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Home My WebLink AboutMP-18-01 - Supplemental - 1505 Dorset Street (4) 275 COLLEGE STREET, PO BOX 4485 BURLINGTON, VT 05406-4485 PHONE 802 861-7000 FAX 861-7007 MSKVT.COM December 13, 2018 VIA ELECTRONIC MAIL Mr. Bill Miller, Chair South Burlington Development Review Board City of South Burlington 575 Dorset Street South Burlington, VT 05403 C/o Mr. Paul Conner, Director of Planning & Zoning Email: pconner@sburl.com Re: 1505 Dorset Street, Master Plan Application No. MP-18-01 and Preliminary Plat Application No. SD-18-29 Dear Chairperson Miller: I serve as counsel for Tom and Donna Anfuso, 695 Nowland Farm Road; Robert Brinckerhoff and Louise Hammond, 15 Shea Drive; Andrew Chalnick, 670 Nowland Farm Road; Rosanne Greco and Higley Harmon, 63 Four Sisters Road; William and Kathy Hays, 51 Old Schoolhouse Road; Noah Hyman, 1575 Dorset Street; Claudia J. Miller, 48 Old Schoolhouse Road; Steven and Dunia Partilo, 64 Shea Drive; and Darrilyn Peters, 37 Old Schoolhouse Road, all of whom are South Burlington residents as well as persons interested in the above-referenced Applications (collectively, “Save Open Spaces South Burlington” or “SOS South Burlington”). On behalf of SOS South Burlington, I write to request that the DRB postpone the hearing scheduled for December 18, 2018 concerning Master Plan Application No. MP-18-01 and Preliminary Plat Application No. SD-18-29 (collectively, the “PP/MP Applications”), and that the hearing not be rescheduled until after January 4, 2019, which is the deadline for SOS South Burlington to appeal the DRB’s December 5, 2018 Decision in #AO-18-01 (the “December 5th Decision”) to the Vermont Superior Court – Environmental Division (the “E-Court”). In a recent case involving the South Burlington DRB, the E-Court confirmed that the DRB must reach a “final decision” concerning a sketch plan application. Saxon Partners LLC BJ’s Warehouse Sketch Plan, No. 5-1-16 Vtec, 2016 WL 4211462, at *2, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Mar. 25, 2016) (Walsh, J.) (emphasis added) (citing SBLDR § 15.03(C)(1), (3)). See also Saxon Partners, 2016 WL 4211462, at *3, slip op. at 3 (“Though most towns’ sketch plan procedures call primarily for informal, non-binding review, some towns [such as South Burlington] authorize their municipal panels to make broad, final decisions at the sketch plan phase.”) (emphasis added). Letter to DRB Chairperson Bill Miller December 13, 2018 Page 2 of 2 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com State statutory law and the SBLDR are in accord. See 24 V.S.A. § 4461(a), which requires written minutes of DRB votes “showing the vote of each member upon each question. . . .” (emphasis added); and SBLDR § 15.05(C)(3), which mandates that the DRB “shall determine if the proposed [sketch plan] application meets the purposes of” the SBLDR as a necessary requirement to close the meeting on the sketch plan (emphasis added). See also SBLDR § 15.07(C)(1) (master plan application must be filed “within six (6) months after the final DRB meeting on the sketch plan”) (emphasis added); and SBLDR § 15.08(A) (preliminary plat application must be filed “within six (6) months of the meeting on the sketch plan”). SOS South Burlington continues to maintain that the DRB’s lack of a formal vote on Sketch Plan Application No. SD-18-23 renders the PP/MP Applications premature, unripe, invalid, null and void, and of no force or effect. Significantly, one DRB Member – who is also a lawyer – observed during the November 20, 2018 appeal hearing concerning #AO-18-01 that the non-vote-on-sketch issue is ‘not trivial’ and that E-Court guidance concerning it could be helpful to the DRB. In that connection, I note respectfully that the December 5th Decision does not address 24 V.S.A. § 4461(a) or Saxon Partners. SOS South Burlington is considering appealing the December 5th Decision to the E- Court. A notice of appeal would need to be filed no later than January 4, 2019. Accordingly, SOS South Burlington requests respectfully that the DRB postpone the hearing scheduled for December 18, 2018, and that the hearing not be rescheduled until after January 4, 2019. If SOS South Burlington proceeds with an E-Court appeal, the DRB and/or the applicant may wish to postpone further DRB proceedings regarding Master Plan Application No. MP-18-01 and Preliminary Plat Application No. SD-18-29 until after the E-Court appeal is resolved. Thanks in advance for your consideration, and happy holidays. Respectfully submitted, /s/ Daniel A. Seff Daniel A. Seff cc: Mr. Paul Conner, Planning and Zoning Director (via e-mail) Ms. Dalila Hall, Zoning Administrative Officer (via e-mail) Ms. Marla Keene, Development Review Planner (via e-mail) Robert H. Rushford, Esq. (via e-mail) Save Open Spaces South Burlington (via e-mail)