answer to #3 above. 5. Identify by name, address, and employment or professional affiliation, all persons, including but not limited to City officials, employees, consultants or representatives, who have been involved in any aspect of, or have any knowledge of any facts relating to (a) preparation, adoption and/or subsequent amendment of the recreation impact fee ordinance initially adopted January 9, 1995; and (b) application of said ordinance to any land development and/or subdivision project identified in response to Interrogatories 2, 3 and 4, above. Answer: OBJECTION. The formulaic request for "all persons ... who have been involved in any aspect of, or who have any knowledge of any facts relating to ..." is over broad, unduly burdensome. Without waiving the forgoing objection, the Defendant responds that virtually every employee of the Defendant assigned to the City Manager's office, the Planning & Zoning Department, the Recreation Department, and the City Council, its attorneys and their staff, anyone attending public hearings or City Council meetings at which the subject was discussed, persons who may have watched the proceedings on Adelphia Cable Channel 17, as well as Michael J. Munson, Ph.D., c/o RESV., Inc., 11 Pearl Street, Essex Junction, VT. 6. Please identify, by name, address, employment and professional qualifications or affiliation, any person whom the City expects to call as an expert witness to trial; state the subject matter on which the expert is expected to testify; state 4 the substance of the facts and opinions as to which said expert is expected to testify; and set forth a summary of the grounds for each opinion. Answer: The Defendant has not yet engaged the services of an expert witness. If and when it does so, it will supplement this response in accord with its obligations under the Vermont Rules of Civil Procedure. Requests for Production 1. Complete copies of the City's recreation .impact fee ordinance, as originally and formally adopted on January 9, 1995, and as formally amended on April 17, 1995. Answer: See attached. 2. Copies of all drafts or prior versions of the City's recreation impact fee ordinance, and all non -privileged correspondence, memoranda, notes or other documents relating to the drafting, preparation and/or adoption of said ordinance and any subsequent amendment(s) or revision(s). Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the foregoing objection, to the extent that the requested materials are matters of public record, they may be reviewed at the Defendant's offices during regular business hours, and copies can be made of material therein upon request, subject to payment of the usual and customary charges assessed by the Defendant for photocopies of documents. Contact Joseph Weith. 5 3. The entire study and report entitled "Recreation Improvement Impact Fees, City of South Burlington," dated September 1, 1993 and prepared by Michael J. Munson, RESV, Inc., together with any attachments or other supporting documents related thereto or referenced in said report. Answer: See Answer to Request for Production #2 above. 4. Any and all correspondence, memoranda, contracts, bids, quotes, requests for proposals, notes of discussions or telephone conversations, and any other documents or materials related to (a) the initial design or preparation of the RESV. "Recreation... Fees" study; (b) the selection of Michael Munson and RESV., Inc. to perform said study; (c) the on -going work on and preparation of said study by Mr. Munson and RESV., Inc., through and including its completion on or about September 1, 1993; and/or (d) any modifications, changes, corrections or omissions from the initial design of said study which are not fully reflected in the final report dated September 1, 1993. Answer: See Answer to Request for Production #2 above. 5. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 2, above. N. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 6. Copies of all zoning (or building) permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 2, above, including any separate recreation impact fee assessment if not contained in the zoning (or building) permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 7. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 3, above. 7 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 8. Copies of all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 3, above, including any separate recreation impact fee assessment if not contained in the zoning, or building permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 9. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 4, above. R1 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 10. Copies of all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 4, above, including any separate recreation impact fee assessment if not contained in the zoning, or building permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 11. Copies of all worksheets, notes, memoranda, or other documents containing, or relating to the calculation of the recreation impact fee required or imposed in connection with each zoning (or building) permit produced in response to Requests 6, 8 and 10, above. 9 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving its objection, Plaintiff states that for projects within the scope of Request #6, the applicable recreation impact fee is specified in the final plat approval for the particular project. The materials referred to in the prior sentence are a matter of public record, available for review by Plaintiff at the office of the City Clerk during regular business hours. Copies can be made of material upon request, subject to payment of the usual and customary charges assessed by the Defendant for photocopies of documents. For projects within the scope of Requests 8 and 10, the Ordinance provides a single fee for single-family units and a separate, single fee for multi -family units. Each fee is adjusted annually as specified in the Ordinance. Copies of the annual summary sheet and recreation impact fee determination for 1996, 1997 and 1998 are attached. No comparable material exists for 1995. 12. Copies of all correspondence, memoranda, or other documents between Plaintiff and the City regarding recreation impact fees for the subdivision project at issue in this case. Answer: OBJECTION, the request is wholly unreasonable and unduly burdensome. The materials requested are communications between the parties; they should be fully accessible by Plaintiff. 13. Copies of any notes, memoranda or other writings by or among any City employee or representative relating in any way to any aspect of the recreation impact fee(s) imposed, or to be imposed with respect to the subdivision project at issue in this case. 10 Answer: OBJECTION. The request is overly broad, compliance by Defendant would be unduly burdensome, time consuming and expensive, and the request seeks to discover privileged attorney client communications, attorney work product, and materials protected from disclosure under the Rules of Civil Procedure. 14. Any report(s) prepared by any expert disclosed pursuant to Interrogatory 6, above; any correspondence, memoranda or other writings to, from or between said expert and any agent, employee or representative of the City; and said expert's complete file, including any drafts or prior versions of any report or memoranda, created or maintained by said expert in connection with this matter. Answer: N/A. Dated in South Burlington thisp:L day of 1998. By: STATE OF VERMONT } } ss COUNTY OF CHITTENDEN } Off' SOUTH BURLINGTON At South Burlington, Vermont h's day of September, 1998, personally appeared ��,�rruimei' 4 , and he acknowledged the foregoingt, byhim signed, to be his free act and deed and the free act and deed of the City of South Burlington. Before e •— My commission expires: 11 son513.1it As to Objections: �z y LWA 12 DEFENDANT'S ANSWER TO PLAINTIFF'S REQUEST FOR PRODUCTION #1 C I T Y O F S OUT H BURL = NGT O N I M P AC T F E E O RD 2 NANC E Adopted: January 9, 1995 SOUTH BURLINGTON IMPACT FEE ORDINANCE Section 1. Authority. This ordinance is enacted pursuant to the specific authority granted municipalities to establish impact fees contained in 24 V.S.A., Chapter 131 and the authority granted the City of South Burlington to enact ordinances set forth in its Charter and 24 V.S.A. Chapter 59. This ordinance shall be a civil ordinance within the meaning of 24 V.S.A. Chapter 59. Section 2. Purpose. It is the purpose of this ordinance to establish impact fees to pay portions of the cost of constructing capital facilities for new development in the City that will be served by such facilities. To the extent that new capital facilities are necessitated by new development and such facilities benefit the new development, it is appropriate that the ew residents and owners bear an appropriate portion of the costs of constructing the new facilities. Section 3. Establishment of Fees A. Road Improvement Impact Fee: Any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units or, in the case of non-residential development, an increase in PM peak hour vehicle trip ends (vehicle trips occurring between the hours of 4:00 PM and 6:00 PM on weekdays), as determined by the Planning Commission. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $221.72 reduced by the amount of any credit due from Tables ST-1 and ST-2, attached as Schedule A. (b) Multi -Family Dwelling (fee per unit): $155.20 reduced by the amount of any credit due from Tables ST-1 and ST-2, attached as Schedule A. (c) Non-residential Development: $221.72 multiplied by the number of PM peak hour vehicle trip ends and 1 reduced by the amount of any credit due from Tables ST-3, ST-4 and ST-5, attached as Schedule A. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Road Improvement Impact Fees, City of South Burlington," prepared by RESV., Inc., Michael J. Munson, dated October 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following road improvement projects which are described in the above referenced report: (a) Kennedy Drive widening (b) Williston Road widening (c) Airport Pkwy/Ethan Allen Dr intersection upgrade (d) Williston Rd/Kennedy Dr intersection upgrade (e) Kennedy Dr/Kimball Ave intersection upgrade (f) Spear St/Swift St intersection upgrade (g) Williston Rd/Shunpike Rd intersection upgrade B. Recreation Impact Fee: Any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $1,686.36 reduced by the amount of any credits due from Tables R-1, R-2, R-3, R-4, R- 5, and R-6, attached as Schedule B. (b) Multi -Family Dwelling (fee per unit): $843.18 reduced by the amount of any credit due from Tables R-1, R-2, R-3, R-4, R-5, and R-6, attached as Schedule B. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Recreation Impact Fees, City of South Burlington," prepared by RESV., Inc., Michael J. Munson, dated September 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following recreation improvement projects which are described in 2 the above referenced report: (a) Land acquisition for Phase I of Dorset Street Park (b) Develop Phase I of Dorset Street Park C. Education Impact Fee: Any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $2,183.94 reduced by the amount of any credits due from Tables SCH-1 and SCH-2, attached as Schedule C. (b) Multi -Family Dwelling (fee per unit): $1,091.97 reduced by the amount of any credit due from Tables SCH-1 and SCH-2, attached as Schedule C. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "South Burlington School District Impact Fee Analysis," prepared by RESV., Inc., Michael J. Munson, dated November 22, 1994, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following school district improvement projects which are described in the above referenced report: (a) Chamberlin School improvement (b) Orchard School improvement (c) Central School improvement Section 4. Payment of Fees Impact fees levied under this ordinance shall be paid to the City Treasurer prior to the issuance of any permits under the Zoning Regulations of the City of South Burlington for the construction of any development subject to the payment of impact fees. The Zoning Administrator shall not issue any zoning permit for the construction of such developments without first receiving proof of payment of the required impact fees from the City Treasurer. 3 Section 5. Accounting and Register of Payment. A. Impact fees collected pursuant to this Ordinance shall be placed by the City Treasurer in separate interest bearing accounts for each type of impact fee established. B. The City Treasurer shall maintain a register for each account indicating the date of payment of each fee, the amount paid, and the name of the payer. C. The City Treasurer shall prepare an annual accounting of all fees paid into and withdrawn from each account, showing the source and amounts collected, and the amounts expended and the projects for which such expenditures were made. Section 6. Refunds. A. If the actual expense to the City or School District of a project to be funded at least in part by impact fees is less than the fees collected or to be collected, the City shall refund to the then owner of the property for which the fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it completes or terminates construction of the project. B. If the City reduces the amount of an impact fee after some fees have been collected, the City shall refund to the then owner of the property for which a fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it reduces the impact fee. C. If the City does not expend an impact fee within six years of the date it is paid, the then owner of the property for which the fee was paid may apply for and receive a refund of the fee, provided the request for refund is filed within one year of the expiration of the six year time period. D. A person who pays an impact fee established under this ordinance and subsequently abandons the project without commencing construction of the land development on which the impact fee was based, may request and receive from the City a refund of the impact fee in full. Any accrued interest may be retained by the City to offset administrative costs. A person who receives a refund under this provision shall not commence construction of the land development for which the refund was made without repaying the required impact fees. Section 7. Expenditure Restrictions. A. All impact fees collected pursuant to this ordinance, 4 and accrued interest, shall be expended only for the specifically identified projects which were the basis for the fees. Such fees and accrued interest shall be expended within six years of the date they are received by the City Treasurer. B. The City Treasurer shall pay, from the appropriate account, expenses associated with the designated projects as they become due and upon receipt of appropriate documentation regarding such expenses. C. The City Treasurer shall reimburse the South Burlington School District for expenditures associated with School District projects funded by education impact fees, upon receipt of appropriate documentation. Section 8. Credits for "In -Kind" Contributions. A. "In -Kind" contribution shall mean provision by a person subject to payment of an impact fee of land or construction of facilities that are related to the types of facilities on which the impact fee is based, and which are included in or consistent with the City's Comprehensive Plan. B. Upon recommendation of the Planning Commission, the City Council may approve a credit against any impact fee levied under this ordinance for the value of "In -Kind" contributions. The amount of credit for an "In -Kind" contribution shall be based on the actual cost to the person requesting the credit of providing or creating the facilities. The Planning Commission shall indicate the basis on which the amount of credit is determined. The amount of credit for an "In -Kind" contribution shall not exceed the total amount of the impact fee for that type of facility which would otherwise be levied on the proposed development. Section 9. Appeals. An individual or entity required to pay an impact fee under this ordinance may challenge the imposition of such fee, or the amount of the fee, by filing a written notice of appeal with the City Clerk, which appeal shall not be filed later than thirty days after payment of the impact fee. Said notice of appeal shall state the basis of the appellant's challenge to the fee. Within sixty days of the filing of a notice of appeal, the City Council shall hold a public hearing to receive oral and written evidence and argument from the appellant and City representatives. Within forty-five days after the conclusion of the hearing, the Council shall notify the appellant of its decision in writing. 5 Section 10. Enforcement. A. Any individual or entity who undertakes land development in the City of South Burlington without first paying a required impact fee imposed pursuant to this ordinance shall be subject to a civil penalty of up to five hundred dollars per day for each day that such land development continues without payment of said fee. The Administrative Officer shall be authorized to act as the issuing municipal official to issue and pursue before the Traffic and Municipal Ordinance Bureau a municipal complaint. The Administrative Officer is authorized to recover a waiver fee of not less than $50 and not more than $150 for each violation and a civil penalty of not less than $100 and not more than $500 for each violation. B. In addition to the enforcement procedures set forth above, the Administrative Officer is authorized to commence a civil action to obtain injunctive and other appropriate relief. Section 11. Severability. In the event any provision of this ordinance is for any reason invalid, such invalidity shall not affect the remaining provisions which can he given effect without the invalid provision. (SON071-1.ORD) C.1 SCHEDULE A ROAD IMPROVEMENT IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE ST-1 Estimated Present Value of Past Tax Payments For 1994 Bond DWEL- LING CREDITS _ SINGLE FAM YEAR DWELLING 1111ULTI-FAM DWELLING 1994 $0.00 $0.00 1995 $0.71 $0.48 1996 $2.65 $1.77 1997 $4.62 $3.08 1998 $6.61 $4.40 1999 $8.63 $5.75 2000 $10.67 $7.12 2001 $12.75 $8.50 2002 $14.87 $9.91 2003 $17.01 $1 1.34 2004 $19.19 $12.80 2005 $21.41 $14.28 2006 $22.49 $14.99 2007 $ 23.61 $15.74 2008 $24.79 $16.53 2009 $26.03 $17.35 2010 $ 27.33 $18.22 2011 $28.70 $19.13 2012 $30.13 $20.09 2013 $31.64 $21.09 20141 $33.221 $22.15 TABLE ST-2 Estimated Present Value of Future Tax Payments For 1994 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1994 $127.19 $87.44 1995 $126.30 $86.83 1996 $113.29 $77.89 1997 $100.35 $68.99 1998 $87.49 $60.15 1999 $74.71 $51.37 2000 $62.02 $42.64 2001 $49.42 $33.97 1 2002 $36.91 $25.37 2003 $24.50 $16.84 2004 $12.20 $8.38 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 $0.00 2011 $0.00 $0.00 2012 $0.00 $0.00 2013 $0.00 $0.00 2014 .$0.001 $0.00 SCHEDULE A ROAD IMPROVEMENT IMPACT FEE CREDITS FOR NON-RESIDENTIAL DEVELOPMENT TABLE ST-3 Estimated Present Value of Past Tax Payments For 1994 Bond YEAR CREDITS PER $1,000 OF VALUE ON NON-RESID. PROPERTY 1994 $0.00 1995 $0.05 1996 $0.18 1997 $0.31 1998 $0.44 1999 $0.58 2000 $ 0.71 2001 $0.85 2002 $0.99 2003 $1.13 2004 $1.28 2005 $1.43 2006 $1.50 2007 $1.57 2008 $1.65 2009 $1.74 2010 $1.82 2011 $1.91 2012 $2.01 2013 $2.11 2014 $2.21 TABLE ST-5 TABLE ST-4 Estimated Present Value of Future Tax Payments For 1994 Bond YEAR CREDITS PER $1.000 OF VALUE ON NON-RESID. PROPERTY 1994 $0.79 199S $0.79 1996 $0.71 1997 $0.63 1998 $0.55 1999 $ 0.47 2000 $0.39 2001 $ 0.31 2002 $0.23 2003 $ 0.15 2004 $0.08 2005 $0.00 2006 $0.00 2007 $0.00 2008 $0.00 2009 $0.00 2010 $0.00 2011 $0.00 2012 $0.00 2013 $0.00 2005 $0.00 ESTIMATED IMPROVEMENT VALUE PER SQUARE FOOT OF STRUCTURE _rYPSOF USE IN U m;AL' r�V IN'rilN rl MEDICAL GcN wL AU i TYPE: AND CUAUTY OF CONSTRUCTION MANUFAC- I AND (GENEFiF.L) OFMCE I RETAIL I SEr'ZVICE I CARE URING RESEARCH FACIUTIES FACIU TIES STE-EL SKEL� IiON SinUCTUR OR REINFORCED CONC2ETE S7AUCTURE S401 549I S821 $921 NA. NA. NA. (all types) MASCNRY CR CONCRE; `` WALL S62 STRUCTURE S271I S41 S63I Sill SE9I $461 S63 WCOD FPAME S MUCTURE N_aI NAI S57 $711 NAI S42I SE0 S i cEL (FRE-FA8) S RUCTURE S281 S38 NAI N.A.) S56 $et N.A. NA: Not apcfcable: very unlikely that the desigrated structure type would be chosen for :'x ceslgnated use SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-1 TABLE R-2 Estimated Present Value of Past Estimated Present Value of Past Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1987 30.00 50.00 1988 $1.76 $1.18 1989 $6.31 $4.21 1990 $10.92 37.28 1991 $15.57 $10.38 1992 $20.29 $13.52 1993 $25.06 $16.71 1994 $29.89 $19.93 1995 $34.79 $23.20 1996 339.76 $26.51 1997 $44.80 $29.87 1998 $49.92 $33.28 1999 $52.41 $34.94 2000 555.03 $36.69 2001 $57.79 $38.52 2002 $60.68 $40.45 2003 $63.71 $42.47 2004 $66.90 $44.60 2005 $70.24 $46.83 2006 $73.75 549.17 2007 1 $77.441 351.63 TABLE R-3 DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1992 _ 50.00 30.00 1993 50.98 $0.65 1994 33.58 $2.39 1995 56.22 $4.15 1996 $8.89 $5.93 1997 $11.59 $7.73 1298 $14.34 $9.56 1999 $17.12 $11.41 2000 $1 9.94 $13.29 2001 $ 22.81 315.20 2002 $25.72 $17.15 2003 $28.68 $19.12 2004 530.11 S20.07 2005 531.62 $21.08 2006 $33.20 522.13 2007 $34.86 $23.24 2008 536.60 $24.40 2009 $38.43 $25.62 2010 $40.35 $26.90 2011 $42.37 $28.25 2012 S44.49 $29.66 Estimated Present Value of Past Tax Payments For 1993 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1993 $0.00 30.00 1994 $1.08 $0.72 1995 $4.01 $2.68 1996 $6.99 $4.56 1997 $10.00 $6.67 1998 $13.06 $8.70 1299 $16.16 $10.77 2000 $ 1 9.30 $12.87 2001 $22.50 $15.00 2002 $2S.75 $17.17 2003 $29.05 $19.37 2004 $32.42 $21.61 2005 $34.04 $22.69 2006 $35.74 $23.83 2007 $37.52 $25.02 2008 $39.40 $26.27 2009 $41.37 $27.58• 2010 $43.44 $28.95 2011 $45.61 $30.41' 2012 $47.89 $31.93 2013 $50.29 533.52 SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-4 TABLE R-5 Estimated Present Value of Future Estimated Present Value of Future Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1987 5296.49 5203.84 1988 5293.41 $201.72 1989 $262.74 $180.63 1990 $232.33 3159.72 1991 $202.19 $139.00 1992 $172.33 $118.48 1993 $142.77 $98.15 1994 $113.53 $78.05 1995 $84.61 $58.17 1996. 556.04 538.53 1997 $27.83 $19.13 1998 $0.00 $0.00 1999 $0.00 $0,00 2000 $0.00 $0.00 2001 50.00 $0.00 2002 $0.00 30.00 2003 $0.00 $0.00 2004 $0.00 $0.00 2005 $0.00 $0.00 2006 $0.00 30.00 2007 $0.00 S0.00 TABLE R-6 DWEL- LING CREDITS SINGLE FMM MULTI-FAM YEAR DWELLING DWELLING 1992 S 176.33 S 117.10 1993 $168.89 $116.11 1994 $151.39 $104.08 1995 5134.00 $92.12 1996 $116.74 480.26 1997 $99.61 $68.48 1998 582.62 $56.80 1999 $65.77 $45.22 2000 $49.08 $33.74 2001 $32.55 $22.38 2002 $1 6.19 $1 1.13 2003 $0.00 $0.00 2004 50.00 $0.00 2005 50.00 $0.00 2006 50.00 $0.00 2007 $0.00 $0.00 2008 30.00 $0.00 2009 $0.00 $0.00 2010 $0.00 $0.00 2011 $0.00 $0.00 2012 50.00 50.00 Estimated Present Value of Future Tax Payments For 1993 Bond DWEL- I UNG CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1993 $192.53 $132.37 1994 $191.19 $131.44 1995 $171.49 $117.90 1996 $151.91 3104.44 1997 $132.44 $91.05 1298 $113.09 $77./S 1999 $93.88 564.54 2000 $74.80 $51.43 2001 SS5.87 $38.41 2002 $37.09 $25.50 2003 $18.46 $12.69 2004 50.00 $0.00 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 50.00 2011 $0.00 50.00 2012 $0.00 $0.00 2013 $0.00 $0.00 SCHEDULE C EDUCATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE SCH-1 Estimated Present Value of Past Tax Payments For 1995 Bond DWEL- CREDITS LING _ SINGLE FAM MULTI-FAM YEAR DWELLING_ DWELLING 1995 ---�----50.00 _ ----•§0.00 1996 $1.65 $1.10 1997 $4.77 $3.18 .1998 $7.96 $5.30 1999 $11.22 $7.48 2000 $14.57 $ 9.71 2001 $17.99 $12.00 2002 $ 21.51 $14.34 2003 $ 25.12 $16.75 2004 $ 28.83 $19.22 2005 $32.65 $21.76 2006 $36.57 $24.38 2007 $40.60 $27.07 2008 $44.75 $29.83 2009 $49.03 $32.69 2010 $ 53.44 $ 35.62 2011 $57.98 $38.65 2012 _. $62.67 $41.78 2013 $ 67.52 $45.01 2014 $72.52 $48.34 2015 $77.69 $51.79 TABLE SCH-2 Estimated Present Value of Future Tax Payments For 1995 Bond DWEL LING __CREDITS SINGLE FAM -- MULTI-FAM YEAR DWELLING DWELLING _ 1995 - --$302.77 -----$208.15 1996 $301.11 $207.01 1997 $285.36 $196.19i 1998 $269.67 $185.40 1999 $254.03 $174.65 2000 $ 238.45 $163.94 2001 $ 222.94 $153.27 2002 $ 207.48 $142.G 5 2003 $192.10 $132.07 2004 $176.78 $121.54 2005 $161.54 $111.06 2006 $146.38 $100.64 2007 $131.30 $90.27 2008 $116.30 $79.96 2009 $101.40 $ 69.71 2010 $86.59 $59.53 2011 $71.88 $49.42 2012 $ 57.27 $ 39.37 2013 $ 42.77 $ 29.41 2014 $28.39 $19.52 2015 $14.13 $9.72 C I T Y O F S OUT H BU RL I NCT O N = MPAC T F E E O RD = NANC E Adopted: January 9, 1995 Amended: April 17, 1995 SOUTH BURLINGTON IMPACT FEE ORDINANCE Section I. Authority This ordinance is enacted pursuant to the specific authority granted municipalities to establish impact fees contained in 24 V.S.A., Chapter 131 and the authority granted the City of South Burlington to enact ordinances set forth in its Charter and 24 V.S.A. Chapter 59. This ordinance shall be a civil ordinance within the meaning of 24 V.S.A. Chapter 59. Section 2. Purpose. It is the purpose of this ordinance to establish impact fees to pay portions of the cost of constructing capital facilities for new development in the City that will be served by such facilities. To the extent that new capital facilities are necessitated by new development and such facilities benefit the new development, it is appropriate that the new residents and owners bear an appropriate portion of the costs of constructing the new facilities. Section 3. Establishment of Fees A. Road Improvement Impact Fee: Except as provided in subparagraph (5), any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units or, in the case of non-residential development, an increase in PM peak hour vehicle trip ends (vehicle trips occurring between the hours of 4:00 PM and 6:00 PM on weekdays), as determined by the Planning Commission. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $221.72 reduced by the amount of any credit due from Tables ST-1 and ST-2 attached as Schedule A. (b) Multi -Family Dwelling (fee per unit): $155.20 reduced by the amount of any credit due from Tables ST-1 and ST-2, attached as Schedule A. (c) Non-residential Development: $221.72 multiplied by the number of PM peak hour vehicle trip ends and 1 reduced by the amount of any credit due from Tables ST-3, ST-4 and ST-5, attached as Schedule A. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Road Improvement Impact Fees, City of South Burlington", prepared by RESV., Inc., Michael J. Munson, dated October 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following road improvement projects which are described in the above referenced report: (a) Kennedy Drive widening (b) Williston Road widening (c) Airport Pkwy/Ethan Allen Dr intersection upgrade (d) Williston Rd/Kennedy Dr intersection upgrade (e) Kennedy Dr/Kimball Ave intersection upgrade (f) Spear St/Swift St intersection upgrade (g) Williston Rd/Shunpike Rd intersection upgrade (5) This impact fee shall not apply to land development as described in subparagraph (1) which: (a) is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, which subdivision approval contained a conditional requiring payment of fees to the City for the purpose of funding road improvements; and (b) the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval; and (c) a permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. B. Recreation Impact Fee: Except as provided in Subparagraph (5), any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units. 2 (2) Formula for determination of impact fees: (a) Single Family Dwelling: $1,686.36 reduced by the amount of any credits due from Tables R-1, R-2, R-3, R-4, R-5, and R-6, attached as Schedule B. (b) Multi -Family Dwelling (fee per unit): $843.18 reduced by the amount of any credits due from Tables R-1, R-2, R-3, R-4, R-5, and R-6, attached as Schedule B. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Recreation Impact Fees, City of South Burlington," prepared by RESV., Inc., Michael J. Munson, dated September 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following recreation improvement projects which are described in the above referenced report: (a) Land acquisition for Phase I'of Dorset Street Park (b) Develop Phase I of Dorset Street Park (5) This impact fee shall not apply to land development as described in subparagraph (1) which: (a) is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, which subdivision approval contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements; and (b) the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval; and (c) a permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. C. Education Impact Fee: Except as provided in subparagraph (5), any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). 3 (1) This impact fee shall apply to any land development that results in an increase in dwelling units. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $2,183.94 reduced by the amount of any credits due from Tables SCH-1 AND SCH-2, attached as Schedule C. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "South Burlington School District Impact Fee Analysis," prepared by RESV., Inc., Michael J. Munson, dated November 22, 1994, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following school district improvement projects which are described in the above referenced report: (a) Chamberlain School improvement (b) Orchard School improvement (c) Central School improvement (5) This impact fee shall not apply to land development as described in subparagraph (1) which: (a) Is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995; and (b) A permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. Section 4. Payment of Fees Impact fees levied under this ordinance shall be paid to the City Treasurer -prior to the issuance of any permits under the Zoning Regulations of the City of South Burlington for the construction of any development subject to the payment of impact fees. The Zoning Administrator shall not issue any zoning permit for the construction of such developments without first receiving proof of payment of the required impact fees from the City Treasurer. Section 5. Accounting and Register of Payment A. Impact fees collected pursuant to this Ordinance shall be placed by the City Treasurer in separate interest- bearing accounts for each type of impact fee established. 4 B. The City Treasurer shall maintain a register for each account indicting the date of payment of each fee, the amount paid, and the name of the payer. C. The City Treasurer shall prepare an annual accounting of all fees paid into and withdrawn from each account, showing the source and amounts collected, and the amounts expended and the projects for which such expenditures were made. Section 6. Refunds. A. If the actual expense to the City or School District of a project to be funded at least in part by impact fees is less than the fees collected or to be collected, the City shall refund to the then owner of the property for which the fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it completes or terminates construction of the project. B. If the City reduces the amount of an impact fee after some fees have been collected, the City shall refund to the then owner of the property for which a fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within .one year of the date it reduces the impact fee. C. If the City does not expend an impact fee within six years of the date it is paid, the then owner of the property for which the fee was paid may apply for and receive a refund of the fee, provided the request for refund is filed within one year of the expiration of the six year time period. D. A person who pays an impact fee established under this ordinance and subsequently abandons the project without commencing construction of the land development on which the impact fee was based, may request and receive from the City a refund of the impact fee in full. Any accrued interest may be retained by the'City to offset administrative costs. A person who receives a refund under this provision shall not commence construction of the land development for which the refund was made without repaying the required impact fees. Section 7. Expenditure Restrictions A. All impact fees collected pursuant to this ordinance, and accrued interest, shall be expended only for the specifically identified projects which were the basis for the fees. Such fees and accrued interest shall be expended within six years of the date -they are received by the City Treasurer. B. The City Treasurer shall pay, from the appropriate 5 account, expenses associated with the designated projects as they become due and upon receipt of appropriate documentation regarding such expense. C. The City Treasurer shall reimburse the South Burlington School District for expenditures associated with School District projects funded by education impact fees, upon receipt of appropriate documentation. Section 8. Credits for "In -Kind" Contributions. A. "In -Kind" contribution shall mean provision by a person subject to payment of an impact fee of land or construction of facilities that are related to the types of facilities on which the impact fee is based, and which are included in or consistent with the City's Comprehensive Plan. B. Upon recommendation of the Planning Commission, the City Council may approve a credit against any impact fee levied under this ordinance for the value of "In -Kind" contributions. The amount of credit for an "In -Kind" contribution shall be based on the actual cost to the person requesting the credit of providing or creating the facilities. The Planning Commission shall indicate the basis on which the amount of credit is determined. The amount of credit for an "In -Kind" contribution shall not exceed the total amount of the impact fee for that type of facility which would otherwise be levied on the proposed development. Section 9. Appeals An individual or entity required to pay an impact fee under this ordinance may challenge the imposition of such fee, or the amount of the fee, by filing a written notice of appeal with the City Clerk, which appeal shall not be filed later than thirty days after payment of the impact fee. Said notice of appeal shall state the basis of the appellant's challenge to the fee. Within sixty days of the filing of a notice of appeal, the City Council shall }Told a public hearing to receive oral and written evidence and argument from the appellant and City representatives. Within forty-five days after the conclusion of the hearing, the Council shall notify the appellant of its decision in writing. Section 10. Enforcement A. Any individual or entity who undertakes land development in the City of South Burlington without first paying a required impact fee imposed pursuant to this ordinance shall be subject to a civil penalty of up to five hundred dollars per day for each day that such land development continues without pa "ent of said fee. The Administrative Officer shall be authorized to act as 0 the issuing municipal official to issue and pursue before the Traffic and Municipal Ordinance Bureau a municipal complaint. The Administrative Officer is authorized to recover a waiver fee of not less than $50 and not more than $150 for each violation and a civil penalty of not less than $100 and not more than $500 for each violation. B. In addition to the enforcement procedures set forth above, the Administrative Officer is authorized to commence a civil action to obtain injunctive and other appropriate relief. Section 11. Severabilit In the event any provision of this ordinance reason invalid, such invalidity shall not affect provisions which can be given effect without the provision. IMPACTFE.MCP 6 is for any the remaining invalid SCHEDULE A ROAD IMPROVEMENT IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE ST-1 Estimated Present Value of Past Tax Payments For 1994 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1994 $0.00 $0.00 1995 $0.71 $0.48 1996 $2.65 $1.77 1997 $4.62 $3.08 1998 $6.61 $4.40 1999 $8.63 $5.75 2000 $10.67 $7.12 2001 $12.75 $8.50 2002 $14.87 $9.91 2003 $17.01 $11.34 2004 $19.19 $12.80 2005 $21.41 $14.28 2006 $22.49 $14.99 2007 $ 23.61 $15.74 2008 $24.79 $16.53 2009 $ 26.03 $17.35 2010 $27.33 $18.22 2011 $ 28.70 $19.13 2012 $30.13 $20.09 2013 $31.64 $21.09 20141 $33.221 $22.15 TABLE ST-2 Estimated Present Value of Future Tax Payments For 1994 Bond DWEL- LING CREDITS SINGLE FAM YEAR DWELLING IMULTI-FAM DWELLING 1994 $127.19 $87.44 1995 $126.30 $86.83 1996 $1 13.29 $77.89 1997 $100.35 $68.99 1998 $87.49 $60.15 1999 $74.71 $51.37 2000 $62.02 $42.64 2001 $49.42 $33.97 2002 $36.91 $25.37 2003 $24.50 $16.84 2004 $12.20 $8.38 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 $0.00 2011 $0.00 $0.00 2012 $0.00 $0.00 2013 $0.00 $0.00 2014 $0.00 $0.00 SCHEDULE A ROAD IMPROVEMENT IMPACT FEE CREDITS FOR NON-RESIDENTIAL DEVELOPMENT TABLE ST-3 Estimated Present Value of Past Tax Payments For 1994 Bond CREDITS PER $1.000 OF VALUE ON YEAR NON-RESID. PROPERTY 1994 40.00 1995 $0.05 1995 $0.18 1997 $0.31 1998 $0.44 1999 $ 0.58 2000 $ 0.71 2001 $0.85 2002 $0.99 2003 $1.13 2004 $1.28 2005 $1.43 2006 $1.50 2007 $1.57 2008 $1.65 2009 $1.74 2010 $1.82 2011 $1.91 2012 $2.01 2013 $2.11 2014 S2.21 TABLE ST-5 TABLE ST-4 Estimated Present Value of Future Tax Payments For 1994 Bond 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 CREDITS PER $1.000 OF VALUE ON NON-RESID. PROPERTY ESTIMATED IMPROVEMENT VALUE PER SQUARE FOOT OF STRUCTURE 50.79 $0.79 $ 0.71 $0.63 $0.55 $ 0.47 $ 0.3 9 $0.31 $0.23 $0.15 $ 0.0 8 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 P OF USE IN U inIAL' �V iN' IN rl M I AL .� AL AU 1 U MO i TYPE AND CUAUTY OF CONSTRUCTION MANU'FAC- ( AND I (GEIJEPAL) OFriCE I RETAIL I SERVICE I C. I TURING RESEARCH FACIUMES FACIUT7ES STEEL SKcL=iCN SknUCTUR OR RENFORCED CONCREi E STRUCIU_RE S-01 S49I S82 S521 NA.I NA. NA. (all types) MASONRY CR CONCRETE t WALL S62 STRUCTURE S27� 541 S63 5771 SE9I S46I S63 .;; . WCOO FiE SinnUCTURE • Ns,t NA 557 $71I NA $<2 $EO STEEL (FRE- FAE) S i RUC7URE I I ' Sn8) S38 NA ( N.A.I 556 S4 t NA. NA: Not apclicable: very unlikely that the designated structure type would be chosen I or :he cesignaled vse SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-1 TABLE R-2 Estimated Present Value of Past Estimated Present Value of Past Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- UNG CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1987 50.00 50.00 1988 $1.76 $1.18 1989 $6.31 $4.21 1990 $10.92 $7.28 1991 $15.57 310.38 1992 $20.29 $13.52 1993 $25.06 $16.71� 1994 $29.89 $19.93 1995 $34.79 $23.20 1996 $39.76 $26.51 1997 $44.80 $29.87 1998 $49.92 433.28 1999 $52.41 S34.94 2000 $55.03 $36.69 2001 $57.79 $38.52 2002 $60.58 $40.45 2003 $63.71 $42.47 2004 $66.90 $44.60 2005 $70.24 $46.83 2006 $73.75 S49.17 2007 $77.44 551.63 TABLE R-3 DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1992 $6.00 $0.00 1993 $0.98 $0.65 1994 53.58 $2.39 1995 $6.22 $4.15 1996 $8.89 55.93 1997 $11.59 $7.73 1998 $14.34 $9.56 1999 $17.12 $1 1.41 2000 $19.94 $13.29 2001 $22.81 415.20 2002 S2S.72 $17.15 2003 $28.68 $19.12 2004 $30.11 $20.07 2005 $31.62 $21.08 2006 $33.20 $22.13 2007 534.86 $23.24 2008 $36.60 $24.40 2009 $38.43 $25.62 2010 540.35 $26.90 2011 442.37 528.25 2012 S44.49 $29.66 Estimated Present Value of Past Tax Payments For 1993 Bond DWEL- LING _CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1993 40.00 30.00 1994 $1.08 $0.72 1995 54.01 32.68 1996 $6.99 $4.66 1997 $10.00 $6.67 1998 $13.06 $8.70 1999 $16.16 $10.77 2000 $1 9.30 $1 2.87 2001 $22.50 515.00 2002 $25.75 $17.17 2003 $29.05 $19.37 2004 $32.42 $21.61 2005 534.04 $22.69 2006 $35.74 523.83' 2007 $37.52 525.02 2008 $39.40 526.27 2009 $41.37 527.58. 2010 $43.44 $28.96 2011 $45.61 $30.41 2012 $47.89 $31.93 2013 S50.291 533.52 SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-4 TABLE R-5 Estimated Present Value of Future Estimated Present Value of Future Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1987 5296.49 5203.84 1988 $293.41 $201.72 1989 $262.74 $ 160.63 1990 $232.33 $ 159.72 1991 $202.19 $139.00 1992 $172.33 $118.48 1993 $142.77 498.15 1994 $113.53 578.05 1995 $84.61 558.17 1996 $56.04 $38.53 1997 $27.83 $19.13 1998 $0.00 $0.00 1999 $0.00 50.00 2000 $0.00 $0.00 2001 $0.00 50.00 2002 40.00 50.00 2003 50.00 $0.00 2004 $0.00 $0.00 2005 $0.00 So.00 2006 $0.00 $0.00 20071 $0.001 $0.00 TABLE R-6 DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1992 5176.33 .$117.10 1993 $168.89 $116.11 1994 $151-39 $104.08 1995 $134.00 $92.12 1996 $116.74 $80.26 1997 399.61 $68.48 1998 $82.62 $56.80 1999 $6S.77 $45.22 2000 $49.08 $33.74 2001 'S32.5S $22.38 2002 $ 1 6.19 $1 1.13 2003 $0.00 30.00 2004 $0.00 $0.00 2005 $0.00 $0.00 2006 50.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 So.00 $0.00 2011 $0.00 $0.00 2012 SO.001 $0.00 Estimated Present Value of Future Tax Payments For 1993 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1993 5192.53 $132.37 1994 $191.19 $131.44 1995 $171.49 $117.90 1996 $151.91 $104.44 1997 $132.44 $91.05 1995 $ 113.09 $77.15 1999 $93.88 $64.54� 2000 $74.80 $51.43 2001 $55.87 $38.41 2002 $37.09 $25.50 2003 $18.46 $12.69 2004 $0.00 $0.00 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00. 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 $0.00 2011 $0.00 $0.00 2012 $0.00 $0.00 2013 $0.00 $0.00 SCHEDULE C EDUCATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE SCH-1 Estimated Present Value of Past Tax Payments For 1995 Bond L_!"CREDITSG LE6YL SINGLE FAM MULTI-FAM R DWELLING ]DWELLING 1995 --- - - $0.00 --- $0.00 1996 $1.65 $1.10 1997 $4.77 $3.18 .1998 $7.96 $5.30 1999 $11.22 $7.48 2000 $14.57 $ 9.71 2001 $17.99 $12.00 2002 $ 21.51 $14.34 2003 $25.12 $16.75 2004 $28.83 $19.22 2005 $32.65 $21.76 2006 $36.57 $24.38 2007 $40.60 $27.07 2008 $44.75 $29.83 2009 $49.03 $32.69 2010 $53.44 $35.62 2011 $57.98 $38.65 2012 _. $ 62.67 -$41.78 2013 $67.52 $45.01 2014 $72.52 $48.34 2015 $77.69 $51.79 B TABLE SCH-2 Estimated Present Value of Future Tax Payments For 1995 Bond DWEL- LING • _ _CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING ------5302.77 LWELLING _ 1995 _ $208.15 1996 $301.11 $207.01 1997 $285.36 $196.19 1998 $ 269.67 $165.40 1999 $254.03 $174.65 2000 $238.45 $163.94 2001 $222.94 $153.27 2002 $207.48 $142.65 2003 $192.10 $132.07 2004 $176.78 $121.54 2005 $161.54 $11 1.06 2006 $146.38 $100.64 2007 $131.30 $ 90.27 2008 $1 16.30 $79.96 2009 $101.40 $69.71 2010 $ 86.59 $ 59.53 2011 $71.88 $49.42 2012 $57.27 $39.37 20'13 $ 42.77 $ 29.41 2014 $ 28.39 $19.52 2015 $14.13 $9.72 DEFENDANT'S ANSWER TO PLAINTIFF'S REQUEST FOR PRODUCTION #11 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP : / SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS (2) "EFFECTIVE DATE" /q 19 FOR TAX CREDITS: CY IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT ( From Sheet R-2 ) $ times NUMBER OF UNITS (From (1), above) X equals TOTAL SCHOOL FEE ( 4 ) RECREATION IMPACT FEE PER UNIT (From Sheet R-3) $ times NUMBER OF UNITS (From (1), above) X equals TOTAL RECREATION FEE - ( 5 ) ROAD IMPACT FEE PER UNIT (From Sheet R-4) $ I times NUMBER OF UNITS (From (1), above) X equals TOTAL ROAD FEE - unit units /6cc5/, ,c9 unit units / unit units ( 6 ) TOTAL IMPACT FEES $, q 9 (3+4+5) COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING S. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 (9) -- CREDIT FROM TABLE R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING $1, 686: 3 6 3 ' 843.18 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 ror single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS ML LTIPLE FAMILY DWELLINGS / (2) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT (From Sheet R-2 ) ; �� ?j, o� / unit times NUMBER OF UNITS equalsFrom TOTALSCHOOL FEE IVX _ units 15 83 gc (4) RECREATION IMPACT FEE PER UNIT * � ( From Sheet R-3 ) $ Sg�. C 2 / unit times NUMBER OF UNITS / ( From (1), above) X / units ' equals TOTAL RECREATION FEE (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (6) TOTAL IMPACT FEES (3+4+5) $ O / unit X units C> r iG COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 (9) - CREDIT FROM TABLE R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING $1,686.36 s8a.857 COMPUTATION OF 'TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: / SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS ( 2 ) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT c, ( From Sheet R72 ) $ unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL SCHOOL FEE $ 1 M3. B/ (4) RECREATION IMPACT FEE PER UNIT ( From Sheet R-3 ) S 13 (gyp• D t / unit times NUMBER OF UNITS (From (1), above) X units ? equals TOTAL RECREATION FEE (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) s unit times NUMBER OF UNITS ( From (1) , above) X units /��. 7equals TOTAL ROAD FEE - $ (6) TOTAL IMPACT FEES (3+4+5) C. C, COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 (9) - CREDIT FROM TABLE.:R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6. TOTAL RECREATION FEE PER DWELLING $1,686.36 qq. o %3 13CO3 o� $ S43.18 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS ( 2 ) "EFFECTIVE DATE" 1 �J FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT (From Sheet R-2) times NUMBER OF UNITS (From (1), above) equals TOTAL SCHOOL FEE (4) $ a 5'9 • GO / unit x units RECREATION IMPACT FEE PER UNIT _ (From Sheet R-3) $ % D4.5 / unit times NUMBER OF UNITS (From (1), above) x units equals TOTAL RECREATION FEE _ $— (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (5) TOTAL IMPACT FEES (3+4+5) $ 53.6 / unit x units $ r 7 �s COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE $1,686.36 (1) - CREDIT FROM TABLE R-1 - (2) - CREDIT FROM TABLE R-2 -- (3) - CREDIT FROM TABLE R-3 - (4) - CREDIT FROM TABLE R-4 - (5) - CREDIT FROM FABLE R-5 - (6) - CREDIT FROM TABLE R-6 - TOTAL RECREATION FEE PER DWELLING B. MJLTI-FAMILY DWELLINGS BASE FEE S 843.18 (7) - CREDIT FROM TABLE R-1 - 9,sl (8) - CREDIT FROM TABLE R-2 - 7.73 (9) - CREDIT FROM TABLE.R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 - y (12) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING $ ( 00•��� w COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS (2) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT (From Sheet R-2)• times NUMBER OF UNITS (From (1), above) equals TOTAL SCHOOL FEE $ unit x % _ units lyaG• 3� (4) RECREATION IMPACT FEE PER UNIT r/ ( From Sheet R-3 ) $ l y��j• 3.3 / unit times NUMBER OF UNITS / equalsFrom TOTAL1RECREATION FEE X units equals / y/3. 3 3 (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (5j TOTAL IMPACT FEES (3+4+5) $ cl�> / unit X units o FCTik A. COMPUTATION OF RECREATION IMPACT FEE PER DWELLING SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 ( 2 ) - CREDIT FROM TABLE R-2 ( 3 ) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 ( 5 ) - CREDIT FROM TABLE R--5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING �7.m MULTI -FAMILY DWELLINGS $1,686.36 Iv. 3 131 oC - _ o BASE FEE (7) - CREDIT FROM TABLE R-1 - (8) -'CREDIT FROM TABLE R-2 - (9) - CREDIT FROM TABLE R-3 - (14) - CREDIT FROM TABLE R-4 - (11) - CREDIT FROM TABLE R-5 - (12) - CREDIT FROM TABLE R-6 - TOTAL RECREATION FEE PER DWELLING S $ 843.18 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS j (2) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT G ( From Sheet R-2 ) $ / vI a / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL SCHOOL FEE _ $ �,P (4) RECREATION IMPACT FEE PER UNIT ( From Sheet R-3 ) $ 7. / times NUMBER OF UNITS (From (1), above) X equals TOTAL RECREATION FEE _ (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (6) TOTAL IMPACT FEES (3+4+S) I unit units $/ 7. $ 3.0 -tj / unit X units $ 3.0 r 0 COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE ( 7 ) - CREDIT FROM TABLE R--1 (8) - CREDIT FROM TABLE R-2 ( 9 ) - CREDIT - FROM TABLE R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING $1,686.36 $ 843.18 33. a 8 S,G - o STITZEL, PAGE & FLEMIER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE' ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y) Diane A. Lavallee, Clerk Chittenden Superior Court 175 Main Street PO Box 187 Burlington VT 05402-0187 (802) 660-2555 (VOICErIDD) FAX (802) 660-2552 E-MAII (FIl2M2555@AOL.COM) September 22, 1998 Re: Larkin Milot Partnership v City of South Burlinaton Docket No. S168-98CnC Dear Diane: OF COUNSEL ARTHUR W. CERNOSIA Enclosed, for filing with the Court, please find our Discovery Certificate relative to the above -referenced matter. If you have any questions, please do nStyhesitate to con act me. Since �y Robert E. Fletcher REF/maf Enclosures cc: Dennis R. Pearson, Esq. Charles Hafter son3749.cor " 0c % STATE OF VERMONT CHITTENDEN COUNTY, SS. LARRIN MILOT PARTNERSHIP, ) Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) Docket No. S168-98CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DISCOVERY CERTIFICATE I, ROBERT E. FLETCHER, ESQ., hereby certify that I served Defendant's Answers to Plaintiff's Interrogatories and Requests for Production, dated September 21, 1998, upon plaintiff, Larkin Milot Partnership, by causing a copy to be placed in the U.S. Mail, postage pre -paid this 22nd day of September, 1998, addressed to its attorney, Dennis R. Pearson, Esq., Gravel and Shea, PO Box 369, Burlington, Vermont 05402-0369. Dated at Burlington, in the County of Chittenden and State of Vermont, this 22nd day of September, 1998. Sons 19.lit STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402 1507 STITZE Att neys f ty of Sqd By: • ,� 0 E. Pl`ft6Ker, Esq. STATE OF VERMONT CHITTENDEN COUNTY, SS: LARKIN-MILOT PARTNERSHIP, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) DOCKET NO. S168-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DEFENDANT'S ANSWERS TO PLAINTIFF'S INTERROGATORIES AND REQUESTS FOR PRODUCTION NOW COMES the Defendant, City of South Burlington, by and through its attorneys, Stitzel, Page and Fletcher, P.C., and says as follows in response to Plaintiff's Interrogatories and Requests To Produce: Interrogatories 1. Please state the name, address and position with the Defendant of the person responding to these Interrogatories on behalf of the City of South Burlington. Answer: Joseph Weith, Director Planning & Zoning City of South Burlington City Hall 575 Dorset Street South Burlington, VT Richard Ward Zoning Administrator City of South Burlington City Hall 575 Dorset Street South Burlington, VT 2. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, which the City contends, or admits, qualify for an exemption from the recreation impact fee ordinance adopted January 9, 1995 (as amended April 17, 1995), pursuant to Section (B)(5) of said ordinance. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the forgoing objection, the Defendant responds that there are no land development or subdivision developments (collectively "projects") exempt from the recreation impact fee ordinance adopted January 9, 1995, as subsequently amended, (the "Ordinance") pursuant to section (B)(5) thereof; section (B)(5) provides only that the recreation impact fee established in the Ordinance does not apply to certain projects. Defendant contends that projects receiving final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, for which: (i) the final plat approval contained a condition requiring payment to the Defendant of a recreation impact fee, expressed in a specific dollar amount, as each lot/unit within the project receives a building/zoning permit; and (ii) building/zoning permits for some of the lots/units within the project had been issued and the specified fee paid prior to January 9, 1995, fall within the scope of Section (B)(5) of the Ordinance. The information requested with respect to approved projects can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Hence, Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the office's usual and customary charge for photocopying. 2 3. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved before January 9, 1995, as to which the City contends the recreation impact fee ordinance is fully applicable. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the foregoing objection, the Defendant contends that the Ordinance is fully applicable to all such projects. The information requested with respect to approved projects can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Hence, Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the office's usual and customary charge for photocopying. 4. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved after January 9, 1995, as to which the City contends the recreation impact fee ordinance is fully applicable. 3 Answer: See Answer to #3 above. 5. Identify by name, address, and employment or professional affiliation, all persons, including but not limited to City officials, employees, consultants or representatives, who have been involved in any aspect of, or have any knowledge of any facts relating to (a) preparation, adoption and/or subsequent amendment of the recreation impact fee ordinance initially adopted January 9, 1995; and (b) application of said ordinance to any land development and/or subdivision project identified in response to Interrogatories 2, 3 and 4, above. Answer: OBJECTION. The formulaic request for "all persons .. who have been involved in any aspect of, or who have any knowledge of any facts relating to ..." is over broad, unduly burdensome. Without waiving the forgoing objection, the Defendant responds that virtually every employee of the Defendant assigned to the City Manager's office, the Planning & Zoning Department, the Recreation Department, and the City Council, its attorneys and their staff, anyone attending public hearings or City Council meetings at which the subject was discussed, persons who may have watched the proceedings on Adelphia Cable Channel 17, as well as Michael J. Munson, Ph.D., c/o RESV., Inc., 11 Pearl Street, Essex Junction, VT. 6. Please identify, by name, address, employment and professional qualifications or affiliation, any person whom the City expects to call as an expert witness to trial; state the subject matter on which the expert is expected to testify; state 4 the substance of the facts and opinions as to which said expert is expected to testify; and set forth a summary of the grounds for each opinion. Answer: The Defendant has not yet engaged the services of an expert witness. If and when it does so, it will supplement this response in accord with its obligations under the Vermont Rules of Civil Procedure. Requests for Production 1. Complete copies of the City's recreation impact fee ordinance, as originally and formally adopted on January 9, 1995, and as formally amended on April 17, 1995. Answer: See attached. 2. Copies of all drafts or prior versions of the City's recreation impact fee ordinance, and all non -privileged correspondence, memoranda, notes or other documents relating to the drafting, preparation and/or adoption of said ordinance and any subsequent amendment(s) or revision(s). Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the foregoing objection, to the extent that the requested materials are matters of public record, they may be reviewed at the Defendant's offices during regular business hours, and copies can be made of material therein upon request, subject to payment of the usual and customary charges assessed by the Defendant for photocopies of documents. Contact Joseph Weith. 5 3. The entire study and report entitled "Recreation Improvement Impact Fees, City of South Burlington," dated September 1, 1993 and prepared by Michael J. Munson, RESV, Inc., together with any attachments or other supporting documents related thereto or referenced in said report. Answer: See Answer to Request for Production #2 above. 4. Any and all correspondence, memoranda, contracts, bids, quotes, requests for proposals, notes of discussions or telephone conversations, and any other documents or materials related. to (a) the initial design or preparation of the RESV. "Recreation... Fees" study; (b) the selection of Michael Munson and RESV., Inc. to perform said study; (c) the on -going work on and preparation of said study by Mr. Munson and RESV., Inc., through and including its completion on or about September 1, 1993; and/or (d) any modifications, changes, corrections or omissions from the initial design of said study which are not fully reflected in the final report dated September 1, 1993. Answer: See Answer to Request for Production #2 above. 5. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 2, above. 0 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 6. Copies of all zoning (or building) permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 2, above, including any separate recreation impact fee assessment if not contained in the zoning (or building) permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 7. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 3, above. 7 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 8. Copies of all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 3, above, including any separate recreation impact fee assessment if not contained in the zoning, or building permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 9. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 4, above. 8 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 10. Copies of all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 4, above, including any separate recreation impact fee assessment if not contained in the zoning, or building permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 11. Copies of all worksheets, notes, memoranda, or other documents containing, or relating to the calculation of the recreation impact fee required or imposed in connection with each zoning (or building) permit produced in response to Requests 6, 8 and 10, above. 01 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving its objection, Plaintiff states that for projects within the scope of Request #6, the applicable recreation impact fee is specified in the final plat approval for the particular project. The materials referred to in the prior sentence are a matter of public record, available for review by Plaintiff at the office of the City Clerk during regular business hours. Copies can be made of material upon request, subject to payment of the usual and customary charges assessed by the Defendant for photocopies of documents. For projects within the scope of Requests 8 and 10, the Ordinance provides a single fee for single-family units and a separate, single fee for multi -family units. Each fee is adjusted annually as specified in the Ordinance. Copies of the annual summary sheet and recreation impact fee determination for 1996, 1997 and 1998 are attached. No comparable material exists for 1995. 12. Copies of all correspondence, memoranda, or other documents between Plaintiff and the City regarding recreation impact fees for the subdivision project at issue in this case. Answer: OBJECTION, the request is wholly unreasonable and unduly burdensome. The materials requested are communications between the parties; they should be fully accessible by Plaintiff. 13. Copies of any notes, memoranda or other writings by or among any City employee or representative relating in any way to any aspect of the recreation impact fee(s) imposed, or to be imposed with respect to the subdivision project at issue in this case. 10 Answer: OBJECTION. The request is overly broad, compliance by Defendant would be unduly burdensome, time consuming and expensive, and the request seeks to discover privileged attorney client communications, attorney work product, and materials protected from disclosure under the Rules of Civil Procedure. 14. Any report(s) prepared by any expert disclosed pursuant to Interrogatory 6, above; any correspondence, memoranda or other writings to, from or between said expert and any agent, employee or representative of the City; and said expert's complete file, including any drafts or prior versions of any report or memoranda, created or maintained by said expert in connection with this matter. Answer: N/A. Dated in South Burlington this.Ak�-fday of , 1998. NJ By: STATE OF VERMONT } } ss COUNTY OF CHITTENDEN } F SOUTH BURLINGTON At South Burlington, Vermont, thi Gil day of September, 1998, personally appeared -ow, , and he acknowledged the foregoing instrument, by him signed, to be his free act and deed and the free act and deed of the City of South Burlington. Befor m G1US)q�'�� My commission expires: 11 As to Objections: / Z son512.1it B) 12 DEFENDANT'S ANSWER TO PLAINTIFF'S REQUEST FOR PRODUCTION #1 C= T Y O F S OUT H BURL = NGT O N T M PAC T F E E O RD = NANC E Adopted: January 9, 1995 SOUTH BURLINGTON IMPACT FEE ORDINANCE Section 1. Authority. This ordinance is enacted pursuant to the specific authority granted municipalities to establish impact fees contained in 24 V.S.A., Chapter 131 and the authority granted the City of South Burlington to enact ordinances set forth in its Charter and 24 V.S.A. Chapter 59. This ordinance shall be a civil ordinance within the meaning of 24 V.S.A. Chapter 59. Section 2. Purpose. It is the purpose of this ordinance to establish impact fees to pay portions of the cost of constructing capital facilities for new development in the City that will be served by such facilities. To the extent that new capital facilities are necessitated by new development and such facilities benefit the new development, it is appropriate that the new residents and owners bear an appropriate portion of the costs of constructing the new facilities. Section 3. Establishment of Fees A. Road Improvement Impact Fee: Any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units or, in the case of non-residential development, an increase in PM peak hour vehicle trip ends (vehicle trips occurring between the hours of 4:00 PM and 6:00 PM on weekdays), as determined by the Planning Commission. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $221.72 reduced by the amount of any credit due from Tables ST-1 and ST-2, attached as Schedule A. (b) Multi -Family Dwelling (fee per unit): $155.20 reduced by the amount of any credit due from Tables ST-1 and ST-2, attached as Schedule A. (c) Non-residential Development: $221.72 multiplied by the number of PM peak hour vehicle trip ends and 1 reduced by the amount of any credit due from Tables ST-3, ST-4 and ST-5, attached as Schedule A. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Road Improvement Impact Fees, City of South Burlington," prepared by RESV., Inc., Michael J. Munson, dated October 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following road improvement projects which are described in the above referenced report: (a) Kennedy Drive widening (b) Williston Road widening (c) Airport Pkwy/Ethan Allen Dr intersection upgrade (d) Williston Rd/Kennedy Dr intersection upgrade (e) Kennedy Dr/Kimball Ave intersection upgrade (f) Spear St/Swift St intersection upgrade (g) Williston Rd/Shunpike Rd intersection upgrade B. Recreation Impact Fee: Any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $1,686.36 reduced by the amount of any credits due from Tables R-1, R-2, R-3, R-4, R- 5, and R-6, attached as Schedule B. (b) Multi -Family Dwelling (fee per unit): $843.18 reduced by the amount of any credit due from Tables R-1, R-2, R-3, R-4, R-5, and R-6, attached as Schedule B. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Recreation Impact Fees, City of South Burlington," prepared by RESV., Inc., Michael J. Munson, dated September 1, 1993, which report is incorporated into this ordinance by reference. .C4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following recreation improvement projects which are described in 2 the above referenced report: (a) Land acquisition for Phase I of Dorset Street Park (b) Develop Phase I of Dorset Street Park C. Education Impact Fee: Any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $2,183.94 reduced by the amount of any credits due from Tables SCH-1 and SCH-2, attached as Schedule C. (b) Multi -Family Dwelling (fee per unit): $1,091.97 reduced by the amount of any credit due from Tables SCH-1 and SCH-2, attached as Schedule C. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "South Burlington School District Impact Fee Analysis, prepared by RESV., Inc., Michael J. Munson, dated November 22, 1994, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following school district improvement projects which are described in the above referenced report: (a) Chamberlin School improvement (b) Orchard School improvement (c) Central School improvement Section 4. Payment of Fees Impact fees levied under this ordinance shall be paid to the City Treasurer prior to the issuance of any permits under the Zoning Regulations of the City of South Burlington for the construction of any development subject to the payment of impact fees. The Zoning Administrator shall not issue any zoning permit for the construction of such developments without first receiving proof of payment of the required impact fees from the City Treasurer. 3 Section 5. Accountinq and Register of Payment. A. Impact fees collected pursuant to this Ordinance shall be placed by the City Treasurer in separate interest bearing accounts for each type of impact fee established. B. The City Treasurer shall maintain a register for each account indicating the date of payment of each fee, the amount paid, and the name of the payer. C. The City Treasurer shall prepare an annual accounting of all fees paid into and withdrawn from each account, showing the source and amounts collected, and the amounts expended and the projects for which such expenditures were made. Section 6. Refunds. A. If the actual expense to the City or School District of a project to be funded at least in part by impact fees is less than the fees collected or to be collected, the City shall refund to the then owner of the property for which the fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it completes or terminates construction of the project. B. If the City reduces the amount of an impact fee after some fees have been collected, the City shall refund to the then owner of the property for which a fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it reduces the impact fee. C. If the City does not expend an impact fee within six years of the date it is paid, the then owner of the property for which the fee was paid may apply for and receive a refund of the fee, provided the request for refund is filed within one year of the expiration of the six year time period. D. A person who pays an impact fee established under this ordinance and subsequently abandons the project without commencing construction of the land development on which the impact fee was based, may request and receive from the City a refund of the impact fee in full. Any accrued interest may be retained by the City to offset administrative costs. A person who receives a refund under this provision shall not commence construction of the land development for which the refund was made without repaying the required impact fees. Section 7. Expenditure Restrictions. A. All impact fees collected pursuant to this ordinance, 4 and accrued interest, shall be expended only for the specifically identified projects which were the basis for the fees. Such fees and accrued interest shall be expended within six years of the date they are received by the City Treasurer. B. The City Treasurer shall pay, from the appropriate account, expenses associated with the designated projects as they become due and upon receipt of appropriate documentation regarding such expenses. C. The City Treasurer shall reimburse the South Burlington School District for expenditures associated with School District projects funded by education impact fees, upon receipt of appropriate documentation. Section 8. Credits for "In -Kind" Contributions. A. "In -Kind" contribution shall mean provision by a person subject to payment of an impact fee of land or construction of facilities that are related to the types of facilities on which the impact fee is based, and which are included in or consistent with the City's Comprehensive Plan. B. Upon recommendation of the Planning Commission, the City Council may approve a credit against any impact fee levied under this ordinance for the value of "In -Kind" contributions. The amount of credit for an "In -Kind" contribution shall be based on the actual cost to the person requesting the credit of providing or creating the facilities. The Planning Commission shall indicate the basis on which the amount of credit is determined. The amount of credit for an "In -Kind" contribution shall not exceed the total amount of the impact fee for that type of facility which would otherwise be levied on the proposed development. Section 9. Appeals. An individual or entity required to pay an impact fee under this ordinance may challenge the imposition of such fee, or the amount of the fee, by filing a written notice of appeal with the City Clerk, which appeal shall not be filed later than thirty days after payment of the impact fee. Said notice of appeal shall state the basis of the appellant's challenge to the fee. Within sixty days of the filing of a notice of appeal, the City Council shall hold a public hearing to receive oral and written evidence and argument from the appellant and City representatives. Within forty-five days after the conclusion of the hearing, the Council shall notify the appellant of its decision in writing. 5 Section 10. Enforcement. A. Any individual or entity who undertakes land development in the City of South Burlington without first paying a required impact fee imposed pursuant to this ordinance shall be subject to a civil penalty of up to five hundred dollars per day for each day that such land development continues without payment of said fee. The Administrative Officer shall be authorized to act as the issuing municipal official to issue and pursue before the Traffic and Municipal Ordinance Bureau a municipal complaint. The Administrative Officer is authorized to recover a waiver fee of not less than $50 and not more than $150 for each violation and a civil penalty of not less than $100 and not more than $500 for each violation. B. In addition to the enforcement procedures set forth above, the Administrative Officer is authorized to commence a civil action to obtain injunctive and other appropriate relief. Section 11. Severability. In the event any provision of this ordinance is for any reason invalid, such invalidity shall not affect the remaining provisions which can he given effect without the invalid provision. (SON071-1.ORD) 5 SCHEDULE A ROAD IMPROVEMENT IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE ST-1 Estimated Present Value of Past Tax Payments For 1994 Bond DWEL- LING CREDITS _ SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1994 $0.00 $0.00 1995 $0.71 $0.48 1996 $2.65 $1.77 1997 $4.62 $3.08 1998 $6.61 $4.40 1999 $8.63 $5.75 2000 $10.67 $7.12 2001 $12.75 $8.50 2002 $14.87 $9.91 2003 $17.01 $1 1.34 2004 $19.19 $12.80 2005 $ 21.41 $14.28 2006 $22.49 $14.99 2007 $ 23.61 $15.74 2008 $ 24.79 $16.53 2009 $26.03 $17.35 2010 $27.33 $18.22 2011 $ 28.70 $19.13 2012 $30.13 $20.09 2013 $31.64 $21.09 20141 $33.221 $22.15 TABLE ST-2 Estimated Present Value of Future Tax Payments For 1994 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1994 $127.19 $87.44 1995 $126.30 $86.83 1996 $113.29 $77.89 1997 $100.35 $68.99 1998 $87.49 $60.15 1999 $74.71 $51.37 2000 $62.02 $42.64 2001 $49.42 $33.97 2002 $36.91 $25.37 2003 $24.50 $16.84 2004 $12.20 $8.38 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 ... $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 $0.00 2011 $0.00 $0.00 2012 $0.00 $0.00 2013 $0.00 $0.00 2014 $0.00 $0.00 SCHEDULE A ROAD I14PROVE14ENT IMPACT FEE CREDITS FOR NON-RESIDENTIAL DEVELOPMENT TABLE ST-3 Estimated Present Value of Past Tax Payments For 1994 Bond TABLE ST-4 Estimated Present Value of Future Tax Payments For 1994 Bond YEAR CREDITS PER $1.000 OF VALUE ON NON-RESID. PROPERTY YEAR i CREDITS PER S1.000 OF VALUE ON NON-RESID. PROPERTY 1994 S0.00 1994 $p.7g 1995 $0.05 1995 $0.79 1996 $0.18 1996 $0.71 1997 $0.31 1997 $0.63 1998 $0.44 1998 $0.55 1999 $0.58 1999 $0.47 2000 $ 0.71 2000 $ 0.3 9 2001 $ 0.85 2001 $ 0.31 2002 $0.99 2002 $0.23 2003 $1.13 2003 $ 0.15 2004 $1.28 2004 50.08 2005 $1.43 2005 $ 0.00 2006 $1.50 2006 $0.00 2007 $1.57 2007 $ 0.00 2008 $1.65 2008 $ 0.00 2009 $1.74 2009 $0.00 2010 $1.52 2010 $0.00 2011 $1.91 2011 $0.00 2012 $ 2.01 2012 $ 0.00 2013 $2.11 2013 $0.00 2014 $2.21 2005 S0.00 TABLE ST-5 ESTIMATED IMPROVrMENT VALUE PER SQWIJRE FOOT OF STRUCTURE 'rYPeOF US .0 cJV 1N'nN r! t MCI :L + -cN rAL AUK U TYPE AND CL'AU TY CF CONSTRUC770N MANUFAC- I AND (GcNEr':Al� I CFFiCE RE A1L I SERVICE TURING =ESEARCH I FACIUnES FACiUT1ES STEEL SKELF70N ST-nUC 7UR +fI CR RENPORCED CONCREitt N-A-1 NA. (all ypes S r RUC TUBE 5=0I 5�9I SE2I S921 NA. MASCNRY CR CONCFE+tt WALL::D STRUCTURE S27I S41� 563� Sill S59) S/5I S63 WCOD r"=.AN.E S RUC7LRE I N al NAI S57 S77 NAI S-421 S50 S E_L (FP.E-FAE) S-MUC7URE 5281 S E NAI N.A S56I $411 NA. NA: Not z;c;<abie: very unl5cely that Lhe designated s:n:c:;:re ype would be cpcsen !or :' a ces;g: a;ed use , SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-I TABLE R-2 Estimated Present Value of Past Estimated Present Value of Past Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- UNG CREDITS SINGLE FAM I MULTI -TAM YEAR DWELLING JOWELLING 1987 $0.00 50.00 1988 $1.76 $1.18 1989 $6.31 S4,21 1990 $10.92 37.28 1991 315.57 $10.38 1992 $20.29 $13.52 1993 32S.06 $16.71 1994 $29.89 $19.93 199S $34.79 $23.20 1996 $39.76 326.51 1997 $44.80 $29.87 1998 $49.92 $33.28 1999 552.41 S34.94 2000 S55.03 $36.69 2001 $57.79 $38.52 2002 $60.68 340.45 2003 563.71 $42,47 2004 366.90 344.60 2005 $70.24 $46.83 2005 $73.75 549.17 2007 $77.441 SS1.63 TABLE R-3 DWEL- LING ITS 7FAM SINGLMULTI-FAM YEAR DWELLDWELLING 1992 50.00 40.00 1993 50.98 $0.65 1294 S3.58 $2.39 1995 56.22 $4.15 1996 48.89 35.93 1997 $11,59 37.73 1998 $14.34 $9.56 1999 $17.12 $1 1.41 2000 $19.94 $13.29 2001 $22.81 S15.20 2002 $25.72 $17.15 2003 $28.68 $19.12 2004 530.11 $20.07 2005 S 31.62 $21.08 2006 „ $33.20 S22.13 2007 $34.86 $23.24 2008 S36.60 $24.40 2009 $38.43 $25.62 2010 S40.35 $26.90 2011 542.37 $28.25 2012 S44,49 529.66 Estimated Present Value of Past Tax Payments For 1993 Bond DWEL- LING ICREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1993 50.00 50.00 1994 $1.08 $0.72 199S $4.01 $2.68 1996 $6.99 $4.66 1997 $10.00 36.67 1998 $13.06 $5.70 1299 S16.16 $10.77, 2000 $1 9.30 S 1 2.87 2001 $22.50 $15.00 2002 S 25.75 517.17 2003 $29.05 $19.37 2004 $32.42 521.61 2005 $34.04 $22.69 2006 $35.74 $23.83 2007 $37.52 S25.02 2008 $39.40 $26.27: 2009 $41.37 $27.58 2010 $43.44 $28.96 2011 S4S.61 $30.41 2012 $47.69 $21,53 2:13 $50.29 S33_S2 SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-4 TABLE R-5 Estimated Present Value of Future Estimated Present Value of Future Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- LING CREDITS GLE FAM MULTI-FAM YEAR[DWELLING DWELLING 1987 5296.49 5203.E4 19E8 $293.41 3201.72 1989 $262.74 $180.63 1990 $232.33 $159.72 1991 $202.19 $129.00 1992 $172.33 $118.48 1993 $142.77 $98.15 1994 5113.53 $78.05 1995 $84.61 $58.17 1996 $56.04 $38.53 1997 527.83 419.13 1998 $0.00 $0.00 1999 $0.00 $0.00 2000 $0.00 50.00 2001 $0.00 50.00 2002 $0.00 50.00 2003 S 0.00 $ 0.00 2004 $0.00 $0.00 2005 50.00 30.00 2006 50.00 30.00 2007 $0.00 50.00 TABLE R-6 DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1992 5170.33 $117.10 1993 $168.89 $116.11 1994 $151.39 $104.08 1995 4134.00 $92.12 1996 $116.74 $80.26 1997 $99.61 $68.48 1998 $82.62 $56.80 1999 565.77 545.22 2000 $49.08 $33.74 2001 S32.55 $22.38 2002 $ 1 6.19 $1 1.13 2003 $0.00 $0.00 2004 $0.00 $0.00 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 50.00 $0.00 2010 50.00 $0.00 2011 $0.00 30.00 2012 $0.00 $0.00 Estimated Present Value of Future Tax Payments For 1993 Bond Dvr'EL- UNG CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1993 4192.53 $132.37 1994 $191.19 $131.44 1995 $171.49 $117.90 ;cc6 $151.91 3104.4.4 1997 $132.44 591.05 1398 5113.09 $77.15 1999 $93.88 $54.54 2000 574.80 $51.43 2001 S55.87 $38.41 2002 $37.09 525.50 2003 $18.46 $12.69 20C4 $0.00 50.00 2005 $0.00 50.00 2006 50.00 $0.00 2007 $0.00 $0.00 20CS $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 S0.00 2011 $0.00 50.00 2012 50.00 50.00 2013 $0.00 50.00 SCHEDULE C EDUCATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE SCH-1 Estimated Present Value of Past Tax Payments For 1995 Bond CREDITS LING LING SINGLE FAM MULTI-FAM YEAR DWELLING 1995 SO.00 _DWELLING $0.00 1996 $1.65 $1.10 1997 $4.77 $3.18 .1998 $7.96 $5.30 1999 $11.22 $7.48 2000 $14.57 $ 9.71 2001 $17.99 $12.00 2002 $ 21.51 $14.34 2003 $25.12 $16.75 2004 $ 28.83 $19.22 2005 $32.65 $21.76 2006 $36.57 $24.38 2007 $40.60 $27.07 2008 $44.75 $29.83 2009 $49.03 $32.69 2010 $53.44 $35.62 2011 $57.98 $38.65 2012 _. $ 62.67 -$41.78 2013 $ 67.52 $45.01 2014 $72.52 $48.34 2015 $77.69 $51.79 TABLE SCH-2 Estimated Present Value of Future Tax Payments For 1995 Bond DWEL- LING - _ _CREDITS' SINGLE FAM (DWELLING _ MULTI-FAM YE_A_R DWELLING_ 1995 --$302.77 $208.15 1996 $301.11 $207.01 1997 $285.36 $19G.19 1998 $ 269.67 $185.40 -.1999 $254.03 $174.65 2000 - $ 238.45 $163.94 2001 $ 222.94 $153.27 2002 $207.43 $142.G5 2003 $192.10 $132.07 2004 $176.78 $121.54 2005 $1 G 1.54 $1 11.06 2006 $146.38 $100.64 2007 $131.30 $ 90.27 2008 $116.30 $79.96 2009 $101.40 $69.71 2010 $ 8 6.59 $ 59.53 2011 $71.88 $49.42 2012 $57.27 $39.37 20'13 $42.77 $29.41 2014 $ 28.39 $19.52 2015 1 $14_13 $9.72 C I TY O F S OUT H BURL = NGT ON = MPAC T F E E O RD = NANC E Adopted: January 9, 1995 Amended: April 17, 1995 SOUTH BURLINGTON IMPACT FEE ORDINANCE Section I. Authorit This ordinance is enacted pursuant to the specific authority granted municipalities to establish impact fees contained in 24 V.S.A., Chapter 131 and the authority granted the City of South Burlington to enact ordinances set forth in its Charter and 24 V.S.A. Chapter 59. This ordinance shall be a civil ordinance within the meaning of 24 V.S.A. Chapter 59. Section 2. Purpose. It is the purpose of this ordinance to establish impact fees to pay portions of the cost of constructing capital facilities for new development in the City that will be served by such facilities. To the extent that new capital facilities are necessitated by new development and such facilities benefit the new development, it is appropriate that the new residents and owners bear an appropriate portion of the costs of constructing the new facilities. Section 3. Establishment of Fees A. Road Improvement Impact Fee: Except as provided in subparagraph (5), any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units or, in the case of non-residential development, an increase in PM peak hour vehicle trip ends (vehicle trips occurring between the hours of 4:00 PM and 6:00 PM on weekdays), as determined by the Planning Commission. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $221.72 reduced by the amount of any credit due from Tables ST-1 and ST-2 attached as Schedule A. (b) Multi -Family Dwelling (fee per unit): $155.20 reduced by the amount of any credit due from Tables ST-1 and ST-2, attached as Schedule A. (c) Non-residential Development: $221.72 multiplied by the number of PM peak hour vehicle trip ends and 1 reduced by the amount of any credit due from Tables ST-3, ST-4 and ST-5, attached as Schedule A. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Road Improvement Impact Fees, City of South Burlington", prepared by RESV., Inc., Michael J. Munson, dated October 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following road improvement projects which are described in the above referenced report: (a) Kennedy Drive widening (b) Williston Road widening (c) Airport Pkwy/Ethan Allen Dr intersection upgrade (d) Williston Rd/Kennedy Dr intersection upgrade (e) Kennedy Dr/Kimball Ave intersection upgrade (f) Spear St/Swift St intersection upgrade (g) Williston Rd/Shunpike Rd intersection upgrade (5) This impact fee shall not apply to land development as described in subparagraph (1) which: (a) is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, which subdivision approval contained a conditional requiring payment of fees to the City for the purpose of funding road improvements; and (b) the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval; and (c) a permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. B. Recreation Impact Fee: Except as provided in Subparagraph (5), any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). (1) This impact fee shall apply to any land development that results in an increase in dwelling units. 2 (2) Formula for determination of impact fees: (a) Single Family Dwelling: $1,686.36 reduced by the amount of any credits due from Tables R-1, R-2, R-3, R-4, R-5, and R-6, attached as Schedule B. (b) Multi -Family Dwelling (fee per unit): $843.18 reduced by the amount of any credits due from Tables R-1, R-2, R-3, R-4, R-5, and R-6, attached as Schedule B. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "Recreation Impact Fees, City of South Burlington," prepared by RESV., Inc., Michael J. Munson, dated September 1, 1993, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following recreation improvement projects which are described in the above referenced report: (a) Land acquisition for Phase I"of Dorset Street Park (b) Develop Phase I of Dorset Street Park (5) This impact fee shall not apply to land development as described in subparagraph (1) which: (a) is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, which subdivision approval contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements; and (b) the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval; and (c) a permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. C. Education Impact Fee: Except as provided in subparagraph (5), any land development as described in subparagraph (1) which is issued a permit under the City of South Burlington Zoning Regulations after the date this Impact Fee Ordinance provision becomes effective shall pay an impact fee determined in accordance with the formula set forth in subparagraph (2). 3 (1) This impact fee shall apply to any land development that results in an increase in dwelling units. (2) Formula for determination of impact fees: (a) Single Family Dwelling: $2,183.94 reduced by the amount of any credits due from Tables SCH-1 AND SCH-2, attached as Schedule C. (3) The impact fee formula set forth in subparagraph (2) above is based on a study and report entitled, "South Burlington School District Impact Fee Analysis," prepared by RESV., Inc., Michael J. Munson, dated November 22, 1994, which report is incorporated into this ordinance by reference. (4) Impact fees collected pursuant to this ordinance provision shall be used to pay costs associated with the following school district improvement projects which are described in the above referenced report: (a) Chamberlain School improvement_ (b) Orchard School improvement (c) Central School improvement (5) This impact fee shall not apply to land development as described in subparagraph (1) which: (a) Is for development within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995; and (b) A permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. Section 4. Payment of Fees Impact fees levied under this ordinance shall be paid to the City Treasurer -prior to the issuance of any permits under the Zoning Regulations of the City of South Burlington for the construction of any development subject to the payment of impact fees. The Zoning Administrator shall not issue any zoning permit for the construction of such developments without first receiving proof of payment of the required impact fees from the City Treasurer. Section 5. Accounting and Register of Payment. A. Impact fees collected pursuant to this Ordinance shall be placed by the City Treasurer in separate interest -bearing accounts for each type of impact fee established. 4 B. The City Treasurer shall maintain a register for each account indicting the date of payment of each fee, the amount paid, and the name of the payer. C. The City Treasurer shall prepare an annual accounting of all fees paid into and withdrawn from each account, showing the source and amounts collected, and the amounts expended and the projects for which such expenditures were made. Section 6. Refunds_ A. If the actual expense to the City or School District of a project to be funded at least in part by impact fees is less than the fees collected or to be collected, the City shall refund to the then owner of the property for which the fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it completes or terminates construction of the project. B. If the City reduces the amount of an impact fee after some fees have been collected, the City shall refund to the then owner of the property for which a fee was paid, that portion of any impact fee, with accrued interest, which is in excess of the appropriate amount due to the City. The City shall provide this refund within one year of the date it reduces the impact fee. C. If the City does not expend an impact fee within six years of the date it is paid, the then owner of the property for which the fee was paid may apply for and receive a refund of the fee, provided the request for refund is filed within one year of the expiration of the six year time period. D. A person who pays an impact fee established under this ordinance and subsequently abandons the project without commencing construction of the land development on.which the impact fee was based, may request and receive from the City a refund of the impact fee in full. Any accrued interest may be retained by the -City to offset administrative costs. A person who receives a refund under this provision shall not commence construction of the land development for which the refund was made without repaying the required impact fees. Section 7. Expenditure Restrictions A. All impact fees collected pursuant to this ordinance, and accrued interest, shall be expended only for the specifically identified projects which were the basis for the fees. Such fees and accrued interest shall be expended within six years of the date -they are received by the City Treasurer. B. The City Treasurer shall pay, from the appropriate 5 account, expenses associated with the designated projects as they become due and upon receipt of appropriate documentation regarding such expense. C. The City Treasurer shall reimburse the South Burlington School District for expenditures associated with School District projects funded by education impact fees, upon receipt of appropriate documentation. Section 8. Credits for "In -Kind" Contributions. A. "In -Kind" contribution shall mean provision by a person subject to payment of an impact fee of land or construction of facilities that are related to the types of facilities on which the impact fee is based, and which are included in or consistent with the City's Comprehensive Plan. B. Upon recommendation of the Planning Commission, the City Council may approve a credit against any impact fee levied under this ordinance for the value of "In -Kind" contributions. The amount of credit for an "In -Kind" contribution shall be based on the actual cost to the person requesting the credit of providing or creating the facilities. The Planning Commission shall indicate the basis on which the amount of credit is determined. The amount of credit for an "In -Kind" contribution shall not exceed the total amount of the impact fee for that type of facility which would otherwise be levied on the proposed development. Section 9. Appeals An individual or entity required to pay an impact fee under this ordinance may challenge the imposition of such fee, or the amount of the fee, by filing a written notice of appeal with the City Clerk, which appeal shall not be filed later than thirty days after payment of the impact fee. Said notice of appeal shall state the basis of the appellant's challenge to the fee. Within sixty days of the filing of a notice of appeal, the City Council shall iTold a public hearing to receive oral and written evidence and argument from the appellant and City representatives. Within forty-five days after the conclusion of the hearing, the Council shall notify the appellant of its decision in writing. Section 10. Enforcement A. Any individual or entity who undertakes land development in the City of South Burlington without first paying a required impact fee imposed pursuant to this ordinance shall be subject to a civil penalty of up to five hundred dollars per day for each day that such land development continues without payment of said fee. The Administrative Officer shall be authorized to act as i the issuing municipal official to issue and pursue before the Traffic and Municipal Ordinance Bureau a municipal complaint. The Administrative Officer is authorized to recover a waiver fee of not less than $50 and not more than $150 for each violation and a civil penalty of not less than $100 and not more than $500 for each violation. B. In addition to the enforcement procedures set forth above, the Administrative Officer is authorized to commence a civil action to obtain injunctive and other appropriate relief. Section 11. Severability. In the event any provision of this ordinance is for any reason invalid, such invalidity shall not affect the remaining provisions which can be given effect without the invalid provision. IMPACTFE.MCP 7 SCHEDULE A ROAD IMPROVEMENT IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE ST-1 Estimated Present Value of Past Tax Payments For 1994 Bond DWEL- LING _ CREDITS SINGLE FAM YEAR DWELLING IMULTI-FAM DWELLING 1994 $0.00 $0.00 1995 $0.71 $0.48 1996 $2.65 $1.77 1997 $4.62 $3.08 1998 $6.61 .$4.40 1999 $3.63 $5.75 2000 $10.67 $7.12 2001 $12.75 $8.50 2002 $14.87 $ 9.91 2003 $17.01 $11.34 2004 $19.19 $12.80 2005 $ 21.41 $14.28 2006 $22.49 $14.99 2007 $ 23.61 $15.74 2008 $24.79 $16.53 2009 $26.03 $17.35 2010 $27.33 $18.22 2011 $28.70 - $19.13 2012 $30.13 $20.09 2013 $31.64 $21.09 20141 $33.221 $22.15 TABLE ST-2 Estimated Present Value of Future Tax Payments For 1994 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1994 $127.19 _ $87.44 1995 $126.30 $86.83 1996 $113.29 $77.89 1997 $100.35 $68.99 1998 $87.49 $60.15 1999 $74.71 $51.37 2000 $62.02 $42.64 2001 $49.42 $33.97 2002 $36.91 $25.37 2003 $24.50 $16.841 2004 $12.20 $8.38 2005 $0.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 $0.00 $0.00 2011 $0.00 $0.00 2012 $0.00 $0.00 2013 $0.00 $0.00 2014 $0.001 $0.00 SCHEDULE A ROAD I!dPROVEMENT IMPACT FEE CREDITS FOR NON-RESIDENTIAL DEVELOPMENT TABLE ST-3 TABLE ST-4 Estimated Present Value of Past Estimated Present Value of Future Tax Payments For 1994 Bond Tax Payments For 1994 Bond YEAR CREDITS PER $1.000 OF VALUE ON NON-RESID. PROPERTY YEAR CREDITS PER $1.000 OF VALUE ON NON-RESID. PROPERTY_ 1924 50.00 1994 $0.79 1995 40.05 1995 $0.79 1996 $0.18 1996 $0.71 1997 $0.31 1997 $0.63 1998 $0.44 1998 $0.55 1999 $0.58 1999 $0.47 2000 $ 0.71 2000 $ 0.3 9 2001 $0.85 2001 $0.31 2002 $0.99 2002 $0.23 2003 $1.13 2003 $ 0.15 2004 . $1.28 2004 $0.08 2005 $1.43 2005 $0.00 2006 $1.50 2006 $0.00' 2007 $1.57 2007 - $0.00 2008 $1.65 2008 $0.00 2009 $1.74 2009 $ 0.00 2010 $1.82 2010 S0.00 2011 $1.91 2011 $ 0.00 2012 $2.01 2012 $0.00 2013 $2.11 2013 S0.00 2014 $2.21 2005 $0.00 , TABLE ST-5 ESTIMATED IMPROVEMENT VALUE PER SQUARE FOOT OF STRUCTURE TYPE OF USE IN U +ni L' �� 1N' ;J tl M 1 'L ,c.NE:iz !_ AU+ U NO+cL TYPE AND CUALITY OF CCNSTRUCTTON lJ,ANUFAC- I AND � (GENERAQ OFFICE I RETAIL I SEftViCE I CAFE TUBING AESEAACH FAC1U TIES r'ACIUTIES STEEL S CZ! = tCN SinriUCTUR 11 OR RENFORCED CCNCnEE I1i N.A. NA. (all iyPes) STRUCTURE 5=01 S<9I SE2I S321 N.A. MASCNRY CR CONCnE t WALL SE STRUCTURE S271 Sci S63I S77I SE9I Sc6l S63 WCOD r"R ,'.1c S MUCiURE N-A NA S571I $711 NA 1 Sc2 SEE) STEEL (PRE-FAS) S TMUCTURE S-^I S38 NAI NA.I S56I Scat NA. NA: Not apclicabie: very unlikely that the desigraled s:nx:ure :ype would be chcsen for :^.e cesignated use SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-1 TABLE R-2 Estimated Present Value of Past Estimated Present Value of Past Tax Payments For 1987 Bond Tax Payments For 1992 Bond DWEL- UNG CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1987 50.00 50.00 1968 31.76 $1.18 1989 $6.31 54.21 1990 $10.92 37.28 1991 $1S.57 $10.38 1992 $20.29 $13.52 1993 $25.06 $1,631q 1994 329.89 $19.93 1995 $34.79 $23.20 1996 $39.76 $26.51 1997 $44.60 $29.87 1998 $49.92 $33.28 1999 352.41 $24.94 2000 $S5.03 S36.E9 2001 S57.79 $38.52 2002 $60.68 $40.45 2003 S63.71 S42.47 2004 $66.90 $44.60 2005 $70.24 $46.83 2006 $73.75 $49.17 2007 S77.44 5EL6-3 TABLE R-3 DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1992 50.00 50. 00 1993 30.98 $0.65 1994 $3.S8 $2.39 1995 $6.22 $4.15 1996 58.89 SS.93 1997 $11.59 $7.73 1998 $14.34 $9.56 1999 $17.12 $11.41 2000 $19.94 $13.29 2001 $22.81 415.20 2002 $25.72 $17.15 2003 $28.68 $19.12 2004 $30.11 $20.07 2005 $31.62 $21.08 2006 $33.20 S22.13 2007 $34.86 $23.24 2008 336.60 $24.40 2009 $38.43 $25.62 2010 S40.35 $26.90 2011 $42.37 328.25 2012 $44.49 $22.66 Estimated Present Value of Past Tax Payments For 1993 Bond DWEL- LING CREDITS SINGLE FAM MULTI -FAN. YEAR DWELLING DWELLING 1993 50.00 50.00 1994 $1.08 50.72 1995 $4.01 $2.68 1996 $6.99 $4.66 1997 $10.00 56.67 19S8 $13.06 58.70 1cc9 S16.16 $10.77 2000 $ 19.30 S 7 2.87 2001 $22.50 $15.00 20C2 $25.75 $17.17 2003 S 29.05 $ 19.37 2004 $32.42 521.61 2005 S34.04 S22.69 2006 $35.74 S23.83 2007 $37.52 $25.02 2008 539.40 $26.27 2009 $41.37 S27.58 2010 $43.44 S28.96 2011 54S.61 $20.41 2012 $47.89 $21.93 2013 SS0.291 S33.52 SCHEDULE B RECREATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE R-4 Estimated Present Value of Future Tax Payments For 1987 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1987 5296.49 4203.54 1988 $293.41 $201.72 1989 $262.74 $160.63 1990 $232.33 $159.72 1991 $202.19 3129.00 1992 $172.33 $118.48 1993 $142.77 $98.15 1994 $113.53 $78.05 1995 $84.61 $58.17 1996. $56.04 338.S3 1997 $27.83 $19.13 1998 $0.00 S0.00 1999 $0.00 S 0.00 2000 $0.00 $0.00 2001 $0.00 50.00 2002 $0.00 50.00 2003 $0.00 $0.00 2004 $0.00 50.00 2005 $0.00 $0.00 2006 $0.00 50.00 2007 S0.00 50.00 TABLE R-6 TABLE R-5 Estimated Present Value of Future Tax Payments For 1992 Bond DWEL- LING CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1992 3170.3 $117.10 1993 5168.89 $116.11 1994 S1S1.39 $104.08 1995 5134.00 $92.12 1996 $116.74 $80.26 1997 $99.61 $68.48 1998 $82.62 $56.80 1999 565.77 $45.22 2000 $49.08 $33.74 2001 -S32.S5 $22.38 2002 f $1 6.19 $1 1.13 2003 $0.00 30.00 2004 $0.00 $0.00 2005 50.00 $0.00 2006 30.00 $0.00 2007 50.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 40.00 $0.00 2011 $0.00 $0.00 20121 SO.001 $0.00 Estimated Present Value of Future Tax Payments For 1993 Bond DWEL- UNG I CREDITS SINGLE FAM MULTI-FAM YEAR DWELLING IDWELLING 1993 $192.53 5132.37 1994 $191.19 $131.44 1995 $171.49 $117.90 1°96 $151.91 3104.44 1997 $132.44 591.05 1999 5113.09 $77.15 1999 $93.88 564.54 2000 $74.80 $51.43 2001 $55.87 $38.41 2002 $37.09 525.50 2003 $18.46 $12.69 20C4 $0.00 $ 0.00 2005 50.00 $0.00 2006 $0.00 $0.00 2007 $0.00 $0.00 2008 $0.00 $0.00 2009 $0.00 $0.00 2010 -' ' $0.00 50.00 2011 $0.00 50.00 2012 $0.00 $0.00 2013 50.00 50.00 SCHEDULE C EDUCATION IMPACT FEE CREDITS FOR RESIDENTIAL DEVELOPMENT TABLE SCH-1 Estimated Present Value of Past Tax Payments For 1995 Bond DWEL- CREDITS LING _ SINGLE FAM MULTI-FAM YEAR DWELLING DWELLING 1995 $0.00 50.00 1996 $1.65 $1.10 1997 $4.77 $3.18 .1998 $7.96 $ 5.30 1999 $11.22 $7.48 2000 $14.57 $ 9.71 2001 $17.99 $12.00 2002 $21.51 $14.34 2003 $ 25.12 $16.7 5 2004 $28.83 $19.22 2005 $32.65 $21.76 2006 $36.57 $24.38 2007 $40.60 $27.07 2008 $44.75 $29.83 2009 *49.03 $32.69 2010 $53.44 $35.62 2011 $57.98 $38.65 2012 _. $62.67 -$41.78 2013 $67.52 $45.01 2014 $72.52 $48.34 2015 = -_-`: $77.69_- a TABLE SCH-2 Estimated Present Value of Future Tax Payments For 1995 Bond DWEL- LING - _ _CREDITS SINGLE FAM MULTI-FAM IDWELLING YEAR DWELLING - 1995 S302.77 _ - - $208.15 1996 $301.11 $207.01 1997 $285.36 $196.19 1998 $269.67 $185.40 1999 $254.03 $174.65 2000 $ 238.45 $163.94 2001 $222.94 $153.27 2002 $ 207.43 $142.65 2003 $192.10 $132.07 2004 $176.78 $121.54 2005 $161.54 $1 11.06 2006 $146.38 $100.64 2007 $131.30 $ 90.27 2008 $1 16.30 $79.96 2009 $101.40 $ 69.71 2010 $ 86.59 $ 59.53 2011 $71.88 $49.42 2012 $57.27 $39.37 2013 $42.77 $29.41 2014 $28.39 $19.52 2015 $14.13 $9.72 DEFENDANT'S ANSWER TO PLAINTIFF'S REQUEST FOR PRODUCTION #11 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS (2) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT ( From Sheet R-2 ) $__�v��, f times NUMBER OF UNITS 1� (From (1)0 above) X equals TOTAL SCHOOL FEE (4) RECREATION IMPACT FEE PER UNIT (From Sheet R-3) $ l3 times NUMBER OF UNITS (From (1), above) X equals TOTAL RECREATION FEE - (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (6) TOTAL IMPACT FEES (3+4+5) unit units $ /6e5/ /� unit units unit /3C>6.03 units to 5 . �� COHrUTATION Of RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 ( 8 ) - CREDIT FROM 'TABLE R-2 (9) -- CREDIT FROM TABLE R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING v $I f636.36 $_ sel 4. isz- 9i � 130�.03 $ 843.18 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (I) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS / (2) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT ( From Sheet R-2 ) $ ���. o,� / unit - times NUMBER OF UNITS (From equalsTOTALIabove) X. units SCHOOL FEE _ $$ (4) RECREATION IMPACT FEE PER UNIT ( From Sheet R-3 ) $8�. (� / unit times NUMBER OF UNITS / (From (1), above) X. I units '? p equals TOTAL RECREATION FEE _ $ --2D O (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (6) TOTAL IMPACT FEES (3+4+5) $ / unit X units / (/G G- 7 r IG COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 (9) - CREDIT FROM TABLE R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 ( 12 ) -- CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING $1,686.36 8 3.18 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: / SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS ( 2 ) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT ( From Sheet R-2 ) $ ��y3. / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL SCHOOL FEE , M3, S1 (4) RECREATION IMPACT FEE PER UNIT p, ( From Sheet R-3 ) S 13 60. 0 1 / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL RECREATION FEE _ $ fib 0,6 I (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) times NUMBER OF UNITS (From (1), above) equals TOTAL ROAD FEE (6) TOTAL IMPACT FEES (3+4+5) $ unit X �` _ units5- s vrrl R—.S `7 COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 ( 2 ) -- CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 (9) - CREDIT FROM TABLE,R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6. TOTAL RECREATION FEE PER DWELLING $1,6 86.36 - yY• a .B3 D COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS ( 2 ) "EFFECTIVE DATE" FOR TAX CREDITS: �f IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT g pia ( From Sheet R-2 ) $ • / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL SCHOOL FEE _ $ (4) RECREATION IMPACT FEE PER UNIT ( From Sheet R-3 ) $ unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL RECREATION FEE _ $ (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) $ ��./� / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL ROAD FEE _ $ (6) TOTAL IMPACT FEES (3+4+5) $ fz� r Cl7 COMPUTATION OF RECREATION IMPACT rEE PER DWELLING A• SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 ( 3 ) - CREDIT FROM TABLE R--3 (4) - CREDIT FROM TABLE R-4 (5) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 (9) - CREDIT FROM TABLE.R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6:..' TOTAL RECREATION FEE PER DWELLING I $1,686.36 S 843.18 - d9. $7 - _ 7,73 - 68.Y $ (ap.��— COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS (2) "EFFECTIVE DATE" FOR TAX CREDITS: / IL IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT ( From Sheet R-2) • $ unit times NUMBER OF UNITS (From (1), above) x % units equals TOTAL SCHOOL FEE (4) RECREATION IMPACT FEE PER UNIT r/ ( From Sheet R-3 ) $ $ l70G. 3/ / unit times NUMBER OF UNITS (From (1), above) X. units 2 2 equals TOTAL RECREATION FEE _ $ (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) $ / unit times NUMBER OF UNITS ( From (1), above) x �units equals TOTAL ROAD FEE _ $_ (6) TOTAL IMPACT FEES (3+4+5) I COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 ( 5 ) - CREDIT FROM TABLE R--5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS $1,686.36 13, oC - o 33 BASE FEE (7) - CREDIT FROM TABLE R-1 - (8) -- CREDIT FROM TABLE R-2 - (9) - CREDIT FROM TABLE R-3 - (10) - CREDIT FROM TABLE R-4 - (11) - CREDIT FROM TABLE R-5 - (12) - CREDIT FROM TABLE R-6 - TOTAL RECREATION FEE PER DWELLING 843.18 COMPUTATION OF TOTAL RESIDENTIAL IMPACT FEES (Use separate Form R-1 for single family and multiple family dwellings) PROJECT DATA: (1) NUMBER OF DWELLINGS BY TYP: SINGLE FAMILY DWELLINGS MULTIPLE FAMILY DWELLINGS (2) "EFFECTIVE DATE" FOR TAX CREDITS: IMPACT FEES: (3) SCHOOL IMPACT FEE PER UNIT ( From Sheet R-2 ) G $ / v . a / unit times NUMBER OF UNITS (From (1), above) X units p` equals TOTAL SCHOOL FEE _ $ (4) RECREATION IMPACT FEE PER UNIT �✓- (From Sheet R-3) $ / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL RECREATION FEE (5) ROAD IMPACT FEE PER UNIT (From Sheet R-4) $ 3.d 3 / unit times NUMBER OF UNITS (From (1), above) X units equals TOTAL ROAD FEE - $ (6) TOTAL IMPACT FEES (3+4+5) $ Ing /. f L COMPUTATION OF RECREATION IMPACT FEE PER DWELLING A. SINGLE FAMILY DWELLINGS BASE FEE (1) - CREDIT FROM TABLE R-1 (2) - CREDIT FROM TABLE R-2 (3) - CREDIT FROM TABLE R-3 (4) - CREDIT FROM TABLE R-4 ( 5 ) - CREDIT FROM TABLE R-5 (6) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING B. MULTI -FAMILY DWELLINGS BASE FEE (7) - CREDIT FROM TABLE R-1 (8) - CREDIT FROM TABLE R-2 ( 9 ) - CREDIT - FROM TABLE R-3 (10) - CREDIT FROM TABLE R-4 (11) - CREDIT FROM TABLE R-5 (12) - CREDIT FROM TABLE R-6 TOTAL RECREATION FEE PER DWELLING 9 $1,686.36 $ 843.18 .3348 8 34 - 77./5 - $ 65-7,�'� STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE' ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMITTED IN N.Y.) Robert F. O'Neill, Esq. Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402-0369 t (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 E-MAU.(FIRM25 5 5 @A OL.COM) November 24, 1998 RE: MBL Associates v. City of South Burlington Docket No. 392-98 CnC Larkin-Milot Partnership v. City of South Burlington Docket No. S168-98 CnC Dear Bob: OF COUNSEL ARTHUR W. CERNOSIA With regard to our last conversation of Monday, November 23, 1998, I understand that you now believe it will be sufficient for your purposes to depose only Charles Hafter, City Manager and Joseph Weith, Directors of Planning and Zoning for the City of South Burlington; you have no plans to depose either Richard Ward nor Michael Munson. I ask that you confirm this revision to your original discovery/deposition request so that I can inform my client and Mr. Munson accordingly. Also, as I informed you yesterday, the City propounded interrogatories and requests for production to your clients in September. I request that you expedite responses so that the depositions of Messrs. Milot and Lewellyn scheduled for December will be most fruitful and as short as reasonably possible. I look forward to having a confirmatory response from you later today so that necessary phone calls can be made prior to the Thanksgiving holiday. Once these remaining discovery items are concluded, it may very well be that cross motions for summary judgment will be appropriate. Thank you for your attention to ( R cc: City of South Burlington M. Munson, PhD. S=3820 . cor inc LL STEVEN F. STITZEL PATTI R. PAGE* ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 E-MAIL(FIRM2555 @AOL. COM) November 23, 1998 HAND DELIVERED Joseph Weith Director of Planning and Zoning City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: MBL v. City of South Burlington Larkin-Milot Partnership v. City of South Burlington Dear Joe: The respective plaintiffs filed additional discovery requests in late October. They are virtually identical to in the earlier set. Nonetheless, we have an obligation to them. I have taken the liberty of pulling together answers on the replies from last time. Let me know if any changes needed. If not, I'll get your signature on Wednesday. SincereYy, l/ (Rq� rt -Fletcher REF/jp cc: Charles Hafter Son3819.cor OF COUNSEL ARTHUR W. CERNOSIA some answer based are STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICErrDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE' E-MANFIRM2555@AOL.COM) ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ("ALSO ADMITTED INN.Y.) November 12, 1998 Dennis R. Pearson, Esq. Gravel and Shea PO Box 369 Burlington, VT 05402-0369 Re: Larkin-Milot Partnership v. City of south Burlington Dear Dennis: Enclosed is the Joint Motion, which I have signed. Hopefully the Court will see the wisdom in our request. OF COUNSEL ARTHUR W. CERNOSIA Please call me and let me know were and when (time of day) you want to depose the City's employees and Mike Munson. I have a conflict at 1:00 p.m. on the afternoon of December 1, 1998, but am available that morning and later in the day. Let me know. Also, I plan to schedule Gerry Milot and Lance Lewellyn on December 15th, per the schedule. I will arrange for a reporter and plan to start with Gerry at 9:30 a.m. at our offices, and start with Lance at 1:00 p.m. Call if there are questions. �in e>f 1 / I, /v V Robert E. Fl REF/jp cc: Charles Hafter Joe Weith Son3806.cor STATE OF VERMONT CHITTENDEN COUNTY, SS. LARKIN-MILOT PARTNERSHIP, Plaintiff V. CITY OF SOUTH BURLINGTON, Defendant CHITTENDEN SUPERIOR COURT Civil Action, Docket No. S168-98 CnC JOINT MOTION TO EXTEND MEDIATION, . SUMMARY JUDGMENT, AND TRIAL READINESS DATES The parties hereto, by and through their respective counsel of record, and pursuant to Rule 16, V.R.Civ.P., hereby move this Court to extend the mediation, summary judgment and trial readiness dates for Case Flow Form #2, as follows: Mediation Summary Judgment Trial Ready From December 15, 1998 November 15, 1998 February 15, 1999 TO January 15, 1999 January 30, 1999 March 15, 1999 The grounds for this requested extension of 30 days as to the mediation and trial readiness dates, is that written discovery and disclosure of documents, and depositions of witnesses, will not be completed in the time to make December 15, 1998 a meaningful date for mediation. All discovery is expected to be substantially completed, however, by January 15, 1999. The trial readiness date should then be extended for a similar 30 days to allow for any issues that may arise during the mediation session and/or subsequent settlement discussions. The summary judgment deadline should be extended to January 30, 1999, so that discovery will be completed, and the parties will have first had the opportunity to pursue mediation and/or settlement. Summary judgment is unlikely to resolve, or even narrow the issues in this case, and the parties should not incur the expense of making, or responding to such a motion until mediation and/or settlement talks have been completed. , CONCLUSION The requested modifications and extensions to Case Flow Form #2, which is attached hereto, should be granted. Dated: Burlington, Vermont November , 1998 Dennis R. Pearson, Esq. Gravel and Shea P. O. Box 369 Burlington, VT 05402-0369 (802) 658-0220 For Plaintiff Dated: Burlington, Vermont November /�998 L./LI LLJ�1 1 LL�V lh. 1 1�LLrlllil P.O. Box 1507 Burlington, VT 05402-1507 (802) 660-2555 For Defendant <UrIjn/Mi10c Jain Motion to ExtendI63445F1cyd01!.WP/DRP> — 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATH R. PAGE* ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ("ALSO ADMITTED IN N.Y.) Dennis R. Pearson, Esq. Gravel and Shea PO Box 369 Burlington, VT 05402-0369 (802) 660-2555 (VOICE/I'DD) E-MAIFAX 802) 660-2552 , 555@AOL.COM) September 22, 1998 Re: Larkin Milot Partnership v City of South Burlington Docket No. S168-98CnC MBL Associates v. City of South Burlington Docket No. 392-98CnC Dear Dennis: Enclosed please find the Defendant's Answers Interrogatories and Requests for Production, toge of our Discovery Certificates filed with the the above -referenced mattarc_ / Fleecher REF/maf Enclosures cc: Charles Hafter Son3752.cor F COUNSEL t W. CERNOSIA to Plaintiff's her with copies STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE' ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) Diane A. Lavallee, Clerk Chittenden Superior Court 175 Main Street PO Box 187 Burlington VT 05402-0187 (802 ) 660-2555 AX (802) 65260-25DD) E-MA I n2M2555@AOL.COM) September 22, 1998 Re: MBL Associates v. City of South Burlington Docket No. 392-98CnC Dear Diane: OF COUNSEL ARTHUR W. CERNOSIA I have enclosed, for filing with the Court, our Discovery Certificate relative to the above -referenced matter. If you have any questions, please do not hesitatetomcontact me. _ inc ely J/ I Robert E. Fletcher REF/maf Enclosures cc: Dennis R. Pearson, Esq. Charles Hafter son3748.cor Y ,) � C,_. � LJC.A-" STATE OF VERMONT CHITTENDEN COUNTY, SS. MBL ASSOCIATES, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) Docket No. 392-98CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DISCOVERY CERTIFICATE I, ROBERT E. FLETCHER, ESQ., hereby certify that I served. Defendant's Answers to Plaintiff's Interrogatories and Requests for Production, dated September 21, 1998, upon plaintiff, MBL Associates, by causing copies to be placed in the U.S. Mail, postage pre -paid this 22nd day of September, 1998, addressed to its attorney, Dennis R. Pearson, Esq., Gravel and Shea, PO Box 369, Burlington, Vermont 05402-0369. Dated at Burlington, in the County of Chittenden and State of Vermont, this 22nd day of September, 1998. Son520.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE F E7gn R, Atto ys f o C' y of So li By: / �c Robert E. Fll tc,fer, Esq. ,' STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAIL(FIRM2555@AOL.COM) ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M.EUSTACE (*ALSO ADMITTED IN N.Y.) September 14, 1998 Joseph Weith Director Planning & Zoning City of South Burlington 575 Dorset Street South Burlington, VT 05401 Re: MBL v. City of South Burlington Larkin-Milot v. City of South Burlington Dear Joe: Enclosed are: OF COUNSEL ARTHUR W. CERNOSIA (1) Copies of the proposed Responses of the City to the discovery requests filed by Gravel & Shea on behalf of MBL & Larkin-Milot Partnership; (2) Original signature pages for each set of discovery requests that need your signature and then execution by a notary. Once fully executed, please give me a call and I will arrange to pick them up. The attachments are not included, but will consist of the January 1995 and April 1995 versions of the Ordinance, and the fee calculation sheets for 1996-1998. If you have nay questions or issues, call me on Wednesday morning. Sincerely, Robert E. Fletcher REF/jp Enclosure cc: Charles Hafter, City Manager Son3739.cor STATE OF VERMONT CHITTENDEN COUNTY, SS: MBL ASSOCIATES, Plaintiff, ) CHITTENDEN SUPERIOR COURT V• ) DOCKET NO. S392-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DEFENDANT'S ANSWERS TO PLAINTIFF'S INTERROGATORIES AND REQUESTS FOR PRODUCTION NOW COMES the Defendant, City of South Burlington, and says as follows in response to Plaintiff's Interrogatories and Requests To Produce: Interrogatories 1. Please state the name, address and position with the Defendant of the person responding to these Interrogatories on behalf of the City of South Burlington. Answer: Joseph Weith, Director Planning & Zoning City of South Burlington City Hall 575 Dorset Street South Burlington, VT Richard Ward Zoning Administrator City of South Burlington City Hall 575 Dorset Street South Burlington, VT 2. Please describe by date of issuance of approval or permit; name of owner and/or developer; pioperty location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, which the City contends, or admits, qualify for an exemption from the recreation impact fee ordinance adopted January 9, 1995 (as amended April 17, 1995), pursuant to Section (B)(5) of said ordinance. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the forgoing objection, the Defendant responds that there are no land development or subdivision developments (collectively "projects") exempt from the recreation impact fee ordinance adopted January 9, 1995, as subsequently amended, (the "Ordinance") pursuant to section (B)(5) thereof; section (B)(5) provides only that the recreation impact fee established in the Ordinance does not apply to certain projects. Defendant contends that projects receiving final plat approval under the South Burlington Subdivision Regulations prior to January 9, 1995, for which: (i) the final plat approval contained a condition requiring payment to the Defendant of a recreation impact fee, expressed in a specific dollar amount, as each lot/unit within the project receives a building/zoning permit; and (ii) building/zoning permits for some of the lots/units within the project had been issued and the specified fee paid prior to January 9, 1995, fall within the scope of Section (B)(5) of the Ordinance. The information requested with respect to approved projects can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Hence, Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the office's usual and customary charge for photocopying. 3. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved before January 9, 1995, as to which the City contends the recreation impact fee ordinance is fully applicable. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the foregoing objection, the Defendant contends that the Ordinance is fully applicable to all such projects. The information requested with respect to approved projects can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Hence, Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the office's usual and customary charge for photocopying. 4. Please describe by date of issuance of approval or permit; name of owner and/or developer; property location or address; and number of approved housing units and/or building lots, all land development projects or subdivision development(s), if any, approved after January 9, 1995, as to which the City contends the recreation impact fee ordinance is fully applicable. 3 Answer: See Answer to #3 above. 5. Identify by name, address, and employment or professional affiliation, all persons, including but not limited to City officials, employees, consultants or representatives, who have been involved in any aspect of, or have any knowledge of any facts relating to (a) preparation, adoption and/or subsequent amendment of the recreation impact fee ordinance initially adopted January 9, 1995; and (b) application of said ordinance to any land development and/or subdivision project identified in response to Interrogatories 2, 3 and 4, above. Answer: OBJECTION. The formulaic request for "all persons ... who have been involved in any aspect of, or who have any knowledge of any facts relating to ..." is over broad, unduly burdensome. Without waiving the forgoing objection, the Defendant responds that virtually every employee of the Defendant assigned to the City Manager's office, the Planning & Zoning Department, the Recreation Department, and the City Council, its attorneys and their staff, anyone attending public hearings or City Council meetings at which the subject was discussed, persons who may have watched the proceedings on Adelphia Cable Channel 17, as well as Michael J. Munson, Ph.D., c/o RESV., Inc., 11 Pearl Street, Essex Junction, VT. 6. Please identify, by name, address, employment and professional qualifications or affiliation, any person whom the City expects to call as an expert witness to trial; state the subject matter on which the expert is expected to testify; state M the substance of the facts and opinions as to which said expert is expected to testify; and set forth a summary of the grounds for each opinion. Answer: The Defendant has not yet engaged the services of an expert witness. If and when it does so, it will supplement this response in accord with its obligations under the Vermont Rules of Civil Procedure. Requests for Production 1. Complete copies of the City's recreation impact fee ordinance, as originally and formally adopted on January 9, 1995, and as formally amended on April 17, 1995. Answer: See attached. 2. Copies of all drafts or prior versions of the City's recreation impact fee ordinance, and all non -privileged correspondence, memoranda, notes or other documents relating to the drafting, preparation and/or adoption of said ordinance and any subsequent amendment(s) or revision(s). Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving the foregoing objection, to the extent that the requested materials are matters of public record, they may be reviewed at the Defendant's offices during regular business hours, and copies can be made of material therein upon request, subject to payment of the usual and customary charges assessed by the Defendant for photocopies of documents. Contact Joseph Weith. 5 3. The entire study and report entitled "Recreation Improvement Impact Fees, City of South Burlington," dated September 1, 1993 and prepared by Michael J. Munson, RESV., Inc., together with any attachments or other_ supporting documents related thereto or referenced in said report. Answer: See Answer to Request for Production #2 above. 4. Any and all correspondence, memoranda, contracts, bids, quotes, requests for proposals, notes of discussions or telephone conversations, and any other documents or materials related to (a) the initial design or preparation of the RESV. "Recreation... Fees" study; (b) the selection of Michael Munson and RESV., Inc. to perform said study; (c) the on -going work on and preparation of said study by Mr. Munson and RESV., Inc., through and including its completion on or about September 1, 1993; and/or (d) any modifications, changes, corrections or omissions from the initial design of said study which are not fully reflected in the final report dated September 1, 1993. Answer: See Answer to Request for Production #2 above. 5. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 2, above. C.1 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 6. Copies of all zoning (or building) permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 2, above, including any separate recreation impact fee assessment if not contained in the zoning (or building) permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 7. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 3, above. 7 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 8. Copies of all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 3, above, including any separate recreation impact fee assessment if not contained in the zoning, or building permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 9. Copies of all subdivision approvals or permits, including minutes of all related Planning Commission hearings, for all subdivision or land development project(s) identified in response to Interrogatory 4, above. t Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 10. Copies of all zoning, or building permits issued by the City with respect to any individual lot or housing unit(s) included in any subdivision or land development project(s) identified in response to Interrogatory 4, above, including any separate recreation impact fee assessment if not contained in the zoning, or building permit itself. Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. The information requested can be determined from a review of the minutes of the Planning Commission and Zoning Board of Adjustment which are public records, filed by date, in the office of the City Clerk. Plaintiff may review those records at the Defendant's offices during regular business hours, and may have copies made of material therein at the usual and customary charge for photocopying. 11. Copies of all worksheets, notes, memoranda, or other documents containing, or relating to the calculation of the recreation impact fee required or imposed in connection with each zoning (or building) permit produced in response to Requests 6, 8 and 10, above. 9 Answer: OBJECTION. The request is overly broad and compliance by Defendant would be unduly burdensome, time consuming and expensive. Without waiving its objection, Plaintiff states that for projects within the scope of Request #6, the applicable recreation impact fee is specified in the final plat approval for the particular project. The materials referred to in the prior sentence are a matter of public record, available for review by Plaintiff at the office of the City Clerk during regular business hours. Copies can be made of material upon request, subject to payment of the usual and customary charges assessed by the Defendant for photocopies of documents. For projects within the scope of Requests 8 and 10, the Ordinance provides a single fee for single-family units and a separate, single fee for multi -family units. Each fee is adjusted annually as specified in the Ordinance. Copies of the annual summary sheet and recreation impact fee determination for 1996, 1997 and 1998 are attached. No comparable material exists for 1995. 12. Copies of all correspondence, memoranda, or other documents between Plaintiff and the City regarding recreation impact fees for the subdivision project at issue in this case. Answer: OBJECTION, the request is wholly unreasonable and unduly burdensome. The materials requested are communications between the parties; they should be fully accessible by Plaintiff. 13. Copies of any notes, memoranda or other writings by or among any City employee or representative relating in any way to any aspect of the recreation impact fee(s) imposed, or to be imposed with respect to the subdivision project at issue in this case. 10 Answer: OBJECTION. The request is overly broad, compliance by Defendant would be unduly burdensome, time consuming and expensive, and the request seeks to discover privileged attorney client communications, attorney work product, and materials protected from disclosure under the Rules of Civil Procedure. 14. Any report(s) prepared by any expert disclosed pursuant to Interrogatory 6, above; any correspondence, memoranda or other writings to, from or between said expert and any agent, employee or representative of the City; and said expert's complete file, including any drafts or prior versions of any report or memoranda, created or maintained by said expert in connection with this matter. Answer: N/A. Dated in South Burlington this day of , 1998. zz STATE OF VERMONT } } ss COUNTY OF CHITTENDEN } CITY OF SOUTH BURLINGTON At South Burlington, Vermont, this day of September, 1998, personally appeared , and he acknowledged the foregoing instrument, by him signed, to be his free act and deed and the free act and deed of the City of South Burlington. Before me: My commission expires: 11 As to Objections: son512.1it BE 12 STITZEL, PAGE & FLETCHER, P.C. Attorneys for Defendant Robert E. Fletcher, Esq. I � STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL (802 F6AX (802) 660-2555 60-25552 OF COUNSEL PATH R. PAGE* E-MAM, FMM2555@AOL.COM) ARTHUR W. CERNOSIA ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) September 1, 1998 Diane A. Lavallee, Clerk Chittenden County Superior Court PO Box 187 Burlington, VT 05402 Re: Larkin-Milot Partnership v. City of South Burlington Docket No. 168-98 CnC Dear Diane: I have enclosed, for filing with the Court, Discovery Certificates in connection with the above -referenced matter. If you have any questions, please give me a call. REF/jp Enclosures cc: Dennis R. Pea5>on, Esq. (w/enclosures) Joe Weith , Charles Hafter Son3731.cor STATE OF VERMONT CHITTENDEN COUNTY, SS: LARKIN-MILOT PARTNERSHIP, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) DOCKET NO. S168-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DISCOVERY CERTIFICATE I, Robert E. Fletcher, Esq., attorney for Defendant, certify that on September 1, 1998, I served Defendant's First Set of Interrogatories by causing the same to be mailed by United States mail, postage prepaid to Dennis R. Pearson, Esq. at Gravel and Shea, PO Box 369, Burlington, VT 05402-6369. son514.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLIN GTON, VERMONT 05402-1507 Dated: Burlington, Vermont September 1, 19?-S� Robert E. Fletcher, Esq.- Stitzel, Page & Fletcher 171 Battery Street PO Box 1507 Burlington, VT 05402-1507 (802) 660-2555 For Defendant 1 STATE OF VERMONT CHITTENDEN COUNTY, SS. LARKIN-MILOT PARTNERSHIP, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) Docket No. 168-98CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DEFENDANT'S FIRST SET OF INTERROGATORIES Defendant City of South Burlington, acting by and through its attorneys, Stitzel, Page & Fletcher, P.C., and pursuant to Rules 33 and 34 of the Vermont Rules of Civil Procedure, hereby requests that the Plaintiff, Larkin-Milot Partnership respond to the following Interrogatories: INSTRUCTIONS 1. Each interrogatory is to be answered separately and fully. 2. The interrogatory being addressed should be reproduced before the response. 3. These interrogatories are continuing in nature and require you to promptly file supplementary answers if you obtain further or different information between the time answers hereto were served and the time of trial. 4. If any information or document requested below is withheld on the claim of privilege, please provide a statement setting forth as to each document: (a) the name of the sender of the document; (b) the name of the author of the document; (c) the name of the person to whom copies were sent; (d) the date of the document or if no date appears the date on which it was prepared; (e) a general description of the nature and subject matter of the document; (f) all persons who have seen or have had access to the document; and (g) the basis upon which the information or document is being withheld. DEFINITIONS As used herein, the following terms shall have the following meaning: A. "Document" means all writings of any kind, including the originals and all non -identical copies, whether different from the originals by reason or notation made on such copies or otherwise, including but not limited to correspondence, memoranda, notes, diaries, desk or other calendars, statistics, letters, telegrams, minutes, business records, personal records, accountants' statements, bank statements, contracts, reports, studies, checks, statements, receipts, invoices, bills, returns, charts, summaries, pamphlets, books, inter -office and intra- office communications, notations of any sort of conversations or meetings, telephone calls, meetings or other communications, written agreements, bulletins, printed matter, computer print- outs, teletypes, modifications, changes and amendments of any of the foregoing, graphic or oral records or representations of any kind (including, without limitation, tapes, cassettes, discs, recordings, and computer memories). B. As used in these interrogatories, "you" and "your" means the Plaintiff(s). C. "Plaintiff" means Larkin-Milot Partnership, and any of its partners, stakeholders and related parties. D. "Defendant" means the City of South Burlington. INTERROGATORIES 1. Please identify specifically the name and address of each person answering each of these interrogatories. 2. Please identify by name, address, telephone number, percentage of ownership/interest, and relationship to Plaintiff: a) each of the members, partners, affiliates, and any other person or entity related to or holding an interest in Plaintiff; and b) each subsidiary of Plaintiff, and any other entity or organization in which the Plaintiff owns or controls any stake, interest, or ownership, or over which Plaintiff does or has the ability to exercise control. 3. Please identify each state other than Vermont and each foreign country in which Plaintiff is registered and/or authorized to conduct business and describe the nature of the business being conducted within each such jurisdiction. 4. Of the lots/units within Plaintiff's development for which building/zoning permits have been issued as of the date of the commencement of this litigation, please specifically identify each such building/zoning permit (by reference to the relevant lot or unit number) for which Plaintiff has made application, AND the recreation impact fee paid by Plaintiff with respect to each such building/zoning permit. 5. Please identify, by name, location, number of units or lots, and nature of the project, each property development project undertaken by Plaintiff in the City of South Burlington in the last 7 years, for which the City of South Burlington Planning Commission granted final approval. 6. Did Plaintiff know, prior to October 12, 1993, that the Defendant was undertaking a review of its recreation impact fee structure, ordinance or policy? 7. If your answer to Interrogatory 6 is in the affirmative, please indicate: a. When and how Plaintiff first learned of the Defendant's review of its recreation impact fee structure, ordinance or policy? b. All efforts the Plaintiff made to ascertain the nature and scope of the changes to the recreation impact fee ordinance being considered by the Defendant, and the impact of those proposed changes, if any, on the Plaintiff's project which is described in Plaintiff's Complaint? 8. If your answer to Interrogatory 6 is in the negative, please state with specificity the date upon, and manner in, which Plaintiff first learned of the Defendant's consideration of changes to its recreation impact fee structure, ordinance or policy, AND describe in detail the efforts made by Plaintiff to ascertain the potential impact, if any, of the proposed changes to the recreation impact fee ordinance on Plaintiff's project. 9. Please identify, by name, address, employment and professional qualifications or affiliation, any person whom the Plaintiff expects to call as an expert witness at trial; state the subject matter on which the expert is expected to testify; state the substance of the facts and opinions as to which said expert is expected to testify; and set forth a summary of the grounds for each opinion. Dated at Burlington, Vermont this day of September, ..; CITY OF SOUTH BURLI Bv--i-t� attornevs i titzeh. Padf4 & Robert EAFletcher, son510.lit ##4870 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 PATH R. PAGE' E-MAM. FMU555@AOL.COM) ROBERT E.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) September 1, 1998 Diane A. Lavallee, Clerk Chittenden County Superior Court PO Box 187 Burlington, VT 05402 Re: MBL Associates v. City of South Burlington Docket No. 392-98 CnC Dear Diane: I have enclosed, for filing with the Court, Discovery Certificates in connection with the above -referenced matter. If you have any questions, pleas e me a�c. Sinc re , E. Fletch REF/jp Enclosures cc: Dennis R. Pearson, Esq. (w/enclosures) Joe Weith � ` Charles Hafter Son3730.cor OF COUNSEL ARTHUR W. CERNOSIA STATE OF VERMONT CHITTENDEN COUNTY, SS: MBL ASSOCIATES, Plaintiff, ) CHITTENDEN SUPERIOR COURT V. ) DOCKET NO. S392-98 CnC CITY OF SOUTH BURLINGTON, ) Defendant. ) DISCOVERY CERTIFICATE I, Robert E. Fletcher, Esq., attorney for Defendant, certify that on September 1, 1998, I served Defendant's First Set of Interrogatories by causing the same to be mailed by United States mail, postage prepaid to Dennis R. Pearson, Esq. at Gravel and Shea, PO Box 369, Burlington, VT 05402-•0369. son515.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Dated: Burlington, September 1, 171 Battery Street PO Box 1507 Burlington, VT 05402-1507 (802) 660-2555 For Defendant 1 STATE OF VERMONT CHITTENDEN COUNTY, SS. MBL ASSOCIATES, Plaintiff, CHITTENDEN SUPERIOR COURT V. Docket No. 392-98CnC CITY OF SOUTH BURLINGTON, Defendant. DEFENDANT'S FIRST SET OF INTERROGATORIES Defendant City of South Burlington, acting by and through its attorneys, Stitzel, Page & Fletcher, P.C., and pursuant to Rules 33 and 34 of the Vermont Rules of Civil Procedure, hereby requests that the Plaintiff, MBL Associates respond to the following Interrogatories: INSTRUCTIONS 1. Each interrogatory is to be answered separately and fully. 2. The interrogatory being addressed should be reproduced before the response. 3. These interrogatories are continuing in nature and require you to promptly file supplementary answers if you obtain further or different information between the time answers hereto were served and the time of trial. 4. If any information or document requested below is withheld on the claim of privilege, please provide a statement setting forth as to each document: (a) the name of the sender of the document; (b) the name of the author of the document; (c) the name of the person to whom copies were sent; (d) the date of the document or if no date appears the date on which it was prepared; (e) a general description of the nature and subject matter of the document; (f) all persons who have seen or have had access to the document; and (g) the basis upon which the information or document is being withheld. DEFINITIONS As used herein, the following terms shall have the following meaning: A. "Document" means all writings of any kind, including the originals and all non -identical copies, whether different from the originals by reason or notation made on such copies or otherwise, including but not limited to correspondence, memoranda, notes, diaries, desk or other calendars, statistics, letters, telegrams, minutes, business records, personal records, accountants' statements, bank statements, contracts, reports, studies, checks, statements, receipts, invoices, bills, returns, charts, summaries, pamphlets, books, inter -office and intra- office communications, notations of any sort of conversations or meetings, telephone calls, meetings or other communications, written agreements, bulletins, printed matter, computer print- outs, teletypes, modifications, changes and amendments of any of the foregoing, graphic or oral records or representations of any kind (including, without limitation, tapes, cassettes, discs, recordings, and computer memories). B. As used in these interrogatories, "you" and "your" means the Plaintiff(s). C. "Plaintiff" means MBL Associates, and any of its members, partners, stakeholders and related parties. D. "Defendant" means the City of South Burlington. INTERROGATORIES 1. Please identify specifically the name and address of each person answering each of these interrogatories. 2. Please identify by name, address, telephone number, percentage of ownership/interest, and relationship to Plaintiff: a) each of the members, partners, affiliates, and any other person or entity related to or holding an interest in Plaintiff; and b) each subsidiary of Plaintiff, and any other entity or organization in which the Plaintiff owns or controls any stake, interest, or ownership, or over which Plaintiff does or has the ability to exercise control. 3. Please identify each state other than Vermont and each foreign country in which Plaintiff is registered and/or authorized to conduct business and describe the nature of the business being conducted within each such jurisdiction. 4. Of the lots/units within Plaintiff's development for which building/zoning permits have been issued as of the date of the commencement of this litigation, please specifically identify each such building/zoning permit (by reference to the relevant lot or unit number) for which Plaintiff has made application, AND the recreation impact fee paid by Plaintiff with respect to each such building/zoning permit. 5. Please identify, by name, location, number of units or lots, and nature of the project, each property development project undertaken by Plaintiff in the City of South Burlington in the last 7 years, for which the City of South Burlington Planning Commission granted final approval. 6. Did Plaintiff know, prior to October 12, 1993, that the Defendant was undertaking a review of its recreation impact fee structure, ordinance or policy? 7. If your answer to Interrogatory 6 is in the affirmative, please indicate: a. When and how Plaintiff first learned of the Defendant's review of its recreation impact fee structure, ordinance or policy? b. All efforts the Plaintiff made to ascertain the nature and scope of the changes to the recreation impact fee ordinance being considered by the Defendant, and the impact of those proposed changes, if any, on the Plaintiff's project which is described in Plaintiff's Complaint? 8. If your answer to Interrogatory 6 is in the negative, please state with specificity the date upon,,and manner in, which Plaintiff first learned of the Defendant's consideration of changes to its recreation impact fee structure, ordinance or Policy, AND describe in detail the efforts made by Plaintiff to ascertain the potential impact, if any, of the proposed changes to the recreation impact fee ordinance on Plaintiff's project. 9. Please identify, by name, address, employment and professional qualifications or affiliation, any person whom the Plaintiff expects to call as an expert witness at trial; state the subject matter on which the expert is expected to testify; state the substance of the facts and opinions as to which said expert is expected to testify; and set forth a summary of the grounds for each opinion. Dated at Burlington, Vermont this day of September, CITY OF SOUTH BURZYRGTON By s attorney it ell, �P e ,tletkher,/,) P.C. bert E. UFletcher, �-gsq. son509.1it #4991 STITZEL, PAGE & FLETCHER, N.C. AT'roRNEYS AT LAW 171 BATTERY STREET P h L30X 1507 B1,RLINOTON, VrRMON'f o51o:-15n7 (90.2)660-2555 (VOICEiTDUI `TFVtg14 F 6.11I7EL FAX tan216G0-1152 vnrT( R PAGP E•M I It..fFi1tM?_ 5 7AOL 17OM1 ROBERT r 1,1--ICHER IOSEPH 5. Mc.LFAN TIUMOTHY M. ALF 'AL50 Ann11frt f t7 IN N v , FACSIMILE TRANSMITTAL SHEET Date: Tune 8, 1998 To: Dennis R. Pearson. Esq. Fax: 658-1456 Re: MBL Associates v. City of South Surlington Larkin-Milot Partnership v. City of South Burlington Sender: Robert E. Fletcher You should receive 3 page(s).. including this cover sheet. If you do not receive all the pWs, please call (802) 660-2555. MESSAGE Or t:Ctt'tv�E1- AR111UR w cFItuOSLa Transmitted herewith is a marked version of the Case Flow #1 you faxed to me this morning. I have noted areas of change. Have no objection to having cascg proceed on parallel tracks. You are authorized to sign and date the form on my behalf as modified. Please copy me on your submission to the Court. PLEASE CONFIRM THAT YOU WILL FILE THIS FORM TODAY, IATI G OUR TRIP TO THE COURT TOMORROW MORNT cc: C. Hafter J. W ieth Snn3664 fuxcut -f his nicssaRc is intended only tnr the u,e ul the addres5cc and muy contain inii+rm4tion that is privileged and wrilidClltiRI IFynu ate not the intended recipient, you we hereby notified that any disseminatinn (,f this contmunicatlutn is strictly prohibited. It you ha"e mccvvcd this communication in error, picric nutiry us immediately by telephone (3112-640.2555) 1-hank you. TO:39fHd 8t Lb8S96:n1 j ',3d`S:ido6j o9:6o 96 8a-rent U9.3am zrum-;PAVE, AND NEA 302889'438 '-'^� ' 0;l02 P-301 GfkAVtl, AND SHEA ATTORNEYS AT LAW 76 ST PALM. STREFI' Pas-c QFl icE Box 369 BURLINGTON, VT 05402-0369 PHONE (802) 658-0220 FACSIMILE TRANSMITTAL To Robert Fletcher, Ecq_ 660-25S2 From Dcnnis R- Pearson Number of Pages (including this eovcr) 2 FAx. (802) 658-1456 Date June 8, 1998 Qperawr: DRP Bob: Following is a proposed Case Flow Form 1, for case #1 in which we have d status conference tomorrow. we also owe the same for case #2, which has a conference set for Tues., 6/23. Although the deadlines for the second case are a little further out, I would propose that we use the same dates roi- each, and keep both cases on the same track. if you agree, please !till in your parts of the form, and fax it back to me. I will get both of them to the Court by hand today. Any questions, etc., please call_ CONFIDENTIALITY NOTICE This transmission contains privilegecl ally confidential information intenuea only for the addressee narnsd above. Any usQ, disueminetion or distnbution by any person or enMy other than the edaressse is xtricny prohibited, if ynu have received this transmission in error, please notify us immea+ateiy ay telephone at the number listed above and return the original transmission to us at the above address 7C•1:�rHd ob�b�aF.:nl c�S?-�99-�U� d`S WO�� e� Sri S6 8U-riot jo 194m AND 464E4 9CI958'A58 '-CCd i CIVIL CASE FLOW FORM 1 V Cal -9—wCuC r TL g;, Attyi [ts %tom sod and AtTy: CXRTOrY COr"LXTION OF : XPLAT1t7I`! No LATER 73/~Jt r-i9� All parties served? 01 n Iasvranca co.arega ptobicm 9 Related Cases? t.d-.[ M W, A -Su ."; 4f r> y /® I n ". c: 9e, q c. _ Likely additional parties? t istc Y I a DowdWan for bringing In additional Parties: _ M Lut� XPlllo�r sstasciVent offp c""la�ii�n/ -_ "l Jv 4K ( Accrc t � �r�»P� J`W+C �+p{ y@ J�,G+.� � ���^ C1� I 11.cr1i.L� fr � /tf+�CeR�s►sr f�L e � 4e t�.� NC![�+s si� fP ��. «�.tn« wt'�t.�., er.•.�nry eMa�. Brief statousent of defenses +� I 1 Written discovery served t+Y Plti_ as dtt" y / tt Data: �ia , J • f. j (� t f t y Writtle dbevvery served by daf. an PIM Y / n 1Jatat _- 4- ,,,.c4r 0twetst target for completing .vrltteq dtsaovery:_ � T-ca ✓- Wi[nsases Lately to be dcpototl by �.aintut- �.�.vt�1 �tl wk y St fi.*-ttR C} rLsPeet wttnevivs probably oredcd for the folloi*,ing ascaa of ouportbe; PlltiotiN: Dcftndent: 4,A-A 4. What Issue* .need to be addressed to move &big cusa ? lAlttt �-`.YQtiCtl/n�tL"l�An * .kc/f(-7er�1 (nlfTJ'V1�KV ,( How do you tntaod to resolve these Issues? t/i StAW_,,)I J-�14x %b- � r Trial restdtat•s b(TV . i►wt NO LATER THAT -_ e6� DISCUSSED sad AUREED tw an PssMloiPating Attorneys: MIS lanuler Next event 8bc- »?-0139- oe j o;—=:80 86 s©-sins STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAIL(FIRM2555 (AOL.COM) ROBERTE.FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) May 19, 1998 Charles Hafter, Manager City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 Re: MBL Associates - City of South Burlington Dear Chuck: OF COUNSEL ARTHUR W. CERNOSIA Enclosed please find a copy of correspondence received from Steve Crampton, dated May 18, 1998, in connection with the above - captioned matter. Apparently, MBL Associates converted to a limited liability company prior to executing the Bill of Sale for the water line and sewer force main located in and along the Dorset Street right-of-way. As such, enclosed is a copy of the Notice of Conversion and revised original versions of the Bill of Sale, Schedule A and Vermont Property Transfer Tax Return. The Bill of Sale and Schedule A are ready for recording in the South Burlington Land Records. Please note that the Property Transfer Tax Return needs to be signed by you as authorized agent for the City. Please do not hesitate to call if you have any questions. Thank you. Sincerely, Timothy M. Eustace THE/maf Enclosure cc: Stephen R. Crampton, Esq. son497.14 CHARLES T SHEA STEPHEN R. CRAmP7oN STEwART H. MCC.ONAuGHY ROBERT B. HEMLEY WILLIAM G. POST, JR. CRAIG WEATHERLY JAMES E. KNAPP JOHN R. PONSETM DENNIS R. PEARSON PETER S. ERLY ROBERT F. O'NEE.L MARGARE7 L. MONmomERY Lucy T. BRowN STEPHEN P. MAGowAN ERIK B. FITZPATRICK LEIGH POLK COLE ROBERT H. RusHPoRD Timothy Eustace, Esq. Stitzel, Page & Fletcher, P.C. 171 Battery Street P.O. Box 1507 Burlington, VT 05402-1507 GRAVEL AND SHEA ATTORNEYS AT LAW 76 ST. PAUL STREET POST OFFICE BURuNGTON, VERMC May O Q2 �36 �L 3, 1998— STITZEL, PAGE F+ FLETCHER PC Re: MBL Associates - City of South Burlin Loon Dear Tim: AREA CODE 802 TELEPHONE 658-0220 FAX 658-1456 CLARKE A. GRAVEL COUNSEL NORMAN WILLIAMS SPECIAL COUNSEL WRITER'S E-MAR.: SCRAMPTON@GRA V SHEA.COM I enclose a supplemental Bill of Sale regarding the transfer of the sewer force main and water line in Dorset Street to the City. Unbeknownst to me, MBL Associates was converted to a limited liability company on February 20, 1998. 1 enclose a copy of the notice which has been recorded in the South Burlington City Land Records. Very truly yours, GRAVEL AND SHEA Stephen R. Crampton SRC:kel Enclosures cc: Mr. Gerald C. Milot (w/o enclosures) NOTICE OF CONVERSION Notice is hereby given that, pursuant to the provisions of 11 V.S.A. §3122, MBL Associates, a Vermont partnership, was converted into MBL Associates, LLC, a Vermont limited liability company on February 20, 1998. The Articles of Organization effectuating the conversion are attached as Exhibit "A." MBL ASSOCIATES, LLC By: IS4�& &� Member and Duly Authorized Agent COUNTY OF CHITTENDEN, SS. At Burlington, in said County and State, this 14th day of May, 1998, personally appeared GERALD C. MILOT, Member and Duly Authorized Agent of MBL ASSOCIATES, LLC, and he acknowledged this instrument, by him signed, to be his free act and, deed and the free act and deed of MBL ASSOCIATES, LLC. t 1 Before Notary Publi Notary commission issued in Chittenden County My commission expires: 2/10/99 CITY CLERK'S z S Received I Ln 19— at„34ta Recorded in Vol. �L" _ Of So. Burlington Land Rec a: <NBL Associates, LLC Notice of ComasioN50039/121z01I. WP/RHR> M a r e t City of South Burlington 575 DORSET STREET SOU7H BU'RUNC70N, VER-MUNIT C5403 FA, ES6-474Z PLA. ^'ER ESE•?E55 November 6, 1997 Mr. John Larkin Larkin Realty 410 Shelburne Road South Burlington, Vermont 05403 Re: Pinnacle @Spear Impact : ees Dear Mr. Larkin: This letter will confirm, our recent recreational impact fees which were a eranted by the Planning Commission cn ESE-7 958 discussion regarding the condition of your approval December 21, 1993. Condition t5 from your approval states that the Planning Commission grants a credit of three hundred ($300) dollars per lot for construction of the portion of the proposed recreation path located outside of any public street right-of-way. This credit was to be applied to the new impact fees which were in the adoption process at the same time as your subdivision application review. Recently the City staff discovered the twenty-one zoning permits were issued without consideration of that condition. This ;,utter was reviewed by the City Attorney in order to determine if Pinnacle at Spear was exempt from the new recreation impact fee. His opinion was that Pinnacle at Spear must pay the fees, less the three hundred ($300) dollars credit. A copy of his opinion is enclosed. My record shows that six (6) permits were iss°zed in 1995, the fee at that time was $1306.03 per lot. In 1996, six (6) permits were iss;:ed and the fee at that time was $1306.09. This year to date nine (9) permits have been iss,;ed, the fee this year is $1413.33. DEPOSITION EXHIBIT #6 Xr. w`rj1hn Larkin Pinnace ESUear ImDcCt :eeS NcvernbEr 6, 1997 Page 2 Be advised that impact 'Lees are adjusted annually, the fo rnula is set -forth Within the South Burlington Impact Fee Ordinance. Therefore, to date, the Pinnacle at Spear development is required to pay impact fees in the amount of twenty eight thousand three hundred ninety two dollars and sixty nine cents less a credit of sixty three hundred dollars If you have any questions, please don't hesitate to call me. Very tr-uly, Richard Ward, Zoning Administrative Officer RW/mcp STATE OF VERMONT CHITTENDEN COUNTY, SS. MBL ASSOCIATES, Plaintiff, ) V. ) CITY OF SOUTH BURLINGTON, ) Defendant. ) CHITTENDEN SUPERIOR COURT DOCKET NO. S392-98 CnC PLAINTIFF'S MEMORANDUM IN OPPOSITION TO' MOTION FOR SUMMARY JUDGMENT Plaintiff MBL Assogiates, LLC ("MBL"), by and through its attorneys Gravel and Shea, and pursuant to Rule 56, V.R.Civ.P., opposes Defendant City of South Burlington's Motion for Summary Judgment, dated March 31, 1999, on the following grounds: I. PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT AND CONTESTED FACTS. While most of the material facts -- there are some factual assertions made by the City which are legally irrelevant, such as the Planning Commission being kept informed of the City Council's progress toward adoption of a valid impact fee ordinance -- are not in dispute, the City's interpretation and application of its 1995 "Impact Fee Ordinance" to Plaintiffs Dorset Farms subdivision project, is diametrically opposed to MBL's analysis of that ultimately dispositive point. This is an issue of law, and it is solely the Court's role to interpret and apply the Ordinance to the facts of this case. GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 BL:RLINGTON, VERVtONT 054020369 The Ordinance, and particularly the "grandfather" or exemption provisions of the recreation impact fee portion (§ 3(13)(5)), are unclear and ambiguous as applied to this project. Thus the Court can and should look to extraneous evidence in order to arrive at the most reasonable construction of the Ordinance, in light of the City's professed intent and its own conduct when such actions. were the most probative. When that is done, interpretation and application of the Ordinance, and especially § 3(B)(5) thereof,' should result in judgment for MBL exempting this project from the recreation impact fees otherwise imposed by the Ordinance, and requiring MBL to pay instead the impact fee imposed by the Planning Commission's October 12, 1993 subdivision approval -- i.e., the then -"standard" fee of $200, minus a $75 per -lot credit for recreation path construction. At the very least there are questions of fact and/or interpretation of the Ordinance which preclude entry of summary judgment for the City absent a full plenary hearing at which all the evidence and testimony can be heard and evaluated. That evidence will include the testimony of Gerald Milot, MBL's principal, as to how he was told that the Ordinance, as amended on April 17, 1995, did in fact exempt this and other projects in which he was involved from the new recreation impact fee; testimony from Charles Hafter, the City Manager, as to what he meant when he explained to the City Council that the April 1995 amendments were intended to address equitable concerns regarding previously approved ' Plaintiff does not contest the City's assessment and collection of road improvement and education impact fees under the Ordinance, see §§ 3(A) and 3(C) respectively -- even though those parts of the Ordinance contain similar "grandfather" clauses -- because unlike recreation fees, there was no established policy in effect before the Ordinance through which such fees were imposed, and thus no provision in Plaintiff's subdivision approvals which would satisfy §§ 3(A)(5)(b) and 3(C)(5)(b), i.e., that the "fees specified" will be paid in accordance with the prior written approval's terms. GRAVEL .ND SHEA ATTORNEYS AT LAW - 2 P. O. Box 369 BURLINGTON. VERMONT 05402 0369 subdivisions; and the actions of the City between June 1995 and November 1997 in issuing building permits for the first 21 single-family homes in another project ("Pinnacle at Spear," see Larkin-Milot Partnership v. City of South Burlington, Docket No. S168-98 CnQ without assessing any recreation impact fee under the Ordinance. Finally, Plaintiff also asserts that, as a matter of law, the City is barred from imposing "retroactively" a new land "use control regime that is substantially different than that which existed at the time all local subdivision approvals were granted by the City. Although impact fee ordinances enacted under 24 V.S.A. § 5200 et seq. are not traditional zoning regulations, they are clearly land use planning and development devices which should be subject to the same "vesting" principles which provide property owners and developers clear and objective rules, and thus "bright line" expectations, at the time decisions are made to pursue all of the necessary permits and approvals needed for such major projects in Vermont. Cf, e.g., Smith v. Winhall Planning Commission, 140 Vt. 178, 181-82, 436 A.2d 760 (1981); In Re Molgano, 163 Vt. 25, 31-32, 653 A.2d 772 (1994). II. ARGUMENT. (A) Section 3(B)(5) Of The Ordinance. As Applied To This Project. Is Ambiguous And Must Be Construed According To Extrinsic Evidence To Achieve Its Intent. (1) Ordinance Construction Standards. Although sometimes honored more in passing than in actual practice, the long - acknowledged rule in Vermont is that towns and municipalities are creatures of limited powers, who are supposedly kept on a short leash by the Legislature: GRAVEL AND SHEA ATTORNEYS AT LAW - 3 P. O. Box 369 BURLNGTON.VERMONT 05402-0369 [I]n Vermont a municipality has only those powers and functions expressly granted to it by the legislature, such additional functions as may be incident, subordinate or necessary to the exercise thereof, and such powers as are essential to the declared objects and purposes of the municipality. Bryant v. Town of Essex, 152 Vt. 29, 36-37, 564 A.2d 1052, 1056 (1989). We construe municipal acts strictly, and we resolve any fair, reasonable, substantial doubt concerning a municipality's authority to act against the municipality. In re Ball Mountain Dam Hydro -electric Project, 154 Vt. 189, 192, 576 A.2d 124, 126 (1990). Robes v. Town of Hartford, 161 Vt. 187, 636 A.2d 342 (1993). Accordingly, if the City of South Burlington is to impose recreation impact fees under the authority granted by 24 V.S.A. § 5200 et seq., it can only do so through its duly adopted ordinances, such as the January 9, 1995 Impact Fee Ordinance, Attachment to Complaint, and/or its April 1995 amendment, see Attachment to Statement of Uncontested Facts. Most importantly, the City's own compliance with its own ordinances is mandatory, not discretionary. Such ordinances are a legislative acts analogous to statutes; they "prescribe a permanent rule of conduct or government that will remain in effect until the ordinance is repealed." Herbert v. Town of Mendon, 159 Vt. 255, 259, 617 A.2d 155, 158 (1992) (quoting 5 E. McQuillan, The Law of Municipal Corporations §15.02 (3d ed. 1989)). As such, an ordinance is as binding on the City itself, as well as its inhabitants, as much as the general laws of the State are binding on all its citizens. 5 E. McQuillin, The Law of Municipal Corporations, §15.14 (3d Ed. 1996). In order to apply the Impact Fee Ordinance to the particular facts of this case -- at least, to the extent such application is even possible -- the ordinance, and particularly Section 3(B)(5) must be construed according to the same principles which govern interpretation of statutes generally. "[W]ords in... ordinances are to be given their plain GRAVEL ,AND SHEA ATTORNEYS AT LAW - 4 P. O. Box 369 BURLINGTON, VERMONT 05402 0369 meaning." Badger v. Town of Ferrisburgh, Vt. , 712 A.2d 911, 913 (1998), citing In Re Stowe Club Highlands, 164 Vt. 272, 279, 668 A.2d 1271, 1276 (1995). If the meaning of the ordinance is clear from the plain language thereof, it will be enforced in accordance with its terms, Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994), the ultimate goal being to give effect to the legislative intent expressed therein. Appeal of Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998), quoting Lubinsky v. Fair Haven Zoning Board, 148 Vt. 47, 49, 527 A.2d 227, 228 (1986). However, if the task of construing a legislative enactment and applying it to particular facts makes the "plain words" less than clear, the Court's role is to discern the entire regulatory scheme and give meaning to so much of the actual language as is possible given its broader purposes, while simultaneously trying to avoid irrational, absurd, unjust or unfair results. See, e.g., Merkel v. Nationwide Ins. Co., 166 Vt. 311, 693 A.2d 706 (1997); Sand v. Roxbury Town School District, 165 Vt. 476, 685 A.2d 301 (1996); State v. Ben -Mart Corp., 163 Vt. 53, 652 A.2d 1004 (1994). With those principles in mind, consideration now turns to the 1995 Impact Fee Ordinance at issue here. (2) Application Of Ordinance And Interpretive Standards To Particular Facts Of -This Case. The City is initially correct in restating the "exemption" requirements contained in § 3(13)(5) of the Ordinance: recreation impact fees otherwise assessable "shall not apply to land development" (e.g., subdivision projects) if all of three criteria are met. Those requirements are that (a) [the] development [is] within a subdivision that received final plat approval under the South Burlington Subdivision Regulations prior to GRAVEL AND SHEA ATTORNEYS AT LAW - 5 - P. O. Box 369 BURLINGTON, VERMONT 05402 0369 January 9, 1995, which subdivision approval contained a condition requiring payment of fees to the City for the purpose of funding recreation improvements; and (b) the fees specified in the subdivision approval were paid to the City in accordance with the terms of the approval; and (c) a permit is issued for the development under the South Burlington Zoning Regulations on or before January 9, 2005. While this language in the Ordinance may at first seem clear and unambiguous on its face, as =plied to this project, and the particular facts of this case, it is at the very least ambiguous. The City's admitted intent as to what the April 1995 amendments to the Ordinance were supposed to achieve (exemption of pre-1995 subdivision projects out of "fairness" and recognition of their "grandfathered" status), and its own actions in exempting a similar project ("Pinnacle at Spear") by issuing 21 building permits without assessment of any recreation impact fees, are prima facie proof of the ambiguity inherent in applying §3(B)(5). The City does not apparently contest the conclusion that Dorset Farms meets criterion (a) of § 3(B)(5): the project's subdivision approval was issued well before January 9, 1995, and it does impose "condition[s]" that require Plaintiff to "pay" a recreation impact fee, both by way of in -kind contribution'- -- i.e., donation of land and actual construction of part of the City's planned bike path system -- and actual additional dollars, defined as "the difference between the [City's] recreation impact fee" and a "$75 per unit credit" granted to reflect a portion of the recreation path costs, to be paid when a building permit is drawn. See Exhibit Z The City has taken the position that in -kind contributions of land and/or recreation facilities alone, without payment of actual dollars to the City, constitutes "payment" of "fees" as required by § 3(13)(5)(b) of the Ordinance, if that is what the pre-1995 subdivision approval stipulates. See, e.g., Deposition Testimony of Richard Ward, Attachment B to Plaintiff's Response to Statement of Facts. GRAVEL AND SHEA ATTORNEYS AT LAW - 6 - P. O. Box 369 BURLINGTON. VERMONT 05402-0369 I to Weith Affidavit, Conditions 4(a) and 5, page 7. Likewise, there seems to be no dispute that, at least at this point, building/zoning permits for each individual lot, or housing unit of Dorset Farms are being issued well before the January 9, 2005 deadline, thereby satisfying § 3(13)(5)(c) of the Ordinance. The key dispute is whether Plaintiff, and its Dorset Farms subdivision project merits exemption under § 3(13)(5)(b) because it is in fact paying, when it draws each building permit, "the [recreation impact] fees specified in [its] subdivision approval."' In this instance that "fee" has two components: the in -kind contribution contained in the requirement to build and donate a portion of the City-wide recreation path, and an additional payment of $125 per housing unit (either single-family home, or each unit of the multi -family housing) which is "the difference between -the recreation impact fee and the $75 per unit credit." See Condition 5 of January 11, 1994 subdivision approval. Since it is not contested that Plaintiff has already "paid" the in -kind portion of this project's "fee," resolution of this case in turn depends on what the additional monetary "recreation impact fee" is, that is "specified" in that subdivision approval. If § 3(B)(5) of the Ordinance is clear at all, it is that the question of what "fee" is "specified" for purposes of sub -section (b), must be answered solely by review of any "condition" in the pre-1995 subdivision approval which imposes such a requirement. The City concedes -- in fact has affirmatively asserted and established -- that at the time Dorset Farms 3 There is no dispute that Plaintiff is in fact paying the full recreation impact fee otherwise imposed by the Ordinance, which the City is holding in escrow; these amounts are well in excess of the $125 per unit which Plaintiff contends is due, and "specified" by Condition 5 of its January 11, 1994 subdivision approval. GRAVEL AND SHEA ATTORNEYS AT LAW - 7 - P. O. Box 369 BURLINGTON. VERMONT 05402-0369 received subdivision approval, the standard policy and routinely accepted practice was that all such developments paid a uniform $200-per-unit recreation impact fee. See Statement of Material Facts Not In Dispute, ¶8. Thus Condition 5 of the subdivision approval literally states when the "fee" must be paid -- "[a]t the time of application for a zoning/building permit" -- but does not unequivocally answer how or when its generic reference to "the recreation impact fee," and the amount of such fee, is to be calculated. The "recreation impact fee" that is "specified" in MBL's Dorset Farms' subdivision approval, thus satisfying § 3(13)(5)(b) of the Ordinance and exempting this project from the recreation fees now otherwise in effect, is $125. That is "the difference between the recreation impact fee" io effect at the time of approval (i.e., $200), "and the $75 per unit credit" granted by Condition 5. This construction and application of both the subdivision approval and the Ordinance, is the one that is most reasonable in light of all the circumstances; does the least damage to the actual text of the controlling provisions (i.e., Condition 5 of the subdivision approval, and § 3(13)(5)(b) of the Ordinance); and best serves the policy considerations that land use development controls must be strictly construed against the regulating authority, and that all development restrictions ought to be clearly and objectively ascertainable so that they "vest" at the time all necessary permits are obtained. See Point (B), infra. Moreover, this construction of the 1995 Ordinance as applied to Plaintiff's 1994 subdivision approval, is the one that best fits the evidence of what the City itself intended, and then understood, in this context. When the City Council was considering the April 1995 amendment to the Ordinance, the City Manager (Charles Hafter) stated that the intent of the GRAVEL AND SHEA ATTORNEYS AT LAW - 8 - P. O. Box 369 BLRLINGTON. VERMONT 05402 0360 amendment, because of "fairness" concerns, was to "grandfather for [ten] years projects approved before the impact fee ordinance" was adopted.' See Attachment C to Complaint. In accordance with this professed intent, MBL's principal Gerald Milot was specifically told by a City representative that there was no need to attend the April 9, 1995 City Council meeting, because the proposed amendment would take care of all his pre-existing approval concerns with respect to this project and "Pinnacle at Spear" in which he also had an interest. See Deposition Testimony of Gerald Milot, Attachment A to Plaintiff's Response to Statement of Facts. Finally, the City itself initially understood that complete exemption of these two projects was the intended result of the April 1995 amendment to the Ordinance, because it did not collect any additional recreation impact fees for the first 21 units of the Pinnacle at Spear development' when it issued building/zoning permits for those lots between March 1995 and November 1997. See Exhibit 7 to Affidavit of, and Deposition Testimony of Richard Ward, Attachment B to Plaintiff's Response to Statement of Facts. It was only when the City took another look at the Ordinance in late 1997, id., that it came to the radically different conclusion that it could assess and collect additional recreation impact fees from the Pinnacle ' It is important to emphasize that the April 1995 amendments were intended to "grandfather" all subdivision projects approved before January 1995; Mr. Hafter did not note any exceptions, or specify any projects which should not be subject to those "fairness" amendments. ' Condition 5 of the "Pinnacle at Spear" subdivision approval, issued in writing on December 21, 1993, granted a "$300 per lot" credit for that development's in -kind contribution, and construction, of substantial portions of the City-wide recreation path/bike path system. Since this credit was more than the $200-per-unit recreation impact fee then routinely imposed, and the developer had in fact "paid" that "fee" by constructing the path, the City's zoning administrator rightly concluded that no additional monetary impact fees were due under § 3(B)(5) when building permits for Pinnacle were obtained. GRAVEL AND SHEA ATTORNEYS AT LAW - 9 - P. O. Box 369 BURLINGTON- VERMONT 05402-0369 and Dorset Farms projects because the exemption language of § 3(B)(5) did not arguably fit the particular language of the two projects' subdivision approval. See Deposition Testimony of Gerald Milot and Richard Ward, Attachments A and B to Plaintiff's Response to Statement of Facts. By then, however, its own prior conduct, and the equities particular to these projects, must be understood to prohibit such a pecuniary reversal. For all of these reasons, § 3(B)(5) of the Ordinance should be construed, and applied to the particular language of Condition 5 of Plaintiffs January 11, 1994 subdivision approval for Dorset Farms, to exempt that project from payment of any recreation impact fees other than the net amount of $125-per-unit which is "specified" in that Condition 5. (B) Allowing The City Either To Impose An Impact Fee Which Had Not Yet Been Duly Enacted By Ordinance Or To Impose An Impact Fee "Retroactively," Violates Vermont Law And Is Contrary To Established Principles And Policies. (1) The_1993/94 Subdivision Approval Could Not Itself Im..pose Any impact Fee In Advance Of A Proper Ordinance Providing Such Authority. The City in its memorandum sets forth how, under Vermont law, a municipality is just as much bound to follow Vermont statutes as any other citizen, and has no powers beyond those expressly provided by the Legislature in specific enabling legislation. See also, e.g., Robes v. Town of Hartford, supra. In this instance the General Assembly has clearly said, since Act 200 was passed in 1988 (eff. July 1, 1989), that municipal impact fees could be assessed and collected only through the proper passage of "an ordinance or by-law" as provided in other, related sections of Title 24. See 24 V.S.A. § 5203(f). Thus, within the four corners of the January 11, 1994 subdivision approval issued for Plaintiffs Dorset Farms project, its attempt to impose a future impact fee is of no legal consequence. The City's GRAVEL AND SHEA ATTORNEYS AT LAW - 1 0 - P. O. Box 369 BURLINGTON. VERMONT 05402-0369 theory of "anticipatory assessment" is without merit, and thus its primary argument -- that even if the "grandfather" clause of § 3(13)(5) of the Ordinance otherwise applies, sub -section (b) still requires Plaintiff to pay the full impact fee because that is the post -hoc consequence the subdivision approval tried to set up' -- must fail. Defendant is therefore not entitled to judgment as a matter of law. (2) Application Of The 1995 Ordinance To This Project To The Extent Construed To Eliminate Plaintiff's Reliance On The Recreation Impact Fee Scheme In Effect In 1993/94. Violates "Vested Rights" Principles and Policies. In Smith v. Winhall Planning Commission, 140 Vt. 178, 181-182, 436 A.2d 760 (1981), Vermont adopted the so-called "minority rule" that a completed application for a development permit under local zoning ordinances, is controlled by the ordinance(s) then in effect, and not by any subsequent change in local ordinances or regulations. This continues to be Vermont law, see, e.g., In Re Molgano, 163 Vt. 25, 31-32, 653 A.2d 772 (1994), and these principles have been extended to other development -control regimes such as Act 250, see id.; In Re Taft Corners Associates, 160 Vt. 583, 593-94, 632 A.2d 649 (1993). Conversely, subsequent changes in local ordinances cannot have any retroactive effect on development permits already granted. See, e.g., Molgano, supra; In Re Preseault, 132 Vt. 471, 474, 321 A.2d 65 (1974); Preseault v. Wheel, 132 Vt. 247, 252-53, 315 A.2d 244 (1974). 6 Even if it is true that the Planning Commission was trying to accomplish this result, because it was continuously informed of the City Council's efforts toward adopting a proper impact fee ordinance, that fact is immaterial and legally irrelevant. First, Vermont law simply does not give a municipality that power, to "legislate" prospectively before it has actually done so. Second, it is the language of Condition 5 of the January 11, 1994 subdivision approval that is ultimately dispositive, and the reference there to a generic "recreation impact fee" does not clearly state, even if it could, that some future ordinance -- rather than the $200-per-unit practice then followed -- will control calculation of the am unt of the fee. GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 BURLINGTON. VER'dONT 05402-0369 The rationale, and policy behind this now -established Vermont rule is that it is [t]he more practical one to administer.... It makes for greater certainty in the law and its administration. It avoids much of the protracted maneuvering which too often characterizes zoning controversies in our communities. It is, we feel, the more equitable rule in long run application, especially where no amendment [to the local ordinance] is pending at the time of application, as here. Smith, supra, 140 Vt. at 181-82; In Re McCormick Mngmt. Co., 149 Vt. 585, 587, 547 A.2d 1319 (1988). To the extent based on equitable considerations, Vermont's "vested rights" doctrine attempts to "balanc[e] competing policy interests:... the [municipality's] interest in orderly physical development of the community against the individual's interest in reaping rewards from a permit and acts in reliance on it." In Re Ross, 151 Vt. 54, 55, 557 A.2d 490 (1989). A property owner's justified "reliance on a development [regulatory] scheme" in effect when necessary permits are applied for and obtained, McCormick, 149 Vt. at 589, is thus key to application of the "vested rights" rule. See also Levy v. Town of St. Albans Zoning Bd., 152 Vt. 139, 143, 564 A.2d 1361 (1989) ("orderly governance of development" and "reasonable reliance on the process" are critical elements); Preseault, supra. The City's 1995 Impact Fee Ordinance is obviously not zoning regulation in the classic sense, or as contemplated by 24 V.S.A. §4301 et seq. However, the Ordinance clearly relates to and controls issuance of local building permits which are obviously necessary for any actual development to occur. The City is thus attempting to use the impact fee authority provided by the 1995 Ordinance for traditional zoning purposes of land use control and "to achieve the goals and policies of the Comprehensive Plan," just like a zoning ordinance. Cf. Kalakowski v. John A. Russell Corp., 137 Vt. 219, 225, 401 A.2d 906 (1979) (town's comprehensive plan is development guideline, but is actually implemented by ordinances). GRAVEL AND SHEA ATTORNEYS AT LAW - 1 2 P. O. Box 369 BURLINGTON, VERMONT 05402-0369 Indeed, the whole purpose of impact fees is to alleviate the efforts of development otherwise permitted under local zoning regulations. See 24 V.S.A. §5200. Conversely, MBL has certainly relied on the "development scheme" that was in place when it began the Dorset Farms subdivision, including the City's recreation impact fee policies and practices then in effect. It has diligently and in good faith pursued all necessary permits and approvals for this extensive, multi -million -dollar subdivision at all deliberate speed. Accordingly, as a matter of policy and based on the same principles of long-term equity and ease of administration, the "vested rights" rule ought to be applied here so that MBL's payment of recreation impact fees is determined under the City's prior policies and practice which were in effect when all its local development permits were sought and obtained. (C) The City Council's Own Interpretation Of Its Ordinance Is Not Entitled To Any Preclusive Weight. As with any statute, it is the Court's role to interpret and construe a municipal ordinance, and decide its application to a given set of facts. See discussion supra. As the legislative body that originally enacted the 1995 Impact Fee Ordinance, the City Council is not also the "administrative body responsible for its execution." In Re Duncan, 155 Vt. 402, 408, 584 A.2d 1140 (1990). Thus Duncan and the cases cited therein are not applicable. Indeed, if anyone's construction of the Ordinance should be given great weight, it is that of the Zoning Administrator who initially did not charge any additional recreation impact fees for the first 21 lots at Pinnacle at Spear, until instructed to do so by other City officials; and that of the City Planner, Mr. Weith, who told Mr. Milot not to attend the April 1995 City Council GRA\'EL AND SHEA ATTORNEYS AT LAW - 13 - P. O. Box 369 BURLINGTON, VERMONT 05402-0369 meeting because the proposed amendments to the Ordinance would "grandfather" his two projects. See Attachments A and B to Plaintiff's Response to Statement of Facts. Finally, and in any event, the City's interpretation of § 3(B)(5) of the Ordinance, as applied to Plaintiff's Dorset Farms 1994 subdivision approval, is redolent with "compelling indication[s] of error." Id., 155 Vt. at 408. CONCLUSION Defendant City of South Burlington is not entitled to judgment as a matter of law, because its construction and application of its 1995 Impact Fee Ordinance, and particularly § 3(B)(5) to Plaintiff's Dorset Farms subdivision, is incorrect. Moreover, there are disputed questions of material fact relating to the City's true intent in enacting § 3(B)(5), because it is ambiguous as applied and thus such intent, and evidence, is relevant. Finally, established principles of Vermont land use control law require that the Ordinance be construed so as to recognize the City's recreation impact fee practices in effect in 1993/94, and thus imposition only of an additional impact fee in the net amount of $125. Dated: Burlington, Vermont May 27, 1999 Stephen R. Crampton, Esq. Dennis R. Pearson, Esq. Gravel and Shea 76 St. Paul Street, 7th Floor P. O. Box 369 Burlington, VT 05402-0369 (802) 658-0220 For Plaintiff GRAVEL AND SHEA ATTORNEYS AT LAW - 14 - P. O. Box 369 BURLINGTON, VERMONT 05402-0369 STATE OF VERMONT CHITTENDEN COUNTY, SS. MBL ASSOCIATES, Plaintiff, V. CITY OF SOUTH BURLINGTON, Defendant CHITTENDEN SUPERIOR COURT DOCKET NO. S392-98 CnC PLAINTIFF'S RESPONSE TO DEFENDANT'S RULE 56(C) STATEMENT OF UNDISPUTED FACT Plaintiff MBL Associates, LLC, by and through its attorneys Gravel and Shea, and pursuant to Rule 56(c)(2), V.R.Civ.P., hereby controverts the following facts which Defendant claims to be uncontested, and further states the following facts as to which there are genuine issues still to be tried: I. RESPONSE TO RULE 56(C) STATEMENT. 1. Plaintiff is in fact a Vermont limited liability company which is the successor - in -interest to the former MBL partnership; its place of business for purposes of this action, in South Burlington, Chittenden County and State of Vermont, remains the same. 2. Conceded. 3. Conceded. GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 BURLINGTON. VERMONT 05402-0369 4. Conceded that a capital budget was adopted by the South Burlington City Council in October 1993; the remainder of these assertions are either disputed as a matter of fact, or because they are not material or relevant. 5. Conceded that the South Burlington City Council duly adopted an "Impact Fee Ordinance" on January 9, 1995, a true copy of which is attached as "Exhibit 2" to the March 30, 1999 Affidavit of Joseph Weith. The remaining assertions of this paragraph are either disputed as a matter of fact, or because they are not material or relevant. 6. Conceded. 7. Conceded. 8. Conceded that the described practice was in fact utilized by Defendant to collect a "recreation impact fee" of $200 per newly subdivided lot prior to January 9, 1995, even though it was unauthorized by any applicable ordinance, regulation or enabling statutes. 9. Conceded. 10. Conceded. 11. Conceded. 12. Conceded. 13. Conceded that in addition to reaffirming its view that Plaintiff's entire Dorset Farms project was subject to the 1995 Ordinance's recreation impact fees as calculated under § 3(B)(2-3), the South Burlington City Council also refused in its Notice of Decision GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 BURLINGTON. VERMONT 05402 0369 -2- (dated March 16, 1998) to recognize the applicability of § 3(B)(5) of the Ordinance and relieve Plaintiff from paying recreation impact fees otherwise imposed. 14. Disputed; other "permits" are necessary for actual construction, such as those for curb cuts, or sewer and water connections. 15. Disputed as a matter of fact, and because these assertions are neither relevant nor material. 16. Disputed as a matter of fact, and because these assertions are neither relevant nor material. H. COUNTER -STATEMENT OF MATERIAL UNCONTESTED FACTS. 1. At the time the South Burlington Council in April 1995 adopted revisions to the Ordinance to add § 3(B)(5) exempting already -approved subdivision projects from the new impact fees imposed by the Ordinance, the principals of Plaintiff MBL understood, and were affirmatively led to believe by the City's representatives, that § 3(B)(5) in fact exempted Dorset Farms from the Ordinance's recreation impact fees. [Statement of Charles Hafter in minutes, Attachment C to Complaint; Deposition Testimony of Gerald C. Milot, Attachment A hereto.] 2. At the City Council meeting of March 6, 1995, as the Council was considering what became the April 9, 1995 amendments to the Impact Fee Ordinance, Charles Hafter, the City Manager, stated that the "language" of what became §3(B)(5) "would grandfather for three [later ten] years projects approved before the impact fee ordinance," because it was a "question of fairness." [Attachment C to Complaint.] GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 BURLINGTON. VERMONT 05402-0369 992 3. If Gerald Milot had not been led to believe that Plaintiff's Dorset Farms project, and another subdivision project in which he was involved ("Pinnacle at Spear," see Larkin-Milot Partnership v. So. Burlington, Docket No. S168-98 CnQ were in fact exempted from any new recreation impact fees under § 3(B)(5) of the Ordinance, Milot would have personally appeared, and would have mobilized other persons similarly situated, to appear at the April 17, 1995 City Council meeting to persuade the City Council to adopt amendatory language which actually accomplished the result he had been told the City was going to achieve. [Deposition Testimony of Gerald Milot, Attachment A.] 4. The City's initial interpretation and application of the Ordinance was that all previously -approved subdivision projects (i.e., approved prior to January 9, 1995) were exempted from paying the Ordinance's new recreation impact fee, as illustrated by the City's issuance of building permits until November 1997, for the first 21 single-family homes at Pinnacle at Spear, without assessment or collection of new recreation impact fees as calculated under § 3(B)(2-3) of the Ordinance. [Deposition Testimony of Richard Ward, Attachment B hereto; 11/6/97 Letter from City, Exh. 7 to Ward Aff.] 5. As a result of its review of the Ordinance as it had been applied to Pinnacle at Spear, and seeing the opportunity to assess and collect additional, and substantial recreation impact fees from that project and from Plaintiff's Dorset Farms project, the City changed its interpretation and application of the Ordinance so that it no longer considered those two projects to be exempted under § 3(B)(5) of the Ordinance. [Deposition GRAVEL AND SHEA ATTORNEYS AT LAW P. O. Box 369 BURLINGTON. VERMONT 05402-0369 Testimony of Gerald Milot, Attachment B; Deposition Testimony of Richard Ward, Attachment B.] 6. The remaining lots at the Pinnacle at Spear subdivision project, and all of Plaintiff's Dorset Farms project, are the only subdivision projects approved by the So. Burlington Planning Commission prior to January 9, 1995, that are being treated as not exempt from, and are being required to pay the additional, and substantially larger recreation impact fees imposed by the Ordinance. [Deposition Testimony of Gerald Milot, Attachment A; Deposition Testimony of Richard Ward, Attachment B.] 7. The recreation path/bike path required by Condition 4(a) of the project's January 11, 1994 subdivision approval, has in fact been donated by way of easement, and significant portions have been actually constructed by Plaintiff at its own expense, with the remainder to be constructed as the project is completed. [Deposition Testimony of Gerald Milot, Attachment A.] Dated: Burlington, Vermont May 27, 1999 Stephen R. Crampton, Esq. Dennis R. Pearson, Esq. Gravel and Shea 76 St. Paul Street, 7th Floor P. O. Box 369 Burlington, VT 05402-0369 (802) 658-0220 For Plaintiff GRAVEL AND SI ""@ '- R-"'S o Regmme w Rule 56 (c) Swcm=n9992/)pg001!.WP/DRP> - 5 - ATTORNEYS AT LAW P. O. Box 369 BURLINGTON, VERMONT 05402-0369 f. STATE CHITTENDENFCOUNTY, SS ORIGINAL ------------------------- MBL ASSOCIATES CHITTENDEN SUPERIOR COURT VS. CITY OF SOUTH BURLINGTON ------------------------- ------------------------- LARKIN MILOT PARTNERSHIP VS. CITY OF SOUTH BURLINGTON CITY COUNCIL ------------------------- D E P O S I T I O N - 0 f - JERRY MILOT Taken on Thursday, December 17, 1998, at the offices of Gravel & Shea Burlington, Vermont. %PPEARANCES: )N BEHALF OF THE PLAINTIFF: ROBERT F. 0-NEILL, ESQUIRE GRAVEL & SHEA 76 St. Paul Street, P.O. Box 369 Burlington, VT 05402-0369 )N BEHALF OF THE DEFENDANT: ROBERT E. FLETCHER, ESQUIRE STITZEL PAGE & FLETCHER, P.C. 171 Battery Street, P.O. Box 1507 Burlington, VT 05402-1507 NORMA J. MILLER COURT REPORTERS ASSOCIATES 117 BANK STREET, BURLINGTON, VT 05401 (802) 862-4593 ' 20 1 ballpark. We asked the City, through the permit 2 process, to assess our impact at the time of the 3 issuance of permits. We'd go through a complete 4 analysis with the Planning Commission and what the 5 impacts are with regard to every impact fee and 6 every City service, and if they determine there is 7 an impact, they assess a fee. At the time we 8 received our final plat approval, it was $200. 9 Q Is there anyone who is an employee of the 10 City of South Burlington who represented to you that 11 your impact fee would be $200? 12 A It was $200. I mean I didn't need a 13 representation. That's what it was. 14 Q But to your recollection, there was no 15 one in City government -- 16 A At the time we got our final plat 17 approval, the impact fee was $200 in the City of 18 South Burlington. We had general knowledge of that, 19 that it was $200. That's what they were charging 20 everybody. 21 Q When did you first learn that the City of 22 South Burlington was considering changing its rec 23 impact fee? 24 A Sometime after I got my final plat. I 25 saw the warnings in the paper, I called the City COURT REPORTERS ASSOCIATES ' 21 1 very alarmed, for two reasons: One, it appeared to 2 me that they were trying to pay for the Dorset Park 3 project on the backs of future development, and I 4 didn't believe there was any justification for that, 5 since we had already done the study when we sold 6 them the Dorset Park property, that the City was 7 overparked with regards to land, and because they 8 wanted a park was not enough reason to either 9 condemn the site, take it by eminent domain, or 10 certainly assess for the acquisition of that site 11 and the construction thereon for future landowners, 12 other than through the tax system. That was my 13_ initial concern, that the rec fee was way out of 14 whack, and I talked to Joe Wyeth and Joe says well, 15 they're putting it on the agenda for the City 16 Council because everybody has come in with the same 17 concern, that our impacts were assessed at the time 18 we received our final plat. Because the City wants 19 a park is no reason to charge individuals for the 20 impact fee. And they waived, they waived the impact 21 fee on developments approved prior to a certain 22 date. I made a phone call the next day, Ernie 23 Pomerleau was really the emissary for the developers 24 that went to the meeting that night, I couldn't be 25 there, and I called City Hall and I was told my COURT REPORTERS ASSOCIATES 22 1 1 impact fees had been waived. 2 Q Who told you that? 3 A Joe Wyeth. He disagrees with that. He 4 told me that he has a different interpretation of 5 what he said. My question was, How did we do last 6 night? And he says, Not to worry, your fees have 7 been waived. 8 Q That's your recollection of the 9 conversation? 10 A Yes. Because I would have followed 11 through immediately, and may still, in opposing the 12 method in which they came forward to even assess a 1. rec fee. They have to show that this development is 14 the impetus for the necessity in the City for a new 15 park. This new park has been on the City drawing 16 boards as a desirable item for a decade, two 17 decades. We were intimate with the acquisition of 18 the land in the City, and it was planned and the 19 City was going to do it through tax dollars, and 20 this rec fee became a nice vehicle for them to try 21 to recover their costs, so we didn't agree that we 22 had -- in 221 units, had stimulated the need to 23 contribute $300,000 to a new park. 24 Q The rec impact fee ordinance, do you 25 recall when that was first proposed in the City of COURT REPORTERS ASSOCIATES 29 1 1 other in determining whether or not it felt it had 2 been fairly treated by the City in this case? 3 A It made me feel fairly treated by the 4 City at that time, because I didn't have to go 5 forward with an action like this. And the 6 representation to me was that I wasn't going to have 7 an impact fee, I was grandfathered along with 8 everybody else, and that was a solution to the 9 problem that was caused by the adoption of an impact 10 fee that they tried to apply to developments that 11 were approved prior to the adoption of the impact 12 fee. 13. Q So you -- 14 MR. O'NEILL: Let me interrupt. I 15 assume you're both, when -- your question is 16 premised on the assumption that the City 17 would in fact impose the higher fee? 18 MR. FLETCHER: Yes. 19 MR. O'NEILL: Okay, because it could 20 change the fee and not impose it, and then 21 they wouldn't care, right? 22 MR. FLETCHER: Let's assume for the 23 moment that it adopted an ordinance for a 24 purpose and it intended to enforce that 25 ordinance by imposing the higher fee. COURT REPORTERS ASSOCIATES 30 1 2 3 4 5 6 7 8 9 10 11 12 13. 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FLETCHER: Q My follow-up question, Mr. Milot, would be, am I correct in understanding that although you felt that MBL Associates had been disadvantaged by the adoption of the original impact fee ordinance in January, it felt that the April amendment had quote -unquote cured the problem? Is that your interpretation of the April amendment? A That's correct. Q Okay. A If -- Q So that's a correct characterization of your views? A I thought that the -- my objection to the first adoption would have been that I would have approached it from the standpoint that No. 1, the impact fee that should be assessed to me was at the time of the approval by the City, and that's what I should be paying. I wouldn't be concerned -- I think the City, if they adopt an impact fee, has to look forward, not backwards. The second issue I would have had is even when we're doing future developments, what is the validity of that impact fee, how does it apply. Q Thank you. Let's shift gears for a COURT REPORTERS ASSOCIATES 44 1 to me. Now, you have to understand that we went 2 along and developed -- they adopted the impact fee, 3 we didn't think it had any effect on us at that 4 time, but we were concerned, because we wanted to be 5 grandfathered. We wanted to make sure everybody was 6 grandfathered. We go back in, they grandfathered 7 us. We go out and start this development, we didn't 8 pay any recreation impact fees, because that was the 9 understanding at the time. 10 I mean the clarity was the fact that we'd 11 walk in, pick up a building permit and there were no 12 recreation impact fees. So it wasn't us making this 13 up. Everybody felt at that place and time that 14 that's what it was. The impact fee at the time of 15 the approval and collected at the time of the zoning 16 permit. In this case, there wouldn't have been any 17 impact fee. And it happened for 25 lots. 18 Q Okay. But this lawsuit is not 19 precipitated by the fact that the City amended the 20 rec impact fee in April of 1995? 21 A This lawsuit is precipitated by the fact 22 that they're trying to charge me an impact fee that 23 shouldn't have been assessed. 24 Q And that's a function, you believe, of 25 the original -- COURT REPORTERS ASSOCIATES 45 1 A Permit. 2 Q -- permit, the final plat approval -- 3 A That's correct. 4 Q -- language; is that correct? 5 A Yes. Or the impact fee in place at the 6 time I received my permits. Had I walked in the 7 door to Dick Ward's office and pulled every one of 8 my building permits the next day, that's the fee 9 that was assessed. 10 (Deposition Exhibit 4 was marked for 11 identification.) 12 BY MR. FLETCHER: 13. Q Mr. Milot, I'm going to show you what's 14 been marked now as Depo Exhibit 4. Front page, 15 heading, South Burlington Impact Fee Ordinance, 16 concludes with a Schedule C, which is education 17 impact fee credits for residential development and 18 consists of seven numbered pages ending with a 19 Section 11, Severability, and I would ask you if 20 you've had an opportunity to see that ordinance 21 document. 22 A I really haven't read it. 23 Q Okay. 24 A It's the first time I've seen it, as a 25 matter of fact. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF VERMONT C(OP CHITTENDEN COUNTY, SS. --------------------------- LARKIN MILOT PARTNERSHIP ) Plaintiff,) Chittenden Superior Court VS. ) Docket No. S168-98 CnC CITY OF SO. BURLINGTON ) Defendant.) --------------------------- MBL ASSOCIATES ) Plaintiff, ; VS. ) CITY OF SO. BURLINGTON ) Defendant.) --------------------------- Chittenden Superior Court Docket No. S392-98 CnC D E P O S I T I O N - of - RICHARD WARD taken on behalf of the Plaintiffs on Monday, March 1, 1999, at the So. Burlington Municipal Offices, So. Burlington, Vermont, commencing at 1:00 p.m. APPEARANCES: ON BEHALF OF THE PLAINTIFFS: GRAVEL AND SHEA BY: DENNIS R. PEARSON, ESQUIRE 76 St. Paul Street Burlington, Vermont 05402-0369 ON BEHALF OF THE DEFENDANT: STITZEL, PAGE & FLETCHER, P.C. BY: ROBERT E. FLETCHER, ESQUIRE 171 Battery Street Burlington, Vermont 05402-1507 DARLENE G. LITTLEFIELD COURT REPORTERS ASSOCIATES 117 BANK STREET BURLINGTON, VERMONT 05402 (802) 862-4593 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 A. ES? Q. The impact fee ordinance. Depo Exhibit 4 from December 17, 198. A. I believe so. MR. FLETCHER: Okay, nothing further. RE-EXAMINATION BY MR. PEARSON: Q. Mr. Ward, when Mr. Fletcher just asked you about the Oak Creek, Butler Farms, and Harbor Heights projects also meeting the three criteria for exemption under the impact fee ordinance, can you tell me how it is that those three projects do meet all three of those criteria A, B and C under 5? A. Well, A is they were approved prior to 195. Q. Okay. A. During approval, no fees were specified by the Planning Commission. And they obtained the building permits prior to 195, actually, for number 3 -- or C. MR. PEARSON: Okay, thank you. RE-EXAMINATION BY MR. FLETCHER: Q. Mr. Ward, you were asked about being -- the exemption from paying the fee, and choosing for a moment to continue with that line using the word exemption, the exemption is the -- is from paying the COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 fee under the ordinance; is that correct? A. Yes. Q. Are they exempted from paying any impact -- recreation impact fee? A. Those projects? Q. Yes. A. That's -- they're exempt because of the in -kind donation. Q. So the only reason they don't pay a fee in dollars is because they have contributed land to the city? A. That's my understanding, yeah, they don't pay. MR. FLETCHER: Okay, nothing further. MR. PEARSON: Nothing further. (The deposition concluded at 1:46 p.m.) COURT REPORTERS ASSOCIATES