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Home My WebLink AboutBatch - Supplemental - 0201 Allen Roadsouthburlington V E R M 0 N T March 22, 2013 Re: #IZ-12-06, 201 Allen Road Dear Mr. McClellan: Enclosed, please find a copy of the Findings of Fact and Decision rendered by the City Council concerning your recent application. If you have any questions, please contact me. Sincerely, 0`x-, Kimberly L. Murray, AICP Development Coordinator City Manager's Office Encl. CERTIFIED MAIL -Return Receipt Requested # 7010 0290 0000 2215 4900 575 Dorset Street South Burlington, VT 05403 tel 802.846.4131 fax 802.846.4101 www.sburl.com Revised 412012 Interested Persons Record and Service List r.M CnT Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). SHEARING DATE: � _�j. �--, � � � 7-, Tr ji PLEASE PRINT CLEARLY! tr Ca.a? NAME EMAIL ADDRESS MAILING ADDRESS PROJEC OF INTEREST (� G S�V t, UVW t�c`� ke,e v t ✓��j J — O at OL 3#4 u/^r- Vk r ` � r �j�C/I)aP Ml'lVaye..11OYQNBo.Ceo� Sg �Qa aw R4if k' U 6S 3 ( i i7 jOa-nvl� 1�e.,dka�.� t �Jhe�cl�ctn..�@ CYv�a�•C�M Us 38 f�I��d�w P �J . 6u r I,% }v,._ Revised 412012 Interested Persons Record and Service List Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). .,HEARING DATE: — .�—�.�p . Z() t3 PLEASE PRINT CLEARLY! NAME EMAIL ADDRESS MAILING ADDRESS PROJECT OF INT EST • `.� -� SI vwaw/V��t/)//tl 1L1-�Q� 3� �� 'u-�t—�___ �Il,,,(1' ,,� Revised 412012 Interested Persons Record and Service List .;RM0 T Y Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). `.. HEARING DATE: a,4 nucw4 -7� ;) 0 /3 PLEASE PRINT CLEARLY! NAME EMAIL ADDRESS MAILING ADDRESS A,P-P i ca'+i b s PROJECT OF INTEREST 'V I -pco, 'sae j heN hkPcl r�" M-SV) -COW1 I �� (2�. S. C AI �S i�u� 1 1 �- 19 P IiV✓[ ~ l��"N L3 CY�`iL\Vi�lC��1Ll: LLL C[ GC.� '�// � -1- l 42�� , q�vo m 16 j-¢5103 V7 1 1- " [g- - 1 3: pie, gvLtce-�r 400gc Gt C/LfS`rlQ.nQ�Lohcs�S�/VL/� IV14'0" �U3 Sv�.ri y c:&bsuc�� moti A - ( �, Zzc�c, 1 � � Revised 412012 -40 Al Interested Persons Record and Service List south Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). / `, HEARING DATE: M )J-e tk �Zw l PLEASE PRINT CLEARLY! NAME EMAIL ADDRESS MAILING ADDRESS AfP t� s PROJECT OF INTEREST N /1a lug I a vto t s�G w�� .co Y-i��t� � , � ✓ I 1 -i'� V�- � �t�v-�� \�� t � ` `��iv�-e✓'✓l i�,�C..MC.cu�� . �I a�.l�w.. cvw, I �1 `•(l � afk4sj qr{c— 14, r" 5 -3 CLI <e �ri6' �►re-s� [)(40 k\0k Revised 412012 Interested Persons Record and Service List south" tiU - - LIE r.MG%T Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). L. HEARING DATE: 5-"2,0, mac`( PLEASE PRINT CLEARLY! NAME EMAIL ADDRESS MAILING ADDRE S PROJECT OF INTEREST LV A ' r. c c) C-4-'` Vj Su.-lTi+ ( r ..II V� �IG'Sky I e>�C�L� Lea-K�•�:n CEA l� �icns�leld V�tiw Lh. `�0C �Ceyt'-1 S1. t, I.0 sz v„wl ST 1-�Ate,�A ed it[MA '�>WX �6V ILI, -�o �kvq\e&t' 4V16' 0 (10 Ile, L v �o LA- V Revised 412012 Interested Persons Record and Service List South.__ .. . CL mn`.T , Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. � 4471(c). HEARING DATE: e �, PLEASE PRINT CLEARLY! NAME EMAIL ADDRESS MAILING ADDRESS PRn.IFCT OF INTFRFST —o cd (1,e% l ,��-dAa� J I i , "', q� f VInterested Persons Record and Service List southbudiinytort . CBM RhT Revised 412012 Under the 2004 revisions to Chapter 117, the Appropriate Municipal Panel (AMP) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The AMP must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the AMP must be mailed to every person or body appearing and having been heard by the AMP. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the AMP must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). --- HEARING DATE: PLEASE PRINT CLEARLY! NAME EMAIL ADDRESS MAILING ADDRESS PROJECT OF INTEREST to, c,,I 3,-�5DdZsq Vert\ e, 9ac, k�-43 V \z ac,�ctiS � ,N•�.,�, (0 M j ti-5," N�',,, 3 tA klA- It E5&1 -$ JCOVWCA !1 mills � S. 63 'cl-Or- -1A I ki r gr r,140 southburfington V E R M 0 N T MEMORANDUM TO: South Burlington City Council & City Manager FROM: Kimberly L. Murray, Development Coordinator SUBJECT: Continued Public Hearing Interim Zoning Application #IZ-12-06 (201 Allen Road) DATE: February 4, 2013 City Council meeting This is a continued public hearing from January 7, 2012. The Council requested additional soil information on the property. Attached is the Vermont Soil Fact Sheet -Detailed Definitions and Explanations, submitted by the applicant for review. Staff is also attaching for your reference, the Farmland Classification Systems for Vermont Soils, USDA, NRCS, June 2006, which contains some of the same information as the Soil Fact Sheet but does include some additional detail. Staff is also including specific fact sheets describing the four main soils on the property for your information. The application involves a 40 unit planned unit development (phase 1 of 71 unit project) at 201 Allen Road. The parcel is located in the Residential 1 and Residential 2 zoning districts. Our understanding is Skip McClellan from Llewellyn -Howley, Inc. will be in attendance at the public hearing on Monday. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4131 fax 802.846.4101 www.sburi.com C USDA Natural Resources Conservation Service Vermont Soil Fact Sheet Chittenden County, Vermont BIB: Belgrade and Eldridge soils, 3 to 8 percent slopes Eldridge soils formed in sandy glaciofluvial or aeolian deposits over stratified loamy glaciolacustrine deposits and Belgrade soils formed in loamy glaciolacustrine deposits on lake plains and terraces. BELGRADE SOILS are very deep to bedrock and moderately well drained. These soils have a water table at depths of 1.5 to 3.5 feet below the surface from late Fall through early Spring. Permeability is moderate in the solum and slow to moderately rapid in the substratum. Below 40 inches some pedons have layers of gravelly sand or sand. This map unit is well suited to cultivated crops, hay and pasture. Erosion is a hazard. A seasonal high water table may inhibit the establishment of some crops. Important farmland classification: Statewide Land capability: 2 e Vermont Agricultural Value Group: 2 Vermont Residential Wastewater Disposal - Group and Subgroup: Illc.- This unit is marginally suited as a site for soil -based residential wastewater disposal systems, based on a review by the Natural Resources Conservation Service of criteria set forth in the Vermont 2007 Environmental Protection Rules. The depth to the seasonal high water table in association with the minimal slope is the major limitation. A detailed, site -specific analysis is generally required. On -site groundwater level monitoring and determination of induced groundwater mounding is often necessary to establish the suitability of this unit. Curtain drains may help lower the water table to an acceptable level, however, the minimal slope may prevent their use in many areas. PHYSICAL and CHEMICAL PROPERTIES Permeability Organic EROSION FACTORS Soil Soil name Depth Typical Clay reaction (In/Hr) matter (In) texture (Pct) (pH) (Pct) Kw Kf I T Belgrade 0-7 VFSL 4-15 4.5 - 7.3 0.6-2 1.0-5.0 .49 .49 5 7-23 VFSL 4-15 4.5 - 7.3 0.6-2 0.5-3.0 .64 .64 23-60 VFSL 2-20 6.1 - 7.8 0.06-6 0.0-1.0 .64 .64 Eldridge 0-9 LFS 1-5 5.1 - 7.3 6-20 2.0-4.0 .24 .24 5 9-27 LFS 1-5 5.1 - 7.3 6-20 0.5-2.0 .24 .24 27-60 SIL 3-18 5.1 - 7.3 0.06-0.6 0.0-0.5 .43 .43 WATER FEATURES SOIL FEATURES Soil name Hydrologic group Depth to seasonal p high water table (Feet) Flooding Ponding Hydric soil? Depth to bedrock (range in inches) Frequency Duration Frequency Duration Belgrade B 1.5-3.5 None None No --- Eldridge C 1.0-2.0 None None No --- LAND USE LIMITATIONS AGRICULTURAL YIELD DATA Soil name Land use Rating Reason— Crop name Yield / acre Belgrade Dwellings with basements: Very limited Depth to saturated zone Grass -clover 7.5 AUM Eldridge Dwellings with basements: Very limited Depth to saturated zone Grass -legume hay 3.5 Tons Belgrade Pond reservoir areas: Somewhat limited Seepage Alfalfa hay 4 Tons Eldridge Pond reservoir areas: Very limited Seepage Corn silage 22 Tons WOODLAND MANAGEMENT Management Soil name concern Rating Reason Vermont natural communities Belgrade Harvest equip operability: Moderately suited Wetness Northern Hardwood Forest, Eldridge Harvest equip operability: Moderately suited Wetness Rich Northern Hardwood Forest, Sugar Maple -Ostrich Fern Riverine Floodplain Belgrade Road suitability: Moderately suited Wetness Forest Eldridge Road suitability: Moderately suited Wetness Belgrade Erosion hazard (off -road): Slight Eldridge Erosion hazard (off -road): Slight Distribution Generation Date: 3/13/2008 Page 1 of 1 USDA Natural Resources Conservation Service Vermont Soil Fact Sheet Chittenden County, Vermont AdA: Adams and Windsor loamy sands, 0 to 5 percent slopes These soils formed in glaciofluvial or glaciolacustrine sands on outwash plains, lake plains, terraces and eskers. ADAMS SOILS are very deep to bedrock and somewhat excessively drained and excessively drained. Permeability is rapid in the solum and very rapid in the substratum. Some areas of these soils have contrasting very gravelly deposits below a depth of 40 inches. WINDSOR SOILS are very deep to bedrock and excessively drained. Permeability is rapid or very rapid. This map unit is suited to cultivated crops, hay and pasture. Low available water capacity and droughtiness are the major management concerns. Important farmland classification: Statewide Land capability: 3 s Vermont Agricultural Value Group: 6 Vermont Residential Wastewater Disposal - Group and Subarouo: la.- This unit is well suited as a site for soil -based residential wastewater disposal systems, based on a review by the Natural Resources Conservation Service of criteria set forth in the Vermont 2007 Environmental Protection Rules. The rapid permeability in the substratum is a concern. Backfilling absorption trenches with at least one foot of finer textured material or other site modifications may be necessary to slow the percolation rate enough to allow for thorough filtering of effluent. PHYSICAL and CHEMICAL PROPERTIES Permeability Organic EROSION FACTORS Soil Soil name Depth Typical Clay reaction (In/Hr) matter (In) texture (Pct) (pH) (Pct) Kw Kf T Adams 0-7 LS 0-5 3.6 - 6.0 6-20 2.0-5.0 .17 .17 5 7-30 LFS 0-5 4.5 - 6.0 6-20 1.0-3.0 .17 .17 30-65 LFS 0-5 4.5 - 6.5 20-100 0.0-0.5 .17 .17 Windsor 0-6 LS 1-3 4.5 - 6.0 6-20 2.0-4.0 .17 .17 5 6-23 LS 0-3 4.5 - 6.0 6-20 0.5-2.0 .17 .17 23-65 COS 0-2 4.5 - 6.5 6-20 0.0-0.5 .10 .10 WATER FEATURES SOIL FEATURES Soil name Hydrologic rou g p Depth to seasonal p high water table (Feet) Flooding Ponding Hydric soil? Depth to bedrock (range in inches) Frequency Duration I Frequency Duration Adams A --- Windsor A --- None None None None No No -- LAND USE LIMITATIONS I AGRICULTURAL YIELD DATA Soil name Land use Rating Reason— Crop name Yield / acre Adams Dwellings with basements: Not limited Corn silage 16 Tons Windsor Dwellings with basements: Not limited Grass -legume hay 4 Tons Adams Pond reservoir areas: Very limited Seepage Pasture 4.5 AUM Windsor Pond reservoir areas: Very limited Seepage WOODLAND MANAGEMENT Management Soil name concern Rating Reason Vermont natural communities Adams Harvest equip operability: Well suited Hemlock -Northern Hardwood Forest, Windsor Harvest equip operability: Well suited Hemlock -White Pine -Northern Hardwood Forest Variant, Adams Road suitability: Well suited White Pine -Northern Hardwood Forest Variant, Windsor Road suitability: Well suited Hemlock Forest Adams Erosion hazard (off -road): Slight Windsor Erosion hazard (off -road): Slight Distribution Generation Date: 3/13/2008 Page 1 of 1 USDA Natural Resources Conservation Service Vermont Soil Fact Sheet Chittenden County, Vermont HnA: Hinesburg fine sandy loam, 0 to 3 percent slopes HINESBURG SOILS formed in sandy glaciofluvial deposits over loamy glaciolacustrine deposits on lake plains and deltas. They are very deep to bedrock and well drained. These soils have a perched water table at depths of 1.5 to 2.5 feet below the surface from late Fall through late Spring. Permeability is rapid in the solum and moderately slow in the substratum. These soils are suited to cultivated crops and well suited to hay and pasture. Low available water capacity and droughtiness are the major management concerns. Important farmland classification: Prime Land capability: 2 s Vermont Agricultural Value Group: 3 Vermont Residential Wastewater Disposal - Group and Subgroup: Ilh.- This unit is moderately suited as a site for soil -based residential wastewater disposal systems, based on a review by the Natural Resources Conservation Service of criteria set forth in the Vermont 2007 Environmental Protection Rules. The depth to the seasonal high water table is the primary concern. Mound system construction and other site modifications are often necessary. On sloping sites, curtain drains can help lower the water table to an acceptable level. In some cases, a detailed, site -specific analysis with groundwater level monitoring and determination of induced groundwater mounding may be required to establish the suitability of this unit. PHYSICAL and CHEMICAL PROPERTIES Permeability Organic EROSION FACTORS Soil Soil name Depth Typical Clay reaction (In/Hr) matter (In) texture (Pet) (pH) (Pct) Kw Kf T Hinesburg 0-8 FSL 1-5 5.6 - 6.5 6-20 3.0-6.0 .24 .24 5 8-28 LFS 1-5 5.6 - 6.5 6-20 0.5-2.0 .24 .24 28-65 VFSL 3-16 5.1 - 7.3 0.2-0.6 0.0-0.5 .43 .43 WATER FEATURES SOIL FEATURES Soil name Hydrologic group g p Depth to seasonal p high water table (Feet) Flooding Ponding Hydric soil? Depth to bedrock (range in inches) Frequency Duration Frequency Duration Hinesburg C 2.0-4.0 None None No -- LAND USE LIMITATIONS I AGRICULTURAL YIELD DATA Soil name Land use Rating Reason— Crop name Yield / acre Hinesburg Hinesburg Dwellings with basements: Somewhat limited Depth to saturated zone Pond reservoir areas: Very limited Seepage Grass -clover 5.6 AUM Alfalfa hay 4 Tons Grass -legume hay 3.5 Tons Corn silage 16 Tons Grass hay 3 Tons Management WOODLAND MANAGEMENT Soil name concern Rating Reason Vermont natural communities Hinesburg Harvest equip operability: Well suited White Pine -Red Oak -Black Oak Forest, Hinesburg Road suitability: Well suited White Pine -Northern Hardwood Forest Variant, Sugar Maple -Ostrich Fern Riverine Floodplain Hinesburg Erosion hazard (off -road): Slight Forest Distribution Generation Date: 3/13/2008 Page 1 of 1 USDA Natural Resources Conservation Service Vermont Soil Fact Sheet Chittenden County, Vermont EwA: Enosburg and Whately soils, 0 to 3 percent slopes Enousburg soils formed in sandy glaciofluvial or aeolian deposits over loamy glaciolacustrine deposits and Whately soils formed in a thin layer of loamy over clayey glaciolacustrine sediments on lake plains and outwash areas. ENOSBURG SOILS are very deep to bedrock and poorly drained. These soils have a water table at depths of 0 to 1.0 feet below the surface from late Fall through late Spring. Permeability is rapid in the surface layer and upper part of the substratum and moderately slow or slow in the lower part of the substratum. WHATELY SOILS are very deep to bedrock and very poorly drained. These soils have a water table that is ponded on the surface to 1.0 feet below the surface from Fall through Late Summer. Permeability is moderately rapid to rapid in the surface layer, moderately rapid in the subsoil and slow or very slow in the substratum. This map unit is suited to cultivated crops if adequate drainage is provided. They are well suited to hay and pasture. A seasonal high water table may inhibit the establishment of some crops. Areas of this map unit may be classified as wetland and drainage may be regulated. Important farmland classification: Statewide (b) Land capability: 3 w Vermont Agricultural Value Group: 4d Vermont Residential Wastewater Disposal - Group and SubarouD: IVa.- This unit is generally not suited as a site for soil -based residential wastewater disposal systems, based on a review by the Natural Resources Conservation Service of criteria set forth in the Vermont 2007 Environmental Protection Rules. Excessive soil wetness in association with the minimal slope is the limiting condition. Prolonged periods of saturation at or near the soil surface do not allow for the proper functioning of septic systems. PHYSICAL and CHEMICAL PROPERTIES Permeability Organic EROSION FACTORS Soil Soil name Depth Typical Clay reaction (In/Hr) matter (In) texture (Pct) (pH) (Pct) Kw Kf I T Enosburg 0-8 LS 1-5 4.5 - 6.5 6-20 2.0-4.0 .24 .24 5 8-32 COS 1-5 4.5 - 7.3 6-20 0.5-2.0 .24 .24 32-65 SI 3-18 5.6 - 7.3 0.06-0.6 0.0-0.5 .43 .43 Whately 0-8 FSL 5-12 5.1 - 7.3 2-6 4.0-8.0 .28 .28 5 8-15 FSL 5-12 5.1 - 7.3 2-6 0.5-3.0 .32 .32 15-65 SICL 35-55 5.6 - 8.4 0-0.2 0.0-0.5 .49 .49 WATER FEATURES SOIL FEATURES Soil name Hydrologic group g p Depth to seasonal high water table (Feet) Flooding Ponding Hydric soil? Depth to bedrock (range in inches) Frequency Duration Frequency Duration Enosburg C 0.0-1.0 None None Yes --- Whately D 0.0-1.5 None None Yes -- LAND USE LIMITATIONS AGRICULTURAL YIELD DATA Soil name Land use Rating Reason- Crop name Yield / acre Enosburg Dwellings with basements: Very limited Depth to saturated zone Corn silage 18 Tons Whately Dwellings with basements: Very limited Depth to saturated zone Grass hay 3 Tons Enosburg Pond reservoir areas: Very limited Seepage Grass -clover 5.6 AUM Whately Pond reservoir areas: Not limited Grass -legume hay 3 Tons Management WOODLAND MANAGEMENT Soil name concern Rating Reason Vermont natural communities Enosburg Harvest equip operability: Poorly suited Wetness Red Maple -Black Ash Swamp, Whately Harvest equip operability: Poorly suited Wetness Spruce -Fir -Tamarack Swamp, Alder Swamp Enosburg Road suitability: Poorly suited Wetness Whately Road suitability: Poorly suited Wetness Enosburg Erosion hazard (off -road): Slight Whately Erosion hazard (off -road): Slight Distribution Generation Date: 3/13/2008 Page 1 of 1 Vermont Soil Fact Sheet- Detailed Definitions and Explanations General Information The Vermont Soil Fact Sheet was developed to organize a variety of data about a particular soil map unit on one page. Vermont Important Farmland Classification Important Farmland ratings help to identify soil map units that represent the best land for producing food, feed, fiber, forage, and oilseed crops. Important Farmland inventories identify soil map units that are Prime Farmland, Additional Farmland of Statewide Importance, and Additional Farmland of Local Importance Prime Farmland (Prime) The national definition of Prime Farmland was modified to include information that applies to soils in Vermont. The national definition can be found in the Code of Federal Regulations (7CFR657). Soil map units are Prime Farmland if they have the best combination of physical and chemical characteristics for producing food, feed fiber, forage, and oilseed crops and are also available for these uses. The present land use may be cropland, pasture, forestland, or other land uses, but not urban and built-up or water. Location, tract size, and accessibility to markets and support industries are not considered when making a Prime Farmland determination. Prime Farmland has the soil quality, growing season, and moisture supply needed to economically produce sustained high yields of crops when treated and managed according to acceptable farming methods. These soils have an adequate and dependable water supply from precipitation, a favorable temperature and growing season, acceptable acidity or alkalinity, and few or no surface stones or boulders. They are permeable to water and air, are not excessively erodible or saturated with water for a long period of time, and don't flood frequently or are protected from flooding. To qualify as a Prime Farmland sod map unit, the dominant soils must meet all of the following conditions: * Soil temperature and growing season are favorable. * Sod moisture is adequate to sustain commonly grown crops throughout the growing season in 7 or more years out of 10. * Water moves readily through the soil and root -restricting layers are absent within 20 inches of the surface. * Less than 10 percent of the surface layer consists of rock fragments larger than 3 inches in diameter. * The soils are neither too acid nor too alkaline for, or the soils respond readily to additions of lime. * The soils are not frequently flooded (less often than once in 2 years) and have no water table, or the water table can be maintained at a sufficient depth during the growing season for the growth of commonly grown crops. * Slope is favorable (generally less than 8 percent) and the soils are not subject to serious erosion. * The soils are typically deep (greater than 40 inches to bedrock), but include moderately deep soils (20 to 40 inches) with adequate available water capacity. Additional Farmland of Statewide Importance (Statewide) This is land, in addition to Prime Farmland, that is of Statewide importance for the production of food, feed, fiber, forage, and oilseed crops. In Vermont, criteria for defining and delineating Statewide Important Farmland was determined by the appropriate state agencies, working with the Natural Resources Conservation Service. The dominant soils, in these soil map units, have limitations resulting from one or more of the following: * Excess slope and erosion hazard, USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2.1 Page 1 C C Vermont Soil Fact Sheet- Detailed Definitions and Explanations Vermont Important Farmland Classification " Excess wetness or slow permeability, * A flooding hazard, • Shallow depth (less than 20 inches) to bedrock or other layers that limit the rooting zone and available water capacity, * Moderately low to very low available water capacity. Additional Farmland of Local Importance (Local) In some areas, there is a need to identify additional farmlands for the production of food, feed, fiber, forage, and oilseed crops that has not been identified by the other categories in the Important Farmland system. These lands can be identified as Additional Farmland of Local Importance by the appropriate local agencies. In places, Additional Farmlands of Local Importance may include tracts of land that have been designated for agriculture by local ordinance. In Vermont, a few soil map units in certain counties have been identified as Additional Farmland of Local Importance. The local Natural Resources Conservation Districts made these designations, with assistance from local NRCS personnel and concurrence by the State Conservationist. For many soil map units on less than 15 percent slope that are somewhat poorly drained to very poorly drained the major limiting factors that need to be overcome are surface stones that cover 0.1 to 3.0 percent of the surface and wetness. However, many of these areas may have never been cleared of surface stones because the wetness limitation was too difficult to overcome. NPSL. stands for "Not Prime, Statewide, or Local" and replaces "not rated" Important Farmland Determinations An Important Farmland classification of Prime, Statewide, Local is assigned to soil map units based on the characteristics of the dominant soils in the soil map unit. Determinations of unique are based on the specific crop and are not directly related to the soil map unit. In most cases, Important Farmland determinations are made on a soil map unit basis. They are never made for individual components of a soil map unit. For example, if the area in question is a delineation of a Prime soil map unit the whole area is considered Prime regardless of any map unit inclusions within the delineation. The Important Farmland designation of individual delineation's of a soil map unit can't be changed without an onsite investigation and a change in the official copy of the soil map where the area is located. This would only occur after an evaluation of a representative sample of all delineation's of the specific soil map unit within the soil survey area. There are exceptions. Prime, Statewide, and Local soil map units can't be urban or buildup. A delineation of a Prime, Statewide, or Local soil map unit, which has been converted to urban or build up, should no longer be considered Important Farmland The delineation should be changed to an appropriate soil map unit on the official copy of the soil map. Delineations of some soil map units that are Prime, Statewide, or Local have a wetness, bedrock, or slope limitation. These soil map units are footnoted in the soil surveys legends at the end of this report It is assumed that delineations of these map units are Prime, Statewide, or Local unless an onsite determines that the delineation should not be Important Farmland. A determination that the delineation is not Important Farmland doesn't require that change is made in the soil map unit symbol. See the FOOTNOTES section for more details. The following footnotes are used FOOTNOTE "a" - If the upper slope class limit of the soil map unit is between 9 and 15 percent then the areas of the soil map unit that exceed 8 percent slope don't qualify as Prime, Statewide, or Local. If the upper slope class limit exceeds 15 percent then the areas of the soil map unit that exceed 15 percent slope don't qualify as Important Farmland. USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2 1 Page 2 Vermont Soil Fact Sheet- Detailed Definitions and Explanations Vermont Important Farmland Classification FOOTNOTE "b" - The soils in this soil map unit have a wetness limitation that may be difficult and/or unfeasible to over come. Areas of this soil map unit don't qualify as Prime, Statewide, or Local, if artificial drainage is not feasible. FOOTNOTE "c" - Bedrock outcrops commonly cover more than 2 percent of the surface. Areas of this soil map unit will not qualify as Prime, Statewide, or Local, if bedrock outcrops are extensive enough to prohibit efficient farming. Vermont Agricultural Value Group Agricultural value groups are a land classification system that can be used to compare the "relative value" for crop production of one soil map unit to another. They can be a useful tool in administering national, state, and local land use programs and regulations. Soil map units were placed in their respective Agricultural Value Groups assuming that it was feasible to apply the corrective measures needed to overcome the soil limitations identified in the soil potential study. Soil map units associated with bedrock or wetness are identified by footnotes, defined in the section Footnotes, and are listed on the soil survey legends Users of this report are encouraged to consider the footnotes and the need for on -site investigations. Agricultural Value Groups Descriptions Agricultural Value Groups consist of soil map units that have similar characteristics, limitations, management requirements, and potential for crop production. Soil map units in Group 1 have the most potential for crop production and soil map units in Groups 11 and 12 have the least potential for crop production. The description and makeup of the Agricultural Value Groups are as follows- 1 — These soil map units have an Important Farmland rating of Prime. Most of the soil map units are in Land Capability Class 1 or 2. Their relative value is 100. 2 — These soil map units have an Important Farmland rating of Statewide. Most of the soil map units are in Land Capability Class 2. Their relative value is 97. 3 — These soil map units have an Important Farmland rating of Prime. Most of the soil map units are in Land Capability Class 2 or 3. Their relative value is 84. 4 — These soil map units have an Important Farmland rating of Statewide. Most of the soil map units are in Land Capability Class 2, 3, or 4. Their relative value is 82. 5- These soil map units have an Important Farmland rating of Statewide. Most of the soil map units are in Land Capability Class 3. Their relative value is 69. 6- These soil map units have an Important Farmland rating of Statewide. Most of the soil map units are in Land Capability Class 2, 3, or 4. Their relative value is 63. 7- These soil map units have an Important Farmland rating of Statewide. Most of the soil map units are in Land Capability Class 3. Their relative value is 57. 8- These soil map units have limitations for crop production that can be overcome. Most of the soil map units are in Land Capability Class 4 or 6. Low crop yields, low available water capacity, and erosion hazard tend to be the major limitations. This group includes a few soil map units that have an Important Farmland rating of Local. Their relative value is 52. 9- These soil map units have limitations that are difficult to overcome and they are usually considered to be unsuitable for crop production. Limiting factors can include but are not limited to slope, wetness, surface stones, and bedrock outcrops. On -site investigations are strongly recommended to determine the feasibility of installing corrective measures and using these soils for crop production. If the user determines, that corrective measures can't be installed then the area in question should be placed in Agricultural Value Group 11. Normally, the cost of overcoming corrective measures and laws governing the installation of corrective measures should not be considered when making this determination. In some situations, if laws prevent the installation of corrective measures, the area in question should be placed in Agricultural Value Group 11. Most of the soil map units are in Land Capability USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2.1 Page 3 Vermont Soil Fact Sheet- Detailed Definitions and Explanations Vermont Agricultural Value Group Class 5, 6, or 7. Their relative value is 43. 10- These soil map units have limitations are very difficult to overcome and they are usually considered to be unsuitable for crop production. Limiting factors can include but are not limited to slope, wetness, surface stones, and bedrock outcrops. They can be used as cropland only after intensive and expensive installation of various corrective measures. On -site investigations are strongly recommended to determine feasibility of installing corrective measures and using these soils for crop production.. If the user determines, that corrective measures can't be installed then the area in question should be placed in Agricultural Value Group 11. Normally, the cost of overcoming corrective measures and laws governing the installation of corrective measures should not be considered when making this determination. In some situations, if laws prevent the installation of corrective measures, the area in question should be placed in Agricultural Value Group 11. Most of the soil map units are in Land Capability Class 5, 6, or 7. Their relative value is 22. 11- These soil map units are considered to have very limited potential for crop production. Most of the soil map units are in Land Capability Class 7 or 8. Only in rare situations, and usually after great expense, are these soil map units converted for crop production. Their relative value is 0. 12- These soil map units are areas within a digitized or published soil survey that have never been mapped because of restricted access or the policy on mapping urban areas that was in place at the time. An onsite should be conducted to determine if areas of these soil map units should be assigned to a different Agricultural Value Group. No relative value is assigned. FOOTNOTE "d"- The soils in this soil map unit have a wetness limitation that may not be feasible to over come. Areas of this soil map unit, where artificial drainage is not feasible should be placed in Agricultural Value Group 11. FOOTNOTE "e% Bedrock outcrops cover more than 2 percent of the surface. Areas of this soil map unit should be placed in Agricultural Value Group 11, if bedrock outcrops are extensive enough to prohibit efficient farming. Possible Uses Agricultural Value Groups and relative values may be useful in many state and local programs, including: " design and implementation of Agricultural Land Evaluation and Site Assessment (LESA) systems; • implementation of Public Law 97-98, the Farmland Protection Policy Act (FPPA); * rating of agricultural soils for appraisal under Vermont's Use Value Program of Agricultural and Forest Land; * rating of agricultural soils for appraisal under Town Tax Stabilization Programs; * assessment of agricultural soils by land trusts, landowners, bankers, realtors; and * broad resource planning by state agencies and town and regional planning commissions. Vermont Residential On -site Waste Disposal Group This information identifies the new onsite sewage disposal class and footnote of the map unit. Ratings are based on Vermont Environmental Protection Rules, August 16, 2002, based on 20% maximum slope — for lots created on or after June 14, 2002. It doesn't replace onsite investigation. These are the five major classes. Class I - WELL SUITED Class II - MODERATELY SUITED Class III - MARGINALLY SUITED USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2.1 Page 4 Vermont Soil Fact Sheet- Detailed Definitions and Explanations Vermont Residential On -site Waste Disposal Group Class IV - NOT SUITED Class V - NOT RATED The combination of class and footnote provides information on the major soil properties affecting the class assignment. A brief summary of the ratings groups follows. (For more detailed information on the individual classes, see Appendix A.) la - WELL SUITED - Soil map units with rapid permeability lb - WELL SUITED - Soil map units with rapid permeability and limited slope Ic - WELL SUITED - Soil map units with moderate permeability Id - WELL SUITED - Soil map units with moderate permeability and limited slope Ila - MODERATELY SUITED - Soil map units with slow permeability Ilb - MODERATELY SUITED - Soil map units with slow permeability and limited slope IIc - MODERATELY SUITED - Soil map units with moderate depth to bedrock Ild - MODERATELY SUITED - Soil map units with moderate depth to bedrock and limited slope lie - MODERATELY SUITED - Soil map units with rapid permeability and steep slope [if - MODERATELY SUITED - Soil map units with moderate permeability and steep slope Ilg - MODERATELY SUITED - Soil map units with flooding limitation Ilh - MODERATELY SUITED - Soil map units with moderate depth to seasonal high water table (SHWT) Ilia - MARGINALLY SUITED - Soil map units with marginal depth to bedrock Illb - MARGINALLY SUITED - Soil map units with flooding limitation and moderate depth to SHWT Illc - MARGINALLY SUITED - Soil map units with marginal depth to SHWT and gentle slope Illd - MARGINALLY SUITED - Soil map units with marginal depth to SHWT and moderate slope Ille - MARGINALLY SUITED - Soil map units with marginal depth to SHWT and limited slope Illf - MARGINALLY SUITED - Soil map units with SHWT and depth to bedrock limitation IVa - NOT SUITED - Soil map units not suited due to excessive wetness IVb - NOT SUITED - Soil map units not suited due to limited depth to bedrock and steep slope IVc - NOT SUITED - Soil map units not suited due to very limited depth to bedrock on moderate slopes IVd - NOT SUITED - Soil map units not suited due to slow permeability and steep slope V - NOT RATED MAP UNITS Physical and Chemical Properties This table shows estimates of some physical and chemical characteristics and features that affect soil behavior. These estimates are given for the layers of each soil in the survey area. The estimates are based on field observations and on test data for these and similar soils. Depth to the upper and lower boundaries of each layer is indicated. Texture is given in the standard terms used by the U.S. Department of Agriculture. These terms are defined according to percentages of sand, silt, and clay in the fraction of the soil that is less than 2 millimeters in diameter. "Loam," for example, is soil that is 7 to 27 percent clay, 28 to 50 percent silt, and less than 52 percent sand. If the content of particles coarser than sand is 15 percent or more, an appropriate modifier is added, for example, "gravelly." Clay as a soil separate consists of mineral soil particles that are less than 0.002 millimeter in diameter. The estimated clay content of each soil layer is given as a percentage, by weight, of the soil material that is less than 2 millimeters in diameter. The content of sand, silt, and clay affects the physical behavior of a soil. Particle size is important for engineering and agronomic interpretations, for determination of soil hydrologic qualities, and for soil classification. The amount and kind of clay affect the fertility and physical condition of the soil and the ability of the soil to adsorb cations and to retain moisture. They influence shrink -swell potential, saturated hydraulic conductivity (Ksat), plasticity, the ease of soil dispersion, and other soil properties. The amount and kind of clay in a soil also affect tillage and earthmoving operations. Soil reaction (pH) is a measure of acidity or alkalinity. It is important in selecting crops and other plants, in evaluating soil amendments for fertility and stabilization, and in determining the risk of corrosion. USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2.1 Page 5 CI Vermont Soil Fact Sheet- Detailed Definitions and Explanations Physical and Chemical Properties Saturated hydraulic conductivity refers to the ability of a soil to transmit water or air. The term "permeability" indicates saturated hydraulic conductivity (Ksat ). The estimates in the table indicate the rate of water movement, in inches per hour, when the soil is saturated. They are based on soil characteristics observed in the field, particularly structure, porosity, and texture. Organic matter is the plant and animal residue in the soil at various stages of decomposition. The estimated content of organic matter is expressed as a percentage, by weight, of the soil material that is less than 2 millimeters in diameter. The content of organic matter in a soil can be maintained by returning crop residue to the soil. Organic matter has a positive effect on available water capacity, water infiltration, soil organism activity, and tilth. It is a source of nitrogen and other nutrients for crops and soil organisms Erosion factors are shown in the table as the K factor (Kw and Kf) and the T factor. Erosion factor K indicates the susceptibility of a soil to sheet and rill erosion by water. Factor K is one of six factors used in the Universal Soil Loss Equation (USLE) and the Revised Universal Soil Loss Equation (RUSLE) to predict the average annual rate of soil loss by sheet and rill erosion in tons per acre per year. The estimates are based primarily on percentage of silt, sand, and organic matter and on soil structure and Ksat Values of K range from 0.02 to 0.69. Other factors being equal, the higher the value, the more susceptible the soil is to sheet and rill erosion by water. Erosion factor Kw indicates the erodibility of the whole soil. The estimates are modified by the presence of rock fragments. Erosion factor Kf indicates the erodibility of the fine -earth fraction, or the material less than 2 millimeters in size. Erosion factor T is an estimate of the maximum average annual rate of soil erosion by wind and/or water that can occur without affecting crop productivity over a sustained period. The rate is in tons per acre per year. Water Features This table gives estimates of various soil water features. The estimates are used in land use planning that involves engineering considerations. Hydrologic soil groups are based on estimates of runoff potential. Soils are assigned to one of four groups according to the rate of water infiltration when the soils are not protected by vegetation, are thoroughly wet, and receive precipitation from long -duration storms. The four hydrologic soil groups are: Group A. Soils having a high infiltration rate (low runoff potential) when thoroughly wet. These consist mainly of deep, well drained to excessively drained sands or gravelly sands. These soils have a high rate of water transmission. Group B. Soils having a moderate infiltration rate when thoroughly wet. These consist chiefly of moderately deep or deep, moderately well drained or well drained soils that have moderately fine texture to moderately coarse texture. These soils have a moderate rate of water transmission Group C. Soils having a slow infiltration rate when thoroughly wet. These consist chiefly of soils having a layer that impedes the downward movement of water or soils of moderately fine texture or fine texture. These soils have a slow rate of water transmission. Group D. Soils having a very slow infiltration rate (high runoff potential) when thoroughly wet. These consist chiefly of clays that have a high shrink -swell potential, soils that have a high water table, soils that have a claypan or clay layer at or near the surface, and soils that are shallow over nearly impervious material. These soils have a very slow rate of water transmission. Water table refers to a saturated zone in the soil. The water features table indicates depth to the top (upper limit) of the saturated zone in most years. Estimates of the upper limits are based mainly on observations of the water table at selected sites and on evidence of a saturated zone, namely grayish colors or mottles (redoximorphic features) in the soil. A saturated zone that lasts for less than a month is not considered a water table. Flooding is the temporary inundation of an area caused by overflowing streams, by runoff from adjacent slopes, or by tides. Water standing for short periods after rainfall or snowmelt is not considered flooding, and water standing in swamps and marshes is considered ponding rather than flooding. USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2 1 Page 6 Vermont Soil Fact Sheet- Detailed Definitions and Explanations Water Features Duration and frequency are estimated. Duration is expressed as extremely brief if 0.1 hour to 4 hours, very brief if 4 hours to 2 days, brief if 2 to 7 days, long if 7 to 30 days, and very long if more than 30 days. Frequency is expressed as none, very rare, rare, occasional, frequent, and very frequent. None means that flooding is not probable; very rare that it is very unlikely but possible under extremely unusual weather conditions (the chance of flooding is less than 1 percent in any year); rare that it is unlikely but possible under unusual weather conditions (the chance of flooding is 1 to 5 percent in any year); occasional that it occurs infrequently under normal weather conditions (the chance of flooding is 5 to 50 percent in any year); frequent that it is likely to occur often under normal weather conditions (the chance of flooding is more than 50 percent in any year but is less than 50 percent in all months in any year), and very frequent that it is likely to occur very often under normal weather conditions (the chance of flooding is more than 50 percent in all months of any year). The information is based on evidence in the soil profile, namely thin strata of gravel, sand, silt, or clay deposited by floodwater; irregular decrease in organic matter content with increasing depth; and little or no horizon development. Also considered are local information about the extent and levels of flooding and the relation of each soil on the landscape to historic floods. Information on the extent of flooding based on soil data is less specific than that provided by detailed engineering surveys that delineate flood -prone areas at specific flood frequency levels. Soil Features Hydric Soil? The three essential characteristics of wetlands are hydrophytic vegetation, hydric soils, and wetland hydrology. Criteria for each of the characteristics must be met for areas to be identified as wetlands. Undrained hydric soils that have natural vegetation should support a dominant population of ecological wetland plant species. Hydric soils that have been converted to other uses should be capable of being restored to wetlands. Hydric soils are defined by the National Technical Committee for Hydric Soils (NTCHS) as soils that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part. These soils are either saturated or inundated long enough during the growing season to support the growth and reproduction of hydrophytic vegetation. The NTCHS definition identifies general soil properties that are associated with wetness. In order to determine whether a specific soil is a hydric soil or nonhydric soil, however, more specific information, such as information about the depth and duration of the water table, is needed. Thus, criteria that identify those estimated soil properties unique to hydric soils have been established. These criteria are used to identify a phase of a soil series that normally is associated with wetlands. The criteria used are selected estimated soil properties that are described in "Soil Taxonomy" (Soil Survey Staff, USDA, 1999) and in the "Soil Survey Manual' (Soil Survey Staff, USDA, 1993). If soils are wet enough for a long enough period to be considered hydric, they should exhibit certain properties that can be easily observed in the field. These visible properties are indicators of hydric soils. The indicators used to make onsite determinations of hydric soils in this survey area are specified in "Field Indicators of Hydric Soils in the United States" (USDA, NRCS, 2002). (A separate guide, "Field Indicators for Identifying Hydric Soils in New England," is also available. Please consult with the State Wetlands Office for more information.) Hydric soils are identified by examining and describing the soil to a depth of about 20 inches. This depth may be greater if determination of an appropriate indicator so requires. It is always recommended that soils be excavated and described to the depth necessary for an understanding of the redoximorphic processes. Using the completed soil descriptions, soil scientists can then compare the soil features required by each indicator and specify which indicators have been matched with the conditions observed in the soil. The soil can be identified as a hydric soil if at least one of the approved indicators is present. This survey can be used to locate probable areas of hydric soils. Soil components with a value of "yes" meet the definition of hydric soils and, in addition, have at least one of the hydric soil indicators. This rating can help in planning land uses; however, onsite investigation is recommended to determine the hydric soils on a specific site. USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2.1 Page 7 r Vermont Soil Fact Sheet- Detailed Definitions and Explanations Soil Features Depth to Bedrock This table gives estimates of depth to a bedrock layer, if bedrock is a restrictive feature normally associated with the soil The estimates are used in land use planning that involves engineering considerations. Depth to top is the vertical distance from the soil surface to the upper boundary of the restrictive layer. The Land Capability Classification system shows the suitability of soils for most agricultural uses. Soils are grouped according to their limitations for agricultural crops, the risk of damage when they are used, and the way they respond to management. The grouping does not consider major, and generally expensive, landforming activities that would change slope, depth, or other characteristics of the soils, nor does it consider major land reclamation projects. Soils are grouped at three levels: capability class, subclass, and unit. Classes and subclasses have been used in this study. Capability classes are designated by Roman numerals I through Vill in older soil survey reports, and by Arabic numerals 1 through 8 in newer soil survey reports. The numerals indicate progressively greater limitations and narrower choices for practical use. The classes are defined as follows: Class 1 soils have few limitations that restrict their use. Class 2 soils have moderate limitations that reduce the choice of plants or require moderate conservation practices Class 3 soils have severe limitations that reduce the choice of plants or require special conservation practices, or both. Class 4 soils have very severe limitations that reduce the choice of plants or require very careful management, or both. Class 5 soils are not likely to erode but have other limitations, impractical to remove, that limit their use. Class 6 soils have severe limitations that make them generally unsuitable for crop production. Class 7 soils have very severe limitations that make them unsuitable for crop production. Class 8 soils and miscellaneous land areas have limitations that nearly prelude their use for crop production. Capability subclasses indicate the major kinds of limitations within each capability class. Within most capability classes there can be up to four subclasses. Adding a small letter e, w, s, or c, to the class numeral indicates the subclass An example is 2e. The letter a represents a risk of erosion, w means that water in or on the soil will interfere with plant growth or crop production, s represents a shallow, droughty, or surface stoniness limitation, and c represents a climate limitation that is very cold or very dry. Land Use Limitations This table shows the degree and kind of soil limitations that affect dwellings with basements and pond reservoir areas. Rating class terms indicate the extent to which the soils are limited by all of the soil features that affect building site development. Slight indicates that the soil has features that are very favorable for the specified use. Good performance and very low maintenance can be expected. Moderate indicates that the soil has features that are moderately favorable for the specified use. The limitations can be overcome or minimized by special planning, design, or installation. Severe indicates that the soil has one or more features that are unfavorable for the specified use. The limitations generally cannot be overcome without major soil reclamation, special design, or expensive installation procedures. Poor performance and high maintenance can be expected. USDA Natural Resources Template Database Version 29 Conservation Service SSURGO Version: 2.1 Page 8 c' Vermont Soil Fact Sheet- Detailed Definitions and Explanations Land Use Limitations Dwellings are single-family houses of three stories or less. For dwellings with basements, the foundation is assumed to consist of spread footings of reinforced concrete built on undisturbed soil at a depth of about 7 feet. The ratings for dwellings are based on the soil properties that affect the capacity of the soil to support a load without movement and on the properties that affect excavation and construction costs. The properties that affect the load -supporting capacity include depth to a water table, ponding, flooding, subsidence, linear extensibility (shrink -swell potential), and compressibility. Compressibility is inferred from the Unified classification. The properties that affect the ease and amount of excavation include depth to a water table, ponding, flooding, slope, depth to bedrock or a cemented pan, hardness of bedrock or a cemented pan, and the amount and size of rock fragments. Pond reservoir areas hold water behind a dam or embankment. Soils best suited to this use have low seepage potential in the upper 60 inches. The seepage potential is determined by the saturated hydraulic conductivity (Ksat) of the soil and the depth to fractured bedrock or other permeable material. Excessive slope can affect the storage capacity of the reservoir area. Agricultural Yield Data The average yields per acre that can be expected of the principal crops under a high level of management are shown in the crop yield table. In any given year, yields may be higher or lower than those indicated in the table because of variations in rainfall and other climatic factors. The land capability classification of the soil component(s) in the map unit is shown just above the yield data. The yields are based mainly on the experience and records of farmers, conservationists, and extension agents Available yield data from nearby counties and results of field trials and demonstrations also are considered. The management needed to obtain the indicated yields of the various crops depends on the kind of soil and the crop. Management can include drainage, erosion control, and protection from flooding; the proper planting and seeding rates; suitable high -yielding crop varieties; appropriate and timely tillage; control of weeds, plant diseases, and harmful insects; favorable soil reaction and optimum levels of nitrogen, phosphorus, potassium, and trace elements for each crop; effective use of crop residue, barnyard manure, and green manure crops; and harvesting that ensures the smallest possible loss. The estimated yields reflect the productive capacity of each soil for each of the principal crops. Yields are likely to increase as new production technology is developed The productivity of a given soil compared with that of other soils, however, is not likely to change. Crops other than those shown in the crop yield table are grown in the survey area, but estimated yields are not listed because the acreage of such crops is small. The local office of the Natural Resources Conservation Service or of the Cooperative Extension Service can provide information about the management and productivity of the soils for those crops. Woodland Management This table can help forest owners or managers plan the use of soils for wood crops. Erosion hazard is the probability that damage will occur as a result of site preparation and cutting where the soil is exposed along roads, skid trails, and fire lanes and in log -handling areas. Forests that have been burned or overgrazed are also subject to erosion. Ratings of the erosion hazard are based on the percent of the slope. A rating of slight indicates that no particular prevention measures are needed under ordinary conditions. A rating of moderate indicates that erosion -control measures are needed in certain silvicultural activities. A rating of severe indicates that special precautions are needed to control erosion in most silvicultural activities. Equipment limitation reflects the characteristics and conditions of the soil that restrict use of the equipment generally needed in woodland management or harvesting. The chief characteristics and conditions considered in the ratings are slope, stones on the surface, rock outcrops, soil wetness, and texture of the surface layer. A rating of slight indicates that under normal conditions the kind of equipment and season of use are not significantly restricted by soil factors. Soil wetness can restrict equipment use, but the wet period does not exceed 1 month. A rating of moderate indicates that equipment use is moderately restricted because of one or more soil factors. If the soil is wet, the wetness restricts equipment use for a period of 1 to 3 months. A rating of severe indicates USDA Natural Resources Template Database Version: 29 Conservation Service SSURGO Version: 2.1 Page 9 Vermont Soil Fact Sheet- Detailed Definitions and Explanations Woodland Management that equipment use is severely restricted either as to the kind of equipment that can be used or the season of use. If the soil is wet, the wetness restricts equipment use for more than 3 months. Windthrow hazard is the likelihood that trees will be uprooted by the wind because the soil is not deep enough for adequate root anchorage. The main restrictions that affect rooting are a seasonal high water table and the depth to bedrock, a fragipan, or other limiting layers. A rating of slight indicates that under normal conditions no trees are blown down by the wind. Strong winds may damage trees, but they do not uproot them. A rating of moderate indicates that some trees can be blown down during periods when the soil is wet and winds are moderate or strong. A rating of severe indicates that many trees can be blown down during these periods. Potential productivity of merchantable or common trees on a soil is expressed as a site index. The site index is the average height, in feet, that dominant and codominant trees of a given species attain in a specified number of years. The site index applies to fully stocked, even -aged, unmanaged stands. Commonly grown trees are those that forest managers generally favor in intermediate or improvement cuttings. They are selected on the basis of growth rate, quality, value, and marketability. More detailed information regarding site index is available in the "National Forestry Manual," which is available in local offices of the Natural Resources Conservation Service or on the Internet. Contacting Support Questions about the Vermont Soil Fact Sheets should be directed to Martha Stuart, Vermont soils dataset manager. Email: martha.stuart@vt.usda.gov Phone: 802-295-7942 ext 28 For a copy of the report titled "Farmland Classification Systems for Vermont Soils", dated April, 2003, contact. Stephen H. Gourley, State Soil Scientist 356 Mountain View Drive Suite 105 Colchester, VT 05446 802-951-6796 ext. 236 Steve.Gourley@vt.usda.gov USDA Natural Resources Template Database Version 29 Conservation Service SSURGo Version: 2.1 Page 10 I southbur .in ton VFRMONT MEMORANDUM TO: South Burlington City Council & City Manager FROM: Kimberly L. Murray, Development Coordinator SUBJECT: Continued Public Hearing Interim Zoning Application #IZ-12-06 (201 Allen Road) DATE: January 7, 2013 City Council meeting This is a continued public hearing from December 17, 2012. Attached is an email and site plan addressing the soil types on the property and the open space criteria in more detail as requested by the Council. The application involves a 40 unit planned unit development (phase 1 of 71 unit project) at 201 Allen Road. The parcel is located in the Residential 1 and Residential 2 zoning districts. Our understanding is Skip McClellan from Llewellyn -Howley, Inc. will be in attendance at the public hearing on Monday. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4131 fax 802.846.4101 www.sburl.com l From: Skin McClellan To: Kimberly Murray Cc: iohnCa larkinrealty. net Subject: Farmstand South Date: Thursday, December 27, 2012 10:47:58 AM Attachments: Fanmstand South Existino Soils Plan to SB City Council 122712.Ddf Hi Kimberly, Hope you made it to work on this very snowy day. In response to your request for more information concerning Sustainable Agriculture and Open Space, please find attached a map of the existing soils on the property. Sustainable Agriculture: As you can see, very little of the parcel has soils considered "prime' and future farming operations would probably not be economically feasible. Small plot gardening however, could be a very good use for portions on the project. Small gardens tended by a single homeowner could be fertilized and enhanced in small amounts to allow fruits, flowers and vegetables to grow on the less desirable soils. Open Space: In the previously submitted drawings we delineated and designated large portions of the project as "Open Space". Please refer to the two letters submitted to the Council for specifics about sizes and shapes. We hope this will provide the City Council with enough information to conclude with a favorable response. We are anxious to see the smaller, more affordable homes be constructed in order to allow more homeowners to live in South Burlington. Thank you. Skip McClellan RUGGIANO ENGINEERING INCORPORATED 20 Kimball Ave. Suite 202N South Burlington, VT www. ruggia noengi nee ring. co m G EXLSTIIV SOILS PLAN �► 1U Woo,- southburlini oin V E R M 0 N T MEMORANDUM TO: South Burlington City Council & City Manager FROM: Kimberly L. Murray, Development Coordinator SUBJECT: Continued Public Hearing Interim Zoning Application #IZ-12-06 (201 Allen Road) DATE: November 19, 2012 City Council meeting This is a continued public hearing from October 22, 2012 to allow the applicant more time to submit additional material for the Council's review. Attached is another narrative dated 11/12/12 and two revised sketch plans. The application involves a 40 unit planned unit development (phase 1 of 71 unit project) at 201 Allen Road. The parcel is located in the Residential 1 and Residential 2 zoning districts. Our understanding is Skip McClellan from Llewellyn -Howley, Inc. will be in attendance at the public hearing on Monday. 575 Dorset Street South Burlington, VT 05403 tel 802.846 4131 fax 802.846.4101 www.sburl corn IP UGG�O kengineering, inc. Civil Engineers • Land Use Planners November 12, 2012 City of South Burlington City Council 575 Dorset Street South Burlington, VT 05403 Re: 40 Unit (Phase One) PUD - 201 Allen Road Interim Zoning Conditional Use Application #IZ-12-06 File: 2010036 Councilors, During the process of review for Phase One of the proposed 26.2 acre development on Allen Road, Farm Stand South, several questions have been posed and answered in the forum of the City Council hearing room. In the interest of having a written record of those items, and an effort to clarify the important points of the Interim Zoning conditions, we offer this document to the Council. Affordability is a very big concern for most of our friends. Friends who would like to become our neighbors. During the hearing process it was determined that a closing price of $239,000 would be considered "affordable' for the purposes of this approval. We can commit to staying at or below that cost for most of the units in this Phase One proposal. In order to present all types of housing to future homeowners, homes will be widely ranging in size and therefore in price. Single family homes could be two or three bedroom units and range from 1,500 to 2,000 square feet. Duplexes will be two bedroom units of 1,200 to 1,600 square feet each. The triplex structures could contain one bedroom units of 850 square feet, two bedroom units of 2,500 square feet and larger units with three or four bedrooms each. - C. ° m� NOV City of So. L�u) lm�jlor 5 Lake Street 0 St. Albans, VT 05478 Ph. 802.524.9300 0 Fax. 802.524.9700 Topography also aids in keeping the costs dw on and screening the units from view along the Allen Road corridor. Most of the structures (20 buildings) will be at a lower elevation than almost all the surrounding homes but still essentially level with Allen Road. Utilities can be easily routed into the site and therefore, construction costs will be minimal. The remaining open fields are 10' to 60' higher in elevation allowing them to stand out in the eye of the viewer and letting the existing homes along Spear Street have a clear view over the most of the new homes. Although this area has not been specifically identified for the change to Form Based Codes, the development will be a perfect fit. The units have been packaged in combinations of one, two and three unit structures of two and three story configurations. Each building type has been placed to comfortably blend with the surrounding residential ■� housing types. The smaller single and duplex structures (20 buildings) are to the west, near an existing single family home and an existing church. The triplex structures (2 buildings) have been located along Allen Road, directly across the street from the larger homes in the Irish Farm subdivision. Community gardens are an amenity to any modern housing development. Abutting a 10' wide asphalt paved recreation path, two areas have been set aside in Phase One (see Sketch Plan) to provide approximately 50 individual garden plots of 10'x20' each. Four parking spaces will be _ provided along the future Phase Two access roadway for use of the gardeners and to provide access to the recreation path. Infrastructure, such as water and electrical connections, will be brought into the growing areas and a community "Tot Lot" playground abuts the same recreation path less than 30 yards away. After Phase One, 16.0 acres of the 26.2 acres will remain undeveloped. Largely open fields and mixed tree forest, those areas will be left unchanged at this time in order to screen and protect C the proposed homes and roadways. The forested areas, approximately 10.4 acres, containing valuable wetlands and other habitats, will be perpetually undeveloped and remain an asset to the homeowners and to the City. Please find attached copies of the enhanced Sketch Plans to clarify the proposal. We remain open for any questions and will attend the next hearing, November 19, to present this proposal and answer questions from the Council, Staff and public. Thank you. Sincerely, RUGGIANO ENGINEERING INCORPORATED �&ClCPfPk Skip McClellan SP, southburfi igion vrP..MONT MEMORANDUM TO: South Burlington City Council & City Manager FROM: Kimberly L. Murray, Development Coordinator SUBJECT: Continued Public Hearing Interim Zoning Application IIZ-12-06 (201 Allen Road) DATE: September 18, 2012 City Council meeting This is a continued public hearing from August 20, 2012. The applicant has submitted a narrative regarding the Interim Zoning criteria per the City Attorney's guidance and is attached along with the site plan. Staff would like to clarify from review of the applicant's narrative that the DRB has not approved this project and the applicant has completed sketch plan review only. Having reviewed the December 6, 2011 minutes of the last DRB meeting on this project, it is clear that the DRB continued to have concerns about maximizing open space and suggested the applicant look into moving the access road between the building clusters and also suggested moving two (2) buildings closer together. The application involves a 40 unit planned unit development (phase 1 of 71 unit project) at 201 Allen Road. The parcel is located in the Residential 1 and Residential 2 zoning districts. Our understanding is Skip McClellan from Llewellyn -Howley, Inc. will be in attendance at the public hearing on Monday. 575 Dorset Street South Burlington, VT 05403 tel 802 846.4131 fax 802 846.4101 www.sburi.com r I LLEWELLYN • HOWLEY I N C O R P O R A T E D September 11, 2012 City of South Burlington City Council 575 Dorset Street South Burlington, VT 05403 Re: 40 Unit PUD- 201 Allen Road Interim Zoning Conditional Use Application #IZ-12-06 File: 2010036 Councilors, We provide this response in support of the above referenced application to construct a 71 unit PUD (in two phases of 40 and 31 units) adjacent to Allen Road. This narrative addresses the Standards for Review and the concerns listed in Section VI of the Interim Bylaw. Zoned R2 on the Official City Zoning Map, the property is currently an undeveloped, open hayfield and mixed leaf forest. The site is surrounded on three sides by residential development with Allen Road, woods and a church along the remainder. An existing residential subdivision, Irish Farm, and a higher density residential development, Farm Stand, is directly across Allen Road to the north. This proposal is in support of Phase One of a two phase, 71 unit, development on the south side of Allen Road. This initial application is for Phase One, consisting of 40 units to be constructed in duplex and triplex configurations, clustered along the west and north boundaries of the property. Our recent application was to the Dev IOWent Review Bard for Sketch Plan consideration. The project underwent Staff review, presentation at four hearings, and consideration of impacts to the capacity of City facilities. This has been a thorough, well thought out application. No tvwweFw,,were, raised and, it is clear City services will not be compromised by the addition of these homes within an area currently developed with residential structures in varying configurations. This residential use, with access on a main connector road, will have minimal impact on neighboring developments. The site is currently undeveloped with forested areas separating open fields. The forested areas comprise approximately one third of the property and contain wetlands and wildlife habitat. None of these forested areas and the features they protect will be affected by this project. We have worked, through many meetings with Staff and the DRB over the years, to avoid impacts to these sensitive Engineering • Land Development • Permitting 20 Kimball Ave., Ste. 202N • South Burlington • Vermont • 05403 T 802.658.2100 • F 802.658.2882 • e-mail: info@ihivt.com www.lhivt.com l City of South Burlington City Council September 11, 2012 environmental assets of the City of South Burlington. Considering the location, shape, slope and general attributes of the property, the homes will be placed in "correct" locations, best suited to compliment environmental and natural uses. The design of the homes will be of the most modern and environmentally sensitive construction materials and methods possible ensuring energy efficiency within the financial means of most of the - State and City's residents. Moderately sized, low rise homes will be attractive and favor young and old homeowners. Considering affordability as an important factor in today's housing market, this site easily lends itself to this type of development. It is an essentially a level site with municipal utilities nearby providing an easily constructed and economical project. The careful review and acceptance by the Development Review Board, presumably considering the best use of the area and city (as would the City Council), ensures the design is positioned to fit within the current, and future regulations. Although future regulations may not encourage "Form Based Codes" in this area, the homes and structures surrounding the project are of one, two, and three story construction, and any "Form Based Codes" style regulations that may override the current zoning will fit comfortably in the moderate sized massing of this proposal. As much as one third of the parcel has been left undeveloped and open in nature and function. The structures are clustered in spaces surrounded by forest and placed on individual lots to allow sufficient "elbow room" and open space within the development itself. Each lot of the Phase Two subdivision is large enough to support a private garden. In addition, a community garden area is devoted entirely to public use. Until the Phase Two portion of the development is approved and constructed, the open fields currently evident along Allen Road will be maintained and cut regularly. It is presumed, by the City Council's attorneys that this project will contradict permanent bylaws yet to be adopted. This seems highly unlikely due to the extensive review by the Development Review Board. We assume the DRB will continue to improve the City's growth and encourage a vibrant economy similar to the interests of the City Council. The Board's approval indicates the likelihood of future compliance. Sincerely, L ELLY✓N-HOWLEY INCORPORATED Skip McClellan LLEWELLYN • HOWLEY 1 NCO RPORATED �r southbtir inn ou V E R M 0 N T MEMORANDUM TO: South Burlington City Council & City Manager FROM: Kimberly L. Murray, Development Coordinator SUBJECT: Public Hearing Interim Zoning Application #IZ-12-06 (201 Allen Road) — DATE: August 20, 2012 City Council meeting The applicant requested that the City Council continue this hearing from June 11, 2012 to August 20, 2012 in order for them to prepare a written statement regarding the Interim Zoning criteria per the City Attorney's guidance. Staff communicated with the applicant last week and no additional materials were submitted by the time Council packets were prepared. Attached is the original application materials submitted (site plan) including a letter provided by a neighbor to the project for the Council's records. The application involves a 40 unit planned unit development (phase 1 of 71 unit project) at 201 Allen Road. The parcel is located in the Residential 1 and Residential 2 zoning districts. Our understanding is representatives for the applicant will be in attendance at the public hearing on Monday. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4131 fax 802.846.4101 www.sburl.com Kimberly Murray From: Skip McClellan <sm@lhivt.com> Sent: Friday, August 17, 2012 3:47 PM To: Kimberly Murray Cc: 'John Larkin';joelarkin@larkinrealty.net Subject: Farmstand South Hi Kimberly, Apparently, Mr. Larkin wants to keep our spot on the agenda Monday night. Please disregard the previous request to continue. We'll see you Monday. Thank you. Skip McClellan Llewellyn Howley Incorporated 20 Kimball Ave Suite 202N South Burlington, VT 05403 (802) 658-2100 SM c LH1vt.com J Kimberly Murray From: Kimberly Murray Sent: Friday, August 17, 2012 1:30 PM To: 'sm@lhivt.com' Subject: RE: Farmstand South IZ Hearing Hi Skip, Yes that helps. I will suggest to the City Council that they continue it at least one month out. Thanks, Ki,vw�l.y From: Skip McClellan [mailto:sm@Ihivt.com] Sent: Friday, August 17, 2012 11:39 AM To: Kimberly Murray Subject: RE: Farmstand South IZ Hearing Hi Kim, John Larkin will drop the check off to P&Z today. We don't have a date in mind for the next hearing, but would like a hearing #"O**N ! m,gnth away, but during this year. Does this help? i`' Skip McClellan Llewellyn Howley Incorporated 20 Kimball Ave Suite 202N South Burlington, VT 05403 (802) 658-2100 SM e,LHlvtxom From: Kimberly Murray fmailto:kmurraysabsburl.com] Sent: Friday, August 17, 2012 8:29 AM To: sm@Ihivt.com Cc: John Larkin; Paul Conner Subject: RE: Farmstand South IZ Hearing Hi Skip, Pursuant to the Fee Schedule adopted in 2011 there is a $50.00 fee associated with your request to continue IZ-12-06 to another Council meeting which needs to be submitted to cover administrative costs etc. To avoid having to pay it again in the future, please let me know when you might be ready and we can ask the City Council to consider scheduling it out to at least that date. Thanks, � �, I:IMBERLY L. MURRAY, AICP Development Coordinator .�,�►� t 802-846-4131 southbitt•1; n i,mi f 801-846-4101 kmurray@sburi.com www.sburl.com 575 Dorset Street I South Burlington, Vermont05403 From: Skip McClellan [mailto:smCcblhivt.com] Sent: Friday, August 17, 2012 8:15 AM To: Paul Conner; Kimberly Murray Cc: 'John Larkin' Subject: Farmstand South IZ Hearing Hi Kim, Paul, We need more time to prepare our presentation for the above referenced project. Please ask the City Council to reschedule the hearing for a later date. Thank you. Skip McClellan Llewellyn Howley Incorporated 20 Kimball Ave Suite 202N South Burlington, VT 05403 (802) 658-2100 SM a,LHIvt.com K offl, ltf�il southburfington PLANNING & ZONING MEMORANDUM TO: South Burlington City Council & City Manager FROM: Paul Conner, Director of Planning & Zoning SUBJECT: Interim Zoning Application #IZ-12-06 (Allen Road) — REQUEST FOR CONTINUANCE DATE: June 11, 2012 City Council meeting The applicant has requested that the City Council continue this hearing to late August in order for them to prepare written statement per the City Attorney's guidance. Staff recommends a continuance to the planned August 20th meeting, or another date following this. Due to this request, the application materials have not been included in the Council's packet. Staff has, however, included a letter provided by a neighbor to the project for the Council's records. Representatives for the applicant will not be in attendance at the public hearing on Monday. 575 Dorset Street South Burlington, VT 05403 tel 802.846 4106 fax 802.846.4101 www.sburl.com ( Page IofI Paul Conner From: Skip McClellan [sm@lhivt.com] Sent: Friday, June 08, 2012 7:28 AM To: Paul Conner Cc: 'John Larkin'; Joe Larkin; Sherman, Deb Subject: Farmstand South Hi Paul, Please continue our application to the City Council for Phase One of the Farmstand South project on Allen Road. We will require a substantial time to gather our resources, so please schedule the hearing for a date in late August. Thank you. Skip McClellan Llewellyn Howley Incorporated 20 Kimball Ave Suite 202N South Burlington, VT 05403 (802) 658-2100 SM(&LHIvt.com 6/8/2012 Alan F. Sylvester 1985 Spear Street South Burlington, VT 05403 May 30, 2012 Rosanne Grecco, Chair South Burlington City Counsel 575 Dorset Street South Burlington, VT 05403 Re: Interim Zoning Application #IZ-12-06 of John Larkin Dear Ms. Grecco: I received your notice of public hearing scheduled for June 11, 2012 on the above. It was my understanding that the Interim Zoning By-law specifically prohibited a planned development unit in this area. There have been so many applications for the development of this area by Mr. Larkin in the last year or so I have had trouble keeping track. It looks like this latest one is exactly the same as the objectionable sketch plan submitted in the Fall of 2011 with one exception. He is now trying to phase in this massive development. I don't see how that makes it any less objectionable. I am enclosing a letter my wife and I sent to the Development Review Board on December 29, 2011 relating to Larkin's Sketch Plan Application #SD-11-21. I would like to make this letter a matter of record to this latest application since the comments apply equally to both. One additional observation: The longstanding zoning laws for this area allows for a maximum of 51 residential units consisting primarily of two residences per acre. I simply can't understand why an applicant should be allowed to increase the number of units by over 40% with two and three story buildings and infrastructure that would pretty much cover all of the land. Thank you for your consideration. Very truly yours, Alan F. Sylvester December 29, 2011 City of South Burlington Development Review Board 575 Dorset Street South Burlington, VT 05403 Re: Larkin Sketch Plan Application #SD-11-21 Dear Board: I am writing to comment on the latest version of the applicant's sketch plan. It appears the application covers pretty much every square inch of available land with buildings and infrastructure. The land is zoned R-1 and R-2. This designation has been in effect for at least 40 years. The zoning regulations specifically state that an R-1 district is where low - density single family residential uses are encouraged. And, R-1 districts are located in areas where low densities are necessary to protect scenic views and cultural resources to provide compatibility with adjacent natural areas. The long standing neighborhood immediately adjacent to this plan is the perfect example of compliance with the intent and purpose of the zoning laws. The sketch plan is totally incompatible with the zoning laws, the importance of providing open spaces, and the protection of natural areas and wildlife habitat. We have lived on a roughly 14 acre parcel of land immediately adjacent to the applicant's parcel for close to 40 years. At the time of purchase we, and I am sure others, researched exactly the regulations and policy of the City in this area. If we thought a project such as the one most recently proposed was going to be an acceptable use, we would have never purchased and built. Our Northern boundary line of approximate 900 feet adjoins the applicant's southerly boundary. Before we built, we had discussions with our neighbors to our immediate west concerning possible obstruction of their views, and the views from Spear Street. We eventually built a one-story home in order preserve the views. Several years ago we received a call from a real estate broker advising she had a client interested in 1971 Spear Street, but was reluctant to buy due to a concern we might build a 2' level causing views to be obstructed. The homestead located at 1855 Spear Street directly east of the proposed development was in existence prior to our construction in the early `70's. It originally comprised roughly 2 1/2 acres. Recently, an additional 11h acres directly north and east of the proposed development were added. The homestead formerly owned by the Brousseau's at 191 Allen Road has also been in existence since the late 1960's or earlier. This home directly adjoins the proposed development on the west and south and sits on an acre of land. The Gentile homestead at 195 Allen Road immediately to the south of the proposed development is well over an acre. All of the foregoing homes, that totally surround the proposed development, are single family one-story, split level, or two stories. Most of them greatly exceed the zoning acreage requirement. None are non -compliant. To allow three-story triple occupant buildings would be totally out of character for the long standing neighborhood, have a significant impact on the views, and transform it from a relatively quiet, low density, aesthetically appealing, environmentally beneficial neighborhood into a mishmash of buildings. The applicant is trying to jam 70 living units plus parking plus all other forms of impervious surfaces on a piece of land surrounded by single family homes, wetlands, and natural areas. We are particularly sensitive to the effect any development of this parcel of land will have on the adjacent wetlands and natural areas. For those of you who may not be familiar with the devastating 1996 proposed development of this land, I would strongly urge you to review the file. Very simply put, the natural areas and wetlands were almost completely destroyed before the State and the City interceded to stop the project. Before this debacle, flora and fauna were bountiful. There were deer, grouse, pheasant, fox, bobcat, opossum, ermine, skunks, rabbits, nesting red tail hawk, nesting horned owl, saw whet owl, turkey, etc. Wild flowers 2 l such as lily of the valley, jack-in-the-pulpit, white and pink hepatica and all of the other common wild flowers abounded. There were blue jays, meadowlarks, goldfinches, nut hatches, chickadees, finches, phoebes, Baltimore orioles, cardinals, red -winged blackbirds, cow birds, pilated woodpeckers, salamander, peepers, frogs, turtles etc. The area is in the process of recovering. But, some flowers, animals and amphibians have been lost forever. The neighborhood that exists today is a perfect gateway for vehicles using Allen Rd. to enter our City from the south. It has open spaces, wetlands, natural areas, and scenic views. It would be against everything the City promotes to change it. Any development should continue the minimum practice of single family homes on one acre or more. As you know, there have been multiple sketch plans. Most of them were totally incompatible with the policy, goal, and regulations of the City. However, the sketch plan previous to this latest one, makes some sense. That plan clustered townhouses against a backdrop of woods in the southwest corner of the property. The rest of the land would remain vacant. This would provide for much needed open space, and would give the wetland and natural areas an opportunity to continue to recover from the debacle of 1996. And, it is at least somewhat compatible with the massive four-story building complexes directly across the street. Fortunately, there is a significant amount of open space between them and the residences to the east. Very t ly yours, y V\Cc �12� Alan F. Sylvester Diane H. Sylvester 1985 Spear St. So. Burlington, VT 05403 cc: South Burlington City Council 3 CITY OF SOUTH BURLINGTON CERTIFICATE OF SERVICE I hereby certify that on this 21 day of May, 2012 , a copy of the foregoing public notice for Interim Zoning Conditional Use #IZ-12-06, was sent by U.S. mail, postage prepaid to the owners of all properties adjoining the subject property to development, without regard to any public right-of-way, and including the description of the property (as provided in the Public Hearing Notice) and (other) accompanying information provided by the City of South Burlington. I further certify that this notification was provided to the following parties in accordance with 24 V.S.A. §4464(a) and Section 17.06(B) of the South Burlington Land Development Regulations: List of recipients: Brosseau, Ronald P 191 Allen Road South Burlington, VT 05403 Sylvester, Alan F & Deane H 1985 Spear Street South Burlington, VT 05403 Ascension Lutheran Church 95 Allen Road South Burlington, VT 05403 Allen Road land Company, Inc 410 Shelburne Road South Burlington, VT 05401 Westergard, Mark S 193 Allen Road South Burlington, VT 05403 Vallee, Rudolphe M 4043 Spear Street Shelburne, VT Backus, Verne L & Debra A 125 Allen Road South Burlington, VT 05403 Michaud, Scott 287 Baycrest Drive South Burlington, VT 05403 Dated at South Burlington, Vermont, this 21 day of May, 2012. Printed Name: Phone number and email: Signature: Date: Remit to: City of South Burlington Department of Planning & Zoning 575 Dorset Street South Burlington, VT 05403 Westergard, Mark S 1855 Spear Street South Burlington, VT 05403 Pepsi Bottling Ventures, LLC 4141 park Lake Avenue Raleigh, NC 27612 John Larkin, Inc 410 Shelburne Road South Burlington, VT 05401 Spaulding, William G 298 Baycrest Drive South Burlington VT 05403 South Burlington Sample Certificate of Service Form. Rev. 1-2012 south PLANNING & ZONING Permit #IZ- -0� (office use only) CONDITIONAL USE APPLICATION FOR THE CITY COUNCIL UNDER INTERIM BYLAWS All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the City Council. I understand the requirements and procedures required by State law (Section 4415 of the Planning & Development Act), and that a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. 1) OWNER OF RECORD (Name(s) as shown on deed, mailing address, phone and fax #) John Larkin, 410 Shelburne Road, South Burlington VT 05403; (802) 864-7444/ (802) 864-0649 2) LOCATION OF LAST RECORDED DEED (Book and page #) Vol. 733, pg. 200-202 3) APPLICANT (Name, mailing address, phone and fax #) John Larkin, 410 Shelburne Road, South Burlington VT 05403; (802) 864-7444/ (802) 864-0649 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone and fax #, if different from above) Skip McClellan, Llewellyn -Howley Inc, 20 Kimball Ave. Suite 202N, So Burlington, VT (802) 658-2100v, (802) 658- 2882f a. Contact e-mail address: slm@Ih net S k,*r 0,D 5) PROJECT STREET ADDRESS: 201 Allen Road 6) TAX PARCEL ID # (can be obtained at Assessor's Office) #0040 00201 7) PROJECT ZONING DISTRICT(S) Residential 2, Residential 1 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com 8) PROJECT DESCRIPTION a. General Project Description (describe what you are proposing): Phase One of the 71 unit residential development on 26± acres on the south side of Allen Road. New construction (Phase One) will be 17 two story duplexes of two bedrooms each and two multi -family buildings of 3 units each (Phase One 40 units). All drives, sidewalks and circulation to be City streets proposed within 50' wide ROW's. Municipal utilities are available and will be utilized. b. Existing Uses on Property (including description and size of each separate use) Open hay field and woods. c. Proposed Uses on property (include description and size of each new use and existing uses to remain) See above d. Description and Summary of all requested approvals from the City Council Conditional Use approval for Phase One of the two phase P.U.D. e. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): 9) SUPPORTING DOCUMENTS. A completed application form and required submittal materials for the applicable review before the Development Review Board or Administrative Officer shall be included. In the case of a subdivision or planned unit development, all information required for Sketch Plan Review pursuant to Section 15.05 of the Land Development Regulations (LDRs) are required. In the case of all other types of applications, the applicable LDR submittals are required. Applicants are further encouraged to provide information demonstrating compliance with the review standards set forth in 24 VSA §4415 (d) and (e). 10) PLANS AND FEE Plat plans shall be submitted which shows the information required by the City's Land Development Regulations. Five (5) regular size copies and one reduced copy (I I" x 17"), and one digital (PDF-format) of the plans must be submitted. An application fee shall be paid to the City at the time of submitting the application. See the City's fee schedule for details. Interim Bylaw Council Application Form Rev. 1-2012 { J NOTE: NOTIFICATION of ADJOINING PROPERTY OWNERS: Notification of adjoining property owners, in accordance with 24 V.S.A. §4464(a) and Section 17.06(B) of the South Burlington Land Development Regulations, is the responsibility of the applicant. After deeming an application complete, the Administrative Officer will provide the applicant with a draft meeting agenda or public hearing notice and sample certificate of service. The sworn certificate of service shall be returned to the City prior to the start of any public hearing. I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. OFAPPLICANT ATURE OF PROPERTY OWNER SIGNATURE OF APPLICANT SIGNATURE OF PROPERTY OWNER Do not write below this line DATE OF SUBMISSION: I have reviewed this final plat application and find it to be: Complete ❑ Incomplete PRINT NAME PRINT NAME PRINT NAME PRINT NAME The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state permits for this project. Call (802) 8 79-56 76 to speak with the regional Permit Specialist. Interim Bylaw Council Application Form Rev. 1-2012 Brosseau, Ronald P 191 Allen Road South Burlington, VT 05403 Sylvester, Alan F & Deane H 1985 Spear Street South Burlington, VT 05403 Ascension Lutheran Church 95 Allen Road South Burlington, VT 05403 Westergard, Mark S 193 Allen Road South Burlington, VT 05403 Vallee, Rudolphe M 4043 Spear Street Shelburne, VT Backus, Verne L & Debra A 125 Allen Road South Burlington, VT 05403 Westergard, Mark S 1855 Spear Street South Burlington, VT 05403 Pepsi Bottling Ventures, LLC 4141 park Lake Avenue Raleigh, NC 27612 John Larkin, Inc 410 Shelburne Road South Burlington, VT 05401 Allen Road land Company, Inc Michaud, Scott Spaulding, William G 410 Shelburne Road 287 Baycrest Drive 298 Baycrest Drive South Burlington, VT 05401 South Burlington, VT 05403 South Burlington VT 05403 I Page 1 of 1 ray From: ray Sent: Wednesday, March 28, 2012 3:58 PM To: 'sm' Subject: 201 Allen Road Interim Zoning Application Hi Skip, I have reviewed the Interim Zoning application you recently submitted for development at 201 Allen Road. This application is incomplete as the following information required under Section 15.05 (A) of the LDRs is missing: • Names & addresses of contiguous properties • Boundaries of all existing zoning district boundaries • Type of, location and size of existing and proposed utilities Once the above information is received, this application can be processed. Ray Belair Administrative Officer ( Q� tqqlud 01 rN.161, 10 '�r�rr�/'rr�•M► City of South Burlington 575 Dorset Street South Burlington, VT 05403 Ph: 802.846.4106 Fax: 802.846,4101 rbelair@sburl.com www.sburl.com 3/28/2012 Brosseau, Ronald P 191 Allen Road South Burlington, VT 05403 Sylvester, Alan F & Deane H 1985 Spear Street South Burlington, VT 05403 Ascension Lutheran Church 95 Allen Road South Burlington, VT 05403 Westergard, Mark S 193 Allen Road South Burlington, VT 05403 Vallee, Rudolphe M 4043 Spear Street Shelburne, VT Backus, Verne L & Debra A 125 Allen Road South Burlington, VT 05403 Westergard, Mark S 1855 Spear Street South Burlington, VT 05403 Pepsi Bottling Ventures, LLC 4141 park Lake Avenue Raleigh, NC 27612 John Larkin, Inc 410 Shelburne Road South Burlington, VT 05401 Allen Road land Company, Inc Michaud, Scott Spaulding, William G 410 Shelburne Road 287 Baycrest Drive 298 Baycrest Drive South Burlington, VT 05401 South Burlington, VT 05403 South Burlington VT 05403 Mr. Williams said they met with the Rec Path Committee last night, and they recommend an easement for a rec path and that they also grade and permit that. He said they would prefer to just provide the easement. The concern is that there are some mature trees that don't want to cut down, and they don't know how to put in a bike path because of the swales along that area. Mr. Bresee said he felt they could get something in there without harming the trees. He understood the complications. Mr. Farley said he had no objection to the second house on lot #9. Mr. Birmingham said the open space requirement seems vague to him. Members agreed to the second house if it can be gotten out of the corridor. Mr. Williams said they are still waiting for the Public Works Director's comments. No other issues were raised. 8. Continued Sketch Plan Application #SD-11-21 of John Larkin for a 70 unit planned unit development consisting of: 1) 18 two family dwellings, 2) 11 three unit multi -family dwellings, and 3) one single family dwelling, 201 Allen Road: Mr. McClellan said this plan is very different from the previous one. It is a combination of duplexes and triplexes, with one single family home. Ms. Dufresne said there are 3 distinct uplands, and this plan is to link them together. Mr. Behr asked if there are any issues with having the new city street adjacent to 125 Allen Road's curb cut. Mr. Belair responded there will be more turning movements with that. He added there will be a traffic review of this project, and the issue can be addressed with that. Mr. Behr said this design is more in keeping with what the DRB wants to see. Mr. Stuono asked if there is a possibility of having only one road across the wetland. Mr. McClellan said you would still be creating another crossing. Members suggested several possibilities including moving the access and moving 2 buildings closer together. Mr. Stuono asked about a possible community garden. Mr. McClellan showed a potential area for that. Mr. Belair suggested a possible "tot lot" as an amenity for families. Ms. Greco asked about the price range. Mr. Dufresne said they will be rentals to start with, 1000-1500 sq. ft. per unit. 9. Consider amending DRB Rules of Procedure and Conflict of Interest to limit the length of meetings: Mr. Behr felt if the Board doesn't get to something on an agenda, they're doing the applicants a disservice, especially if they've been waiting for several hours. He suggested limiting discussion to an hour per item. DEVELOPMENT REVIEW BOARD Page 5 of 6 6 DECEMBER 2011 RECEIVED .BAN a 3 202 pity of So. Sudington December 29, 2011 City of South Burlington Development Review Board 575 Dorset Street South Burlington, VT 05403 Re: Larkin Sketch Plan Application #SD-11-21 Dear Board: I am writing to comment on the latest version of the applicant's sketch plan. It appears the application covers pretty much every square inch of available land with buildings and infrastructure. The land is zoned R-1 and R-2. This designation has been in effect for at least 40 years. The zoning regulations specifically state that an R-1 district is where low - density single family residential uses are encouraged. And, R-1 districts are located in areas where low densities are necessary to protect scenic views and cultural resources to provide compatibility with adjacent natural areas. The long standing neighborhood immediately adjacent to this plan is the perfect example of compliance with the intent and purpose of the zoning laws. The sketch plan is totally incompatible with the zoning laws, the importance of providing open spaces, and the protection of natural areas and wildlife habitat. We have lived on a roughly 14 acre parcel of land immediately adjacent to the applicant's parcel for close to 40 years. At the time of purchase we, and I am sure others, researched exactly the regulations and policy of the City in this area. If we thought a project such as the one most recently proposed was going to be an acceptable use, we would have never purchased and built. Our Northern boundary line of approximate 900 feet adjoins the applicant's southerly boundary. Before we built, we had discussions with our neighbors to our immediate west concerning possible obstruction of their views, and the views from Spear Street. We eventually built a one-story home in order preserve the views. Several years ago we received a call from a real estate broker advising she had a client interested in 1971 Spear Street, but was reluctant to buy due to a concern we might build a 2nd level causing views to be obstructed. The homestead located at 1855 Spear Street directly east of the proposed development was in existence prior to our construction in the early `70's. It originally comprised roughly 2 1/2 acres. Recently, an additional 11/2 acres directly north and east of the proposed development were added. The homestead formerly owned by the Brousseau's at 191 Allen Road has also been in existence since the late 1960's or earlier. This home directly adjoins the proposed development on the west and south and sits on an acre of land. The Gentile homestead at 195 Allen Road immediately to the south of the proposed development is well over an acre. All of the foregoing homes, that totally surround the proposed development, are single family one-story, split level, or two stories. Most of them greatly exceed the zoning acreage requirement. None are non -compliant. To allow three-story triple occupant buildings would be totally out of character for the long standing neighborhood, have a significant impact on the views, and transform it from a relatively quiet, low density, aesthetically appealing, environmentally beneficial neighborhood into a mishmash of buildings. The applicant is trying to jam 70 living units plus parking plus all other forms of impervious surfaces on a piece of land surrounded by single family homes, wetlands, and natural areas. We are particularly sensitive to the effect any development of this parcel of land will have on the adjacent wetlands and natural areas. For those of you who may not be familiar with the devastating 1996 proposed development of this land, I would strongly urge you to review the file. Very simply put, the natural areas and wetlands were almost completely destroyed before the State and the City interceded to stop the project. Before this debacle, flora and fauna were bountiful. There were deer, grouse, pheasant, fox, bobcat, opossum, ermine, skunks, rabbits, nesting red tail hawk, nesting horned owl, saw whet owl, turkey, etc. Wild flowers 2 such as lily of the valley, jack-in-the-pulpit, white and pink hepatica and all of the other common wild flowers abounded. There were blue jays, meadowlarks, goldfinches, nut hatches, chickadees, finches, phoebes, Baltimore orioles, cardinals, red -winged blackbirds, cow birds, pilated woodpeckers, salamander, peepers, frogs, turtles etc. The area is in the process of recovering. But, some flowers, animals and amphibians have been lost forever. The neighborhood that exists today is a perfect gateway for vehicles using Allen Rd. to enter our City from the south. It has open spaces, wetlands, natural areas, and scenic views. It would be against everything the City promotes to change it. Any development should continue the minimum practice of single family homes on one acre or more. As you know, there have been multiple sketch plans. Most of them were totally incompatible with the policy, goal, and regulations of the City. However, the sketch plan previous to this latest one, makes some sense. That plan clustered townhouses against a backdrop of woods in the southwest corner of the property. The rest of the land would remain vacant. This would provide for much needed open space, and would give the wetland and natural areas an opportunity to continue to recover from the debacle of 1996. And, it is at least somewhat compatible with the massive four-story building complexes directly across the street. Fortunately, there is a significant amount of open space between them and the residences to the east. Very�tuly yours, Alan F. Sylvester Diane H. Sylvester 1985 Spear St. So. Burlington, VT 05403 cc: South Burlington City Council 3 South PLANNING & ZONING Permit Number SD -� APPLICATION FOR SUBDIVSION SKETCH PLAN REVIEW All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. For amendments, please provide pertinent information only. 1.OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) John Larkin, 410 Shelburne Road, South Burlington VT 05403; (802) 864-7444/(802) 864-0649 2. LOCATION OF LAST RECORDED DEED (Book and page #) xxxxxxxxxx 3. APPLICANT (Name, mailing address, phone and fax #) John Larkin, 410 Shelburne Road, South Burlington VT 05403; (802) 864-7444/(802) 864-0649 4. APPLICANT'S LEGAL INTEREST IN THE PROPERTY Owner 5. CONTACT PERSON (Name, mailing address, phone and fax #) Skip McClellan, Llewellyn -Howley Inc, 20 Kimball Ave. Suite 202N, So Burlington, VT (802) 658-2100v, (802) 658- 2882f a. Contact e-mail address: slm@lhinc.net 6. PROJECT STREET ADDRESS: 201 Allen Road 7. TAX PARCEL ID # (can be obtained at Assessor's Office) #0040 00201 8. PROJECT DESCRIPTION a. General Project Description (explain what you want the approval for): Develop 26± acres on the south side of Allen Road with 32 two bedroom units in one four story, Farmstand style, structure (Building C) and 48 two bedroom units in six buildings of six and nine units each. All drives, sidewalks and circulation to be private, no City streets proposed. Parking will be provided at a rate of 2.25 spaces per unit with 180 spaces provided in an underground garage, 48 enclosed garages and the remainder uncovered. Municipal utilities are available and will be utilized. i b. Existing Uses on Property (including description and size of each separate use) Open hay field and woods. c. Proposed Uses on property (include description and size of each new use and existing uses to remain) See above d. Total building square footage on property (proposed buildings and existing buildings to remain) 47,930 s.f. overall footprints e. Proposed height of building (if applicable) One four story structure and six three story structures f. Number of residential units (if applicable, new units and existing units to remain) 80 units g. Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): 9. LOT COVERAGE a. Building: Existing 0% Proposed 4.2% b. Overall impervious coverage (building, parking, outside storage, etc) Existing 0 % Proposed 101 % c. Front yard (along each street) Existing 0 % Proposed 5.6 % 10. TYPE OF EXISTING OR PROPOSED ENCUMBRANCES ON PROPERTY (easements, covenants, leases, rights of way, etc.) 150' wide VELCO easement exists along the southern property line. 11. PROPOSED EXTENSION, RELOCATION, OR MODIFICATION OF MUNICIPAL FACILITIES (sanitary sewer, water supply, streets, storm drainage, etc.) Connections to existing sanitary sewer and water supply systems. 12. OWNERS OF RECORD OF ALL CONTIGUOUS PROPERTIES & MAILING ADDRESSES: (this shall be provided on a separate attached sheet and on pre -stamped and pre - addressed envelopes. The City will add the return addresses). 13. ESTIMATED PROJECT COMPLETION DATE 2015 Pa I l 14. SITE PLAN AND FEE Plat plans shall be submitted which shows the information required by the City's Land Development Regulations. Five (5) regular size copies and one reduced copy (11" x 17") of the plans must be submitted. The application fee shall be paid to the City at the time of submitting the application. See the City's fee schedule for details. I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. SIGNA OF APPLICANT PRINT NAME �O A., SIGNA PROPE ER PRINT NAME ,�r SIGNATURE OF APPLICANT PRINT NAME SIGNATURE OF PROPERTY OWNER Do not write below this line DATE OF SUBMISSION: I I I have reviewed this final plat application and find it to be: PRINT NAME M,-C mplete ❑ Incomplete ector of Plar6ifg & Zoning or Designee ate 3 I SCHEDULE E Adjoiner Information Submit with the application a list of all adjoining landowners with mailing addresses. An "adjoiner" is a person or organization which owns or controls land or easements on lands which physically abut the tract or tracts of land on which your project is located. Be certain to include landowners on the opposite sides of highways, railways, and rivers. Also include homeowner associations, utility companies, and others with significant legal interest in the project land. It is very helpful if you indicate the location of each adjoiner on your site plan. If you do not provide a list which is thorough and up-to-date, your application could be delayed because of improper notice distribution! Please note: For lists which include more than 20 adjoining landowners, our administrative staff appreciates receiving the list on mailing labels to facilitate the notification process. Thank you. NAME MAILING ADDRESS WITH ZIP CODE 0040-00191 Brosseau, Ronald P, 191 Allen Road, South Burlington, VT 05403 0040-00193 Westergard, Mark S., 193 Allen Road, South Burlington, VT 05403 1640-01855 Westergard, Mark S., 1855 Spear Street, South Burlington, VT 05403 1640-01985 Sylvester, Alan F & Deane H., 1985 Spear Street, South Burlington, VT 05403 1640-W1971 Vallee, Rudolphe M., 4043 Spear Street, Shelburne, VT 0950-00020 Pepsi Bottling Ventures, LLC, 4141 park Lake Avenue, Raleigh, NC 27612 0040-00095 Ascension Lutheran Church, 95 Allen Road, South Burlington, VT 05403 0040-00125 Backus, Verne L & Debra A, 125 Allen Road, South Burlington, VT 05403 0040-00201 John Larkin, Inc., 410 Shelburne Road, South Burlington, VT 0510-OOL35 Allen Road land Company, Inc., 410 Shelburne Road, South Burlington, VT 0150-00287 Michaud, Scott, 287 Baycrest Drive, South Burlington, VT 0150-00298 Spaulding, William G, 298 Baycrest Drive, South Burlington VT Attach additional sheets if necessary. Farm Stand South, South Burlington, Vermont Act 250 Application ataa. Cenc ptlekNeh Flan GRAPHIC ¢CALF 0 100' aloe 4W 1Inch - (OOf. S �/tile LLEWELLYN - HOWLEY I N C O R P O R A T E D Consulting Services • EnglnverrAng • Perrrtltking 20 ?U.b.11 A— Sw 202N F (502} 652-2882 South Surtington T (302) 658.2100 V.—ant 05403 hitp:/lwww-thlnc-nat fl Site '., f'.�vrv"gin ! • lei '4 Lochs Notes 1 Owner of Record John Larkin 210 Shelburne Road South Burlington, VT05403 2 Applicant Larkin Real Estate 210 Shelburne Road South Burlington, VT 05403 2 Parcel Area 26 2 acres 3 Zoning/Drasty Residential 2 (R2) - 25 0 acres x 4 units/acre (PUD) _ 100 units P"Znhal 1 (R1) -12 acres x 1 = 1 not Total Residential units = 101 units 4 Project Descmption: Develop property on me south ads of Allen Road with 32 form, bedroom units m arro four story, Fonnstand style, structure (Building C) and 4e two bedroom units on six buildsmgs of our and none units each All drat, adewalka and artulatron to be pnvale, no City st. proposed Puking mot be provided at a rate of225 spaces per unit wM 180 spaces provided In an underground garage, 48 endosed garages and the remainder uncovered Munldpl utilities are —table and w it be ubl¢ed. 5 Coverage. Total Site 1,142,740 sf 100% Exrst+ng Building Osf 0% Existing Pavement 0 sf 0% Total E—tug Osf 0% Proposed Building 47,930 sf 42% Proposed Povement 60,980 sf 53% Proposed Sidewalk 7,300 sf 06% Total Proposed 116,210 sf 101% 6. larking: 80 resdenhal units x 2 25 spaces/unit = I80 spaces regmrcd 180 spaces provided (78 covered spaces and 108 open spaces) 7 Property lone information from digital information provided by Button Professional Land Surveyors, 20 Kimball Ave, So, Burlington, VT 8 Detailed stormwater quantity and treatment calculations rennin to be conducted at the hone of this plan Finished grading shown a approximate 9. Exisirng features taken from aerial photographs, UDAR aerial surveyag and on -site photography, No ground survey conducted 10 No exrstmg or proposed traffic arculatron or quantity studies performed at the time of this Akin. 11 Underground at htim locations are taken from surrounding projects, CTy records and casual investigations and should be considered approximate, this plan does not represent an underground uhhty survey Notify Digsafe before any erwvahon achwhes begin 12. Follow the Vermont Erosion Prevention and Sediment Control Handbook (Vermont Department of Envmonmental Conservation, Water quality Division, Stormwater Section, August 2006) for appropriate erosion control measures on this site RECEIVED MAY 11 2011 City of So. Burlington FARM STAND SOUTH south Purllnrten V—t Overall Sketch Plan Datw 07Qlh1 Drawn YY• fLN .11 EXISTING SOILS PLAN G-' SCALE 1-80' Graphic Scale 80 0 80 160 321) PLAN REFERENCES I) PROPERTY LINE INFORMATION FROM DIGITAL W FORMATION PROVIDED BY BUTTON PROFESSIONAL UNITSURVFYOREWLUIBALLAVE,S, 5CRLINGTON,VT 2)ERISTING FEATURES TALEN FROM AERIAL PHOTOGRAPHS, LIDAR AERIAL SURVEYING AND ON SITE PHOTOGRAPHY NO GROUND SURVEY CONDUCTED NOTES I OWNER OF RECORD 1OHN LAMIN 230SM BURNEROAD SOUTHBURLINGTON, VTR540T 2 APPLICANT CARLIN REAL ESTATE - SHE LBURNE ROAD SOUTH BURLINGTON VT O5403 3 PARCELAREA 262ACRES 4 PROIECTDESCRI 1— PHASE ONE OF THE DEVELOPMENT ON THE SOUTH SIDE OF ALLEN ROAD WITH A PUD CONSISTING OF 71 RESIDENTIAL UNITS IN 31 BUILDINGS OF ONE, TWO AND THREE UNIT CONFIGURATIONS PHASE ONE WILL BE 40 RESIDENTIAL UNITS IN 22BUILDNGS ON THEWESTPORTIONOFTHEPROPERTY ALLROADWAYSTORECIIYSTREETSWITHW50 WIDE RIGHT-OF-WAYS PA INGW LBEPROYIDED AT EACH INDIVIDUAL BUILDING MUNICIPAL UTILITIES ARE AVAILABLE AND WILL BE UTILRED 5 SOILS CLASSIFICATIONS, RATEVG55, AND AGRICULTURAL GROUPS AM ADAMSANDWWDSOR LOAMYSANDSOT05PERCENTSLOPES 5TATEWIDE 6 HM HINESBURGFINESANDYLOAM OT03PERCENTSLOPES PRIME 3 EnA ENOSBURG AND WHATELY SOILS, D TO 3 PERCENT EWPES STATEWIDE 4 BIB BELGRADE AND ELDRIUGE SOILS, 3 TO 8 PERCENT SLOPES STATEWIDE 2 GrB GROTON GRAVELLY FINE SANDY LOAM, 5 TO 12 PERCENT SLOPES STATEWIDE 7 I>C GEORGIA STONY LOAM, 8 TO 15 PERCENT SLOPES STATEWIDE 7 INESBURG F HnC HATE SANDYLOAM STOISPERCENTSWPES STATEWIDE 7 VeC VERGENNES CLAY 6 TO 12 PERCENT SLOPES STATEWIDE 7 ID THIS DRAWING IS NOTA BOUNDARY SURVEY PLAT BOUNDARY LINE INFORMATION SHOWNISBASEDONPLANS REFERENCED THEPROPERTYLINESEASEMENTSANDOTHER REAL PROPERTY DESCRIPTIONS PROVIDED ON THIS DRAWING ARE FOR ILLUSTRATION PURPOSESONLY THEY DO NOT DEFINE LEGAL RIGHTS OR MEET LEGAL REQUIREMENTS FORA LAND SURVEY AS DESCRIBED INV 5 A TITLE 27 SECTION I4m AND SHALL NOTEE USED IN LIEU OF A SURVEY AS THE BASIS OF ANY LAND TRANSFER OR ESTABLISHMENT OF ANY PROPERTY RIGHT o FARM STAND SOUTH South Burlington Vermont Existing Soils Plan Phase One for City Council Application ERAWN NO 201003t, SHEET NO 3UGGIANO DRAWNBY SLL nglrleer]Ilg lI1C. CHECKED BY LAL C 5 LAKE STREET ST ALBANS, VERMONT 05478 SCALE 1-(iD' PHC,NE-(BB2)524-9300 FAR-(R02)524-9700 r._nrvrnvF...i, �v DATE 12/26/12 1 OF 1 SHEETS l CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING 8 ZONING DEVELOPMENT REVIEW BOARD Report preparation date: November 30, 2011 \drb\staffcoments\2011\SD_11_21 201AllenRoad_Larki Plans received: November 21,2011 n sketch4 Aaenda #8 Owner/Applicant John Larkin 410 Shelburne Road South Burlington, VT 05403 Location Map SKETCH PLAN 201 ALLEN ROAD Date: December 6.2011 Contact Skip McClellan, Llewelyn-Howley Inc 20 Kimball Ave Suite 202N South Burlington, VT 05403 ** This orthographic photo was taken in 2004 and may not represent current conditions on the site. It is only intended to reflect the general location of the subject property. CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING John Larkin, herein referred to as the applicant, is requesting sketch plan review for a 70 unit planned unit development consisting of:1) 18 two (2) family dwellings,2) 11 three (3) unit multi -family dwellings, and 3) one (1) single family dwelling, 201 Allen Road. The project was scheduled for review on June 21, 2011. Staff and the Board raised serious concerns which they conveyed to the applicant. The Board continued the application so the applicant could address these issues. The project was again reviewed on September 6, 2011. Again, staff and the Board had serious design concerns regarding the proposal and after a lengthy discussion, the project was again continued so that the applicant could revise the plans. The project was again reviewed on October 18, 2011. Again, staff and the Board had serious design concerns regarding the proposal and after a lengthy discussion, the project was again continued so that the applicant could revise the plans. The applicant has since submitted a substantially revised plan. The staff notes herein reflect a review of the major issues and are, at this stage, intended to review the basic concept and site design, as well as to advise the applicant as to any potential problems and concerns relating to those major issues. Additional items, including but not limited to recreation paths, landscaping, snow storage, adequacy of parking, etc, certainly warrant a full review and will be addressed in detail at a later stage. Associate Planner Cathyann Larose, Administrative Officer Ray Belair, and Director of Planning Paul Conner, herein after collectively referred to as Staff, have reviewed the plans submitted by the applicant and have the following comments with respect to these very significant issues: For the purposes of a focused sketch plan discussion, staff has tried to narrow the discussions to the central issues that seem to present themselves at this stage of the project: density, access and street configuration, wetlands and open space impact, parking layout, and building orientation. Density The property lies within the R2 Zoning District. In accordance with Section 4.02(F) of the South Burlington Land Development Regulations, lots within the R2 District that are five acres in size or more, a Planned Unit Development may be permitted at a maximum of 4 units per acres subject to applicable provisions of the section. The subject lot is 26 acres. The underlying zoning district would allow a maximum of 52 units. Utilizing the section quoted above would allow a maximum density of 104 units. CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 3 DEPARTMENT OF PLANNING & ZONING The applicant is proposing 70 units via a PUD, as more than one building is proposed on the lot. The use of PUD provisions and relief from strict dimensional standards is discussed below in several sections of this staff report. Review as a Planned Unit Development (PUD) In order to even be considered for two buildings on a single lot, because the lot is more than 10 acres in size, and because the applicant is seeking an increase in density over the base limit, the project would need to be reviewed as a Planned Unit Development. In accordance with the provisions of Section 15 of the South Burlington Land Development Regulations, PUDs may provide relief from the strict dimensional standards for individual lots in order to encourage innovation in design and layout, efficient use of land, and the viability of infill development and re -development in the City's Core area, as defined in the Comprehensive Plan. In this particular district (R-2), the allowable density and the placement of more than one building on a single lot are intrinsically connected to the design of the project as a planned unit development. The Board should determine whether this has been met. Overall Plan The subject property is 26.2 acres. The applicant is proposing to utilize the entire lot for purposes of density and dimensional standards. Furthermore, the lot involved is greater than 10 acres and therefore must meet the standards of a Planned Unit Development. Therefore the entirety of the lot shall be considered in a review of the proposed development. Wetlands, Streams, Wildlife, Open Space (The bolded sections hereunder are quoted from the standards of the South Burlington Land Development Regulations) Pursuant to the PUD Standards set forth in the SBLDRs: The project's design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. There are significant wetlands on site. Impacts proposed by the current plan are minimal. The applicant is proposing that the roadway cross a very narrow band of wetland at the center of the property. The Board may wish to discuss whether the road connection is necessary. Staff finds the connection between the neighborhoods to be desirable. A paved recreation path with a common green or pocket park may achieve CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 4 DEPARTMENT OF PLANNING & ZONING the same goal of bringing the two pieces of the proposed development together. The Board should give clear guidance to the applicant on this. The subject parcel is located in an identified high priority area in the South Burlington Open Space Strategy, especially for woodland and forest cover, and its adjacency to another large wooded area. As such, the design should account for and respect the area's unique natural features. While the land development regulations do not preclude development in the area, such development should and shall be sensitive to the priority of the area as a valuable and unique natural space. As stated above, it is difficult at this state to address whether such sensitivity is achieved. If the remaining portions of the lot are to be conserved, with absolutely no further development, then there are laudable aspects of the plan with respect to this criterion. A corridor remains between the valuable wooded area and across the site. As stated above, the proposed road connection is one worthy of discussion. While it does connect the two pieces of the development, an established and very valuable goal in the City, it also potentially disrupts the flow of the open space corridor to the north and south. Again, the Board should discuss this. Again, impacts to wetlands are minimal. The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in which it is located. According to the South Burlington Land Development Regulations, the Residential 2 District is hereby formed in order to encourage moderate -density residential use district. This district is located primarily in transition areas between higher density residential districts and low -density districts. Staff feels that the proposed development comes much closer than previous proposals to meeting the intention of this criterion. The 2-3 unit buildings proposed herein provide the feel of the low to moderate or transition density called for in the Comprehensive Plan and stated purpose of the district. Furthermore, the buildings present a mass which is compatible with many of those of the surrounding areas. Staff encourages the applicant to provide building elevations of the three story buildings as early as possible in the review process. The text indicates that several buildings will be three stories in height. There is new Land Development regulatory text warned for a City Council hearing in December, and thus applicable to this proposal, relating to heights of buildings. The text is lengthy and too long to post within the body of these staff notes. Please see the copies attached. While the new language takes some careful reading for understanding, essentially, no more than two stories below the roofline may face the road. The applicant's plans show J CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 5 DEPARTMENT OF PLANNING & ZONING three stories in height, but do not show whether any are within the roof line. Staff has gone over the issue with the applicant and they understand the issue. The Board should discuss this issue. It is difficult to assess whether the height and massing of the buildings are to be compatible without having building elevations and as such staff urges the Board to withhold judgment on this until those are available. Chapter XVIII of the South Burlington Comprehensive Plan states that the visual design should "respect the existing landscape and positively contribute to it." The Board should discuss this aspect. Staff approves strongly of the portion of the planned area to the west. The buildings sit around a shared green space, and are clustered to sufficiently respect the large wooded area to the south. Here, the duplex units face each other and do an admirable job of providing neighborhood context. Sidewalks, crosswalks, and road design supplement this. Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas. Again, the plans remain sufficiently clustered so as to retain large areas of untouched natural space. As staff has previously pointed out, the Board may wish to discuss narrowing of the corridor as it approaches Allen Road, by the road connection and the two buildings therein. Staff recommends moving the middle triplex building to the west with a shared drive and thus widening this corridor. The easternmost building could move slightly more east, and with an access from the easternmost road and not from the road connector. Proposed structures shall be related harmoniously to themselves, the terrain, and to existing buildings and roads in the vicinity that have a visual relationship to the proposed structures. New Land Development regulatory text warned for a City Council hearing in December, and thus applicable to this proposal: Perimeter Setbacks. Any principal structure proposed on a lot that borders any of the districts in Article IV or the SEQ-NR, SEQ-NRP, SEQ-VR or SEQ-NRT SEQ Sub - Districts must meet the setback required by these Regulations for the adjoining district for the type of yard (side or rear) that is immediately adjacent in the above -referenced district. In the case of this proposal, that means that where the property abuts the rear of those abutting properties with a rear setback of 30 feet, the setback of the development on the proposed PUD adjacent to that rear property line must also be 30 feet. This is applicable to several proposed buildings on the lot, including that which abuts the properties at 191 and 193 Allen Road, as well as 1855 and 1985 Spear Street. All of the CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING units adjacent to these properties must meet the minimum 30 foot setbacks prescribed by those lots. The buildings proposed adjacent to 125 Allen Road may also need adjustment with one needing to meet the 10 foot side setback and the other meeting the 30 foot rear setback. Pursuant to Section 14.03(A)(6) of the South Burlington Land Development Regulations, any PUD shall require site plan approval. Section 14.06 of the South Burlington Land Development Regulations establishes the following general review standards for all site plan applications: The project incorporates access, circulation, and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads. Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting have been designed in a manner that is compatible with the extension of such services and infrastructure to adjacent landowners. Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards. The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial of collector street, to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. Chapter 14.06 of the South Burlington Land Development Regulations states the following: Parking: (a) Parking shall be located to the rear or sides of buildings. Any side of a building facing a public street shall be considered a front side of a building for the purposes of this subsection. (b) The Development Review Board may approve parking between a public street and one or more buildings if the Board finds that one or more of the following criteria are met. The Board shall approve only the minimum necessary to overcome the conditions below. l CITY OF SOUTH BURLINGTON 7 DEVELOPMENT REVIEW BOARD DEPARTMENT OF PLANNING & ZONING (i) The parking area is necessary to meet minimum requirements of the Americans with Disabilities Act, (ii) The parking area will serve a single or two-family home; (iii) The lot has unique site conditions such as a utility easement or unstable soils that allow for parking, but not a building, to be located adjacent to the public street, (iv) The lot contains one or more existing buildings that are to be re -used and parking needs cannot be accommodated to the rear and sides of the existing building(s); or, (v) The principal use of the lot is for public recreation. (c) Where more than one building exists or is proposed on a lot, the total width of all parking areas located to the side of building(s) at the building line shall not exceed one half of the width of all building(s) located at the building line. Parking approved pursuant to 14.06(B)(2)(b) shall be exempt from this subsection. (d) For through lots, parking shall be located to the side of the building(s) or to the front of the building adjacent to the public street with the lowest average daily volume of traffic. Where a lot abuts an Interstate or its interchanges, parking shall be located to the side of the building(s) or to the front adjacent to the Interstate. Parking areas adjacent to the Interstate shall be screened with sufficient landscaping to screen the parking from view of the Interstate. The proposed parking is mostly in compliance with these standards. However, there is at least one triplex unit which has parking to the front. Triplex units are not exempt from this standard. The plans should be revised to reflect this change such that all parking is in compliance. Respectfully submitted, i �athya n LaRose, AICP, Associate Planner Align proposed roadway �• intersection to reduce f M impacts to wetlands and buffers _ _—__— Align n -� proposed ro r-Am Proposed Pedestray yII r t-Crossing to xisting with existing intersection an ___________________________________________ _Recreation Path ____ ___ _________________- bwmar_ ________F_____ _____________, YO ijI1i �______-___'s`____ __ - _ ---- --�_:_ — _ Y----- - - - -- - _ -- ------ - --- ---------- - ------- ---- - ---T-- ALLEN ROAD r•m.'. ____ _ - _ ______ __________ ______ __ _ ______ _ _______ _ ____ -- _ __ __ _ ___ __ __— ___________________r_____, _--________________—___ ______________________ _—_________________,__ - - T - _'`` - - �`M�`— — \� _ — — — w nrv.� — — —'.I`i — I 1 �`` II —i �i - �t r• ___I 'i �I� ,�K.\ b�,y ; ; �— — v\ `� \ ,•cN e/Mrw � f —11 w..i� ' '._ LI I ��' � % -- 1 ;�I '' `` z t, :�` �� ' { � t I I '-1 •�' i `�'-�-� � � � �----I- I IT st % . ,'r'-- C � \`\ � � ___`` � \ � �n � e • e "� _ ,, � i �,��ht,r '�� 1 i I y y bM) I '' I'ti_ _ b� ::.� 1 n4}) 1 \ I 1 �1✓--/-- i -i I f yg`, 10' wide Recreation Path " :✓-- ` - ,. {'_, � �✓' -- _- " __ ,' r'-J,-�" I, it Natural Areas I r. Extend Recreation Path and ROW to adjoining properly for future connection IL r: Notes 1 Ownrr of R.mrd' A. Irw' tarn: D. W . properly m 0w —A Nda.fAian ROW w,M. a N. exrsh w traffic circvhfwn or l studies feat Dcsm► nth proposal 4umt ty performed at PUD OWwktlrg d70 raldntlal ursb M 30 dr0daga don., iwo.W Ifvar aMf the time Of ihw pkn 210 5heAbio— Road mn.pureft.. AA—dw.W b ba City Mr •er wsalln W Md. d9h1W-wry.. Pwft 9. U,,*,q .rd utH tw locations are taken from w.roi.dag protects. city South StrikWon, VT 05iO3 w,t b. Provkbd at arch kxgvkkW buMdnp Mwrldp.l uwKl= ara avail" &W wR rrrerds and vwerl imestigatrmw and should be w ,&rsd appr im0le, thus plea be dlmad. Saba& weNtow wM be rat,wed and requasad for aeverai of 0w does arr rrprrxat an udergrtond -fity anrvey. Notify DW&. beforo ory 2. Applxaet. atruc6w1w --tu tv actherb" bra hAd Ertaft zL o sh 5. Rrop" low n fornot— from digital mf"iam pr-,drd by Wron r10. Folbw the Vermont Erosion prcur wtmn and Sedmwst Control Handbook ` " ,' ; ;1 ' • ! �' - 4 ' . Professood Lad Sur-yors, 20 Kimball An, So. kri , VT South Auiogron, Vt 05403 of Vermont D.pwhnant of Em+romlental Corw.rwtron, Water Qualny Diwwn, I'K,I 5twmwarar Section, A1gwt 2") for approprat. sra:ion controi tram. u on k4 f . •7' 2. Iarcd A- 26.2 acres 6. Det&Wsronnwat� qurrrity aW trr mw,d mcuktwm rrawm tube thw.ite. co duckd at ti. hme ofthw pkn Fnnshedgrad.g whown rs approxrmde. �! k' 1 ; n Li p I' 3. Zonoly/Deasrty' AesmWrtial2 (R2) - 25.0 aw x 2 unts/acre i= 50 wds .' „ Y '! R.srdanral I (R1) -1.2 arrer x 1= I win y E dsnng frarw.s rok.n f am a. im photas+aphs, uDAR ar„d.ar,wyrng and LOCUS rdd Resid..dai ion afl. = 51 wm onAft protwvphy ha ground "^n ctad cwi& �- GRAPHIC SCALE ; r';; "' LLEWELLYN - HOWLEY FARM STAND SOUTH MN P'-�-uh� .fa' 0�' Naln7 _ I N C O R ►ORATE D faaiRwiMat wwowl an hs: s"ailiery� W + E _ e.n.unmt timle.. [npn..dnt p.rminm0 o n1r nr P1er , wr.+r�-r•.+.o maw 20 N1ma.11 A.. St.. 202H p (002) ssa-2Sa2 0—AM: 21,1111111111100 ��0 1w. r d m. O.r I Inch a 80 1k s en s s.wth.wdln t T,.a2,ts.-z,aa Sketch Plan U riwww r..��r�.rrwrwrr �' ` V.rm.nt 05403 httputwww-1hlne.not AM- C CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: October 14, 2011 \drb\staffcoments\2011\SD_11_21_201AllenRoad_Larki Plans received: October 6, 2011 n sketch3 SKETCH PLAN 201 ALLEN ROAD A ends #3 Meeting Date: October 18, 2011 Owner/Applicant Contact John Larkin Skip McClellan, Llewelyn-Howley Inc 410 Shelburne Road 20 Kimball Ave Suite 202N South Burlington, VT 05403 South Burlington, VT 05403 Location Map ** This orthographic photo was taken in 2004 and may not represent current conditions on the site. It is only intended to reflect the general location of the subject property. CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING John Larkin, herein referred to as the applicant, is requesting sketch plan review for a planned unit development consisting of two (2) 24 unit multi -family dwellings, 201 Allen Road. The project was scheduled for review on June 21, 2011. Staff and the Board raised serious concerns which they conveyed to the applicant. The Board continued the application so the applicant could address these issues. The project was again reviewed on September 6, 2011. Again, staff and the Board had serious design concerns regarding the proposal and after a lengthy discussion, the project was again continued so that the applicant could revise the plans. The applicant has since submitted a revised plan which staff continues to have major concerns with. These are addressed below. The staff notes herein reflect a review of the major issues and are, at this stage, intended to review the basic concept and site design, as well as to advise the applicant as to any potential problems and concerns relating to those major issues. Additional items, including but not limited to recreation paths, landscaping, snow storage, adequacy of parking, etc, certainly warrant a full review and will be addressed in detail at a later stage. Associate Planner Cathyann Larose, Administrative Officer Ray Belair, and Director of Planning Paul Conner, herein after collectively referred to as Staff, have reviewed the plans submitted by the applicant and have the following comments with respect to these very significant issues: For the purposes of a focused sketch plan discussion, staff has tried to narrow the discussions to the central issues that seem to present themselves at this stage of the project: density, access and street configuration, wetlands and open space impact, parking layout, and building orientation. Density The property lies within the R2 Zoning District. In accordance with Section 4.02(F) of the South Burlington Land Development Regulations, lots within the R2 District that are five acres in size or more, a Planned Unit Development may be permitted at a maximum of 4 units per acres subject to applicable provisions of the section. The subject lot is 26 acres. The underlying zoning district would allow a maximum of 52 units. Utilizing the section quoted above would allow a maximum density of 104 units. The applicant is proposing 48 units via a PUD, as more than one building is proposed on the lot. The use of PUD provisions and relief from strict dimensional standards is J CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 3 discussed below in several sections of this staff report. Review as a Planned Unit Development (PUD) DEPARTMENT OF PLANNING & ZONING In order to even be considered for two buildings on a single lot, and because the lot is more than 10 acres in size, the project would need to be reviewed as a Planned Unit Development. In accordance with the provisions of Section 15 of the South Burlington Land Development Regulations, PUDs may provide relief from the strict dimensional standards for individual lots in order to encourage innovation in design and layout, efficient use of land, and the viability of infill development and re -development in the City's Core area, as defined in the Comprehensive Plan. In this particular district (R-2), the allowable density and the placement of more than one building on a single lot are intrinsically connected to the design of the project as a planned unit development. If the Board does not find that the proposal meets the intent, stated purpose, and use of a PUD, the applicant shall not be permitted to proceed as a PUD and thus shall not be permitted more than one building per lot. The Board should determine whether this has been met. Staff does not find that there is measurable innovation in design or efficient use of land. Many of these reasons are discussed in detail below. Overall Plan The subject property is 26.2 acres. The applicant is proposing to utilize the entire lot for purposes of density and dimensional standards. Furthermore, the lot involved is greater than 10 acres and therefore must meet the standards of a Planned Unit Development. Therefore the entirety of the lot shall be considered in a review of the proposed development. The development area for the two proposed buildings is approximately 6 acres. While this appears to be compact development consuming less than 25% of the subject lot, it is not clear if this will be a temporary proposal. There are other large, potentially buildable portions of this lot. Even if the details are not proposed at this stage, the Board should not consider the development of a small portion of this lot without giving due consideration to the remainder of the lot. Developing the lot in small pieces without oversight of the lot as a whole could so easily lead to fragmented development pods which would bear no relationship to each other, or function as a planned unit development. If no other development is proposed for the lot, staff strongly recommends that the plans reflect this and that adequate conservation easements be established to ensure this. If further development is proposed, it should be at least shown as future development areas, with appropriate road and block layout discussed at this stage. Fragmentation of the lot will not allow for this later. This is a serious concern for staff which bears emphasis. CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 4 DEPARTMENT OF PLANNING & ZONING Wetlands, Streams, Wildlife, Open Space (The bolded sections hereunder are quoted from the standards of the South Burlington Land Development Regulations) Pursuant to the PUD Standards set forth in the SBLDRs: The project's design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. There are significant wetlands on site. Impacts proposed by the current plan are minimal. The subject parcel is located in an identified high priority area in the South Burlington Open Space Strategy, especially for woodland and forest cover, and its adjacency to another large wooded area. As such, the design should account for and respect the area's unique natural features. While the land development regulations do not preclude development in the area, such development should and shall be sensitive to the priority of the area as a valuable and unique natural space. As stated above, it is difficult at this state to address whether such sensitivity is achieved. If the remaining portions of the lot are to be conserved, with absolutely no further development, then there are laudable aspects of the plan with respect to this criterion. A corridor remains between the valuable wooded area and across the site. Again, impacts to wetlands are minimal. The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in which it is located. According to the South Burlington Land Development Regulations, the Residential 2 District is hereby formed in order to encourage moderate -density residential use district. This district is located primarily in transition areas between higher density residential districts and low -density districts. Staff feels that the proposed development fails to meet the letter and intention of this criterion. The large buildings proposed herein provide the face of high density, not the low to moderate or transition density called for in the Comprehensive Plan and stated purpose of the district. 48 units on 6 acres is an effective density of 8 units/acre. Furthermore, the buildings present a mass which is not compatible with the surrounding areas. These residential buildings are even taller and of greater mass than most of the surrounding commercial properties. Chapter XVIII of the South Burlington Comprehensive Plan states that the visual design should "respect the existing landscape and positively contribute to it." The Board should discuss this aspect. Staff does not find that 3-4 story, 24 unit buildings contribute to the CITY OF SOUTH BURLINGTON 5 DEVELOPMENT REVIEW BOARD DEPARTMENT OF PLANNING & ZONING existing landscape, are designed with nature, or meet this goal of the Comprehensive Plan. This is a unique opportunity for good residential design that can harmonize with the surrounding natural community. The soils, wetlands, grasslands, and surrounding forest area should be synthesized with buildings of appropriate and relative scale. Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas. Again, without knowing the possibilities or plans for the remainder of the parcel, this is difficult to assess. If no further development is permitted, this may be met. Proposed structures shall be related harmoniously to themselves, the terrain, and to existing buildings and roads in the vicinity that have a visual relationship to the proposed structures. Staff does not feel that this criterion is being met. As previously stated and which bears repetition, the large buildings do not appear to offer the low density called for in the district, and seem entirely incongruous to the wooded and open field space surrounding them. Pursuant to Section 14.03(A)(6) of the South Burlington Land Development Regulations, any PUD shall require site plan approval. Section 14.06 of the South Burlington Land Development Regulations establishes the following_ general review standards for all site plan applications: The project incorporates access, circulation, and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads. Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting have been designed in a manner that is compatible with the extension of such services and infrastructure to adjacent landowners. Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards. The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial of collector street, to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. � t CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING There is a unique opportunity on this lot to design the project to not only avoid the natural or wet features on the site, but rather to be compatible with the natural community. The location offers the additional opportunity for transitional density between a commercial district and one populated with large single family homes generally inaccessible to many of the region's population. The site is large and would allow for a compact but neighborly organization, to create community between residents. Staff finds that the proposal misses these opportunities, as well as several of the other regulations laid out in the South Burlington Land Development Regulations. Staff does not recommend that the applicant proceed any further with the plan as submitted. Staff does not recommend that the DRB permit this plan to be reviewed as a PUD or to allow the proposed large buildings. Respectfully submitted, athya LaRose, AICP, Associate Planner NIFIarXin butters + _rT, P - I -, I - I Open5p.. ft. previous Irish F.,. developmentV., -V Fi C 4 -7' j, 4280 1270 -4 7- 7 77 _j •4 , 5 4 'Tp 717 M—a , T 42= :z n - for A . . 11, - - - - - - I , �T T_ -- - - - --- -- - — — — — — — — — — — - — — — — — — — — — — — — — ALL ROAD 66'R.O. W�, -- - - - - I - - - - - - - — — - - - - - - - - - - - - r 7 h 2z -7 W "00125iP P",7 " A A" k" F. 10' wide asphalt recreation path i A' VIAE IM11,17W, X, -vt - 24' wide private driveway to proposed parking lots ZIV 50, Front Setback P_ 10' wide recreation path V f r I 260 Construct landscaped berm to screen parking access, lower floor of buildings A", and buffer development Bldg c 24 units Y 5 T I :W LL N r. .4 Bldg D 24 units 4' wide A Av garoge entrances (typ) T� JIVI f Vj_ Fg to v� , -jk 4, 0 Ll CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: August 30, 2011 \drb\staffcoments\2011\SD_11_21_201AllenRoad_Larki Plans received: July 14, 2011 n sketch Aaenda # 6 Owner/Applicant John Larkin 410 Shelburne Road South Burlington, VT 05403 Location Map SKETCH PLAN 201 ALLEN ROAD Meetina Date: September 1. 2011 Contact Skip McClellan, Llewelyn-Howley Inc 20 Kimball Ave Suite 202N South Burlington, VT 05403 '" This orthographic photo was taken in 2004 and may not represent current conditions on the site. It is only intended to reflect the general location of the subject property. CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 2 DEPARTMENT OF PLANNING & ZONING John Larkin, herein referred to as the applicant, is requesting sketch plan review for a planned unit development consisting of: 1) one (1) 30 unit multi -family dwelling., 2) two (2) 20-unit multi -family dwellings, and 3) 10 single family lots., 201 Allen Road. The project was scheduled for review on June 21, 2011 and continued so the applicant could address several serious design concerns raised by staff and the Board. The applicant has since submitted a revised plan. The staff notes herein reflect a review of the major issues and are, at this stage, intended to review the basic concept and site design, as well as to advise the applicant as to any potential problems and concerns relating to those major issues. Additional items, including but not limited to recreation paths, landscaping, snow storage, adequacy of parking, etc, certainly warrant a full review and will be addressed in detail at a later stage. Associate Planner Cathyann Larose and Administrative Officer Ray Belair, herein after referred to as Staff, have reviewed the plans submitted by the applicant and have the following comments with respect to these very significant issues: For the purposes of a focused sketch plan discussion, staff has tried to narrow the discussions to the central issues that seem to present themselves at this stage of the project: density, access and street configuration, wetlands and open space impact, parking layout, and building orientation. Density The property lies within the R2 Zoning District. In accordance with Section 4.02(F) of the South Burlington Land Development Regulations, lots within the R2 District that are five acres in size or more, a Planned Unit Development may be permitted at a maximum of 4 units per acres subject to applicable provisions of the section. The subject lot is 26 acres. The underlying zoning district would allow a maximum of 52 units. Utilizing the section quoted above would allow a maximum density of 104 units. The applicant is proposing 80 units via a PUD. The use of PUD provisions and relief from strict dimensional standards is discussed below in several sections of this staff report. Review as a PUD In order to even be considered for the density proposed, the project would need to be C CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 3 DEPARTMENT OF PLANNING & ZONING reviewed as a Planned Unit Development. In accordance with the provisions of Section 15 of the South Burlington Land Development Regulations, PUDs may provide relief from the strict dimensional standards for individual lots in order to encourage innovation in design and layout, efficient use of land, and the viability of infill development and re- development in the City's Core area, as defined in the Comprehensive Plan. In this particular district (R-2), the allowable density is intrinsically connected to the design of the project as a planned unit development. If the Board does not find that the proposal meets the intent, stated purpose, and use of a PUD, the applicant shall not be permitted to proceed as a PUD and thus shall not be permitted a density above two (2) units per acre. The Board should determine whether this has been met. Staff does not find that there is measurable innovation in design or efficient use of land. Many of these reasons are discussed in detail below. (The bolded sections hereunder are quoted from the standards of the South Burlington Land Development Regulations) Pursuant to Section 14.03(A)(6) of the South Burlington Land Development Regulations, any PUD shall require site plan approval. Section 14.06 of the South Burlington Land Development Regulations establishes the following general review standards for all site plan applications: The project incorporates access, circulation, and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads. Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting have been designed in a manner that is compatible with the extension of such services and infrastructure to adjacent landowners. Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards. The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial of collector street, to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. Access is proposed via three independent, non -connecting curb -cuts. The first curb -cut is proposed to access two, 20-unit buildings. The applicant is proposing two parking areas in front of these two buildings, as well as a lot with parallel parking throughout, between the two buildings. Then there are additional areas at the rear of the buildings before terminating in a very large teardrop cul-de-sac. CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD 4 DEPARTMENT OF PLANNING & ZONING This particular access proposes a significant amount of pavement, on three sides of each building. The roadway is not pedestrian oriented. Access is not efficient. This design achieves none of the objectives of this section of the South Burlington Land Development Regulations. A second access further east accesses only one building. It appears to be a driveway with access to a parking lot to the rear of a 30-unit building. A third access even further east is a dead end cul-de-sac which accesses nine single family lots. It appears that the applicant has divided the access across the property with the intent of avoiding a public road due to number of units served, as it was previously staff's opinion that the size of the development must be served by a public road for purposes of maintenance and emergency access. Section 15.12 (D)(3) states that if a proposed roadway has more than two points of access on an existing roadway and serves more than 19 units, it shall be a public road. The site shall be planned to accomplish a desirable transition from structure to site, from structure to structure, and to provide for adequate planting, safe pedestrian movement, and adequate parking areas. Again, there is little in the proposed plan which meets this standard. The project utilizes three accesses, none of which connect or provide a cohesive network. The development areas are separate pods and do not function in part or whole as a Planned Unit Development. There is little to no sense of neighborhood or cohesiveness between the units. The types of units are not integrated but rather are completely independent. Building and Parking Layout Chapter 14.06 of the South Burlington Land Development Regulations states the following: Parking: (a) Parking shall be located to the rear or sides of buildings. Any side of a building facing a public street shall be considered a front side of a building for the purposes of this subsection. (b) The Development Review Board may approve parking between a public street and one or more buildings if the Board finds that one or more of the following criteria are met. The Board shall approve only the minimum necessary to overcome the conditions below. CITY OF SOUTH BURLINGTON 5 DEVELOPMENT REVIEW BOARD DEPARTMENT OF PLANNING & ZONING (i) The parking area is necessary to meet minimum requirements of the Americans with Disabilities Act; (ii) The parking area will serve a single or two-family home; (iii) The lot has unique site conditions such as a utility easement or unstable soils that allow for parking, but not a building, to be located adjacent to the public street; (iv) The lot contains one or more existing buildings that are to be re -used and parking needs cannot be accommodated to the rear and sides of the existing building(s); or, (v) The principal use of the lot is for public recreation. (c) Where more than one building exists or is proposed on a lot, the total width of all parking areas located to the side of building(s) at the building line shall not exceed one half of the width of all building(s) located at the building line. Parking approved pursuant to 14.06(B)(2)(b) shall be exempt from this subsection. (d) For through lots, parking shall be located to the side of the building(s) or to the front of the building adjacent to the public street with the lowest average daily volume of traffic. Where a lot abuts an Interstate or its interchanges, parking shall be located to the side of the building(s) or to the front adjacent to the Interstate. Parking areas adjacent to the Interstate shall be screened with sufficient landscaping to screen the parking from view of the Interstate. The proposed parking areas for the two 20-unit buildings do not meet the standard listed above. The applicant is proposing to locate a great deal of parking to the front of the buildings. The proposal also does not meet the criteria listed above for a waiver of the required standard. These spaces are not those required to meet the minimum ADA standards, nor will the area serve a single family home or recreation. There is no evidence that any utility easements or unstable soils would not allow for parking to be located to the rear. The buildings are new and not one that is to be re -used. This standard may not be waived by the Development Review Board, pursuant to Section 15.02 A of the South Burlington Land Development Regulations. Wetlands, Streams, Wildlife, Open Space Pursuant to the PUD Standards set forth in the SBLDRs: The project's design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. C C CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD ET DEPARTMENT OF PLANNING & ZONING There are significant wetlands on site. Impacts proposed by the current plan are minimal. The subject parcel is located in an identified high priority area in the South Burlington Open Space Strategy, especially for woodland and forest cover, and its adjacency to another large wooded area. As such, the design should account for and respect the area's unique natural features. While the land development regulations do not preclude development in the area, such development should and shall be sensitive to the priority of the area as a valuable and unique natural space. Staff does not find that this design proposes or achieves any such sensitivity. The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in which it is located. According to the South Burlington Land Development Regulations, the Residential 2 District is hereby formed in order to encourage moderate -density residential use district. This district is located primarily in transition areas between higher density residential districts and low -density districts. Staff feels that the proposed development fails to meet the intention of this criterion. Although the density may be increased if the Board determines its applicability as a PUD, the large buildings proposed herein have a strong feeling of very high density, not the low to moderate or transition density called for in the Comprehensive Plan and stated purpose of the district. Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas. Again, the buildings and development areas are disbursed and not connected. There is an excessive amount of pavement proposed, and the open spaces which remain are almost entirely wetland and unusable. There does not appear to be sufficient clustering to accommodate open spaces or open space corridors. Proposed structures shall be related harmoniously to themselves, the terrain, and to existing buildings and roads in the vicinity that have a visual relationship to the proposed structures. Staff does not feel that this criterion is being met. As previously stated, the large buildings do not appear to offer the low density called for in the district, and seem entirely incongruous to the wooded and open field space surrounding them. CITY OF SOUTH BURLINGTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING There is a unique opportunity on this lot to design the project to not only avoid the natural or wet features on the site, but rather to be compatible with the natural community. The location offers the additional opportunity for transitional density between a commercial district and one populated with large single family homes generally inaccessible to many of the region's population. The site is large and would allow for a compact but neighborly organization, to create community between residents. The density bonus specified within the regulations is offered as a means to create such a well -planned, cohesive, community and not merely as a means of maximizing housing units. Staff finds that the proposal misses these opportunities, as well as many of the other regulations laid out in the South Burlington Land Development Regulations. Staff does not recommend that the applicant proceed any further with the plan as submitted. Staff does not recommend that the DRB permit this plan to be reviewed as a PUD or to award any density bonus. Respectfully submitted, LaRose, AICP, Associate Planner , I ____I `_ ____ zw l I, I ` I ------------ J � I _ - _ - II I , i I __ - - ��- __ V , ^ — -�- — -� - -- --- ---- -- -- - -- -- - - -- - -- - - - - - - - _ � �. -ems -' - = T" - -~ - -- - - - - - - - -- - --_ - ALLEN ROAD u ao.? No --------------------------- — _ _ — — �— _ —I_ — IL41_ � —� _ — �I—r• — , I—. — � �I __ � r� T� I _` 1l ii�-� I. ' I _�- I I _ �__ a _ r� -4• 1 l ! 'l' - • `'�,``. , 50•,as:ck 7 I I( I , Cal • I `� j i-- . 4- ; `t-L , ; ; ' ;' , \` '- \ � �� 141,1111 Grooda oiaot,T50'_M y, m Ip \ \ ...__ ` \ / \''l `\ I \ I 1 ludad lb a•rkmg,mlWhb•M1s , 'da sc,lk yc � i 50• we, "w/ier (fys dl w,hndr) \ / ^\ `j .Arela / I Lo, a V_ \ IesktAlh I ti. er \; `� `no r �� r I i• � .\ ('1``, , . i � � I \_. D,irsd lire indmres esiNdlonn h :/ i II II � i/''• ii� `,' � y �� 5!7 it Uzb �• \il 4�� uor ` '-� 'I \ V( I nry..a4way wfn�, 5o•w,d. \ II I' alai I� j -. � n' ;. • � ... ' �a�cr rw�d,� ow„ ic,a„«ero rcf I cw-d.-,ac ,. cryaWads .+ cw-d:i, ,!.y,va+donk `` I /•f� wn' , of it t i •_�--� - ExMnd.*t-oa•wy,. f.o�p• I �3,. Is m.n i h, A,- '/. < r Notes `�'� 1,.:^I'"'•'"� +, IOwner of Record h"' y •- .` John Larkin Proposed Budding 34,650 sf 3.0% •'•' �, .. Site 2305helburne Rood Proposed Pavement 77,890 of 68% �, "i• South Burlington, VT 05403 Proposed Sidewalk 2,830 002X Total Proposed 115,370 sf 100% 2 Applicant. .� '•w �� ' • '• ' • Larkm Real Estate 6 Parking. 70 mulifamily residential units x 2 25 spaces/unit _ 158 spaces required •I!, �` "''1 r _ , 210 Shelburne Road 160 spoces provided (70 covered spaces and 90 open spaces) South Burlington, VT 05403 7 Property lime information from digital mformatmn provided by Button Professional Land Surveyors, 20 F<,•r„ ' - $' �.j'i'+• - i,, 2 Parcel Area. 26 2 acres Kimball Ave, So Burlington, VT 5 w •< - %i'r' 3 ZoningYD.-ty Rsdenml2 (R2) - 25 0 acres x 4 un,teyacre (PUD) =100 units 8 Detailed starmwater quantity and treatment calculations remain to be conducted at the time of this plan. _ I Rasid"luil I (RI) -12 acres x 1 = 1 unit Finished groding shown is approximate • ' Total Residmtial units = 101 its '� Y., f 1- .. . _ • .di : n9 P a ogmp surveying photo P Y ground 9 Exist, features taken from aerial h t hs, ISDAR aerial stave and on -site hot rah No rand 4 Project Description Dewlap Property on the south ads of Allen Road with 80 resident.; units, 30 two bedroam survey cotrduct<d ., ? „ •�- : ,,'- - ' j • • units in one Pour story, Fermatand style. structure (Building C), 40 two bedroom units on two three story structures (Buildings D 8 E) and 10 single family lots All roadways to be City streets within 50' wit. rghfot-ways Parking wool 10 No errstirg or proposed traffic nrculatmn or quantity studies performed at the time of this plan JUL 1 •" + - , be provlda of a rate o/2 25 spaces per mutt;/amlly unit (158 required) with 70 spaces provided In three underground garages and 90 spsaaa uncovered Parking for single family homes wool be provded an each mdlvrmul 11 Underground utilities locations are taken from surrounding projects, City records and visual mvestigatlons i . •� '$' • I let Municipal utilities am evatlable and will be utdrzed and should be considered approximate, this plan dais not represent an underground uidiry survey Notify /or h :s I." s' t_ Digsafebeforeanyexcavationactivitiesbegin. CIty 0f So. Budi�g� I -.', •t? 1 :: i • • 5.Coveroge.Tolal5ite 1,142,740sf 100% ttii�� V�J YiFA 1, Existing Building 0 sf 0% 12 Follow the Vermont Erosion Prevention and Sediment Control Handbook (Vermont Department of Locus Existing Pavement O sf 0% Environmental Conservation, Water Quality D,wsion, Stornoweter Section, August 2006) for appropriate erosion airs Total Exrstirg 0 sf 0% control measures an this site aftaa• wall Approved N'ri LLEWELLYN - HOWLEY o FARM STAND SOUTH o;j.to 20100M a•e.ruak.+an Fl.a GRAPHIC SCALE Y' '�- tla +w• 3a.• _ INCORPORATED .+rzsn+ P-Ilminary Flat W E CananNlnp Servloea - Engineering - Foo mi+ting 1ouU16uo11nNan Vet�oll Dn nos FWIFlrt z w. wrw•pm..m•...rwrl nun w•Yy �T 250 Ns. M aaanlse a�OaM 1 Inch - EG n. g South Nut+; OtoIn • 242N T (202) 658-2100 Dn� So+aals 160 any..r..,.� fwn.+iueWe .view.,_. ossiow..-.-._,_.wwi.W,�w.•.. ` ' Overall Sketch Plan .�' `'r i o (`�Y Vs+mont 45483 httpulwww.lhlnc.not Nh••t Page 1 of 2 ray From: sm [sm@lbengineers.com] Sent: Friday, July 15, 2011 8:37 AM To: ray Cc: Sherman, Deb; Dufresne, Michelle; john@larkinrealty.net Subject: Farm Stand South Ray, 9 FILE copy Please accept this email as our request to continue the Farm Stand South Sketch Plan application to September 6. Skip McClellan Llewellyn Bryant Incorporated 20 Kimball Ave Suite 202N South Burlington, VT 05403 (802) 658-2100 srn@lberigineers.com From: ray [mailto:rbelair@sburl.com] Sent: Friday, July 15, 2011 8:12 AM To: sm Subject: Farm Stand South Hi Skip, In addition to the continuation fee, we will need a written request to continue the application. You can email it to me. Thanks. Ray Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Ph: 802.846.4106 7/15/2011 1 ti..•• ."\ '•vim � �"W 'w♦ ,.�', ,i�.4,��yY. •1 ✓�{T1. 'i� a'•i ' '�w q..y�M �'qE y(%"r�r•, r ' �'V .' �,•r+. "- ,'w, yj � '•+�,•. +i-f'fI''ri t � .t4�• � ��.v„".s"ra< � •i •�.I�i � A � _ , a. ''''.thy' ,, r ~� `�.+ y'ti-.,r,.n«•...F,,, V k'`' 4"+,�,. �✓ • �'!. ,M' � "rMwN^w.wMw'w''.•�'�w1lw� a r „ �� ,d^^•', s;,� ,•1,,, vett 1 ;._•'� -� TIN Ito ' � +•� <'.. +�� w`A'r. „Jd�. +? a i�7' t r Yam, ' � .�' ' W4w` ,a w ' �ryN 'Ay i ^M� x.•V• w <. a A� .. rry,w.,ti-�.,.[t,•r: • M��F��y�Y 9��1� A' C • � 3.aw �>t' . r' i! +•'Mrer �'» "L w CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD N DEPARTMENT OF PLANNING & ZONING John Larkin, herein referred to as the applicant, is requesting sketch plan review for a planned unit development consisting of: 1) a 32 unit multi -family dwelling, 2) four (4) 9- unit multi -family dwellings, and 3) two (2) 6-unit multi -family dwellings, 201 Allen Road The staff notes herein reflect a review of the major issues and are, at this stage, intended to review the basic concept and site design, as well as to advise the applicant as to any potential problems and concerns relating to those major issues. Additional items, including but not limited to recreation paths, landscaping, snow storage, adequacy of parking, etc, certainly warrant a full review and will be addressed in detail at a later stage. Associate Planner Cathyann Larose and Administrative Officer Ray Belair, herein after referred to as Staff, have reviewed the plans submitted by the applicant and have the following comments with respect to these very significant issues: For the purposes of a focused sketch plan discussion, staff has tried to narrow the discussions to the central issues that seem to present themselves at this stage of the project: density, access and street configuration, wetlands impact, parking layout, and building orientation. The property lies within the R2 Zoning District. In accordance with Section 4.02(F) of the South Burlington Land Development Regulations, lots within the R2 District that are five acres in size or more, a Planned Unit Development may be permitted at a maximum of 4 units per acres subject to applicable provisions of the section. The subject lot is 26 acres. The underlying zoning district would allow a maximum of 52 units. Utilizing the section quoted above would allow a maximum density of 104 units. The applicant is proposing 80 units via a PUD. Access is proposed via what they refer to as a driveway with two curb -cuts. There are 80 units in a total of 7 buildings. It is staff's opinion that this does not meet the definition of a driveway and must be served by a public road for purposes of maintenance and emergency access. Section 15.12 (D)(3) states that if a proposed roadway has more than two points of access on an existing roadway an serves more than 19 units, it shall be a public road. I CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD Building and Parking Layout 3 DEPARTMENT OF PLANNING & ZONING Chapter 14.06 of the South Burlington Land Development Regulations states the following: Parking: (a) Parking shall be located to the rear or sides of buildings. Any side of a building facing a public street shall be considered a front side of a building for the purposes of this subsection. (b) The Development Review Board may approve parking between a public street and one or more buildings if the Board finds that one or more of the following criteria are met. The Board shall approve only the minimum necessary to overcome the conditions below. (i) The parking area is necessary to meet minimum requirements of the Americans with Disabilities Act; (ii) The parking area will serve a single or two-family home; (iii) The lot has unique site conditions such as a utility easement or unstable soils that allow for parking, but not a building, to be located adjacent to the public street; (iv) The lot contains one or more existing buildings that are to be re -used and parking needs cannot be accommodated to the rear and sides of the existing building(s); or, (v) The principal use of the lot is for public recreation. (c) Where more than one building exists or is proposed on a lot, the total width of all parking areas located to the side of building(s) at the building line shall not exceed one half of the width of all building(s) located at the building line. Parking approved pursuant to 14.06(B)(2)(b) shall be exempt from this subsection. (d) For through lots, parking shall be located to the side of the building(s) or to the front of the building adjacent to the public street with the lowest average daily volume of traffic. Where a lot abuts an Interstate or its interchanges, parking shall be located to the side of the buildings) or to the front adjacent to the Interstate. Parking areas adjacent to the Interstate shall be screened with sufficient landscaping to screen the parking from view of the Interstate. The proposed parking areas do not meet the standard listed above. The applicant is proposing to locate a great deal of parking to the front of the buildings. C1 CITY OF SOUTH BURLINGTON 4 DEVELOPMENT REVIEW BOARD DEPARTMENT OF PLANNING & ZONING The proposal also does not meet the criteria listed above for a waiver of the required standard. These spaces are not those required to meet the minimum ADA standards, nor will the area serve a single family home or recreation. There is no evidence that any utility easements or unstable soils would not allow for parking to be located to the rear. The buildings are new and not one that is to be re -used. This standard may not be waived by the Development Review Board, pursuant to Section 15.02 A of the South Burlington Land Development Regulations. Review as a PUD In order to achieve the density proposed, the project would need to be reviewed as a Planned Unit Development. In accordance with the provisions of Section 15 of the South Burlington Land Development Regulations, PUDs may provide relief from the strict dimensional standards for individual lots in order to encourage innovation in design and layout, efficient use of land, and the viability of infill development and re- development in the City's Core area, as defined in the Comprehensive Plan. The Board should determine whether this has been met. Staff does not find that there is measurable innovation in design or efficient use of land. There are significant wetlands on site. The applicant is proposing to encroach on the wetland in one area with the road crossing. As the plans do not meet the requirements of the regulations, nor are they eligible for waiver from some of the standards, Staff does not recommend that the applicant proceed any further with the plan as submitted. Respectfully submitted, athyann LaRose, AICP, Associate Planner MFRGENCY � ACCESS TO PK-ED DPVLI t II Ji- ---- ------- ------------ ---------------------------- -------------------------------------------- ------ --------------- - - -------- - - ---------------------------- ---------------------- ------- ------------------------- ----------------------- ------------------ ---- ------- ------- ---- ---------- ;QE�..z -------- ---- ---- ------- ------- --------------------- - -- --- ------ -- ------ --- --- ------ ------ X L--- NATURAL AREA PHASE i lII 1 OPEN SPACE TWO NATURAL AREA OPEN SPACE ------- ---- --- J' Q) SKETCH PLAN F 4 FARM STAND SOUTH0 =A A, Overall Sketch Plan Al Phase One for City Council Application Locus 26.2 ACRES rm-0 ------ ----- jk'� FARM STAND SOUTH Sketch Plan Z) Phase One for City Council Application nginering, inc. C-2 i0- Yq Site to*; Locus Notes 1 Owner of Record John Larkin 210 Shelburne Road South Burlington, VT 05403 2 Applicant Larkin Real Estate 210 Shelburne Road South Burlington, VT 05403 2, Parcel Area 26 2 acres 3 Zoning/Density Residential 2 (R2) 250 acres x 4 umts/acm (PUD) =100 units Remdential 1 (Rt) - 12 acres x 1 =1 unit Total Residential it, =101 units 4 Protect Description. Develop property on the south ad. of Allen Road with 32 two bedroom units in one four story, Farmstand style, structure (Building C) and 48 lvio bedroom we in sa buildings ofsnx and nine units each All drives, sidewalks and circulation to be private, no City ,treats Proposed Perking will be provided at a MIS of 2 25 spaces par unit with 180 spaces Provided In an underground garage. ID enclosed garages and the remainder uncovened. Municipal utilities aro evasabla and witl be utda:sd 5 Coverage Total Site 1,142,740 sf 100% Exi,tug Building Osf 0% Exmtirg Pavement Osf 0% Total Existing 0 sf 0% Proposed Budding 47.930 sf 4 2% proposed Pavement 60,9800 53% Proposed Sidewalk 7.300 sf 06% Total Proposed 116,210 sf 101% 6 parking: 80 residential units x 2 25 spaces/unit = 180 spaces required 180 spaces provided (78 covered spaces and 108 open spaces) 7. Property line information from digital information provided by Button professional Land Surveyors, 20 Kimball Ave, So Burlington, VT 8. Detailed stormwater quantity and treatment calculations remain to be conducted at the time of this plan Finished grading shown is approximate 9 Existing features taken from aerial photographs, LIDAR aeral surveying and on-mte photography No ground survey conducted 10 No existing or proposed traffic circulation or quantity studies performed at the time of this plan 11 Underground utilities locations are taken from surrounding projects, City records and visual investigations and should be considered approximate, this plan does not represent an underground utility survey Notify Digsafe before any ex hen activities begin 12 Follow the Vernwnt Erosion prevention and Sediment Control Handbook (Vermont Department of Environmental Conservation, Water Quality Division, Stormwater Section, August 2006) far appropriate erosion control measures an this site RECEIVED MAY 1 1 2011 City of So. Burlington "'" Gnupu2kNch Flen Fnllminary Flat """ ""'"e N. via sRental-tlRental- ' Be"D GRAPHIC a +bo• 200' sea• 1 Inch ■ 100 $. ' "''' � � N _ _ �W 5 �' LLEWELLYN - HOWLEY I R C O .► 0 It A T E D Conwning Services En°inooring Fetmitting 20 10.b.11 Ave, Ste. 202N F (802) 658-2992 South Durlington T (802) 6544101 Vermont 03403 hetpu/wutw.lhlnc-net FARM STAND SCUTU SouM GurOnNm Varrnmt Overall Sketch Plan Flw Fla! ACT 25o 0arwetwi Freleet: 20+06341 °eke' b+rzsn+ Drawn ay. FLN Dnw1n,: 2btbb2a+a6 Recreation Path/Emergency Access to prtiposed denlopment- r ' `��,j �_\_ -�., .may rrr• r I'LLI r- d r I, `i i4 ---- 1 I. ►'anI I -, , _______ ______________________- ___-__ ______________.____1____�-_ ___ _ __ ___ ________n- _J.y r_L ----------------- IL I,I ' y-i_'! I'_1 1�_i— _.--r- ��__ F�� _ — - -- -- -- _ --_ _ — _ _------------------------ - ----- - --- ---- --- ---------_ _ =) - - T---:---- _ - — _- — _— � _ - - - � _ � - - _ - ---- ----- ----- -- - --- - --- -- __ ___-__= LLEN OAD �— ____ r- -_ -__n _ __-_ __ __ _ an . `! ' �'��-�'/ `\ '� \- ``i O ..k."�':._'� � I .. _•,--�� 1 ii -' 'I i �' - �� i i I i ,--__ TI 1 IA 1 I � _ � _ __ I 1 ail 0 mnh.rrr.ra... ' �r ' ` 21 M \ V 1 Phase Two �,• -% 6.:1rw.a~--1-rHalf Jai: r' 'I y-- ----x 41 3 \/'lf Nil i, CCll Y� t Locus sy. L"Zo II Natw+olArms Notes 10— d gemrd: 4. hoyct DawtpH-r: Phase Q■ of the developnr■d an die soM aido dAsn Jahn farAin Raed xilh a WD aan-ipng d71 rasldrltW umtr In 30 b&d* a of", lea and l No evalft or proposed /raffk circulation rOxmIty shelter pailmmsd of 210 Slm6iir s Road anea unit mill uindo ut. Phan, One wRbe 40 rasldooW urgb In 10 drsdkrae on tlr toms of thiupAm. 5a/Ih Ilaioiiyfan, VT 05M3 Ora vret oadan d 01e anxrarly. Ar motx W a iw CW Owb mtlsn 50' %Wo 9 Udegaald uHlifias lomhatr are taken from aumotoli ft pa)acts, aty wkVg will be proviciod vialid his Oddtlity be comioy.AbtnW@eaft aftbefore ZAp iwit-, MawlNble and MW be utWd.Sells* 0alvan OBI WNY W rP=aa end rWanedb door ort�vm..ta onob y wVp/m rgctmtm m andsrgaad utility surrey. NaNfy Dlgmfa before arty IarMn And Estate 210 Shalb— Rand savndd0r s6uchrraa. emamtion actMtias saga South pu hngfon, Vr05403 5. Property line information from dogltal Infarmahon porrdd by fkitlon I0. Folldr the V-mmt Ermom Aber- and Sodul nt CmtM kWmbmk Profank d land Surveyors, 20 Klabdl Ave, So. Y■ilnyfon, Vr (Vemnmt 0eps"ism of Em vmnadid Ca g-vahm. Wafr Quality Divisin, 2. Ax,oW Arm. 26.2 owes Storm W- Section, August 2") for Wp vpnafe ranm antral nreM m an 6. Detand stmmmfr dlrnmy ad traah.rrrt calailkmi roman to be this ate 3. Zomng/Dainty: RanahmW 2 (RZ) - 25 0 ants x 2 urvts/araa = 50 umd conducted at the than of this phn. Fimahedg u*M shone r apprlmmofs. Randmfml I (RI) - L2 aCrer x I = I oat Total Randanid &raft = 51 "is 7. Exrtviq feanow taker from nrml photagrl4ol■, LrDAR arrW alatieyag and on, ota photography. NO 9—id amxy conducted GRAPHICECALE ; ``;; "'-, LLEWELLYN - HOWLEY FARM STAND SOUTH b ar !rp m IN C O R PO RA TER w E Cons -King so"Was . Ensineerlmg " permitting - - itarb0tma� vtiartal sr.vw. ey:. Rr 20 Kimball Ave We. 202H p 4902) s0«'s2ss2 Sketch Plan - Phase Onefor snaada: ntooNlso i Inch ■ 80 }I, s soots Burlington T (802) 659-2100 ti , V.rm.nt 05403 http:,/am:ar.ibrr.n t City Council Application .b..e C CLARK, LONG, WERNER & FLYNN, P.C. ATTORNEYS AT LAW 192 College Street Burlington, VT 05401 Catherine E. Clark Jack Long Lisa M. Werner Susan J. Flynn June 21, 2003 Mr. Raymond J. Belair Zoning & Planning Administrator City of South Burlington 575 Dorset Street South Burlington, VT 05403 TEL: (802) 865-0088 FAX: (802) 865-4012 Re: Irish v. Brosseau and Smejkal / Docket No. S 1153-01 CnC Dear Ray: How are you doing? It has been a long time (assuming that you are the famous zoning administrator who started out in the Town of Hartford). Ray, we are involved in litigation concerning the 26.3 acre Allen Road property owned by Frank Irish. We represent Messrs. Brosseau and Smejkal who have a March 18, 1996 one -page contract signed by them and Frank Irish for the purchase of that property. You may recall that in May of 1996 the City brought a zoning enforcement action against Frank Irish. The case went up to the Vermont Supreme Court on two different occasions. One of the issues in the case is why our clients did not purchase the property while the zoning enforcement action was pending. Our position is that our clients did not purchase the property in question because they would not have been able to get zoning permits while the zoning enforcement action was pending. The Judge asked us to present him with some evidence that the City would not issue a zoning permit while the zoning enforcement action was pending. In this regard, would you please consider signing the enclosed Affidavit for us? It would be very helpful if we could present the Court with something by Friday, June 27, 2003. I will call you at the beginning of the week. Thank you for your consideration of this enc. 1 AFFIDAVIT OF RAYMOND J. BELAIR Having first been duly sworn, Raymond J. Belair states that: 1. I am Raymond J. Belair. I am of legal years and I reside in the State of Vermont. 2. Since I have been the Zoning & Planning Administrator for the City of South Burlington, Vermont. 3. Prior to the aforesaid date, I was the Zoning & Planning Assistant for the City of South Burlington, Vermont. I was appointed as the Assistant on 4. The City of South Burlington will not issue a zoning permit for any project or development which is the subject of an on -going zoning enforcement action. Any consideration of the issuance of a zoning permit for such a project or development will be delayed until the zoning enforcement action has been resolved. South Burlington, Vermont. June , 2003. Raymond J. Belair Zoning & Planning Administrator City Of South Burlington STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington, Vermont on June , 2003, Raymond J. Belair personally appeared before the undersigned officer and swore to the truth of the foregoing statements. Before me, Notary Public My Commission Expires: 1 3ERRY, SCHMUCKER & 3OLDSBOROUGH,PLLC ATTORNEYS AT LAW 3000 WIL.USTON ROAD R O. BOX 2323 SOUTH BURLINGTON, VERMONT 05407 STATE OF VERMONT CHITTENDEN COUNTY, SS. FRANK IRISH ) V. ) RONALD P. BROSSEAU ) and PETER SMEJKAL ) CHITTENDEN SUPERIOR COURT DOCKET NO. S 1153-01 CnC AFFIDAVIT OF RAYMOND BELAIR The undersigned, having been duly sworn, deposes and states as follows: 1. My name is Raymond Belair. I am the Administrative Officer for the City of South Burlington and was employed as Planning and Zoning Assistant in the Planning and Zoning Office of the City prior to February, 1996. 2. In my capacity as Planning and Zoning Assistant, I reviewed a request for sketch plan review for the development of the Frank Irish property on the southerly side of Allen Road. 3. There were two public meetings before the Planning Commission, the first heard the matter, but since the committee did not have a quorum, the application was refiled and heard by the Planning Commission on July 9, 1996. 4. The following listed copies attached hereto are accurate copies of documents in the Frank Irish file related to the proposed subdivision: May 10, 1996; a. Initial plan for Irish Estates; b. City of South Burlington Subdivision Application — Sketch Plan dated C. Letter dated March 27, 1996 from Catherine L. O'Brien of the State of Vermont Agency of Natural Resources to Peter Smejkal; d. Letter dated May 6, 1996 from Catherine L. O'Brien of the State of Vermont Agency of Natural Resources to Mr. Frank Irish. e. Pages 2-4 of the City of South Burlington Planning Department staff notes dated July 5, 1996; f. Pages 3-5 of the City of South Burlington Planning Commission minutes dated April 9, 1996; g. Pages 4-5 of the City of South Burlington Planning Commission minutes dated July 9, 1996 5. No development applications have been made subsequent to the July 9, 1996 meeting. Dated at South Burlington, Vermont, this �day of June 2002. -�7 Raymond Belair l(CC Signed and sworn to before me this day of June 2002. Notary ublic PERRY, SCHMUCKER & 3OLDSBOR000H,PLLC ATTORNEYS AT LAW 3000 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON. i VERMONT 05407 1 ll PERRY, SCHMUCKER & GOLDSBOROUGH, ATTORNEYS AT LAW 3000 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON, VERMONT 05407 TELEPHONE: (802) 863-4558 ROBERT J. PERRY TELECOPIER: (802) 862-0937 RICHARD R. GOLDSBOROUGH InfoQvtlawfirm.com June 17, 2002 Ray Belair, Zoning Administrator South Burlington City Office 575 Dorset Street South Burlington, VT 05403 Dear Ray: PLLC OF COUNSEL RONALD C. SCHMUCKER LEGAL ASSISTANTS LAURIE A. ST GELAIS NANCY L. BENSON HEIDI R. FITZGERALD Enclosed is a revised affidavit. The only change is in Paragraph 4 which itemizes the attachments. Please give mea call if you have any concerns. Sincerely, Robert J. Perry Enc. RJP/hrf Lei printed on recycled paper JAN-27-' 97 MON 11: 14 1 D: UUMMLK t NU LLtt_ I K t tr 1 r-L NU. orWc O.JO WSri , D TW re W M. U. COUNTRYMAN �� Enuironnsental Assessment And Planning l997 0 ! R.D.1. WINCH HILL NORTHFIELD, VERMONT 05663 sy _ `_6TI1ZE� & PqG 802-485-9421 _.� E pC =- 26 September 1996 - peter Smejkal Irish Development Corp. _- 200 Twin Oaks Terrace, Suite 2 ". - So. Burlington, VT 05403 -. Dear Mr. smejkal: This is to summarize my findings in regard to the } --_.__--_-wetland at the site of the Irish Development. Basically, there is not enough evidence to argue that (1) the low woods are not Wetland under the criteria used by the Agency of Natural Resources and.tha Army Corps of Engineers, and (2) the area is other than a Class Two wetland. My assessment is based on plants, soils, and hydrology. of the predominant plants, 7 out of 8 are regarded as .wetland species. According to the Chittenden County Soils a -"Survey,- the area is in Enosburg and whately Soils, both ._-components of which are regarded as hyd�ic (wetland) soils. Hydrology is not readily apparent at this —season, but the soils description tells us that the high water table is most evident from November to May, and that there is ample moisture at lower horizons which provides the moisture -_:._necessary to support the wetland plants. Thus, all three of the necessary criteria for defining a wetland are present. The National Wetlands Inventory Map shows two wetlands in the area, one near the Shelburne town line, the other approximately where the woodlot in question is located. The presumption under'the'Vermont Wetland Rules is that these areas are significant class Two wetlands until a - "�=determination to the contrary is made by the Water Resources tJBoard. Because of the Class Two designation, there is also ;_•.: -s _a," 50-foot buffer zone around the wetland. Any activity in the wetland or its buffer zone that is not an allowed use would require a Conditional Use Determination (CUD) from the _ '.-Agency. .1 enclose excerpts from the Vermont Wetland Rules, w� rand call your attention to Paragraphs 4.2b, 4.3, and Sec. S. The Conditional Use Determination is granted when it. is shown that the. project will have no undue adverse impacts on r `<the protected functions such as.flood control, wildlife and :;fisheries habitat, ground water protection, recreation, aesthetics, endangered species habitat, educational value, and erasion control. I believe the wetland in question can __ "=� JAV ?7 ' 97 WON) 12:11 COMMUNICATION No:49 PACE. 1 Lr JAN-27-' 97 MON 11:15 I D: COMMER I ND ELECTRIC TEL NU:WWe bt)W bybY u47,') rr c practioe Peter Smejkal 26 September 1996 Page 2 _bei. shown to be not significant for any of the functions,_ and a' CUD s au1 be easily obtained. This said, however, the Wetlands Office also looks for some form of mitigation for ' _ = loss of wetland acreage as well -as for impacts to functions. This could entail creation of new wetlands or enhancement of - _=-,.,, existing ones. Whether or not the wetland area comes - under the Vermont _ Wetland-Rulear it would come under the jurisdiction of the U.S. Army Corps of Engineers, and would require a permit.' A number of permits, called Nationwide Permits, have -already ,____been issued to cover certain types of projects and levels of ' impact. one of these, a Nationwide #26, allows -for the filling of one acre of wetlands such as the' one at the =- project site. -other Nationwides allow for road crossings, minor discharges, etc., but some of these require input from _ the Environmental Protection Agency and the U.S. Fish and Wildlife Service. I recommend permits that require comment from these other agencies be avoided if possible. Activities that are not covered by one of the Nationwide Permits require an Individual Permit, which is both costly and time consuming. Among other things, an individual -:� ---�_ permit requires an -alternative sites analysis; it would be difficult to prove to the Corps that there is no better site - in South Burlington for housing than the. site in question. In all instances, the Corps expects an applicant to show that attempts have been made to (1) avoid impacts, (2) minimize impacts that can't be avoided, and (3) mitigate _ impacts when possible. Further, for any Nationwide Permit .to be in effect, the Applicant must obtain a Water Quality Permit or waiver (Section 401 of the clean Water Act) from the Agency of Natural Resources - the wetlands people again. For both state and federal permits, the initial step is ::;_,�-.•_to have a delineation done according to accepted methodology and mapping the results. From this it can be -determined how much wetland (or wetland buffer)- will be impacted, and applications can be filed. The process from that point _ cannot be predicted at this point, without at map 'of the overlayed onto your site plan. t _ = sincerely, .� . max'\..•.� �T_uAL: i. - - ECB/s Encls. 97 07 NOV) 12. 2 Errol Briggs CONNUNICATIOV Ne:49 PAGE-2 C STITZEL, PAGE & FLETCHER, PC. aTTCFUCEYS AT LSW 171 BATTERY STREET P O BOX 1507 lil-PLINGTON, VFILMONT 0540^-1507 STATE OF VERMONT Q CT IO W ENVIRONMENTAL COURT: SECRETARY, VERMONT AGENCYOF NATURAL RESOURCES, ) Environmental Court Docket No. 69-5-97Vtec V. ) FRANK IRISH ) CITY OF SOUTH BURLINGTON V. FRANK IRISH Environmental Court Docket No. 93-6-97Vtec MOTION TO ISSUE FINAL ORDER NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and asks this Court to issue the following Final Order in the above -referenced matter. FINAL ORDER By Decision and Order after Remand, filed November 19, 1999, this Court issued the following Order and imposed the following penalty relative to the City's enforcement case against Respondent/Defendant, Frank Irish: The remedial order imposed for the state law violation will suffice for the City's zoning violation. For the same reasons as in the state law violation, the Court will impose two alternative penalties for the City's zoning violation, to account for whether the ditching and drainage activities are linked to economic benefit from the future sale, transfer or development of the property. On or before 45 days from the date that this order becomes final, Respondent shall pay a penalty of $5 per day of violation, or $2195 for the 439 days of violation, to the City of South Burlington. If on or before five years from the date this order becomes final, the property is sold or otherwise transferred for any reason, or is subdivided or developed by Respondent for other than agricultural or open space purposes, then at such time Respondent shall pay an additional penalty of an additional $45 per day of violation, or an additional $19,755 for the 439 days of violation, to the City of South Burlington on account of this violation, making the total penalty for this violation the $50 per day requested by the City. See Secretary, Vermont Agency of Natural Resources and City of South Burlington v. Irish, Vermont Environmental Court Docket Nos. 69-5-97 Vtec and 93-6-97 Vtec (November 19, 2000), Decision and Order after Remand, at 12-13 (emphasis in original). By Entry Order filed August 3, 2000, the Vermont Supreme Court affirmed this Court's ruling on remand. That Entry Order became final on August 18, 2000, upon the expiration of the time for filing'motions for reargument under V.R.A.P. 40. Accordingly, for the purpose of calculating applicable deadlines relative to the above -stated Order, August 18, 2000 shall also be the date that said Order became final. � DATED at Barre, Vermont, this A day of Sir, 2000. son716.1_t STiTZEL, PAGE g FLETCHER. PC. ;', TORNEYS AT Law 7 71 BATTERY 5'iREET P O BOX 1507 'iCRLINGTON VER.HOST 05402-1507 7 �i Pre iding Judge 33 Harbor View Road #1202 South Burlington, VT 05403 March 25, 2001 Marcy Harding, Chair Vermont Environmental Board National Life Records Center Building, Drawer 20 Montpelier, VT 05620-3201 Re: #4C1060-EB Appeal by Allen Road Land Company, Inc. c/o John Larkin "Irish Farm Subdivision" Project, South Burlington, Vermont Dear Ms. Harding: I write on behalf of the Harbor Heights Condominium Association (the "Association"), which wishes to participate as a party in the appeal by Allen Road Land Company, Inc., c/o John Larkin, regarding Land T,.7se Permit #4C1060 issued by the District #6 Environmental Commission for the Irish Farm subdivision project of 44 residential units plus roads in South Burlington (the "Project"). If the Board determines in this appeal that only individual condominium unit owners, rather than the Association, are proper parties, then I wish to participate as a party as an individual unit owner. I am the President of the Association. I write to designate Julie Taylor as the Association's representative in this matter for all purposes, including attendance at and participation in the March 26, 2001 prehearing conference and including participation in all additional hearing or proceedings in this matter. (If the Board determines that only condominium unit owners are proper parties, then I wish to designate Ms. Taylor as my individual representative.) The Association intends to address (or have Ms. Taylor address on its behalf) issues related to open space, landscaping, aesthetics, and similar matters under Criterion 8 that are related to the Project and the above -referenced appeal. (If the Board determines only condominium unit owners are proper parties, then I intend to address --or have Ms. Taylor address on my behalf —the same issues just noted.) The Association was a party under Criterion 8, among others, in the district commission proceedings. I also own a condominium on Harbor View Road in the Harbor Heights Condominium, which is adjacent to the Project site. In addition to being President of the Association, I am also on the Board of Directors of the Association. I may be reached during the day at 518-566-6450. Thank you very much for your attention. Sincerely, Mark Waters, President of the Harbor Heights Condominium Association, and Individually 1 CERTIFICATE OF SERVICE I hereby certify that on this 26th day of March, 2001, the foregoing March 25, 2001 letter from Mark Waters to the Vermont Environmental board regarding Appeal #4C1060-EB by Allen Road Land Company, Inc. was delivered by hand or was sent by U.S. Mail, postage prepaid to the following: PARTIES (as of 3/26/01 Prehearing Conference): Allen Road Land Company, Inc. by Carl Lisman, Esq. (by hand) Box 728 Burlington, VT 05402 Chair, City Council/Chair, Planning Commission City of South Burlington 575 Dorset St. South Burlington, VT 05403 Michael Crane, Executive Director Chittenden County Regional Planning Commission PO Box 108, 66 Pearl St. Essex Junction, VT 05453 Warren Coleman, Esq. Environmental Litigation Attorney Agency of Natural Resources 103 South Main St., Center Bldg, 3rd Floor Waterbury, VT 05671-0301 Joseph E. Frank 8 Bay Crest Drive South Burlington, VT 05403-7758 The Harbor Heights Condominium Association, David Heleba, and Julie Taylor c/o Julie Taylor 33 Harbor View Road #1001 South Burlington, VT 05403 FOR YOUR INFORMATION: James Boyd, Coordinator District #4 Environmental Commission 111 West St. Essex Junction, VT 05452 ul' Taylor 33 Harbor View Road #701 South Burlington, VT 05403 March 25, 2001 Marcy Harding, Chair Vermont Environmental Board National Life Records Center Building, Drawer 20 Montpelier, VT 05620-3201 Re: #4C1060-EB Appeal by Allen Road Land Company, Inc. c/o John Larkin "Irish Farm Subdivision" Project, South Burlington, Vermont Dear Ms. Harding: I wish to participate as a party in the appeal by Allen Road Land Company, Inc., c/o John Larkin, regarding Land Use Permit #4C1060 issued by the District #6 Environmental Commission for the Irish Farm subdivision project of 44 residential units plus roads in South Burlington (the "Project"). I write to designate Julie Taylor as my representative in this matter for all purposes, including attendance at and participation in the March 26, 2001 prehearing conference and including participation in all additional hearing or proceedings in this matter. I intend to address (or have Ms. Taylor address on my behalf) issues related to open space, landscaping, vegetation, aesthetics, and similar matters under Criterion 8 that are related to the Project and the above -referenced appeal. I have training and expertise regarding such issues; I am employed by the University of Vermont at its Horticultural Research Center. I was a party under Criterion 8, among others, in the district commission proceedings. I own a condominium on Harbor View Road in the Harbor Heights Condominium, which is adjacent to the Project site. I am also on the Board of Directors of the Harbor Heights Condominium Association. I may be reached during the day at 656-0473. Thank you very much for your attention. Sincere , avid Heleba C CERTIFICATE OF SERVICE I hereby certify that on this 26th day of March, 2001, the foregoing March 25, 2001 letter from David Heleba to the Vermont Environmental board regarding Appeal #4C1060-EB by Allen Road Land Company, Inc. was delivered by hand or was sent by U.S. Mail, postage prepaid to the following: PARTIES (as of 3/26/01 Prehearing Conference): Allen Road Land Company, Inc. by Carl Lisman, Esq. (by hand) Box 728 Burlington, VT 05402 Chair, City Council/Chair, Planning Commission In City of South Burlington 575 Dorset St. South Burlington, VT 05403 Michael Crane, Executive Director Chittenden County Regional Planning Commission PO Box 108, 66 Pearl St. Essex Junction, VT 05453 Warren Coleman, Esq. Environmental Litigation Attorney Agency of Natural Resources 103 South Main St., Center Bldg, 3rd Floor Waterbury, VT 05671-0301 Joseph E. Frank 8 Bay Crest Drive South Burlington, VT 05403-7758 The Harbor Heights Condominium Association, David Heleba, and Julie Taylor c/o Julie Taylor 33 Harbor View Road #1001 South Burlington, VT 05403 FOR YOUR INFORMATION: James Boyd, Coordinator District #4 Environmental Commission I I I West St. Essex Junction, VT 05452 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P O. BOX 1507 BURLINGTON. VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) Environmental Court Docket No. E97-093 V. ) Former Chittenden Superior FRANK IRISH, ) Court Docket No. S0730-96CnC Defendant. ) CITY OF SOUTH BURLINGTON'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER NOW COMES the Plaintiff, the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and asks this Court to adopt and incorporate the following proposed findings of fact, conclusions of law and order into its Decision and Order in this matter. Findings of Fact 1. This is a zoning enforcement action brought by complaint of the City of South Burlington (the "City"), dated May 20, 1996, against Frank Irish (the "Defendant"), pursuant to 24 V.S.A. §4444(a). A copy of the complaint initiating this action has been transmitted to this Court.' 2. The City is a Vermont municipal corporation situated in Chittenden County, Vermont. At all times material to this action, the City has had duly adopted zoning regulations in 1 The City's complaint was initially filed in Chittenden Superior Court as Docket No. S0730-96CnC. On the City's motion, the complaint was transferred to this Court and consolidated with Environmental Court Docket No. E97-069 by stipulation of the parties. This Court conducted a consolidated merits hearing on July 11 and 21, 1997. 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BA7TERY STREET P.0 BOX 1507 BURLINGTON. VERMONT 05402�1507 effect which regulate, among other things, land development without a zoning permit. A true and correct copy of the South Burlington Zoning Regulations (the "Zoning Regulations") have been admitted in this proceeding as City's Exhibit A. 3. Defendant owns a residence located at 200 Allen Road in the City, as well as certain open land totaling approximately sixty-six (66) acres located on both the north and south sides of Allen Road. Defendant's property is situated partially in the Residential 1 (R1), Residential 2 (R2), and Conservation and Open Space (CO) zoning districts, as defined in the Zoning Regulations. The parcel on the south side of Allen Road consists of approximately twenty-six (26) acres and is the subject of this action. A tax map depicting the location of Defendant's property has been admitted in this proceeding as City's Exhibit E. 4. It is undisputed that on or about February 26, 1996, an application was submitted to the City seeking sketch plan approval for a proposed forty-eight (48) lot subdivision on the above -referenced twenty-six (26) acre parcel on the south side of Allen Road. That application listed Defendant as the "owner of record" of the involved land, and Ron Brosseau, Defendant's son- in-law, and Peter Smejkal as "contact" persons. A true and correct copy of that application was admitted during the consolidated hearing as Secretary's Exhibit 1 (Docket No. E97- 069). 5. By letter dated April 17, 1996, Raymond J. Belair, Zoning and Planning Assistant for the City, sent Defendant a 2 J STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 Notice of Violation ("NOV") indicating, among other things, that he had commenced land development on his property on the south side of Allen Road without obtaining a zoning permit as required by §27.10 of the Zoning Regulations and 24 V.S.A. §4443(a)(1) (incorporated by reference into the Zoning Regulations).2 A true and correct copy of that April 17, 1996 NOV has been admitted in this proceeding as City's Exhibit B. 6. The April 17, 1996 NOV, issued in compliance with state law, specifically indicates that Defendant: (1) [e]xcavated earth materials within the Conservation and Open Space District; and (2) [c]ut and removed trees and other natural vegetation from within the Conservation and Open Space District without proper authorization from the City. See City's Exhibit B. In addition, the NOV provides "[y]ou may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal witin fifteen (15) days of the date of this letter with the Clerk 2 Section 27.00 of the Zoning Regulations provides: Administration and enforcement of these regulations, the effect of the adoption of these regulations, the appointment and powers of the Administrative Officer, the appointment and powers of the Zoning Board of Adjustment and Planning Commission, the requirement for zoning permits and certificates of occupancy/compliance, penalties and remedies, administration and finance, public notice, appeals and granting of variances and other related provisions of Chapter 117 and Title 24, Vermont Statutes Annotated, know as the Vermont Planning and Development Act, shall be applicable to these regulations, as such provisions now provide or may hereafter be amended. See City's Exhibit A, at 527.00 (p. 86). �7 I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402.1507 of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington." Id. 7. During the hearing, Defendant testified that he does not remember receiving the April 17, 1997 NOV from Mr. Belair. Testimony of Frank Irish. 8. On or about April 23, 1996, the South Burlington Zoning and Planning Office received a letter signed by Defendant and hand delivered by Mr. Brosseau. Testimony of R. Ward. A true and correct copy of that April 23, 1996 letter has been admitted in this proceeding as City's Exhibit C. That April 23, 1996 correspondence begins "[t]his letter is in response to your letter dated April 17, 1996; Reference my property on Allen Road and is my Formal Appeal to it." See City's Exhibit C. In addition, the April 23, 1996 letter states "I am not starting Land Development as you stated; I am clearing the land so that I can plant more Crops and work the land easier and better as it used to be." Id. 9. The April 23, 1996 letter was not accompanied by a filing fee and did not contain other information typically required by the City for appeals to the Zoning Board of Adjustment, including the address of the appellant, a brief description of the property, a reference to the regulatory provisions applicable to the appeal or the specific relief requested by the appellant. See City's Exhibit C; Testimony of R. Ward. 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 10. South Burlington has a Clerk of the Zoning Board of Adjustment (the "ZBA"). Testimony of R. Ward. The April 23, 1996 letter was not delivered to either the secretary of the ZBA or the City Clerk. Id. 11. By letter dated April 30, 1996, Richard Ward, the South Burlington Zoning Administrator, sent Defendant a second NOV, also issued in compliance with state law, "as a follow up to the notice of violation dated April 17, 1996." A true and correct copy of that April 30, 1996 NOV has been admitted in this proceeding as City's Exhibit D. 12. In that April 30, 1996 NOV, Mr. Ward states, among other things, "please be advised that your violation and the letter of appeal was transferred to this office [sic] . . . Upon inspecting the land, I found that the clearing of the land is not the only issue." See City's Exhibit D. Mr. Ward goes on to identify an additional violation regarding encroachment upon the westerly drainageway and, referring back to the April 17, 1996 NOV requests that the Defendant "take appropriate remedial action." Id. 13. In the April 30, 1997 NOV, Mr. Ward also indicates that Defendant has a right to appeal and that he has enclosed "the appeal application." A true and correct copy of that application has been admitted in this proceeding as part of City's Exhibit D. 14. The application to the ZBA requires an appellant to 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P O BOX 1507 BURLINGTON. VERMONT 05402-1507 provide certain required factual information and includes an acknowledgment section stating, in part, "I agree to pay a hearing fee which is to off -set the cost of the hearing." See City's Exhibit D. 15. Defendant did not appeal the April 30, 1996 NOV, and no remedial or other corrective action has ever been taken. Testimony of R. Ward. 16. By Resolution, adopted October 7, 1991, the South Burlington City Council set a zoning board hearing fee at fifty dollars ($50.00). A true and correct copy of that Resolution has been admitted in this proceeding as City's Exhibit F. 17. Amy Jestes Llewellyn is an agricultural land use planner for the Vermont Department of Agriculture, Food & Markets. 18. As a part of her employment, Ms. Llewellyn makes frequent determinations regarding whether property allegedly used for agricultural purposes is part of a regular crop rotation. Ms. Llewellyn observed Defendant's property in June 1997 from the so-called VELCO powerline (depicted on City's Exhibit E) and other public rights -of -way. In addition, Ms. Llewellyn viewed photographs of Defendant's property provided to her by the City. Testimony of A. Llewellyn. 3 Specifically, the ZBA application form requires an appellant to provide information regarding the details of his or her appeal, including much of the information excluded from Defendant's April 23, 1996 letter, described in paragraph 8 above. 2 I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON. VERMONT 05402.1507 19. During the consolidated hearing, Ms. Llewellyn testified to her observations, indicating that she saw no signs of agronomic crops or cropping activity in the involved area of Defendant's property. In addition, Ms. Llewellyn stated that although the surface of the land was disturbed, the relevant area appeared too heavily wooded to have been pasture. In response to a question from this Court, Ms. Llewellyn further indicated that her observations were not consistent with the area having been used for farming and pasture during the 1980's or at any time thereafter. Testimony of A. Llewellyn. 20. Patricia Irish, Defendant's sister-in-law also testified during the consolidated hearing. Ms. Irish resides at 125 Allen Road, near the northwest corner of Defendant's land on the south side of Allen Road. She has lived at that location for twenty-five (25) years. Testimony of P. Irish. 21. Ms. Irish testified that she is very familiar with the disturbed area on Mr. Irish's property, and that crops have never been grown in that area. Testimony of P. Irish. Conclusions of Law I. The Exclusive Remedy of a Person Aggrieved by a Decision of the Zoning Administrator is to File a Notice of Appeal. 22. It is undisputed that the City issued two separate, lawful notices of violation to Defendant, dated April 17 and April 30, 1996, respectively. 23. 24 V.S.A. §4464(a) provides that [a]n interested person may appeal any decision or act taken, by the administrative officer, in any 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P O BOX 1507 BURLINGTON, VERMONT 05402-1507 municipality by filing a notice of appeal with the secretary of the board of adjustment or with the clerk of that municipality if no such secretary has been elected. If the appeal is taken with respect to a decision or act of an administrative officer, such notice must be filed within fifteen days of the date of the decision or act, and a copy of the notice of appeal shall be filed with such officer. (emphasis added) 24. An appeal pursuant to §4464 constitutes the exclusive statutory remedy for persons aggrieved by acts or decisions of a local zoning administrator. See Town of Charlotte v. Richmond, 158 Vt. 354, 356-57 (1992); Town of Sandgate v. Colehamer, 156 Vt. 77, 84-85 (1990). Indeed, 24 V.S.A. §4472(d) specifically states that [u]pon the failure of an interested person to appeal to a board of adjustment under section 4464 of [Title 24], . . . all interested persons affected shall be bound by such decision or act of such officer, . . . and shall not thereafter contest, either directly or indirectly, such decision or act . . . in any proceeding, including, without limitation, a proceeding to enforce [chapter 117]. 25. In this case, it is clear that Defendant failed to file a proper notice of appeal from either NOV with the Secretary of the South Burlington ZBA (or with the City Clerk, for that matter). See 24 V.S.A. §4464(a). Instead, as discussed below, Defendant's sonnin-law hand delivered a letter to the City Planning and Zoning Office which, upon review by the Zoning Administrator, clearly failed to meet the requirement of 24 V.S.A. §4465 and did not include the mandatory filing fee. In response, the Zoning Administrator sent Defendant a second NOV4 4 Although the second NOV refers to Defendant's April 23, 1996 letter as "the letter of appeal," this Court concludes on 8 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 (within the time for Defendant to file a timely and valid appeal from the first NOV) enclosing an appeal application. Defendant failed to appeal or otherwise respond to that second NOV and has never taken any corrective action. 26. The Supreme Court has held that §4472(d), by its terms, clearly applies to defenses raised in enforcement proceedings. Colehamer, 156 Vt. at 85. In this case, Defendant failed to file a proper and valid appeal from either the April 17 or April 30, 1996 decisions of the Zoning Administrator. Therefore, he is statutorily precluded from either directly or indirectly contesting those decisions in the context of this proceeding. the basis of the evidence that the Administrative officer did not consider that letter to constitute a proper appeal, and the second NOV neither expressly nor impliedly states that the April 23 letter is a valid appeal. 0j STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0. BOX 1507 BURLINGTON, VERMONT 05402-1507 II. Defendant's April 23, 1996 Letter Did Not Constitute a Valid Notice of Appeal 27. At trial, Defendant's counsel argued that his client had filed "an appeal" from the April 17, 1996 NOV and that the City should have processed that appeal by scheduling a hearing before the ZBA. 24 V.S.A. §4465 specifically describes the required contents of the notice of appeal referenced in 24 V.S.A. §4464. That provision states: Such notice of appeal shall be in writing and shall include the name and address of the appellant, a brief description of the property with respect to which the appeal is taken, a reference to the regulatory provisions applicable to the appeal, the relief requested by the appellant and the alleged grounds why such relief is believed proper under the circumstances. See 24 V.S.A. §4465. 28. Further, 24 V.S.A. §4462(a) provides in pertinent part, that "[t]he legislative body of a municipality may set such reasonable fees for filing of notices of appeal and other acts as it deems proper, the payment of which shall be a condition to the validity of such filing or act under this chapter." See 24 V.S.A. §4462(a) (emphasis added). 29. Defendant's April 23, 1996 letter does not constitute a proper or valid notice of appeal under §4464. First, the mandatory language of §4465 indicates that a notice of appeal "shall include" certain required information, including the including the address of the appellant, a brief description of the property, a reference to the regulatory provisions applicable to the appeal or the specific relief requested by the appellant. This Court's review of the April 23, 1996 letter indicates that 10 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P-0 BOX 1507 BURLINGTON, VERMONT 05402-1507 it does not contain that required information. In addition, and perhaps more significant, the Defendant never paid the filing fee established by the South Burlington City Council for appeal to the ZBA. 24 V.S.A. §4462(a) is clear that the validity of a notice of appeal is contingent upon payment of the duly established filing fee. No question exists that the Defendant here did not pay, and has never paid, the fee for taking an appeal to the Zoning Board of Adjustment. Accordingly, for all of the foregoing reasons, this Court concludes that Defendant's April 23, 1996 letter did not constitute a valid appeal of the April 17, 1996 NOV. III. Defendant was Not Engaged in AgTicultural Activity on the Involved Property 30. During the consolidated hearing, Defendant offered testimony and limited argument to the effect that the excavation and other development activities on his property were associated with accepted agricultural practice. 24 V.S.A. §4495(b) provides: No plan or bylaw adopted under this chapter shall restrict accepted agricultural or farming practices, or accepted silvicultural practices, including the construction of farm structures, as such practices are defined by the commissioner of agricultural [sic], food and markets or the commissioner of forests, parks, and recreation, respectively, under sections 1021(f) and 1259(f) of Title 10 and section 4810 of Title 6. See 24 V.S.A. §4495(b). 31. Based on the evidence presented at trial and described in the Findings set forth above, this Court concludes that the conceded land development activities on Defendant's property were 11 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BkTTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 unrelated to any agricultural use or practice. In reaching that conclusion, this Court specifically considered the testimony of Amy Jestes Llewellyn, an agricultural land use planner for the Vermont Department of Agriculture, Food & Markets. Based on her background and experience, Ms. Llewellyn is highly qualified to assess whether cropping and other agricultural activity has taken place on a parcel of land and this Court finds her testimony helpful and credible. At the hearing, Ms. Llewellyn specifically testified that she saw no signs of agronomic crops or cropping activity in the involved area of Defendant's property. In addition, she stated that although the surface of the land was disturbed, the relevant area appeared too heavily wooded to have been pasture. Further, in response to a question from this Court, Ms. Llewellyn testified that, given her observations, it is unlikely that the area was used for farming and pasture during the 1980's or at any time thereafter. 32. Ms. Llewellyn's testimony is supported by that of Patricia Irish, who has lived on Allen Road for twenty-five (25) years and is very familiar with the property in question. Ms. Irish stated that crops have never been grown in the disputed area. Accordingly, although the preparation, tilling, fertilization, planting, protection, irrigation and harvesting of crops and the grazing of livestock are generally accepted agricultural practices, see Vermont Department of Agriculture, Accepted Agricultural Practice Regulations (Effective June 29, 1995), this Court cannot conclude that Defendant was engaged in 12 I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 any of those practices in the area where the land development activity occurred and, thus, 24 V.S.A. §4495(b) does not apply.5 Proposed Order For all of the reasons set forth above, it is hereby ORDERED AND ADJUDGED that Defendant, Frank Irish, has commenced land development on his property without a zoning permit, in violation of §27.10 of the South Burlington Zoning Regulations and 24 V.S.A. §4443(a)(1), and is therfore LIABLE to the City of South Burlington. Accordingly, it is further ORDERED that Defendant shall: (1) Undertake remedial action on his property, located on the south side of Allen Road, in the manner outlined in the Administrative order issued by the Secretary of the Vermont Agency of Natural Resources in Docket No. E97-069; (2) Refrain from excavating earth materials and/or cutting and removing trees and other natural vegetation within the Conservation and Open Space District without first receiving proper approval from the City of South Burlington; (3) Immediately stabilize and install erosion control devices in and around the large ditch adjacent to the so-called VELCO powerline to prevent further siltation into watercourses on the property; 5 In addition, this Court takes note of the allegedly coincidental timing of the application to subdivide Defendant's property, filed with the City, and the clearing of that land closely in time thereto. On the basis of the evidence presented at trial, Defendant's claim that no relationship exists between those two events is simply not credible. 13 (4) Immediately restore the original westerly/southwesterly watercourse that ran through the property to its pre -development condition by clearing stumps, soil and other debris from that watercourse, and install any erosion control device necessary to prevent undue siltation into that watercourse; (5) Pay to the City fines in the amount of fifty dollars ($50.00) per day, for each day from April 25, 1996, that he has been in violation of the South Burlington Zoning Regulations. DATED at Burlington, Vermont, this 1st day of August, 1997. SON467.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitzel, Page & F etcher 14 S. McLean STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 17, 1 BATTERY STREET P 0. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTONr) Plaintiff,) V. FRANK IRISH, Defendant.) Docket No. E97-093 (former Chittenden Superior Court Docket No. S730-96CnC) CITY OF SOUTH BURLINGTON'S RESPONSE TO DEFENDANT'S - POST -TRIAL RESPONSIVE MEMORANDUM OF LAW NOW COMES the Plaintiff, the City of South Burlington (the "City"), by and through its attorneys, Stitzel, Page & Fletcher, P.C., and submits the following response to the post -trial responsive memorandum of law filed by the Defendant, Frank Irish (the "Defendant") in the above -referenced matter. Memorandum In his post -trial "responsive" memorandum, dated August 8, 1997, Defendant makes two (2) primary arguments. First, he argues that the cutting and removal of trees does not constitute land development within the meaning of 24 V.S.A. S4443(a)(1) and §27.10 of the South Burlington Zoning Regulations (the "Zoning Regulations"). In addition, Defendant contends that the excavation of a drainage ditch is an accepted agricultural practice as defined by the Commissioner of Agriculture, Food and Markets and, therefore, is exempt from zoning regulation under 24 V.S.A. S4495. Based on those arguments, Defendant urges this Court to dismiss the enforcement action filed against him by the City. For the reasons set forth below, this Court should reject both of Defendant's arguments as irrelevant and without merit. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 I. Defendant is Statutorily Precluded From Challenging the Relevant Decisions of the South Burlincrton Zoning Administrator It is well established that the exclusive statutory remedy for persons aggrieved by any act or decision of a zoning administrator is to appeal it. See 24 V.S.A. §4472(a); Town of Charlotte v. Richmond, 158 Vt. 354, 356 (1992). Moreover, 24 V.S.A. §4472(d) provides that in the absence of an appeal, all parties are bound by local zoning decisions and "shall not thereafter contest, either directly or indirectly, such decision or act . . . in any proceeding, including, without limitation, any proceeding to enforce [Chapter 117].11 See 24 V.S.A. §4472(d); Richmond, 158 Vt. at 357. Further, the "exclusivity of remedy" provision contained in §4472 is applicable even where the act or decision appealed from is otherwise void ab initio or is ultra vires. See Levy v. St. Albans Zoning Board of Adjustment, 152 Vt. 139 142-43 (1989). At no point in his post -trial memorandum does Defendant address the applicability of §4472 to this case. As discussed in the City's Proposed Findings of Fact and Conclusions of Law, dated August 1, 1997, however, Defendant failed to file a proper and valid appeal from either the April 17 or April 30, 1996 decisions of the South Burlington Zoning Administrator. Therefore, he is now bound by those unappealed decisions and is statutorily precluded from contesting them in the context of this proceeding. See Richmond, 158 Vt. at 357 (citing Sandgate v. Colehamer, 156 Vt. 77, 85 (1990) ("by its terms, §4472(d) clearly applies to defenses raised in enforcement proceedings")). I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 II. Defendant's Activities Constitute "Land Development" Within the Meaning of State Law Even assuming, arcruendo, that §4472's procedural bar does not apply in this case, this Court may properly reject Defendant's arguments as meritless. Specifically, there is no legal basis for Defendant's claim that the "cutting and removal of trees"' does not constitute "land development," as defined in 24 V.S.A. §4303(3) and §28.123 of the Zoning Regulations (which incorporates the statutory definition). Land development, as that term is used in chapter 117 of Title 24, is defined in pertinent part as "any change in the use . . . of land, or extension of use of land." See 24 V.S.A. §4303(3); South Burlington Zoning Regulations, §28.123. Accordingly, if Defendant's activities resulted in either a change to or extension of the pre-existing use of the land, this Court may conclude that he commenced land development within the meaning of the statute. It is undisputed that prior to the clearing activities that occurred on Defendant's property and which involved, among other things, the cutting and removal of trees and other natural vegetation, the land in question was essentially an undeveloped, wet, partially wooded meadow. Today, a substantial portion of Defendant's property, which was once wooded, stands clear of trees and other natural vegetation. There is no question that I The Zoning Administrator's April 17, 1996 notice of violation alleges that Defendant "cut and removed trees and other natural vegetation from within the Conservation and Open Space District." See City's Exhibit B (emphasis added). 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0. BOX 1507 BURLINGTON, VERMONT 05402-1507 Defendant has never applied for or received a zoning permit authorizing that clearing activity. Further, despite Defendant's claims to the contrary, there is substantial evidence before this Court (discussed below), that the area involved was cleared in preparation for residential development, and not for any 2 agriculturally -related purpose. Based on the foregoing, this Court should reject Defendant's claims that he was involved in agricultural activity, and conclude that the cutting and removal of trees and other natural vegetation constitutes "land development" within the meaning of both Chapter 117 of Title 24 and the Zoning Regulations. III. Defendant's Activities Do Not Constitute Accept Acrricultural Practice This Court should also reject Defendant's contention that his excavation of a drainage ditch is an "accepted agricultural practice,, and, therefore, exempt from zoning regulation under 24 V.S.A. §4495. As set forth in its previous filing, the City disputes that Defendant was engaged in agricultural activities in the area of his property at issue in this case. Indeed, the evidence before this Court, including the Irish Development Corporation's February 26, 1996 application to develop the entire south side of Allen Road as a forty-eight (48) lot residential subdivision (Secretary's Exhibit 1); the testimony of Ms. Llewellyn that 2 The credible evidence indicates that the relevant portion of Defendant's land was not used for farming purposes during the 1980s, and Patricia Irish testified that it has never been so used. Testimony of A. Llewellyn; P. Irish. 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BA77ERY STREET P 0. BOX 3507 BURLINGTON, VERMONT 05402-1507 there is no evidence of agronomic or other agricultural activity in the southwest corner of the property; and the testimony of Ms. Irish that that area has never been farmed due to the wetness of the land, all suggest that Defendant's intent in clearing and excavating the property was to prepare it for residential development. Further, even assuming that Defendant was engaged in agricultural activity, both (1) the excavating and clearing of earth materials, and the depositing of those materials into the pre-existing watercourse and (2) the excavation of the new drainage ditch constitute violations of the Accepted Agricultural Practice Rules (the "AAPRII) (copy attached). 24 V.S.A. S4495(b) provides that no plan or bylaw adopted under chapter 117 of Title 24 "shall restrict accepted agricultural or farming practices . . . as such practices are defined by the commissioner of agriculture food and markets." See 24 V.S.A. §4495(b). This Court should note, however, that §4495(b) does not exempt all "agricultural" activities from municipal zoning regulation. See Office of the Attorney General, State of Vermont, Opinion No. 91-2F (revised), 1991 WL 334855 (January 17, 1991), at 2. Rather, §4495(b) only covers those p.ractices (as opposed to uses) specifically defined as "accepted" by the Commissioner of Agriculture. Id., at 5, 7-8. Therefore, to the extent that an activity has not been defined by the Commissioner as an "accepted agricultural practice," or to the 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 extent that an otherwise accepted practice violates the AAPR, it is subject to municipal regulation.. Id., at 8. The applicable regulatory provision of the AAPR specifically states: Persons engaged in agricultural operations who follow the agricultural practices as defined in Section 3.2 of these rules and who comply with the conditions and restrictions contained in Section 4 shall be presumed to be pursuing Accepted Agricultural Practices. See AAPR, at §3.1 (emphasis added). Among the conditions and restrictions set forth in Section 4, is §4.01 (Discharges), which provides: Agricultural operations shall not create any direct discharges of wastes into the surface waters or groundwater of the State from a discrete conveyance such as, but not limited to, a pipe, ditch, or conduit without a permit from the secretary. Id., at §4.01(a). The AAPR define "discharge" as "the placing, depositing, or emission of any wastes directly or indirectly, into an injection well or into waters of the state.,, Id., at §2.05. Further, the AAPR broadly define "wastes" as rslediments, minerals including heavy metals, plant nutrients, pesticides, organic wastes (including livestock waste and crop debris), waste oils, pathogenic bacteria and viruses, thermal pollution, silage runoff, and any other waste compound or material which is determined by the Commissioner or the secretary to be harmful to the waters of the State, or 3 other wastes as defined in 10 V.S.A. Section 1251(12). 3 10 V.S.A. §1251(12) defines "waste" as "effluent, sewage or any other substance or material, liquid, gaseous, solid or radioactive, including heated liquids, whether or not harmful or deleterious to waters. See 10 V.S.A. §1251(12). L-1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0 BOX 1507 BURLINGTON, VERMONT 05402-1507 Id., at S2.15 (emphasis added). Finally, the AAPR define "waters and waters of the State" to "include all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs and all bodies of surface waters, artificial or natural, which are contained within, flow through or border upon the state or any portion of it." Id., at S2.19. It is undisputed that before Defendant commenced clearing and excavation activities on his property, a minor stream flowed across the site in a westerly direction. Sediment and other materials, including trees, stumps and other vegetation, cleared 4 from the land have been deposited into that watercourse. In addition, it is evident that excavation of the new drainageway has caused streambank erosion and substantial sedimentation into that portion of the original watercourse which flows in a northerly direction behind Ms. Irish's house and through the culvert under Allen Road to Bartlett Brook.5 In light of the foregoing, it is clear that Defendant's activities in excavating earth materials in and around the new ditch (see City's Exhibit B), and in filling and otherwise encroaching upon the original westerly drainageway (see City's Exhibit C) do not constitute accepted agricultural practice, within the meaning of the AAPR.6 4 The depositing of materials into the pre-existing watercourse was clearly evident during this Court's site visit. 5 Both the original watercourse and Bartlett Brook meet the definition of "waters of the state" under the AAPR. 6 Defendant has never alleged that he has a permit from the secretary authorizing the discharge of wastes into waters of the state. 7 Therefore, this Court should reject Defendant's argument that his activities are exempt from zoning regulation under 24 V.S.A. §4495. conclusion For all of the reasons set forth above, the City of South Burlington respectfully requests that this Court reject the arguments set forth in Defendant's memorandum and adopt and incorporate the City's Proposed Findings of Fact and Conclusions of Law into its Decision and order in this matter. DATED at Burlington, Vermont, this 15th day of August, 1997. SON468.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BA77ERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. 1% 1�, 3. A?. ,!;�-.Jogeph S. McLean 8 I STEVEN F. STITZEL PATTI R. PAGE* ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMrrrED IN N.Y.) STITZEL, PAGE & FLETCBER,, P.C. A17ORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICErMD) FAX (802) 660-2552 E-hLkU#7RM2555@A0L.COM) March 16, 1998 Martha Hicks Robinson, Docket Clerk Vermont Supreme Court 109 State Street Montpelier, VT 05609-0801 Re: Appeal of Frank Irish Docket No. 97-509 Dear Martha: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -referenced matter is Appellee's Docketing Statement. Thank you. Si n7ereiy,, A 1, A oseph S. McLean JSM/gmt Enclosure cc: Gary Kessler, Esq. Michael B. Clapp, Esq. Richard Ward, Zoning Adm.--' c35C6.COR APPELLEE'S DOCKETING STATEMENT Appealed From: Vermont Environmental Court Vermont Agency of Natural Resources Plaintiff/Appellee E97-069 (Trial Court Docket No.) V. Frank Irish 97-509 (Supreme Court Docket No.) Defendant/Appellant City of South Burlington Plaintiff/Appellee E97-093 (Trial Court Docket No.) V. Frank Irish 97-509 (Supreme Court Docket No.) Defendant/Appellant A. COURT/COUNSEL 1) Trial Judge: Hon. Merideth Wright 2) Trial Counsel for Plaintiff: Gary Kessler, Esq. for Agency of Natural Resources; Joseph S. McLean, Esq. for City of South Burlington 3) Trial Counsel for Defendant: Michael B. Clapp, Esq. 4) counsel in supreme Court for Plaintiff: Same as above. 5) Counsel in Supreme Court for Defendant: Same as above. 6) Please list other parties and their counsel: None. 7) Date of Decision Being Appealed: October 20, 1997 8) Date of Notice of appeal Filed: November 3, 1997 LI-M CRIMINAL CASES Not applicable. 1) Was Defendant given a sentence of imprisonment? 2) If so, what is the sentence? 3) If so, has the sentence been stayed pending an appeal? 4) If the sentence has not been stayed, when did the Defendant begin service of the sentence? 5) What penalty other than a sentence has been imposed? Please describe: 6) Was trial counsel appointed or retained? C. BRIEF DESCRIPTION OF NATURE OF CASE AND RESULT This is an appeal from an October 20, 1997, Decision and order of the Vermont Environmental Court. Appellant, Frank Irish, owns a 26.3-acre parcel of land in the City of South Burlington, Vermont, on the south side of Allen Road, as well as other property in the area. That 26.3- acre parcel was the subject of an application to the City, submitted on or about F * ebruary 26, 1996, for approval to construct a forty-eight (48) lot residential subdivision thereon. In March 1996, Appellant arranged with C.W. Gregory, an excavation contractor, to excavate a drainage ditch near the power line right of way to intercept water draining onto his land. The contractor proceeded to do the work, which included cutting and removing trees and brush, excavating the ditch, grubbing up tree roots of significant size, depositing some of the brush, stumps and sediments in the ditch or the natural water course, and allowing additional sediment to flow and be deposited in Bartlett Brook, a water course running along the edge of and from Appellant's property. The disturbed area is located within the Conservation and Open Space District, as identified in the City's Zoning Regulations. It is also in an area of wetlands (Class 2) as that term is defined in State and local wetlands regulations. Sediment from the disturbed area flowed and continues to flow into Bartlett Brook, a watercourse adjoining the property. On April 17, 1996, the City issued a Notice of Zoning Violation (NOV) to Appellant. The notice stated that the means of appealing the NOV was to file a notice of appeal with the Clerk of the Zoning Board of Adjustment. Appellant responded by letter to the City's Zoning and Planning Assistant, stating that his response was a "formal appeal" and claiming that the above -described work was being done for agricultural purposes, and that the tree cutting was for firewood. On April 30, 1996, the City Zoning Administrative officer issued a second notice of violation to Appellant acknowledging that clearing land for agricultural purposes is a permitted use in the Conservation and Open Space District, but further stating that the excavation of trees and the deposition of brush and silt into the drainageway was a serious, additional violation. The April 30, 1996, letter also stated the means of appeal and included the appeal application. Appellant did not appeal the April 30, 1996, NOV. On May 20, 1996, the City filed an action in Chittenden Superior Court alleging that the Appellant had violated applicable provisions of the South Burlington Zoning Regulations by commencing land development without a permit. On May 6, 1997, the Secretary of the Vermont Agency of Natural Resources filed and served an Administrative Order in which she found that Appellant has violated Section 6.3 of the Vermont Wetland Rules and 10 V.S.A. §1259(a). Appellant filed a request for hearing pursuant to 10 V.S.A. §8012 with the Environmental Court. Thereafter, the City of South Burlington's complaint, originally filed in Chittenden Superior court, was consolidated with the Secretary's action in the Environmental Court. As of July 21, 1997, neither Appellant nor anyone acting on his behalf had taken any remedial action to stabilize the sides of the ditch to prevent the continuing discharge of silt to the watercourse, or to apply for a zoning permit to allow the site work performed in the Conservation and Open Space District. Following two days of hearing, the Environmental Court issued a Decision and Order, dated October 20, 1997, imposing civil penalties payable to both the State and the City, and requiring Appellant to retain a consultant, prepare a wetland remediation plan and implement that plan after approval by the Secretary. Appellant has appealed to this Honorable Court from that Decision and order. D. STATEMENT OF ISSUES TO BE RAISED ON APPEAL Was the Environmental Court's conclusion that Appellant violated Sections 3.402, 3.403 and 3.405 of the South Burlington Zoning Regulations clearly erroneous? E. PHOTOCOPIES OF THE DOCUMENTS TO BE ATTACHED Was there a written decision? Yes The following documents must be attached (check if attached); 1) Written decision or order or opinion. 2) Relevant pleadings and motions (other than discovery, unless it is an issue on appeal.) 3) Citations to constitutions, statutes, or cases relied upon, and copies of pertinent texts of ordinances and regulations. 4) Memoranda of law filed in support of, and in opposition to, motion to dismiss, motion to set aside verdict, or any other motion relevant to the appeal. 5) Parties' requests for findings or for jury instructions, if relevant, with marginal notes as to whether granted or denied, unless discussed in a memorandum of law. X X X X X NOTE TO APPELLEE: If you agree that Appellant has attached all appropriate documents, check here . You need not attach documents provided by Appellant; if you believe that additional documents should be provided to the Supreme Court, please indicate which ones and attach them to this statement. F. INVENTORY OF HEARINGS; TRANSCRIPTS ORDERED The Appellant must list every recorded hearing which was held in this matter, including the date, the type of hearings (e.g., pretrial, suppression, status conferences, trial) and the stenographer for each. If the hearing was tape-recorded, so state instead of naming the stenographer. I Attach additional pages if needed. (NOTE: Transcript(s) must be ordered within ten (10) days of notice of appeal; the attorney ordering the transcript(s) must serve copies of each order upon the Clerk of the Supreme Court and all parties, as well as the trial court. See V.R.A.P. 10(b)(1). Date of Length of hearing hearing days/hours 7/11/97 2 days 7/21/97 Type of hearing Reporter's name (or "TAPE") Tammy Martel Cindy Hayden Transcript necessary for appeal?* Date nec- essary transcript ordered Does the Appellee agree as to which transcript(s) are essential for the appeal? Yes X No If not, indicate name(s), date(s), and reporter(s) of additional transcript(s) needed? G. CONFERENCE: EXPEDITED RESOLUTION 1) Do you request a conference with a No staff attorney to discuss either settlement or expedited resolution? (Most conferences are done by telephone.) 2) Do you consent to decision on No written briefs without oral argument? 3) Is this matter appropriate for Yes V.R.A.P. 33.1 and Administrative Order 27? Please explain. Submitted by: CITY OF SOUTH BURLINGTO,,W,/ PA-Intif f /Appellee Dated: March 16, 1998 Signed: V josepry 5. mcLean Stitzel, Page & Fletcher, P.C. 1,7V Battery Street klBox 1507 -ington, VT 05402-1507 *If no transcripts are necessary for appeal, check here [ X I SON477.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE(MD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAnjUtM2555@AOL.COM) ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M . EUSTACE ('ALSO ADMMED IN N.Y.) June 23, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 OF COUNSEL ARTHUR W. CERNOSIA Re: Secretary, Vermont Agency of Natural Resources v. Frank Irish Docket No. E97-069 Dear Judy: I have enclosed for filing with the Court the City of South Burlington's Motion to Consolidate and Memorandum, relative to the above -referenced matter. Please be advised that a Stipulation of the Parties will be filed with the Court shortly. 7 Sin rely, r seph S. McLean JSM/maf Enclosures cc: Michael B. Clapp, Esq. Gary Kessler, Esq. Hon. Stephen B. Martin Carmen A. Cote, Motions Clerk/Deputy Clerk, Chittenden superior Court Charles Hafter SON3318.COR STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff, LIFAM FRANK IRISH, Defendant. DOCKET NO. E97-069 MOTION TO CONSOLIDATE NOW COMES the City of South Burlington, by and through its attorneys, the law firm of Stitzel, Page & Fletcher, P.C., and asks this Court to consolidate the zoning enforcement action captioned City of South Burlington v. Frank Irish, Chittenden Superior Court Docket No. S0730-96CnC, with the hearing currently scheduled in the above -referenced matter. IAN�MIIJIINII 8, 1. Chittenden Superior Court Docket No. S0730-96CnC is a zoning enforcement action brought by the City of South Burlington against Defendant, Frank Irish, by Complaint filed May 31, 1996. In its Complaint the City contends that the Defendant commenced land development on his property, located off Allen Road in the City, without obtaining a zoning permit. See, City's Complaint at 1. Specifically, the City alleges that the Defendant has: (a) excavated earth materials within the Conservation and Open Space District without approval; and (b) cut and removed trees and natural vegetation from within the Conservation and Open Space District without approval. Id. 2. Defendant answered the City's Complaint on or about June 3, 1996. No other substantive pleadings or motions have STITZEL, PAGE & PLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 been filed by either party. 3. On or about May 6, 1997, the Secretary of the Vermont Agency of Natural Resources filed an Administrative order against Defendant pursuant to 10 V.S.A. §8008(a). In response to that Administrative Order, Defendant has requested a hearing before this Court. That hearing is currently scheduled for Friday, June 11, 1997, commencing at 9:00 a.m., at the Edward Costello Courthouse, located at 32 Cherry Street, in Burlington, Vermont. 4. In an Entry Order dated June 18, 1997, the Chittenden Superior Court granted the City's Motion to Transfer and Consolidate Docket No. S0730-96CnC with the pending Environmental Court action. A true and correct copy of that Entry Order marked as Exhibit A is attached hereto. 5. Docket Nos. S0730-96CnC and E97-069 arise out of the same activities on Defendant's property, involve common questions of law and fact, and are likely to involve the testimony of common witnesses. In light of the foregoing, it is reasonable to consolidate those actions for hearing purposes. 6. This Court has jurisdiction over both of the above - referenced matters. 7. All of the parties to the above -referenced matters have stipulated to the consolidation of the above -referenced matter before this Court. See, Stipulation of the Parties, attached hereto. For all the foregoing reasons, the City of South Burlington respectfully requests that this Court consolidate the above- 2 referenced matters and hear all evidence related thereto. Dated at Burlington, Vermont, this 23rd day of June, 1997. SON462.LIT STITZEL, PAGE* FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 3 507 BURLINGTON. VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Pag etcher, P.C. 3 S. McLean, Esq. STATE OF VERMONT CHITTENDEN SUPERIOR COURif DOCKET NUMBER: S0730-96 CnC City of So. Burlington VS Irish, Frank ENTRY REGARDING MOTION —hird,611 ",IVit I I UtnA CLERKS Off ICE JUN 181997 DIANE A. A C CL L V EZ LERK TITLE OF MOTION: PLAINTIFF'S MOTION TO TRANSFER AND C *m=_=______ n DATE MOTION FILED: 5/15/97 JUN 9 1997- ADDITIONAL MEMO: 5/16/97 EXHIBIT A I I RESPONSE FILED: STITZEL. PAGE & FLETCHER PC Michael B. Clapp, Esq. NONE GRANTED COMPLIANCE BY DENIED SCHEDULED FOR HEARING ON: ___AT ;TIME ALLOTTED OTHER JUD6Z_S*1-Rt_EN` AVIS FISHER COPIES'SENT TO: Joseph-S. McLean-'F-Esq. Mlch"ael4B.�, Clapp,- Es q. DATE EXHIBIT STITZEL, PAGE & FLEM-MR, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICErMD) STEVEN F. S77TZEL FAX (802) 660-2552 PATTI R_ PAGE* E-MAM(FUM555@AOL.COM) ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMMED IN N.Y.) June 23, 1997 Gary Kessler, Esq. Environmental Conservation Enforcement 103 Main Street Waterbury, VT 05676 OF COUNSEL ARTHUR W. CERNOSIA Re: Secretary, Vermont Agency of Natural Resources v. Frank Irish Docket No. E97-069 Dear Gary: I have enclosed, for your review and signature, a Stipulation of the Parties which I have signed on behalf of my client, relative to the above -referenced matter. Please sign the Stipulation on behalf of your client and forward it to Michael Clapp for his signature and filing with the Court. Thank you for your assistance in this matter. If you should have any questions, please do not hesitate to contact me. JSM/maf Enclosure cc: Michael Charles SON3320.COR Clapp, Esq. Hafter Sin rely, J seph S. McLean STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff, V. FRANK IRISH, Defendant. DOCKET NO. E97-069 STIPULATION OF THE PARTIES THE UNDERSIGNED hereby stipulate and agree to the consolidation of the zoning enforcement action captioned City of South Burlington v. Frank Irish, Chittenden Superior Court Docket No. S0730-96CnC, with the above -referenced matter. Dated at Burlington, Vermont, this ZV�ay of June, 1997. CITY OF SOUTH BURLINGTON By: S ge & Eletcher, P.C. 19'6_pb�'S. MCLed-n—, -IM-Cf. Dated at Burlington, Vermont, this day of June, 1997. FRANK IRISH By: Affolter, Clapp, Gannon, Ltd. Michael B. Clapp, Esq. Dated at Waterbury, Vermont, this day of June, 1997. SON463.LIT SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES By: Gary Kessler, Esq. STITZEL, PAGE & FLETCBER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICUMD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E.MA1I*MU,42555@A0L.C-OM) ROBERT E. FLETO-MR JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMnTFD IN N.Y.) June 12, 1997 Mr. Leon Graves Commissioner of Agriculture, Food & Markets Vermont Department of Agriculture 116 State Street, Drawer 20 Montpelier, VT 05620-2500 Re: City of South Burlington v. Frank Irish Docket No. S730-96Cnc Dear commissioner Graves: I,am writing relative to the above -referenced matter. — OF COUNSEL ARTHURW.CERNOSIA This office represents the City of South Burlington. On or about May 31, 1996, the City filed suit against Frank Irish in Chittenden Superior Court for commencing land development on his property, located off Allen Road in the City, without obtaining a zoning permit. Specifically, the City alleges that Mr. Irish: (1) illegally excavated earth materials within the Conservation and Open Space (CO) District and (2) illegally cut and removed trees and natural vegetation from within the CO District.' The activities on the Allen Road property that form the basis of the City's complaint occurred just prior to an application by Mr. Irish's representatives to the South Burlington Planning Commission for approval to create a 48 lot residential I The South Burlington Zoning Regulations define the CO District as including "all land along a minor stream or drainageway which is within 50 feet horizontal distance of a minor stream or drainageway" and "all wetland areas identified on a map entitled 'Wetlands Map' including a buffer area 50 feet in width- surrounding a 1�7etland. South Burlington Zoning Regulations, SS3.104, 3.106. In short, the City contends that Mr. Irish improperly stripped a wetland, deposited and buried the resultant debris in an existing watercourse, created an alternative watercourse that has resulted in extensive erosion which, among other things, threatens the operation of a City owned culvert. Mr. Leon Graves June 12, 1997 Page 2 subdivision on the land in question. Further, on or about May 6, 1997, Gary Kessler, Esq., on behalf of the Secretary of the Agency of Natural Resources, filed an Administrative Order (AO) against the Defendant pursuant to 10 V.S.A. §8008(a) for alleged violations of State wetland rules. In response to that AO, Mr. Irish requested a hearing in the Vermont Environmental Court. That hearing is currently scheduled for Thursday, June 19, 1997. Since both the City's and State's actions arise out of the same set of facts, the City has moved to transfer and consolidate its action with the pending State case. It is anticipated that the City's motion will be granted and that both cases will be tried together. In defense of both actions, Mr. Irish claims that the activities on his property are agriculturally related and, therefore, exempt from state and local regulation. Given the defense raised by Mr. Irish, it is relevant to both the City's and State's cases whether the activities that occurred on the property constitute "accepted agricultural practice," as defined by the Department of Agriculture. Accordingly, by this letter, I respectfully request that the Department undertake an appropriate investigation to determine whether the above -referenced activities comply with accepted agricultural practice rules. To assist in your review, I have enclosed certain documentation pertinent to this matter. Further, I am certain that Ms. Patricia Irish, Mr. Irish's sister-in-law and a resident of Allen Road, would be willing to speak with you. She is very familiar with farming activity on the property at issue. Her telephone number is (802) 863-4440, at home, and (802)862-9228, at work. In addition, feel free to call Richard Ward, the South Burlington Zoning Administrator, at (802) 658-7955. Thank you for your attention to this matter. Please let me know if you have any questions. very /jsm Enclosures cc: Richard Ward (w/out Enclosures) Gary Kessler, Esq. (w/out Enclosures) SON3312.COR ly yours, S. McLean 3 I OFC��TSS CHIRLEEN TY 1 RONALD BROSSEAU, having been duty sworn by the Notary 2 2 Public to tell the whole truth and nothing but 3 3 the truth, deposes and says as follows: 4 CITY OF SOUTH BURLINGTON 4 EXAMINATION BY JOSEPH S. MCLEAN, ESQUIRE: 5 VS 5 0. Good afternoon, Mr. Brosseau. 6 FRANK IRISH 6 A. Good afternoon. 7 7 0. My name is Joe McLean, as I am sure you are aware. 8 a I represent the City of South Burlington in a lawsuit 9 9 that the City has comiwiced against Frank Irish. You 10 D E P 0 S I T 1 0 N 10 are here today in response to a subpoena that I had 11 -of- 11 served an you; is that correct? 12 RONALD BROSSEAU 12 A. Yes. 13 T Frilly, "7 'etReo?aw 0 roLAp6tter d 13 0. Could you tell me, air, your date of birth, for 14 t, at i m. ngton, X&Gwigon :bS ------------------------------------ 14 the record? 15 Is A. 6/23/38. 16 APPEARANCES: 16 Q. And where do you reside? 17 is JOSEPP. MCLW. ESQUIRE of the taw firm g Stitzet 0 rf Batt 425i54,'oln' h'of the VNmon 17 18 A. South Burlington, Vermont. 0. How long have you lived there, in South 19 n 19 Burlington? 20 21 "ICH%fl O�AE oltC P 1,ESQUIRE of �he low firm 9f V Gxaft hutr(Ingtivoen,"VergAIT5402, =64-of 20 21 A. 34 years. 0. And what specifically is your address? 22 t9e eW&nt. e . 22 A. 191 Alton Road, South Burlington. 23 24 qE ASSOCI�TE 117 BANKCEUTRRETE NMI 1g, WHT 05401 23 24 Q. How tong have you Lived at that address? A. 34 years. 25 25 0. Okay. Were you born in that? 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 la 19, 20 21 22 23 24 25 2 EXHIBITS I A. No. #01 - p. 4 survey 2 Q. I'm showing you what I marked as Exhibit DI for #02 - p. 11 &etlarjr hygg,Br,*en to Mr. SmejkaL ift, 3 the purposes of this deposition. I mo just wondering #D3 - t rX p. 20 Watfon obtained from the City doted 4 if you could first identify this plan for me and then 2/49/L - 5 locate your residence with your initials. First of #D4 - p. 20 dpeumt vfth a heading "Irish Ettate oil' that consists of a map a site p o a 6 all, have you ever seen this document before? ryored dev, L %m _ A copy.of tc: Y;r ey oug B rr, t t i S t B r iihton zoni2amte, and trRr. I ting property obf 7 a A. Yes. Q. Can you tetL me what it is? riank ADS - p. 24 photograph 9 A. It is a part of a survey or a plot plan for the #06 - p. 24 photograph 10 lard that is adjacent to mine. #D7 - p. 27 - photograph 11 a. Can you locate your residence on this with your #D8 - p. 27 - photograph 12 initials, please? #09 - p. 27 - photograph 13 A. okay. 14 Q. Thank you very mich. Mr. Brosseau, how are you STIPULATION is employed? it is hereby Itiputated and agreed b and hat 16 A. I am self-employed. I f9r n$el or tho resntive ty -t all as % - - qmLities it) t t the ?a rl th we 17 Q. How are you self-employed? the i t r ition are wav 9 tg c ptoo t e. deponeni c to 561 a, t WE t � , p the In"itionD, ? Rn Is t 18 19 A. I own Commercial Industrial Electric, Inc., and RP Brosseau and Company. =tions, 0 a wiffeg r4ecrvt!2 to the time NrmtriaL. 20 0. And what are those buslnesses7 21 A. Electrical contractors, engineering, that type of 22 work. 23 0. And how Long have you done that? 24 A. ALL my Life. Well, my adult Life. 25 Q. Do you have other employees besides yourself? 4 5 1 7 I A. Yes. 1 0. Okay. If you would, could you describe for me 2 0. What is your position within the cog3anies? 2 what the natural features of that.' Landscape are or 3 A. I am president of both companies. 3 what the -- actually, Let me ask, what were the 4 (A recess was taken.) 4 natural features of that Landscape prior to 1996? 5 Q. When we stopped, I was about to ask you what your 5 MR. CLAPP: Do you understand the 6 responsibilities were within your companies. 6 question? 7 A. I am president of the companies. 7 Q. Do you understand the question? 8 0. And what do you do as president? 8 A. The natural Landscape? 9 A. I handle the normal routine: money, bid jobs, 9 0. 1 asked -- what I am asking you to do is simply 10 meet with people, or arrange work. 10 describe the property for me. What's out there, as 11 0. You know Frank Irish? 11 for as you know? 12 A. Frank Irish Lives across the road from me, yes. 12 A. Much Like it is right now. There's meadows, 13 0. Are you related to him? 13 fields, kind of sLashy woods. I remember when it was 14 A. My wife is Frank's sister. 14 almost all open lard, too. 15 Q. Okay. So you are Frank's brother-in-law? 15 Q. Are there streams on the property? 16 A. Yes. 16 A. Not a formal stream. 17 Q. And your spouse's name is who? 17 Q. Is there a water course on the property? 18 A. Francine. Is A. Well, I don't know what you mean by water course. 19 Q. How tong have you been married? 19 0. Is there a ditch or ravine or some type of conduit 20 MR. CLAPP: Now you are in trouble. 20 through which water flows on a regular basis? 21 A. Almost 37 years. 21 A. On the extreme west side in back of Doug and Pat 22 Q. Okay. And during that time have you Lived across 22 Irish's land, there is a culvert that crosses the road 23 the -- continued to live across the street from Frank 23 is there. And there is a kind of a ditch right there. 24 continuously? 24 Q. Mm-hmm. Have you seen water flowing through that 25 A. Since 1963. 25 area? 6 1 0. Now would you characterize your relationship with I A. Well, in my whole course of -- since I have been 2 Frank? 2 there, probably, yes. 3 (A recess was taken.) 3 0. Now, the strew behind Doug and Pat Irish's 4 0. 1 believe I just asked you, how would you 4 property that you just referred to and which flows 5 characterize your relationship with Frank? 5 under Allen Road by means of a culvert, also crosses 6 A. We get along well. 6 Mr. Irish's property, Frank's property, at some point, 7 Q. Friendly? 7 isn't that correct? a A. Yes. a A. First of all, I didn't call it a stream. 9 a. Okay. Do you have a ran or nickname that you use 9 Sometimes there's water there but sometimes there 10 to refer to Frank, other than Frank? 10 isn't. There mat be some kind of drainage, yes. 11 A. Yeah. Everybody calls him Bill. 11 a. Okay. There is some type of drainage there, 12 0. Okay. Are you familiar with Mr. Irish's property 12 whether it meets the definition of a stream as that 13 on the south side of ALLen Road? 13 term is defined either by the City or by the State? 14 A. Yes. % It is not something that you are qualified to attest 15 Q. You've walked that property before? 15 to; is that correct? 16 A. Yes. 16 A. Yes. 17 Q. How mainy times? 17 0. Okay. Now, did you make an application to the is A. Oh, geez. is City for approval to subdivide that property in 1996? 19 0. Many, many times throughout your life? 19 A. Did I make -- 20 A. Yes. 20 0. Did you make a -- did you apply to the City in 21 0. Do you know how many acres he's got out there? 21 1996 for approval to subdivide that property? 22 A. It says 25 or 26. 1 didn't know the exact amount. 22 A. No, I did not. 23 0. From your residence, do you have a clear view of 23 Q. Do you know who did? 24 that property? 24 A. Yes. 25 A. Yes. 25 0. Who would that be? a 9 I A. Peter SmejkaL. I property? 2 Q. Who is Peter SmejkaL? 2 A. No. 3 A. He is my partner if we did whatever we could do. 3 0. When was the development of the property intei 4 0. How do you know him? 4 to begin? 5 A. From working. 5 A. If whatever permits went through, it would have 6 a. Did you have discussions with him about 6 began as soon as possible. 7 subdividing that property? 7 Q. And was the -- was it your understanding that the a A. Yes. a property was to be subdivided for the purpose of 9 Q. And what were those discussions? 9 constructing dwelling units an the Lots that 10 A. That it could be subdivided. 10 were created? 11 Q. Do you have any format business relationship with 11 A. Yes. 12 Mr. SmejksL? 12 Q. Can you give -- can you tell me who Cathy O'Brien 13 A. He -- what do you call format? 13 is? 14 MR. CLAPP: Yeah. 14 A. Cathy O'Brien that I know, yes. 15 A. Yeah. 15 a. Yes. Who is she? 16 MR. CLAPP: Is there a written -- 16 A. She works for the State of Vermont wettands. 17 Q. -- a written agreement between the two of you? 17 Q. okay. Are you familiar with discussions or 18 A. No. Is correspondence that she may have had with Mr. Smejkal 19 0. 1 thought you indicated that he was your partner. 19 in March of 1996? 20 1 didn't know if there was a format partnership 20 A. Maybe some of them but not all. I can't say that, 21 agreement or anything of that nature. 21 no. 22 A. There was not a format partnership agreement. 22 Q. What do you recall? Let me do this. I am showing 23 Q. Whose idea was the subdivision of the property? 23 you what I am going to mark as Deposition Exhibit 24 A. Well, I don't know what you mean. 24 Number 2. This Is a Letter from Ms. O'Brien to Mr. 25 Q. As between you and Mr. SmejkaL, who came up with 25 SmejkaL dated March 27, 196. Can you tell me if 10 12 1 the idea that a subdivision of his property might be I you've ever seen this document before? 2 worth pursuing? 2 A. I am not sure. I may have. 3 A. My idea. 3 a. Can you recall discussions with Mr. Smejkat about 4 a. And when did you first formulate that idea? 4 that document or about conversations that he had with 5 A. I can't remember. 5 Ms. O'Brien? 6 0. Besides Mr. Smejkat, who did you discuss this idea 6 A. I don't recall them, but I think yes there were. 7 with, if you know? 7 Q. And would those discussions have occurred sometime a A. I don't know. a around March of 1996? 9 Q. Okay. You don't recall? 9 A. Probably April. I am not sure. 10 A. No. 10 a. okay. 11 Q. Can you describe for me generally, to the best of 11 MR. CLAPP: Can I just took at 2, if you 12 your ability, what was planned for that property? 12 don't mind? 13 A. To put in a certain amount of streets, to have a 13 MR. MCLEAN: Oh, sorry. 14 certain amount of houses. 14 0. Can you tell me what the Irish Development 15 Q. And, again, can you give me a general idea of when 15 Corporation Is? 16 you began to discuss with Mr. Smelkat subdivision of 16 A. I don't know what you mean. 17 the property? 17 Q. Does it exist as a legal entity? 18 A. I can't remember. 18 A. No. 19 a. Would it have been sometime in 1995? 19 Q. Has it ever been registered with the State as a 20 A. I really can't remember. 20 forimL corporation? 21 a. You can't recall if it was 1995 or 1996? 21 A. No. 22 A. I think it would be 1996 because the paperwork 22 0. Okay. Does the Irish Development Property -- 23 says that. 23 Corporation have any Legal interest in the property of 24 0. Okay. Do you recall when you first contacted Mr. 24 Mr. Irish that we are discussing here? 25 Smelkat to discuss the potential subdivision of the 25 A. I don't know what you mean by legal. 13 15 1 0. By Legal interest, I am I mean are there any 1 A. I don't know. I didn't fill that paper out. 2 formal agreements, written or otherwise, between Mr. 2 0. Okay. To the best of your --Js if your 3 Irish and the Irish Development Corporation that you 3 understanding that you have never been associated with 4 are aware of that would give the Irish Development 4 a group that calls itself the Irish Development 5 Corporation a property interest in that lard? 5 Corporation? 6 MR. CLAPP: Can I have the question 6 A. If this development goes through, then it probably 7 read back? 7 would have been called Irish Development Corporation. 8 (The question was read back.) 8 0. Okay. 9 MR. CLAPP: I object to the form, but 9 A. it was -- but it might not have. I don't know. 10 the witness can go ahead. 10 Q. So there was a group consisting of at least of Mr. 11 MR. MCLEAN: I'LL begin with a Little 11 Smejk&L and yourself who were the contact persons for 12 foundation here. 12 the Irish Development Corporation or -- and that name 13 Q. Who were the w 'Pre of Irish Development 13 was intended only to be a way to identify the persons 14 Corporation? 14 involved in this application; is that correct? 15 MR. CLAPP: It doesn't exist. It is 15 A. I don't know. 16 sort of hard for him to -- 16 0. Okay. Did Mr. SmejkaL ever discuss with you the 17 MR. MCLEAN: Can I steal the Exhibits 17 recamardation contained in Deposition Exhibit 2, that is back? 18 it was necessary to hire a wetlands consultant to 19 0. 1 m showing you Deposition Exhibit 3. Can you 19 delineate wetlands an the Irish property prior to 20 tell me what this document is? 20 commencing development? 21 A. it says -- it is a City of South Burlington 21 MR. CLAPP: Objection. 22 subdivision application for a sketch plan. 22 0. You can answer. 23 0. Ain I correct that your name appears as a contact 23 A. As for as delineating wetlands or anything? No. 24 person on that application? 24 He sold that the girt said it was probable wetlands. 25 A. Yes. 25 0. Are you aware of anyone having ever hired a 14 16 1 Q. Okay. You were Listed as a contact person for the I wettands consultant to delineate wetlands or identify 2 applicant. Ain I correct that the applicant is listed 2 wettands on the property? 3 as Irish Development Corporation? 3 A. Yes. 4 A. Yes. 4 0. And who hired a wetlands consultant? 5 0. At the time that this application was filed, what 5 A. Peter SmejkaL called a fellow. 6 did you believe the Irish Development Corporation to 6 Q. And who was hired? 7 be? 7 A. William Countryman, I believe his name is. a A. I don't know what you mean. a Q. When was that? 9 Q. Was there a group of or association of individuals 9 A. Within the Last year. 10 who collectively used the raw Irish Development 10 Q. 1996 sometime? 11 Corporation? 11 A. I w not sure. Yes, it would have been 1996. 12 A. Again, I don't know what you mean group. 12 Q. Are you mare of any reports that were produced as 13 0. Am I correct that this application Lists as owner 13 a result of that review by the wetlands consultant? 14 of record for the property to be subdivided Frank 14 A. Yes. 15 Irish? You are welcome to took at it. 15 Q. Do you have a copy of that? 16 A. Yes. 16 A. Yes. 17 0. And it also Lists as the applicant on behalf of 17 MR. 14CLEAN: Can I get a copy of that? 18 the property owner Irish Development Corporation? 18 MR. CLAPP: Yes, probably so. Do you 19 A. Yes. 19 want a copy right now? 20 0. And it Lists Peter Smejkat and yourself as the 20 MR. 14CLEAN: No. 21 contact person? 21 MR. CLAPP: Okay. We have a report from 22 A. Yes. 22 Mr. Countryman. 23 Q. ALL I am simply asking you is to tell me what the 23 0. Are you familiar with Mr. Countryman's conclusions 24 Irish Development Corporation was Wei to be or 24 or findings as contained in that report? 25 who war* the members of Irish Development Corporation. 25 A. Yes. 17 A 19 Ing about those? 1 these documents, if you know? his letter that there 2 MR. CLAPP: Do you Rpan who assembled but he didn't know if 3 them? 4 the locations as such were appropriate to the charts. 4 0. Someone prepared the document on page one with the 5 He said it was not usable or needed wetlands as it 5 heading Irish Estates. Do you know who typed that 6 served no purpose as a wettand to be there because of 6 information out? 7 probably drainage water. He felt that it should be 7 A. No. 8 mitigated because it was not a usable wettand and it a 0. Who assembled the remainder of the documents? 9 is only parts of it, very, very minor part. 9 A. I believe Peter Smejkal. 10 0. Okay. Who prepared the application for the Irish 10 Q. You were not tht person who assembled those 11 estates development? 11 documents? 12 A. Peter -- wait, Peter Smelkal. 12 A. No. 13 0. Did you have any role in the preparation of those 13 0. Okay. Did you have conversations with Mr. SmelkeL 14 materials? 14 aboi these documents? 15 A. Not the materials, rw. 15 A. Maybe after the fact. I am not sure. 16 Q. What did you do in preparing for -- preparing for 16 Q. Okay. Page one of the documents that I have shown 17 the s " ivision process? 17 you has a notation that says wettand Limitation 18 A. Peter actually handled almost all of it. He just 18 modifications pending -- wetLand Limited modifications 19 talked to me from time to time. 19 pending. What knowledge, if any, do you have of that 20 0. How was it that you became invotved in, you know, 20 notation, what it means? 21 this subdivision of this property? 21 A. Nothing. 22 A. I was asked by my wife through my brother -in -Law, 22 0. Okay. What was your understanding at the time 23 BILL, that owns the Land, as he needed money and 23 this application was node of the presence of wetlands 24 wanted to do something to see if something could be 24 on the property? 25 done with the Lard. 25 A. What's this -- what's the date of this? 1 Q. And what is your understand 2 A. That it was -- he states in 3 was probable class two wettands ia 1 20 I a. So BILL asked your wife to ask you if you would I Q. Exhibit D3, which is the application that's 2 help him with the subdivision process? 2 obtained from the City, is dated Z/26/96. And the 3 MR. CLAPP: Objection. 3 Irish Estates packet of materials, which Is Deposition 4 A. No. 4 Exhibit 4, which was also submitted to the City is 5 Q. What's your understanding regarding BILL's 5 dated 3/28/96. We are talking about an application 6 conversations with your wife? 6 sheet dated February 26, 196, and then the materials 7 A. He asked my wife to ask me because he felt I knew 7 requested in that appLication sheet were submitted a contractors that might purchase arid/or probably 8 approximately March 28, 196. 1 can repeat the 9 develop the L". 9 question. And that was, what was your understanding 10 Q. When was that, approximately? 10 regarding the presence of wettand on the property at 11 A. I can't even remember. 11 the time the application material was submitted? 12 Q. Was it prior to the time that you submitted the 12 A. If that girl, Cathy -- if the wetlands person or 13 application to the City? 13 the girl, Cathy O'Brien, had talked to Peter in 14 A. I didn't submit it, but it was prior to that, yes. 14 between that, then he told me that there might have is Q. Do you recall whether it was In 1995? is been mWor might be a wetLand in there. If that 16 A. No. 16 wasn't within that time, I don't know about it because 17 0. Okay. I guess we're up to Number 4 row. I am 17 1 only saw it after It was put together. 18 showing you a packet of documents that I've marked as 18 0. Okay. Fair enough. There is a survey on page 19 Exhibit D4. And this is a facing page with a heading 19 three of Exhibit D4 which shows the locations of 20 Irish Estates, a map, a site plan of a proposed 20 properties an Allen Road and also delineates -- it 21 development, the -- a copy of the survey that we 21 says a notation udetineating a wooded area and a brush 22 Looked at before, or similar to the one that we looked 22 area." Do you know who made that notation? 23 at before identifying Lots, arid what Looks Like a 23 A. No. 24 South Burlington zoning map, arid finally a List of 24 Q. Okay. 25 abutting property owners to Frank Irish. Who prepared 25 MR. CLAPP: Where is it? Where does it 21 23 1 say wooded area and brush area? 1 A. Noose Gregory. 2 MR. 14CLEAN: Right here. 2 Q. Is that Crawford Gregory? 3 MR. CL.APP: Okay. Gotcha. 3 A. Yes. 4 0. Would that have been Mr. Smejkat, since he 4 a. I understand you wouldn't call him Crawford to his 5 prepared these documents? 5 face. Do you know for whom he did that work? 6 A. I don$ t know. 6 A. For my brother-in-law. 7 0. Are you familiar with the bylaws in the city of 7 Q. Who hired him, if you know? a South Burlington? 8 A. I believe my brother-in-law. 9 A. No. 9 Q. Who contacted him? 10 0. Are you aware that there are bylaws that regulate 10 A. I am not sure if I called Moose or not. I can't 11 Land use in the City? 11 remember. 12 A. I would assume, but I don't know of them, no. 12 Q. What's your relationship with Moose? Have you 13 0. Are you more of Mr. Sm*jkaL consulting with any 13 known him for saw time? 14 City officials prior to preparing and submitting the 14 A. Yes. is documents contained in Deposition Exhibit D3 and DO is 9. How tong? 16 A. No. 16 A. I can't remember. He was a contractor. 17 Q. Okay. You indicated earlier that you had a clear 17 Q. Has he ever -- to the best of your knowledge, has 18 view from your property of the Land in question. Did 18 he ever done work for Frank Irish before? 19 you observe any clearing or draining an that land? 19 A. I don,t know. 20 MR. CLAPP: From his house? 20 Q. Has he ever done work for you before? 21 Q. From your house or from any other location. 21 A. Yes. 22 A. I don't know what you now by observe. 22 a. You noted that you observed ditching on the 23 0. Did you see any work on the Land that could be 23 property. When did you make that observation? 24 fairly characterized as clearing or draining of the 24 MR. CLAPP: I object but go ahead if 25 property? 25 YOU 22 24 1 A. Not what I would catL clearing. And draining, I I A. I can't remember the date. There came a time when 2 don't know what you mean by draining. 2 there was a ditch put down there. 3 0. What did you observe, in your own words? Tell me 3 Q. Where was that ditch Located? 4 what you observed. 4 A. Across the southern part of the property and then 5 A. There came a time when there was people working 5 down the westerly port. 6 down there with backhoe and bulldozers. It was more 6 Q. Did that ditch join the existing what I am going 7 Like reclaiming what was there. They did dig a ditch, 7 to call a water course that flows behind Doug and Pat a yeah, I did see that, but it was more brush. it a Irish's home, which we discussed earlier? 9 wasn't trees. It was brush. 9 A. It ends up tying in there, yes. 10 Q. Can you give me an approximate dote of when you 10 0. Let's do this. I am showing you what I believe is 11 made those observations? 11 now Exhibit 5 and also what I am going to Label 12 A. No. 12 Exhibit 6. Are these photographs of the ditch that 13 Q. What was your understanding about the activities 13 you are referring to? 14 that were going an down there? 14 A. They could be. 15 A. My brother-in-law wanted to reclaim arcVor get 15 0. Have you been to the property7 16 usage of the Land again. 16 A. Yes. 17 0. For what purpose? 17 Q. Recently? 18 A. Farm, clearance, bring it back Like it used to be, Is A. Yes. 19 whatever. 19 Q. Have you observed a ditch similar to that? 20 0. Did you have any concerns abcx what was going on 20 A. I don't know when these were taken so -- you know, 21 down there? 21 1 went down there this winter. 22 A. No. 22 Q. Fair enough. Is there a ditch that is similar to 23 Q. Do you know who did the work down there? 23 that on the property? 24 A. I know one of the people over there. 24 A. Yes. 25 0. Who? 25 Q. Okay. Who did that ditching, to the best of your 25 27 1 knowledge? 1 0. 1 am going to show you what we are going to mark 2 A. I don't know. Mr. Gregory's crew. 2 as Exhibits 7, 8 and 9. 1 bet ievq.-�you-testif ied 3 0. And how many persons did Mr. Gregory have working 3 earlier that you've witnessed water flowing on 4 for him down there, if you know? 4 occasion behind Pat and Doug Irish's home; is that 5 A. I don't know. 5 correct? 6 0. Approximately. 6 A. Yes. 7 A. I don, t know. 7 0. Have you ever been down there when water was not 8 Q. By crew, do you mean to Imply that there were at a flowing? 9 least two persons working on -site? 9 A. Yes. 10 A. I saw at tout two, maybe three. 10 Q. And the water flows over that property ard then 11 Q. Okay. Are you aware of any written agreements 11 under Allen Road; is that correct? 12 between Mr. Irish and Mr. Gregory with respect to that 12 A. I don't know what you mean by over the property. 13 work? 13 in that little ditch. 14 A. No. 14 0. Okay. I am going to show you these photographs. 15 Q. Are there any written agreements between yourself 15 Can you tell me if this is the area that you've 16 and Mr. Gregory that have any relationship to that 16 observed? 17 work? 17 A. I don't know where this is, no. 18 A. No. Is 0. That's not the area you observed? 19 Q. Any oral conversations between yourself and Mr. 19 A. No. 20 Gregory regarding that work? 20 MR. 14CLEAN: Okay. I just went to 21 A. No. 21 clarify one point for the record. When you and 1 22 Q. When Mr. Gregory was on -site doing the work, did 22 spoke earlier, Mike, you indicated to me that you were 23 you consult with him? 23 going to be representing Mr. Brosseau for the purposes 24 A. Consult, no. 24 of this deposition. is it -- and, in fact, you have 25 Q. Did you speak with him? 25 done that. 26 28 1 A. Yes. I Q. is it your understanding that Mr. Clapp is your 2 Q. What were those conversation? What was the 2 Legal counsel? 3 context of those conversations? 3 MR. CLAPP: In the first place, I am not 4 A. I wasn't there when atL of this was going on. 1 4 aware of any reason for Mr. Brosseau to need Legal 5 mean I was there, but I didn't go down there daily. 5 counsel. 6 1 know Moose Gregory as such. And I said hi to him 6 MR. 14CLUM: I just went to clarify. No 7 and go in, and he would be working or whatever. 7 attorneys, other than Mr. Clapp, have ever responded a Q. How many days did this activity continue, to the a to the subpoena or any other information, notice of 9 best of your knowledge? 9 deposition, that was served upon you? 10 A. I don, t know. 10 MR. CLAPP: I can't -- I have entered an 11 Q. More than one? 11 appearance for Mr. Irish, the Defendant, of the suits 12 A. Yes. 12 brought by the City. I have -- I am not aware of any 13 Q. More than a week? 13 response that your subpoena required. I have a copy 14 A. I do not know. 14 of it. 15 Q. How large an area was cleared? 15 MR. 14CLEAN: I am sinpty trying to 16 MR. CLAPP: Objection. 16 clarify that, for whatever purposes, Mr. Brosseau is 17 A. I don't know your terminology of clear. 17 being represented by you and that I am not Is Q. Sure. Approximately how large an area over -- is overstepping any bmrds by addressing him directly 19 over a W oximatety how Large an area was Mr. Gregory 19 without going through any other Legal counsel other 20 working? 20 than yourself. 21 A. The ditch Just goes down the back side and over. 21 MR. CLAPP: That's fire. 22 There was saw brush down there. 22 MR. MCLEAN: Okay. That's all I wanted 23 0. Okay. Earlier we discussed water that ran behind 23 to be sure of. 24 Pat and Doug Irish's home. 24 0. You indicated to me earlier that Frank Irish was 25 MR. CLAPP: Sometimes. 25 trying to reclaim the Land. What did you mean by 29 31 1 that? 1 also done cutting in the wettand. We h ave not done 2 A. I have lived there for 30 something years. I've 2 anything in that wettand area, as.$uch-a-s it's called. 3 farmed. I have hayed the land. I am not a former, 3 Q. Other than firewood, there was other earth 4 but I have hayed the land and helped him. We used to 4 material, as I have just described it, removed from 5 drive straight through there down below right across 5 the property, is that correct? 6 underneath what is now the power lines and alt the way 6 A. No. 7 down to Lozuns with pickup trucks. Lozuns is where 7 0. Are you telling me, sir, that all that was removed 8 the old -- is where the Sirloin Saloon is now on 8 from that property were trees and wood that was 9 Shelburne. They had horses down there. I have chased 9 capable of being used for firewood? 10 the horses down there. I have cut alt kinds of wood 10 A. Yes. 11 down there for the Irishes as well as for myself. 11 0. No other earth materials were removed from that 12 That just ended up being a big mess. He had trees 12 property? 13 cleared by this feLtow, big pine trees that were in 13 A. No. 14 there 17 years ago or something. The guy was supposed 14 0. No bushes were cLeared? is to clean it up and didn't and ended up just being a is A. Bushes might have been cleared. 16 big -- smoLL trees. You know, very few big trees Left 16 0. Were shrubs cleared? 17 at alt. 17 A. I don't know. 18 a. Was the Land wet down there during your nuLtIpLe 18 Q. What happened to the bushes that were cleared? 19 visits across that property? 19 A. I don't know. 20 A. When we -- no, when we went with Mr. Countrymen, 20 Q. Did you attend the sketch plan meeting that was 21 we walked all through. 21 held before the Planning Commission of South 22 Q. I am not talking about that. in your experience, 22 Burlington on April 9 of 1996? 23 is the land generally wet down there? 23 A. I am not sure. 24 MR. CLAPP: Where are we talking about? 24 0. Do you recall whether you attended any of the 25 MR. MCLEAN: Mr. Brosseau was just 25 sketch plan meetings that were held? 30 32 1 describing to me how he used to be able to go through 1 A. There were several meetings. I atte 1 2 down through the property that is currently occupied 2 believe, two of them; but I can't remember if it was a 3 by the Sirloin Satoon. 3 sketch plot. They had ram for them. 4 Q. In passing through that property in your past, has 4 Q. Okay. In what capacity were you attending those 5 it been your experience that the Iand had bow wet? 5 meetings? 6 MR. CLAPP: I stitL have a problem Joe. 6 MR. CLAPP: In what capacity? 7 1 am not trying to give you a hard time. I really 7 a. I will clarify the question. is it your a don't know what you mean by wet. Do you mean -- are a understanding that you were serving as the agent for 9 you talking about if there is -- 9 Mr. Irish at those meetings? 10 Q. is It your understanding there is water an the 10 A. No. 11 property? 11 Q. Were you there just as an interested person? 12 A. In the Last few years, sometimes there might be a 12 A. No, but I wasn't an agent. 13 Little bit. But it just comes and goes. In general, 13 Q. By agent I mean were you representing Mr. Irish's 14 no. 14 Interests at that meting, at those meetings? 15 a. is there water flowing through the property? Is MR. CLAPP: I believe it calls for a 16 A. only sometimes in the spring. Primerity not. 16 Legal conclusion so I'LL object but -- 17 Q. When various earth materials -- and by that I mean 17 Q. Did you participate In any presentation made on 18 gross, soit, trees, bushes, shrubs -- were reclaimed 18 behalf of Mr. Irish at those meetings? 19 by Mr. Gregory, what happened to that mterist, if you 19 A. Not on behalf of Mr. Irish, no. 20 know? 20 a. on behalf of yourself? 21 A. There was some wood that was up to eight, ten 21 A. on behalf of myself and Peter Smejk&L. 22 inches and it was cut and brought up to BILL, my 22 Q. On behalf of the Irish Development Corporation? 23 brother-in-law, for firewood. My brother-in-law, Doug 23 A. There was no corporation. 24 Irish, Lives down below and the -- Doug and Pat Irish 24 Q. So called? 25 went in there and cut and took the rest of it. He's 25 A. Yes. ( 33 ( 35 1 Q. Okay. Now, there came a time when Mr. Irish was 1 Irish Fares Development or whatever me going to 2 in the hospital; is that correct? -were 2 Celt it. 3 A. Yes. 3 Q. Nothing to do with it? 4 Q. When was that, if you recatL? 4 A. No. He wasn't part of the corporation or whatever 5 A. Several times. 5 it was, no. 6 Q. I understand that he's been M? 6 0. Wait, then, how is it that you came to be Listed 7 A. Yes. 7 as a contact person for Mr. Irish? 8 Q. During or approximately around the time that you a A. It wasn't for Mr. Irish. 9 made application to the City for sketch plan approval, 9 Q. Who was it for? 10 was Mr. Irish in the hospitaL? 10 A. The papers that you have showed me point back to 11 A. I don't know. 11 this Irish Development Corporation. 12 Q. Do you recall why he was in the hospital? 12 Q. But you told me it did not exist. It has never 13 A. Bow in there several times. 13 existed? 14 Q. For what general reason, if you know? 14 A. Not as a format corporation, no. 15 A. He first went in for a hernia removal and then a 15 0. 1 understand that. It existed as a group of 16 doubte hernia " then it got infected. He went beck. 16 Individuate who were representing the applicant, Frank 17 He then had some kind of a stroke or a heart attack. 17 Irish? 18 He then went back again for something about his Is A. No. 19 stroke, and he went back again because a cyst came 19 MR. CLAPP: Objection. 20 where the hernia was. 20 A. No, it did not. 21 Q. Did you go visit him in the hospital? 21 Q. Did you ever have any personal contact or 22 A. Sure. 22 conversations with Cathy O'Brien? 23 Q. Did you have conversations with him about the 23 A. Yes. 24 property while he was at the hospital? 24 Q. When was that? 25 A. Very general, if any. 25 A. There were several of them. 34 36 1 Q. Ulhat general conversations did you have? 1 0. Okay. Did she Leave a message on your answering 2 A. Just probably told him that we made application or 2 machine at one time? 3 whatever. I don't know. 3 A. Once. I Left many more on hers. 4 Q. White he was in the hospital, did he give you 4 0. VAhat were the contents of those conversations, if 5 approval to go forward with any work an the property? 5 you rec&Lt? 6 A. No. 6 A. There were several, so I don't know which one you 7 Q. Or hire anyone else to do that work? 7 are talking about. a A. No. a 0. Were you aware that Ms. O'Brien was very concerned 9 Q. Or contact Mr. Gregory to do that work? 9 that no development occur an that property until the 10 A. No. 10 wetlands had been property delineated? 11 Q. Was anyone else present during these 11 MR. CLAPP: Objection. Could I have the 12 conversations? 12 question back? 13 A. I'm sure my wife was there and other people. 13 (The question was read back.) 14 Q. Other family members? 14 Q. I wilt rephrase the question. What understardfrig, 15 A. Probably others also, yes. 15 if any, did you have regarding Ms. O'Brien's concerns 16 Q. You are not related to Mr. Smelkat, are you? 16 about the property? 17 A. No. 17 MR. CLAPP: Linderstanding? Are you 18 0. Is Mr. SmejkaL related to Mr. Irish in any way? 18 using understanding to mean a meeting of the minds 19 A. No. 19 or -- 20 Q. So aae I correct that as far as the application for 20 MR. 14CLEAN: I only went to know what Mr. 21 subdivision approval was concerned, you were the only 21 Brosseau thought was going an in terms of the 22 family maniber representing Mr. Irish's Interests; is 22 conversations that he had with Ms. O'Brien. I am not 23 that correct? 23 trying to ask him to state her -- to express her state 24 A. I wasn't representing Mr. Irish's interests in 24 of mind. What did he think was going on. 25 that application. Mr. Irish had nothing to do with 25 A. I didn't know what she was doing. 37 39 1 0. You had no idea what her concerns were? I A. No. 2 A. Exactly, no, I do not. 2 a. okay. Do you know how Large aii area was planted? 3 0. You indicated earlier that you don't have farming 3 A. No, I can't say. 4 experience, that you helped -- 4 Q. You can't estimate for me? An acre? 10 acres? 1 5 MR. CLAPP: Excuse me. 5 am just trying to get an idea. 6 (An off-the-record discussion was held.) 6 A. I don't know what lord you are talking about 7 Q. You Indicated earlier that you did not have 7 exactly. When you say the land, I on Looking now a farming experience per se, but you occasionally a see the whole field. 9 assisted Mr. Irish with haying; is that correct? 9 a. You indicated to me that there was an area that 10 A. Yes. 10 was planted in 1996. 11 Q. Do you have any other farming experience that you 11 A. Everything below me. 12 didn't tell me about before? 12 0. Everything below you was planted? 13 A. I have milked those cows, helped milk those cows 13 A. In the open fieLds, yes, and around the corner, 14 from time to time. I have shoveled manure, probably 14 yes- 15 dorm every aspect of farming, strictly assisting them. 15 Q. And I ant talking about the Land upon which Mr. 16 Q. You don't consider yourself a farmer? 16 Gregory worked. 17 A. No, I don't know anything about it. 17 A. Only pert of it. is Q. Do you have any knowledge of accepted agricultural 18 Q. How large a part? 19 practices as defined by the State of Vermont? 19 A. I am riot sure. 20 A. No. 20 Q. Okay. Do you consider yourselves business 21 0. Never reviewed the guidelines an that? 21 partners with Frank Irish? 22 A. No. 22 A. No. 23 Q. With respect to the Land upon which Mr. Gregory 23 Q. Do you have any Legal interests, and by that 1 24 worked, did you observe any fanning activity an that 24 mean an ownership interest, in the property that was 25 property in 1996? 25 to be developed as part of Irish estates? 38 40 1 A. Yes. I A. I don't know what you mean by Legal ownership. 2 0. what? 2 0. Do you own any of that property? 3 A. There was a certain amount of haying, plowing. 3 A. No. 4 Q. Okay. Prior to 196, what fanning activity 4 Q. Do you have -- do you or your wife have any other 5 occurred on the property? 5 right to occupy that property? 6 A. There's always been a certain amount of haying, 6 MR. CLAPP: You are calling for Legal 7 plowing. Depended whether BILL was ILL. If you go 7 conclusions now. a back far enough, it was open on the back, especially a MR. 14CLEAN: Okay. 9 an the back side. 9 MR. CLAPP: I don't think the witness 10 Q. Now far back was that? 10 is qualified to answer those questions. 11 A. 20 years, 30 years. It was always something going 11 0. Have you ever entered into a purchase and sale 12 on down there. 12 agreement for any portion of that property? 13 0. Most recently when was the test time there was 13 A. Like writing whatever? Again, I don't know what 14 crops planted down there? 14 you mean by purchase agreement and sale. I don't 15 A. On part of it, for the Last several years. I Is know. 16 mean, hayed half of it. 16 0. Have you ever purchased a property? 17 Q. You just referred to the back side. Has there 17 A. Yes. 18 ever been crops planted on that back side that you is Q. And how did you do that? 19 know of? 19 A. I bought it. Gave some money. 20 A. Quite awhile ago, yes. 20 0. You didn't sign ary particular -- 21 Q. And you indicated that there was some planting 21 A. Signed the paperwork. 22 that was done an part of the area in 1996; is that 22 0. Did you sign any paperwork in relation to the 23 correct? 23 piece of Land that we have been talking about here 24 A. Yes. 24 today? 25 Q. Do you know what was planted down there? 25 A. Yes. 41 43 1 Q. What did you sign, if you know? 1 0. Let me stop you for a moment. 2 A. We have an agreement. 2 A. Yes. 3 Q. What type of agreement? 3 0. When you said you talked to a few people that you 4 A. It is an agreement that X amount of years down the 4 know, who were those people? 5 tine we would buy the property. 5 A. Contractors. 6 0. Okay. Who is "we"? 6 0. Can you tell me who? 7 A. Peter Smejkal and myself. 7 A. Hank Adam of Adam Development and Mark DaGaingi. 8 Q. Okay. I am showing you Deposition Exhibit 3. a Q. Was Crawford Gregory a contractor? 9 A. mm-hmm. 9 A. Yes, he was a contractor. 10 0. We've discussed earlier that this document Lists 10 0. He is not one of the people you contacted? 11 the Irish Development Corporation as the appticant. 11 A. No. He is -- these are developers. 12 And under item three, it says, "Appticant's legal 12 0. Mr. Peter SmelkeL was a contractor? 13 interest in the property (fee simpLe), option,u at 13 A. No. 14 cetera. And Mr. Smejk&L has written lloptionee.m 14 0. What is Peter Smejkal? 15 Would that option to purchase the property be pursuant 15 A. Peter works for -- I think he has his own firm. 16 to the documents that you have just discussed? 16 He is a -- I am not sure. 17 MR. CLAPP: objection, if you can answer 17 0. is he one of the people that you contacted as this Is the question. is process got rotting? 19 A. I don't know what -- what the extent of the option 19 A. Yes. 20 is. 20 0. Okay. I am sorry. I cut you off. You can 21 0. Have you ever personalty me& an offer to Mr. 21 continue. 22 Irish to purchase the property, orat or otherwise? 22 A. I was quite disturbed that they were going to 23 Have you ever asked him if he would be willing to sell 23 build below the house in the first piece. I didn't 24 you the property? 24 know it until my sfster-in-Law showed up with a 25 A. Yes. 25 re&Ltor person. 42 1 Q. Has he ever approached you and offered to sell the 1 0. who? 2 property to you? 2 A. I don't know. 3 A. Not directly, no. 3 0. Which sister -in -Law? 4 Q. When did you offer to purchase? 4 A. Doris ReynoLds. So I said to my wife, you know, 5 A. When he asked my wife to see if somebody wanted to 5 'If they are going to build houses there, maybe we 6 buy it, that he needed moray. 6 ought to sea if we could get in. At Least we would 7 Q. Was that part of the agreement, that you would 7 have a Little say an what happens below our house.' a work for him and in exchange you would be given this a And that's when I entertained possibly seeing if it 9 opportunity to purchase part of the property? 9 was feasible to be developed. 10 A. No. 10 Q. Okay. And you made saw phone catLs? 11 Q. Okay. As of this date, do you own any portion of 11 A. Yes. 12 that property? 12 Q. And one of the people you called is Mr. Smejkat? 13 A. No. 13 A. Yes. 14 0. Were you ever paid by Mr. Irish to participate in 14 0. And you mede an agreement with him to work toward is this subdivision process? 15 the approval of a proposed subdivision? 16 A. No. 16 A. Yes. 17 Q. How did you stand to benefit, if at aLL, if this 17 Q. Okay. And I am going to ask you to describe for is subdivision was approved? is me just one more time, so that it is clear to me, the 19 A. Mr. Irish expressed that he wanted to have a 19 nature of the agreement that you have with Mr. Irish 20 development or whatever. And previous his sister had 20 with respect to the property. 21 contacted sow re&Ltors to sea If she could sell the 21 A. There isn't realty an agreement. I don't know 22 Land and to strike a fee. When my wife cam over, she 22 what you mean by that when you say that. 23 says, JGeez, can you help himV I talked to a couple 23 Q. I thought you just told me that you had sow type 24 of people that I know and then I said -- first of all, 24 of an agreement with Mr. Irish that could potentially 25 1 was quite disturbed. 25 give you some form of ownership of the property? 45 I A. Yes, if we could get all permits through, 2 whatever, with the Town, and it seemed Like they 3 should have went like nothing, then we would develop 4 it. 5 Q. Have you abandoned the idea of developing the 6 property at this point? 7 A. No. a 0. You are still actively pursuing that? 9 A. Well, yes, actively, I guess you would say so. 10 0. With Mr. SmejkaL? 11 A. Yes. 12 Q. Okay. You plan to reapply to the City at some 13 point? 14 A. I don't know if reapply is the word. 15 0. Did you obtain sketch plan approval from the City? 16 A. I believe so. 17 Q. Did you ever receive a written decision from the 18 City indicating that you could apply for preliminary 19 pLat approval? 20 A. I believe so. I don't know. I don't know the 21 technicality part. 22 0. Okay. And you are in the process of procuring 23 whatever permits you my need from the State? 24 A. Yes. 25 MR. MCLEAN: Okay. That's it. 1 2 3 4 5 6 7 a 9 io 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 46 1 MR. CLAPP: ALL right. 1 2 (The deposition concluded at 2:12 p.m.) 2 3 3 4 4 5 5 6 6 7 7 a a 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 is 19 19 20 20 21 21 22 22 23 23 24 24 25 25 47 I have carefully read the f.oregofng transcript of my deposition, given on Friday, April 25, 1997, and the answers made by me are true. Date: RONALD BROSSEAU STATE OF VERMONT COUNTY OF At in said County, this day of 1997, personally appe red before me the above -named, RONALD BROSSEAU, and Pak oath that the foregoing answers subscribed by him are true. Notary Public 48 C E R T I F I C A T E 1, Am M. Whiting, Court Reporter and Notary Public, do hereby certify that the foregoing pages numbered 3 through 46, inclusive, are a true and accurate transcription of my stenographic notes of the deposition of RONALD BROSSEAU, taken before me an Friday, April 25, 1997, at 1:00 p.m., for use In the matter of CITY OF SOUTH BURLINGTON VS FRANK IRISH. Am M. Whiting, RPR 1 1 OF VERMONT EN COUNTY, SS I FRANK IRISH, having been duty sworn by the Notary 2 CHIITA48 TE 2 Public to tell the whole truth and nothing but 3 3 the truth, deposes and says as follows: 4 CITY OF SOUTH BURLINGTON 4 EXAMINATION BY JOSEPH S. MCLEAN, ESQUIRE: 5 VS 5 Q. Mr. Irish, could you tell me your full raw, 6 FRANK-IRISH 6 please? 7 ---------------- 7 A. Fraink Irish. 8 a 0. And when were you born, Mr. Irish? 9 9 A. August 18, 1923. 10 E P 0 S I T 1 0 N 10 0. Where do you reside? 11 of- 11 A. 200 Allen Road. 12 FRANK IRISH 12 0. okay. Now Long have you Lived there? 13 Take tp a? Irl1g, 7 t a aw o rofLAftt"er It ington, 13 A. Wait, 73 years, almost 74. 14 a t, at 2:,4 �-m. ------------------------- 14 0. You got some land out there an Allen Road? 15 -- ---- - is A. Yes. 16 16 Q. How many acres do you have? 17 APPEARANCES: 17 A. Oh, 60 some odd. I don't know. is JOSEPg F. 14CLW, ESQUIRE of the Lgw jirm g StitzeL atte . C eermeonrl 05402-1507, an h'of the is 0. on both sides, the north and the south? 19 RnIV4 . intl1r, 19 A. Yes. 20 21 ESQUIRE of She �*w fjT 9f ",C,541t`�" �XG t 'v* r Lingt 5 r(Ington, Vemont*B5402, FELf Weeanut. 20 21 Q. A. How many acres do you have on the north? I think there's 35. 22 of-tRe 22 Q. And on the south about how many? 23 24 117 EA CRYR �E All 4K RIE 05401 23 24 A. 0. 30 maybe. And how Long have you owned that property? That 25 (80TWol''MT 25 belonged to your patients? 2 I EXHIBITS I A. Yes. 2 #01A - p. 21 - photograph 2 0. And when did you become the owner of it, if you 3 #DIB - p. 24 - photograph 3 can remember? 4 NDIC - p. 24 - photograph 4 A. I guess it must have been 082, 183, somewhere 5 #DID - p. 25 - photograph 5 along there. 6 #DIE - p. 26 - photograph 6 Q. Did you acquire the property from them? 7 7 A. Yes. 8 a 0. Did they leave it to you when they died, or did 9 STIPULATION 9 you buy it from them? 10 It is herl Itiputated and egreed kr( and 10 A. No, they Left it to me. b s t h ,TjwTen t�q crounse or the resntige ?a t es I at or 11 T"a itles io wriection w t I; a aP 'I th II Q. Okay. Now, you have been working that lard for ition are wal v c t thhe 81 re ON c 12 o j e.depone t 6 3 a iti on 17te tt�at the 12 how Long? Since you were a kid? I rjitections, * I cii on to t e 13 questions, will be r9lecrvg1toathe time o?rmtriaL. 13 A. Yeah, always had. 14 14 0. Are you very familiar with the property? 15 15 A. Oh, yeah. 16 16 Q. That property on the south side? 17 17 A. mm-hmm. 18 Is 0. What is that property Like? What was that like 19 19 prior to 1996? 20 20 A. Well, it was hey grown. We ptowed it, you know, 21 21 cropped it. A couple of wood piles on it. 22 22 a. Some fields out there? 23 23 A. Yes. 24 24 Q. Sam woodland? 25 25 A. Yes. 4 5 7 1 0. Got sow stream running through there? I Exhibit 1. Now, Ron Brossesu is your brother-in-law? 2 A. No. Well, just drained off, that's all. 2 A. Yes. 3 0. So= water that ran through there though? 3 0. He Lives right here? 4 A. Oh, yeah, once in a while. 4 A. Yes. 5 0. Was there a stream that ran across there and then 5 0. Where is your house an this map? 6 ran down behind Doug and Pat Irish's house? 6 A. Mine is over -- mine is right here. 7 A. Yes. 7 Q. Right here under this barn and shed and this a 0. That's your -- Doug is your brother? 8 structure right here? 9 A. Yeah. 9 A. Yes. 10 0. And Pat is his wife? 10 Q. I an just going to put an "FIN there and circle 11 A. Yes. ii it. And this property down here is owned by your 12 0. okay. Now, when you walked across that Land in 12 brother, Doug, and his wife, Pat? 13 the years before 196, what was the soil like? Was it 13 A. Yeah. 14 wet out there? 14 0. 1 am just going to put a I'D and PIII and circle 15 A. No. 15 that. Now, of the property that you hey out here, 16 Q. Not particutarLy? 16 where do you do your haying? Do you hey all of this 17 A. No. Plowed it with a tractor. Worked the grourd 17 property? is with the tractor. Didn't have any horses. Done it is A. Yep, all around that. 19 aLt with the tractor. 19 Q. Maybe you can draw a Line -- 20 0. What type of farming do you do out there? 20 A. ALL the Allen Road. it includes back to 21 A. WeLt, it was dairy farming. 21 SyLvesters and there. In here we got one square that 22 Q. You got sow cattle? 22 1 don't hey right row because it is -- brush grew up 23 A. Yeah. 23 into it. 24 Q. How many head do you have? 24 Q. There was brush in this area? 25 A. I got about eight, nine head now. 25 A. Yeah. 6 I Q. What kind? I Q. on the west -- the southwest end of the property? 2 A. HoLsteins. 2 A. Yeah. 3 Q. Milk those cows? 3 0. Okay. You hayed this area next to -- adjacent to 4 A. No, no, they are all heifers. 4 ALLen Road? 5 Q. Okay. Any other animals you raise up there? 5 A. Yes. 6 A. No. 6 Q. And you hayed this area up near Ron Brossesuls 7 Q. Just the cows now? 7 house? 8 A. Yes. a A. Yes. 9 0. Do you hay the property? 9 Q. Did you hay this property back here by the ALLen/ 10 A. Yep. 10 Sylvester's Line? 11 Q. How often do you hey? 11 A. Yeah. 12 A. Once a year. 12 Q. You did? 13 Q. What areas are you usually haying over there on 13 A. Yeah. 14 the south side? 14 Q. Okay. When was the Last time you heyed that 15 A. Oh, the meadow Lard. 15 property? 16 0. is there a distinction between the meadow land and 16 A. Last year. V the other Land? 17 Q. Okay. Did you cut aLL the hey in there? 18 A. No. Is A. I didn't get it all cut, no. 19 Q. It is all meadow lard in your mind? 19 Q. Okay. Why is that? 20 A. Yes. 20 A. I had a heart attack. 21 Q. Let me show you a picture here. This is a picture 21 Q. You ended up going to the hospital for a white? 22 of a survey of the Lard on the south side of the road. 22 A. Yep. 23 And this is your Lard right here, this 26.3 acres? 23 Q. Okay. Did you salt that hey, or did you use it 24 A. Yep. 24 all? 25 Q. And this is what we have been catLing Deposition 25 A. I used most of it. 8 9 1 0. Feed the cows with that? I A. Yeah. 2 A. Yeah. 2 Q. You told me that Dewey gets thg money from that 3 0. Okay. Do you grow crops an the Land? 3 farm stand? 4 A. Yeah. I grew oats last year. 4 A. Yeah. 5 Q. Grew oats. Where did you grow the oats? 5 0. what does he sell down there? 6 A. Along Allen Road. 6 A. Vegetables -- fruits, vegetables, flowers. 7 Q. Can you show me? I'LL make an X where you put it. 7 0. where does he grow the vegetables that he sells at a A. Down that. a the farm starxi? 9 0. I'LL write "oats." 9 A. Right in back of the farm stand. 10 A. Down that and Like that. 10 0. Right behind, an the north side of Allen Road? 11 0. Right here? 11 A. Yeah. 12 A. Yeah. 12 Q. Were the oats and pLnq*ins that you grew in this 13 0. Does this cut over anywhere, or does it end 13 general area toward the southwest? 14 right -- show me approximately where it ends, where 14 A. Yeah. 15 you grew the oats. 15 0. Were those for the farm stand? 16 A. I grew the oats in here. 16 A. Yeah, he sold them there. 17 0. Right in this area? 17 0. He sold them there? 18 A. Yeah. Is A. Yeah. 19 0. Is that approximately where you grew the oats? 19 0. Okay. 20 A. Yeah. And then I grew over in this part where we 20 A. I Just planted them so we could hold the brush 21 dozed off Last year. 21 back down. 22 0. Okay. 22 0. Okay. You purchased the seed for those? 23 A. We grew a few gourds and pulpkins and squash, 23 A. Yeah. 24 stuff Like that, vineyard stuff. 24 Q. You bought that, okay. Was it your idea to plant 25 0. About how big an area were you growing those oats 25 the oats and purpkins in there? 10 1 12 I and squash i n? 1 A. Yeah. Plant oats instead of buying so much grain. 2 A. About an acre and a half, maybe two acres, 2 0. Now, down here on the south side of Allen Road, 3 something along in there. 3 did you plant anything else besides the oats and the 4 Q. Okay. Now, there is a farm stand on your 4 pj*ins, or is that it? 5 property; is that right? 5 A. No. That's all there was Last year. 6 A. Yeah. 6 0. You got some squash down there, the gourds? 7 Q. Do you own that farm stand? 7 A. Yeah. 8 A. Yeah. 8 Q. Okay. Who actually planted that? Did you plant 9 0. Okay. Do you operate it? 9 it? 10 A. No. 10 A. Yeah. 11 Q. Who operates it? 11 Q. You did yourself? 12 A. My brother. 12 A. Yeah. 13 0. Do you get the money from that farm stand? 13 0. Okay. You indicated that you planted that in 14 A. No. 14 approximately an acre to two acres? 15 0. Who gets that money? 15 A. Yeah, somewhere along through there, right. 16 A. That's his. 16 Q. Okay. Now, you got some plans to develop that 17 Q. Which brother is that? 17 property? is A. Dewey. 18 A. Yap. 19 Q. Now many kids you got in the family? 19 Q. And who did you talk to about those plans? 20 A. I ain't got any. 20 A. Well, I talked with -- for one thing, it is my own 21 0. How many brothers and sisters do you have? 21 thought. 22 A. I got three brothers and four sisters. 22 0. You originally came up with the idea? 23 0. Okay. Dewey older or younger than you? 23 A. Yeah, because taxes are getting so high, and 1 24 A. Younger. 24 can't work, so sell off that section of it and -- 25 0. Are you the oldest? 25 Q. Who did you originally talk to about your idea to 13 15 1 subdivide that property? 1 Q. You just wanted to continue to work on the Land? 2 A. Well, I talked with Peter. He is an engineer. 2 A. Yeah. 3 Q. Peter SmejkaL? 3 Q. Now, that Irish Development Corp., what is that? 4 A. I can't remember his Last row now. 4 Was that just a group of guys who were going to work 5 Q. okay. 5 on getting the details of this sale down? 6 A. I talked with him, and then I talked with Ronny. 6 A. Yeah. 7 Q. Your brother-in-law, Ron? 7 0. Is that a rest corporation registered with the a A. Yeah. a State? 9 Q. Ron BrosseaU? 9 A. No. 10 A. Yeah. 10 Q. As far as that group goes, did that group have any 11 Q. Okay. Do you know what the Irish Development 11 special arrangements with you or written agreements 12 Corporation is? 12 with you to work for you? 13 A. Yeah. 13 A. No, we just -- 14 Q. Have you ever heard of that? 14 Q. You just talked about it? 15 A. Yeah. 15 A. Just talked about it and -- 16 Q. Do you know what that is? 16 0. Okay. Were there any deals to sell parts of that 17 A. Yeah. 17 land to the other guys that were involved? is Q. TeLL me what that is. is A. No. 19 A. Well, Peter was going to do all the engineering, 19 Q. Now, you Indicated that Ron was going to help you 20 which he is doing now. He is engineering it &U. And 20 with some details. Peter SmejkaL, did you give him 21 if I am sick so I can't get out or nothing, Ron is 21 any authority to work for you? 22 going to cow see me and I tell him and go from there. 22 A. Yes. 23 Q. So Ron is helping you with the details of that, 23 Q. Yes. 24 and Peter is doing the engineering? 24 A. He was going to do the engineering of it. 25 A. Yeah. 25 0. And do you remember when you talked to him about 14 1 16 1 0. Okay. Did you ask Ron to help you with that? I doing the engineering, when you first talked to him 2 A. Yep. 2 about it? 3 0. ALL right. is there anyone else involved in that 3 A. Oh, I don't know. It must be a year and a half, 4 group? 4 two years probably. 5 A. No. 5 Q. From today? 6 0. Just the three of you? 6 A. Yeah. 7 A. Yeah. 7 0. That would be about -- a Q. Did you get Peter involved, or did Ron get Peter a A. Somewhere along in there. 9 Involved? 9 Q. Okay. So Late 1995, early 1996? 10 A. Welt, it was -- we all met at the same time. 10 A. Yeah. 11 0. Okay. Do you remember when you came up with that 11 0. Did the other two guys who were Involved, did they 12 idea to -- 12 communicate with you an a regular basis about what 13 A. About a year, about two years. 13 they were doing down there? 14 0. Would that be in 1995? 14 A. Yeah, when something cow up, you go step-by-step. 15 A. Must be around then. 15 Q. Take you through the process? 16 Q. Around then. Is that approximately when you -- 16 A. Yes. 17 did you tell Ran about your idea right away, or did 17 0. They would fill you in on what was going on? is you wait awhiLe? 18 A. Yes. 19 A. No, I thought about it off and on. You know, 19 Q. Now, at some point in time did Peter and Ron fILL 20 different -- I think about it. 20 out some paperwork for subdivision approval with the 21 0. Sure. You had offers to sell that property in the 21 City of South Burlington? 22 past? 22 A. Yeah. 23 A. Oh, yeah. 23 0. Did they have son hearings that they attended? 24 Q. Why didn't you ever sell in the past? 24 A. Yeah. 25 A. WeLL, I was in pretty good health then. 25 0. Did you attend any of those hearings? 17 19 1 A. No. 1 0. okay. 2 Q. They were there on your behalf? 2 A. This was a -- this was to check the soil and see 3 A. Yes. At the time they had -- the min thing I was 3 how much drainage would come off in these other 4 up on the hill up here. 4 places. Probably about a 30-foot strip -- 30-foot 5 Q. You were in the hospital? 5 strip down through there. 6 A. Yeah. 6 0. Is that their approximate Location or no? 7 Q. Now, was it your understanding that both Ron and 7 A. And then about here -- about here down through, 8 Peter were there working for you? a where there is a square Like here, the rest of that 9 A. Ch, yeah. 9 was aLL done. We cLeaned around here. The ditch went 10 Q. Now, you've had that undeveLoped property over 10 right straight through here. It empties into -- the 11 there on the south side for some time. Any idea how 11 ditch goes out on ALLen Road. 12 much that Land is worth undeveLoped? 12 a. so you dug that ditch that runs on the westerly 13 A. Oh, I don't really know right now. 13 side of the property in 195? 14 0. Any idea how much the property would be worth, how 14 A. Yeah. 15 much it was expected to be worth if you could get the is Q. And that's the ditch that now goes behind Doug and 16 subdivision to go through? 16 Pat's house and underneath ALLen Road? 17 A. Yeah, if -- I got to get sewage through. That's 17 A. Yap. 18 the main thing. 18 0. okay. And these dash Lines that I made, is that 19 Q. If they get that, what are you Looking at in terms 19 the approximate Location of the ditch? 20 of value of that property? is that considered a prime 20 A. Yeah. 21 Location? 21 Q. I am going to put 11199511 here and the word 22 A. oh, yeah. 22 Hditch.0 Is that approximateLy where the ditch is? 23 Q. Are you Looking for approval to put 42 Lots in 23 A. Yap, the ditch is -- it is more -- it is an the 24 there? 24 Line here. 25 A. Yeah, probably when they get done, we'll end up 25 Q. CLoser to the Line? 18 20 I probably with 35 maybe. it atL depends. 1 A. Yeah. 2 0. 35 what? 2 0. Closer to the property Line? 3 A. Lots. 3 A. Yeah. 4 Q. 35 Lots. You don't know -- do you know how much 4 Q. That arrow Indicates that it is closer to the 5 each am of those Lots would be worth, any idea? 5 property t ine. 6 A. No. I don't know until -- of course, the value of 6 A. Yeah. 7 the Lots depends on what the sewage is going to cost, 7 Q. Now, you said that you did that to test the soIL? 8 underground power. a A. Yes. 9 Q. So if you get all of that in and then you added 9 0. In 1995? 10 the fair market value of that property, I think it is 10 A. Yeah. 11 a hundred thousand dollars a tot? 11 0. To see if it would be possible to build down 12 A. I don't know what it would be yet. 12 there? 13 Q. okay. You are not sure? 13 A. Yeah, because we went down four feet, some places 14 A. No. 14 we went five feet, Just to check. ALL sand. is Q. Okay. But worth a fair amount of money? 15 Q. ALL sand down there? 16 A. Yeah. 16 A. ALL sand. 17 G. Now, do you recall when that Land was cleared down 17 0. Okay. Now, In 1996, in March or Apri I, you had is there? 18 saw more work dorm down there; is that right? 19 A. I cleared some of it in 195. 19 A. No. 20 0. You cleared a portion of it in 195? 20 Q. Did anyone cow down there with a backhoe and 21 A. Yeah. 21 buLtdozer at some point? 22 0. Can you show me on this map what you cleared in 22 A. In 195. 23 195, the general area where you cleared it in 195? 23 Q. Was that 195 or 196? 24 A. Yap. My -- well, we put a ditch down through this 24 A. 195. 25 way. 25 Q. 95 they did that? 21 I A. Last year is 196 and last year I planted. I 1 0. How do you know him? 2 harrowed it to smooth it. 2 A. Well, I sold him boulders andsituff. 3 Q. What months did you plant it? 3 Q. You sold him some boulders? 4 A. Oh, last of June, first part of July, somewhere 4 A. And he moved saw of these big rocks. He moved 5 along through there. 5 them up to St. Albans to a marine up there. 6 (Exhibit Nudar DIA marked for identification.) 6 0. Having done that work for you in the past, you 7 Q. I'm going to show you what I am going to call for 7 thought Moose would be a good guy to hire to do this a the purposes of this deposition Exhibit DIA. This is a work again? 9 a picture. Does this Look like your lard down there 9 A. Yeah. 10 on Allen Road? Can you tell from that picture? 10 a. Did a good job? 11 A. Well, yeah, it is -- yeah, this is Church -- 11 A. He's got equipeent. 12 Church and Pepsi, these trees through here. 12 Q. He's got the heavy Wpment to do it? 13 Q. Do you know whose property this is right here, 13 A. He's got heavy equipment, big equipment, and he 14 where this little white marker is? 14 knows how to operate it. is A. This is Church marker. Church owns this side. 15 Q. okay. 16 Pepsi owns over there. And that's the Light company. 16 A. He don't go around the field with a blade up in 17 That's the light coquiny. 17 the air. is Q. And whose Land is this right here? is Q. He is experienced at that type of work? 19 A. it is mine. 19 A. Yap. 20 0. This is yours? 20 Q. Did you pay him to do that work? 21 A. Yeah. 21 A. Yap. 22 0. Can you see the trucks out there? 22 0. How much did you pay him; do you remember? 23 A. No. 23 A. Geez, I don't remember right now. 24 Q. You can't see those? 24 a. Okay. What did you tell him to do? What did you 25 A. I see -- yeah, but they ain't -- 25 tell Moose to do? 22 24 1 0. That's not your property out there? I A. Dig the ditch and remove the brush, take out the 2 A. Not over there. 2 stumps, and clear the land. 3 0. Okay. 3 (Exhibit Numbers DIB and D1C marked for 4 A. Not where the trucks and stuff is. 4 identification.) 5 0. okay. That tree Line is not your property? 5 Q. I am going to show you a couple of more pictures 6 A. No. 6 here. I am going to call them D1B and D1C. Are these 7 0. Okay. And this dark dirt in here, whose property 7 pictures of your property? Can you tell by Looking at a is that? 8 them? 9 A. That's mine. 9 A. Yap. 10 0. That's yours. Okay. That Land has been cleared? 10 Q. Is that red building the farm stand? 11 A. Yap. 11 A. That's the farm stand. 12 Q. Okay. And this picture is dated April 17, 1996? 12 0. And what's that white house there? 61hose house is 13 A. Yes. 13 that right there? 14 Q. Let's see what else we have got down here. Do you 14 A. That's Albert Racine's. is know Moose Gregory? 15 0. Okay. Now, is that how the property -- is that 16 A. Yap. 16 how the property looked after Moose Gregory did some 17 Q. Did he do some work on your Lvd? 17 clearing? is A. Yap. 18 A. Yap. 19 0. When did he work down there? 19 Q. He cleared it down? 20 A. 195, 1 guess it was. 20 A. Yeah. 21 Q. Okay. Has he ever worked for you before? 21 0. Take a took at this one. Is that Moose's work as 22 A. Yeah. 22 well? 23 Q. When has he dorm other work for you? 23 A. Yap. 24 A. Oh, I had him move some stones once. We had big 24 Q. And hang tight, I have got another one for you 25 boulders. 25 here. This is a photograph that we identified in the 25 27 1 prior deposition as D5. There is a ditch in this 1 down in here. 2 picture. Is that part of the ditch that you had Moose 2 0. So when Moose buried those mat#riaL"s that he 3 dig? 3 cleared off there, where did he stick them? Do you 4 A. Yeah. 4 know whore he put them? 5 0. Okay. 5 A. Well, there's a -- when you go over with the 6 A. Dug up in here. 6 dozer, the tracks cut them up. 7 Q. And this picture right here, D6, is that also a 7 Q. Chop them up when you drive over them? a picture of the ditch? a A. Yeah. And then when I harrowed, I cut what brush 9 A. Yep. 9 and stuff there was left. 10 (Exhibit Number DID marked for identification.) 10 0. Cut it up for firewood? 11 0. Now, let me see now, we have got another photo 11 A. Yeah. 12 here. I an going to call DID. And this is a 12 0. Did Moose take some of that stuff with the dozer 13 picture -- is this a picture of your property? 13 and push it into the ditch that was out there? 14 A. Let me see here. 14 A. Helped Level it off. 15 0. Can you tail? is 0. Filled in part of the ditch and leveled it off and 16 A. It Looks Like it. 16 he also -- is that correct? 17 0. Can you tell if that's the area where you planted 17 A. Where he Leveled off -- sometimes we used to go is squash and pumpkins and oats in this area right in is down and draw out a few Loads of sand for, up around 19 here, across from Allen Road? 19 the house, for grading and stuff Like that. So it 20 A. Yep. 20 would Leave a hoLe. 21 Q. That could be the one- or two -acre parcel you were 21 0. Okay. So we Looked at the pictures for the area 22 talking about? 22 where Moose cleared. And some of the bigger stuff, 23 A. Yeah, I guess this might be the ravine way between 23 sow of these bigger trees, you chopped them up for 24 the two. Yeah, I own that -- I know where it is now. 24 firewood? 25 Q. And that's where you planted the pumpkins; is that 25 A. Yes. 26 1 28 I right? I MR. CLAPP: Excuse me, can you show me 2 A. Yeah, planted pumpkins over here, in here, and 2 what you're -- 3 planted some over in here. 3 MR. 14CLEAN: Sure. I thought one of 4 Q. Okay. Now, can you tell me what you told Moose to 4 these -- 5 do? What were you teLLing him to do with the 5 MR. CLAPP: Which bigger trees are you 6 materials, the earth materials, the trees and shrubs 6 referring to? 7 and bushes that he cleared out there? What was he 7 MR. MCLEAN: I am referring to this a supposed to do with that stuff? a stuff in here that's pushed down, but I wasn't 9 A. Everything was for wood. 9 actually Looking -- I was Looking at the photograo 10 a. You chopped up some firewood? 10 and asking a question but not asking a question about 11 A. Yes. 11 the photograph. 12 0. What did you do with the stuff that was too small 12 MR. CLAPP: Note my objection to the 13 for firewood? 13 question. 14 A. We buried it. 14 Q. Have you been in those woods, that wooded area 15 0. You buried it out there? 15 down behind Dow and Pat's house? 16 A. Yeah. 16 A. I ain't walked down through there. 17 (Exhibit Number DIE marked for identification.) 17 0. You haven't walked down through in a white? is Q. Does this Look Like the area where -- I am showing is A. No. 19 you Exhibit DIE. This is a strew -- or maybe it's 19 Q. You know that water flows down there under ALLen 20 not a stream but some water flowing through there. 20 Road in a cuLvert? 21 Does that Look Like the ditch that was dug? 21 A. Yes. 22 A. Something Like it. 22 Q. Have you ever seen it real wet down there before? 23 0. Now, does this Look Like some materials that Moose 23 A. Oh, yeah. 24 cleared off the property? 24 0. Yeah. So the water coming off the hill at Spear 25 A. weLL, we had -- we built Like a retaining pond 25 Street -- 29 1 31 I A. Yeah. 1 A. No, through the fields, the fields and stuff. 2 Q. -- where does that go now? Does it go down the 2 0. Okay. Now, when you hired Moose Gregory, did you 3 ditch? 3 have any written agreement with him? 4 A. Right down to the brook. 4 A. No. 5 0. Right down through that ditch to the brook? 5 0. Just asked him to cow down and do the work, an 6 A. Yap. 6 orat agreement? 7 Q. Now, when you dug that ditch, did you tell Moose 7 A. Yeah. a to shore it up? Did he put any stone in there? a 0. Handshake? 9 MR. CLAPP: Objection. 9 A. Yap. 10 A. We got sow hay there, but I didn't get around to 10 Q. And how did you contact him? Did you call him up 11 put it in. We got baLea of hay there, too. 11 yourself? 12 a. What did you tail Moose to do when he dug that 12 A. Oh, let's see, yeah. Welt, I told him one day, 1 13 ditch? 13 said, 'When you got nothing to do, come down. I want 14 A. Just dig it out and teveL it off. We stayed away 14 to see you.' That's how we started. And then we -- is from the tine. 15 we talked it over and -- 16 0. From the power Line? 16 Q. What did you tell Ron about your arrangements with 17 A. No. From the -- 17 Moose? Is a. -- property Line? 18 A. I just had him -- I hired him and that was it. As 19 A. Yeah. We stayed way a ways so it wouldn't -- if 19 for as my brother, Doug, there, they always had water 20 it should start to cave in or something. We've had 20 in their cellar from the day it was built. And we 21 some hard rains. In the last year -- it wasn't any 21 offered once -- well, I didn't. Ron offered him. He 22 wetter than it was test year. 22 says, 'Let's go up there.1 He says, 'We will dig a 23 0. Have you noticed any erosion from that ditch? 23 ditch, put a drain down through. It won't cost you 24 A. No. 24 nothing.' Welt, he didn't know and he says, 'Welt, 25 0. 1 am going to show you a couple of more photos 25 the halt with it.# So they eLways; had water in their 30 32 I here that we've marked previously as D7, D8 and D9. I cellar, always has. I don't know it's arry of their 2 Do you know where this area is? Take a Look at these. 2 god damn business of theirs anyway. If I want to 3 A. Yap. 3 build an it, I'LL build. 4 0. Have you seen that mud down in there before? 4 Q. Did Moose do what you told him to do? 5 MR. CLAPP: Objection. 5 A. Yeah. 6 Q. What do you see in those pictures? 6 0. He did. Did you tell him to bury those materials 7 A. Well, this is uncleared. This Land here is 7 that he cut? a uncleared. And this we here is part of it. a A. Yes. 9 0. Part of what? 9 Q. Did you tell him to dig the ditch? 10 A. Of the uncleared tend. And this here is the same 10 A. Yeah. 11 thing. 11 0. Do you know Cathy -- have you ever heard of a 12 0. Where is that Lard? 12 woman named Cathy O'Brien? 13 A. it is on the -- this is an the part that we didn't 13 A. I have heard of her. I ain't seen her. 14 touch it. We hadn't been through it or nothing. And 14 Q. You never met her. Has she ever written you a 15 some of these trees you think are good and all they do 15 Letter? 16 is -- they are Poppies. They grow up and break over. 16 A. She wrote two or three of them. But I don't 17 They rot out. 17 bother with them. We got another guy, water man. 18 Q. Is that the lard behind Doug and Pat's house? Is Q. Who's that? Mr. Countrymen? 19 A. No. 19 A. I can't remember what his now is now. Elderly 20 Q. It is not? 20 man. 21 A. No. 21 Q. Down from Northfield? 22 Q. Okay. Do you know where that water is coming 22 A. Yeah, off that way. He knows more about the lard 23 from? Where does that water flow from? 23 than she will ever think of knowing. 24 A. This seeps down through. 24 0. Did you know Cathy O'Brien -- are you aware that 25 Q. Down through the ditch? 25 Cathy O'Brien wrote Peter SmejkaL a letter to tell him 33 35 1 she was concerned about wetlands out there? I on the property? 2 A. I don't know. she was back and forth so many 2 A. Oh, yeah. 3 times. I didn't pay no attention to her. The Last 3 MR. CLAPP: Objection. 4 time I told her to get the halt out and stay out. 4 0. They did? 5 Q. Did BiLL Countrymen or somebody from his company 5 A. Yeah. 6 come down and do some work on the lard, take a took 6 0. Did you ever call anybody from -- did you or wrt 7 around? 7 of the guys working for you ever caLL anybody from the 8 A. Not that I know of. a City to ask if there were any problem with doing the 9 Q. The guy from Northfield? 9 work down there? 10 A. Yeah. 10 A. No. 11 0. Did he come up? 11 Q. Do you know how many acres total Noose cleared 12 A. He came himself. 12 down there? 13 Q. He came himself. 13 A. Geez, I don't. 14 A. Yes. 14 Q. More than 10, would it be? If you don't know, 15 0. Do you remember when that was? 15 that's fine. 16 A. I can't remember right now. 16 A. I don't know. I don't know how many acres. 17 0. Do you know i f he prepared any kind of report? 17 Q. That's fine. Now, of that Lard that he cleared, 18 A. Yeah. 18 with the exception of that area that you told me 19 Q. He did. What did he say in that report; do you 19 about, the two acres where you planted the piq*ins 20 know? 20 and the squash and the oats, did you plant other crops 21 A. He said there is -- he says there is no wettand. 21 back there in 1996? 22 it is not wettand. 22 A. No. 23 Q. Did he teR you that personalty, or did someone 23 0. What was your expectation for that property since 24 else tell you that? 24 they were planning to build houses down there? Wat 25 A. No. He told me. 25 did you think you wanted to do with that property in 34 36 1 Q. He did? I the Long term? 2 A. And he went by the trees. 2 MR. CLAPP: Objection. 3 Q. Looked at what trees that were out there? 3 A. Get rid of it. 4 A. Yeah. He says, Like -- well, we Logged it off a 4 Q. Sell it? 5 few years ago. He says, You don't grow pine trees an 5 A. Yeah. 6 wetLand, not that size.' And then he showed us the 6 Q. How Long were you planning to farm that Land down 7 young trees that were brush Like growing up, how much 7 there? 8 they grew a year. We used to cut wood. We cut it 8 A. Welt, I can't farm, can't work now. 9 clean. We used to bum the brush. Now you can't bum 9 Q. In 1996, how Long were you thinking you might farm 10 brush no more, unless you are a contractor or 10 that area? 11 something. Then you can go and bum it. 11 A. Welt, until I -- well, I thought maybe I could 12 Q. You said you got two or three letters from Ms. 12 come back, but I didn't. 13 O'Brien. Did you ever write back to her? 13 Q. Did you see Ran when you were in the hospital the 14 A. No. 14 last time? Is 0. Did you ever ask Ron or Peter to write back to 15 A. No -- yeah. 16 her? 16 Q. And did he talk to you about the property? 17 A. I think Ronny wrote once. 17 A. No. is Q. Ron wrote to her. Okay. Have you ever Looked at 18 Q. No? He didn't say anything about what was going 19 those zoning bylaws the City has? 19 an with the subdivision? 20 A. I have seen most of them. 20 A. No. Nobody came in. 21 0. You know the City has bylaws that regulate what 21 Q. When were you Last in the hospital? Just 22 you can do an your Land -- 22 recently? 23 A. Yeah. 23 A. February. 24 0. -- to some extent? Do you know whether Ron or 24 Q. This past February? Back in March or April of 25 Peter took a Look at those before they started working 25 1996, you were in the hospital with a heart problem? 37 39 1 A. Yeah. 1 2 Q. And did Ron come ard see you during that time? 2 1 have carefuLLy read the forepoing transcript 3 A. Yeah. 3 of my deposition, given on Friday, ApriL 25, 1997, and 4 0. Do you remember tatking to him about this 4 the answers mode by me are true. 5 property? 5 6 A. No. 6 7 Q. No? 7 8 A. That was the test thing on my mind. a Date: 9 0. You weren't concerned about that? 9 FRANK IRISH 10 A. No. He was just keeping track of what was going 10 11 on. 11 12 0. Held Let you know what was happening, but you 12 13 weren't concerned about it? 13 STATE OF VERMONT 14 A. No. 14 15 0. Did you have confidence that the guys that you is COUNTY OF 16 were hiring down there were going to take care of 16 At , in said County, this 17 things for you? 17 - day of 8 1997, personaLLy is A. Oh, yeah. 18 appe red before me the above -named, FRANK IRISH, and 19 Q. Ever read any of those regutations that the State 19 made oath that the foregoing answers subscribed by him 20 puts out an what formers can " can't do on their 20 are true. 21 property? 21 22 A. Oh, yeah at times. 22 23 0. Okay. When was the test time you took a took at 23 24 those; do you remember? 24 Notary PubLic 25 A. No, I don't remember. 25 38 40 1 Q. Thank you very much, Mr. Irish. 1 2 A. Mm-hmm. 2 C E R T I F I C A T E 3 (The deposition conctuded at 3:09 p.m.) 3 4 4 1, Am M. whiting, Court Reporter and Notary 5 5 Public, do hereby certify that the foregoing pages 6 6 nuThered 3 through 38, incLusive, are a true and 7 7 accurate transcription of my stenographic notes of the a a deposition of FRANK IRISH, taken before me on Friday, 9 9 ApriL 25, 1997, at 2:15 p.m., for use in the matter of 10 10 CITY OF SOUTH BURLINGTON VS FRANK IRISH. 11 11 12 12 13 13 14 14 15 Is 16 16 17 17 18 18 19 19 Am M. Whiting, RPR 20 20 21 21 22 22 23 23 24 24 25 25 I STITZEL, PAGE & FLETCBER, P.C. ATTORNEYSATLAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVENF. STITZEL PATTI R. PAGE* ROBERT E. FLETCHER JOSEPH S. MCLEAN TWOTHY M EUSTACE ('ALSO ADMrrrED IN N.Y.) Diane A. Lavallee, Clerk Chittenden Superior Court 175 Main Street PO Box 187 Burlington VT 05402-0187 (802) 660-2555 (VOICE/IDD) FAX (802) 660-2552 E-MA]LC��555@AOL.COXP May 15, 1997 Re: City of South Burlington v. Irish Docket No. S730-96CnC Dear Diane: OF COUNSEL ARTHUR W. CERNOSIA Enclosed with regard to the above -referenced matter is Exhibit A (Administrative Order) which was inadvertently not attached to the City of South Burlington's Motion to Transfer and Consolidate dated May 14, 1997. Would you please attach the Exhibit to that Motion. Thank you for your assistance. I apologize for any inconvenience this may have caused you. Ver y yo,4r J 7 e o S. McLean ism/gmt Enclosure cc: Michael B. Clapp, Esq. Charles E. Hafter, Manager Judith C. Whitney, Clerk SON3288.COR 4049 State of Vermont DePanrnent of Fish and Wildlife Department of Forests. Paeks and Recreation Department of Environmental Conservation I 7 May 1997 Frank Irish 200 Allen Road S Burlington VT 05403 RE: Administrative Order Dear Mr. I ri sh: AGENCY OF NATURAL RESOURCES ENFORCEMENT DIVISION 103 SOUTH MAIN STREET/2 SOUTH WATERBURY VT 05671-04 10 (802) 241-3820 Fax 244-5141 Pursuant to the provisions of 10 V S.A. § 8008, the enclosed Administrative Order is hereby served upon you. This Administrative Order is effective upon receipt by you unless it is stayed on your request for a hearing within fifteen (15) days of the date you receive the Administrative Order. You should refer to the enclosed Administrative Order for specific directions on how and when such request for hearing must be filed with both the Environmental Court and the Agency of Natural Resources. Please feel free to contact Gary Kessler at the above number if you wish to discuss any of the provisions of the Administrative Order. Sincerely, Lecia A. Wilson Enf6rcement Division Enclosure C - Gary Kessler, Esq. TD6; I-M-253-0191 EXHI IT Chlorine Free. 106% Recycled kper Re6ional Offices STATE OF VERMONT AGENCY OF NATURAL RES.OURCES- SECRETARY, VERMONT AGENCY OF NATUR , ALRESOURCES, Plaintiff V. FRANK IRISH Respondent ENVIRONMENTAL COURT DOCKET NO. VIOLATIONS: i. Vermont Wetland Rules §6.3 - Failure to Obtain a Conditional Use Deterrrdnation (CUD) ii. 10 V.S.A. § I 259(a) - Discharge to State Waters ADMINISTRATIVE ORDER Having found that Frank Irish (Respondent) has committed a violation as defined in 10 V.S.A. §8002(9), the Secretary (Secretary) of the Agency of Natural Resources (Agency), pursuant to the authority set forth in 10 V.S.A. §8008, hereby issues the following Administrative Order: .- STATEMENT OF FACTS 1. Respondent owns a 26 acre tract of land (land) in South Burlington. The land is located on the south side of Allen Road. The land is bordered by Allen Road and pr6perty owned by Farrell, Ascention Churchi P. Irish, Brosseau, Pizzagalli, Sylvester, and Vallee. 2. On February 26, 1996 Respondent, in conjunction with Ron Brosseau and Peter Smejkal, submitted a subdivision application. to the City' of South Burlington proposing to construct a 48 lot subdivision, on the land. 3. On March 19, 1996 Catherine O'Brien, an assistant wetlands coordinator employed by the Agency, met with Peter Smejkal on the land. During the site visit Ms. O'Brien identified several areas of Class Il wetland. Ms. O'Brien pointed out the wetlands on the land and informed Mr. Smejkal that a CUD was necessary if development were to be undertaken in the wetland. 4. On March 27, 1996 Ms. O'Brien sent Mr. Smejkal a letter following up on the site visit. The letter recommended the hiring of a wetland consultant to delineate the wetland area and 50 foot buffer zone. 5. On April 4, 1996 Ms. O'Brien received a complaint regarding site work being conducted in the wetland. Ms. O'Brien contacted Mr. Smejkal and the excavator who was working on the site, Mr. Gregory, and informed both of them that any work in the wetland would be in violation of the wetland rules and should cease immediately. 6. On April 26, 1996 Ms. O'Brien conducted a site visit. During that visit she discovered that substantial damage had been done to the wetland and 50 foot buffer. This damage consisted of the cutting of trees and stumping, regrading, filling, and ditching. As a consequence of these actions a discharge to state waters occurred. 7. On May 6, 1996 a Notice of Alleged Violation,(NOAV) was sent to Respondent by return receipt mail. The NOAV was signed for by Mr. Brosseau on May 10, 1996. The NOAV instructed Respondent to immediately cease all work in the wetland. 8. On June 6, 1996 Ms. O'Brien received a complaint that more site work was being done in the wetland. 9. On June 7, 1996 Ms. O'Brien conducted a site visit. During tl-ds visit she noted that additional stumping and grading had been done since her April 26, 1996 visit. 10. By clearing, stumping, grading, and ditching in a Class II wetland and buffer without first obtadru'rig a conditional use determination Respondent has violated §6.3 of the Vermont Wetland Rules. 11. By ditching and failing to take any precautionary measures to prevent erosion Respondent has allowed a* discharge to waters of the state in violation of 10 V.S.A. §1259(a). 2 ORDER Upon receipt of this'AdrrLinistrative Order, the Respondent is ordered as follows: A. Pay within 30 consecutive calendar days of the receipt of this Order, a penalty of S 17,500.00 for the violation described above. Such payment shall be made payable to the Treasurer, State of Vermont and forwarded to: Ms. Becky Buchanan Environmental Enforcement Division Agency of Natural. Resources 103 South Main Street Waterbury, Vermont 05671 B. Withih 30 consecutive calendar days of the receipt of th.is Order, Respondent shall 17dre a Wetlands consultant to delineate the wetland and buffer zones and identify the disturbed area which constitutes the violation described above. C. Within 60 consecutive calendar days following receipt of this Order, Respondent shall require the wetlands consultant to subh'Lit a restoration plan to the Agency of Natural Resources for review. The plan shall be submitted to the address contained in (A) above. The plan shall specify how Respondent will restore the wetland and wetland buffer zone areas affected by the violation, to their original, pre -violation condition. Upon rec.eiving the'restoration plan the Agency can accept, reject, or modify it as is necessary to comport with the wetland regulations and statutes. D. Within 45 consecutive calendar days after Respondent has received approval for the restoration plan in writing from the Agency Respondent shall complete implementation of the restoration plan. I E. Upon completion of the site resto* ration, Respondent shall direct the consultant to draft a completion report. This report shall be submitted to the address contained in (A) above within 20 days of the completion. Respondent sh�ll allow employees of the Agency access to the land to determine if the restoration work has been satisfactorily completed. 3 RESPONDENT'S RIGHT TO A HEARING BEFORE THE ENVIRONMENTAL COURT The Respondent has the right to request a hearing on tl-Lis Adn-dnistrative Order before the Environmental Court under 10 V..S-.A. section 8012 by filing a Notice of Request for Hearing within fifteen (15) days of the date the Respondent receives.ti-Lis Administrative Order. The Respondent must timely file a Notice of Request for Hearing with both the Secretary and the Environmental Court at the following addresses: I Secr " etdry, Agency of Natural Resources c/o: Enforcement Division, 2 South 103 South Main Street Waterbury, Vermont 05671-0411 2. Clerk, Environmental Court 225 North Main Street Barre, Vermont 05641 EFrECTIVE DATE OF THIS ADMINISTRATIVE ORDER This Administrative Order shall become effective on the date it is received by the Respondent unless the Respondent files a Notice of Request for Hearing witl-dn fift een (15) days of receipt as provided for in the previous section hereof. The timely filing of a Notice of Request for Hearing by the Respondent shall stay the provisions (including any penalty provisions) of this Adn-dnistrative Order pending a hearing by the Environmental Court. If the Respondent does not make -a timely filing of a Notice of Request for Hearing, this Administrative Order shall become a final Adn-dnistrative Order. 4 COMPLIANCE WITH THIS ADMINISTRATIVE ORDER If the Respondent fails or refus"es to comply with the conditions of a final Adn-LirListrative Order, the. Secretary shall have cause to initiate an enforcement action against the Respondent pursuant to the provisions of 10 V.S.A. Chapters 201 and 211. Dated at Waterbury, Vermont this day of 1997. 0. SECRETW,VE ONT A/,7NCY OF NATURAL RESOURCES By, Canute E. Dalmasse, Comn-tissioner Department of Environmental Conservation 5 P STATE OF VERMONT AGENCY OF NATURAL RESOURCES SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff, V. FRANK IRISH Respondent. ENVIRONMENTAL COURT bOCKET NO. Affidavit of Catherine L. O'Brien 1, Catherine L. O'Brien, being duly sworn do attest: 1. 1 am of legal age and a resident of the State of Vermont. 2. 1 am a employed as a Assistant Wetlands Coordinator By the State of Vermont's Agency of Natural Resources. And have worked in that capacity for 10 years. 3. Based upon information discovered during my investigation the violation described in the Statement of Facts section of the above referenced Administrative Order occurred on the date set forth therein. Dated at Waterbury, Vermont this 7th day of May, 1997. Z--,atherine L. O'Brien Affiant Subscribed and sworn before me on the of—,.,///,Iw 199Z. e��No ry Pub1hic My Conu-rdssion Expires: STITZEL, PAGE & FLEMBER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (W2) 660-2555 (VOICErMD) STEVEN F. STrrZEL FAX (302) 660-2552 PAT11R. PAW EMA10MM2553@AOLCO)wQ ROBERT E FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADM= INKY.) May 14, 1997 Diane A. Lavallee, Clerk Chittenden Superior Court 175 Main Street PO Box 187 Burlington VT 05402-0187 Re:' City of South Burlington v. Irish Docket No. S730-96CnC Dear Diane: OFODUNSEL ARTHM W. CMOSIA ' Enclosed for filing with regard to the above -captioned' matter is the City of South Burlington's Motion to Transfer and consolidate and Memorandum. Thank you. Ver truly C seph S. McLean ism/gmt Enclosure cc: Michael B. Clapp, Esq. Charles E. Hafter, Manager Judith Whitney, Clerk SON3286.COR 3TITZEL & PAGE, P.C. ATTORNEYS AT LAW PD. BOX IN? 173 BATTERY STREET BURUNGTON. VT 06402-lbOT STATE OF VERMONT COUNTY OF CHITTENDENj SS. CITY OF SOUTH BURLINGTON, Plaintiff CRITTENDEN SUPERIOR COURT vo DOCKET NO. S730-96CnC FRANK IRISH# Defendant NOW COMES the Plaintiff, CITY OF SOUTH BURLINGTON, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and moves this Honorable Court, pursuant to V.R.C.P. 42(a) to transfer Chittenden Superior Court Docket No. S730-96CnC to the Vermont Environmental Court where Plaintiff will apply to have the same consolidated for evidentiary purposes with Environmental Court Docket No. E97-069, currently pending in th�at forum. 1. Chittenden Superior Court Docket No. S730-96CnC is a zoning enforcement action brought by the Plaintiff, the city of South Burlington, against the Defendant, Frank Irish, -by Complaint filed May 31, 1996. In its Complaint, the City states that the Defendant commenced land development on his property, located off Allen Road in the City, without obtaining a zoning permit. 5�= City's Complaint, at 1. Specifically, the City alleges the Defendant has: 1 3TITZEL & PAGE, P.C. ATTORNEYS AT LAW P.O. BOX IM 171 BATTERY STREET BURLINGTON. VT 06402-1607 (a) excavated earth materials within the Conservation and Open Spac . e District;' and (b) cut and,removed trees and natural vegetation from within the Conservation and Open Space District. W. N 2. Defendant answered the City's Complaint on or about June 3, 1996. No other substantive pleadings or , motions have been filed by either party. 3. Docket No. S730-96CnC is currently scheduled for "back-up" merits hearing on May 21, 1997. Due to the unavailability of an expert witness, as well as for the reasons set forth below, the City has requested a continuance of that hearing. 5-e& City of South Burlington's Motion -for Continuance -and Affidavit, dated May 9, 1996. 4. On or about May 6, 1997, the Secretary of the Vermont Agency of Natural Resources filed an Administrative Order against the Defendant pursuant to 10 V.S.A. S8008(a). (A true and correct copy of that administrative order, marked as Exhibit A, is attached hereto.), In response to that Administrative Order, the Defendant has requested a hearing in the Vermont Environmental Court. That request is currently pending as Environmental Court Docket No. E97-069. I The South Burlington Zoning Regulations define the "Conservation and Open Space District" as including mall land along a minor' stream or drainageway which is within So feet horizontal distance of a minor stream or drainageway" (S3.104) and mall wetland areas as identified on a map entitled "Wetlands Map* including a buffer area 50 feet in width surrounding a wetland." (S3.106) 2 5. Both the Environmental Court and this court have jurisdiction to hear zoning enforcement cases arising under Chapter 117 of Title 24. However, only the Environmental. court has jurisdiction to hear enforcement -related matters arising under Chapter 201 of Title 10 (state environmental law enforcement). 6. In light of the foregoing, it is reasonable to consolidate these actions for evidentiary purposes. Both the Superior Court action and the Environmental Court action arise out of the same activities on Defendant's property and involve common questions of fact. The two actions also involve similar witnesses and testimony. Further, the credibility of witnesses testifying on the same matters is likely to be an issue -in both -cases. Common questions of law are also likely to arise during the course of both proceedings. 7. Principles of judicial economy and conservation of legal resources dictate that these cases be consolidated and heard in one action. Venue for both 'actions is proper in the Environmental Court. Given that fact, it is the City's position that these matters should both be heard in that forum. No prejudice to the Defendant will result from the requested consolidation. Further, the City has consulted with counsel for the State and it does not object to the anticipated consolidation. 3TITZEL & PAGE, P.C. ATTORNEYS AT LAW P.O. Box 150 3 171 BMTERY ET BURLINGTON. VT OS402-1607 I WHEREFORE, the City of South Burlington respectfully requests that Docket No. S730-96cnC be transferred to the Vermont Environmental Court forthwith. DATED at Burlington, Vermont,, this 14th day of May, 1997. SON456.LIT MMEL & PAGE. P.C. Arl'ORNEYS AT LAW PD. BOX n07 171 BATTERY STREET BURUNGTON. VT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. its Attorneys JoserMIS. 4 STITZEL, PAGE & FLETCBER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVENF. STITZEL FAX (802) 660-2552 PATTT R_ PAGE* E-MAIL(FIRI�n555@AOL COM) ROBERTE FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMrrMD IN N Y.) May 13, 1997 Mr. Richard Ward City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Irish Zoning Violation Dear Dick: I am writing to update you regarding the status of the above -referenced matter. OF CO`UNSEL ARTHUR W CERNOSIA As you know, I recently took the depositions of Ron Brousseau and Frank Irish. It is clear from those depositions that the tack employed by the defendants in this matter will be to alternately deny knowledge of (1) the activities of the "Irish Development Corporation" and (2) the existence of any wetlands on the property. Ron Brousseau, in particular, denied any direct involvement in the subdivision review process and the destruction of the wetlands. If the City has tape recordings of the hearings on the Broussea-Smejkal proposal, I would be interested in listening to them to evaluate Brousseauls participation in that process. In addition, I have copies of the deposition transcripts if you would like to review them. Today I spoke with Gary Kessler, the enforcement attorney for the Vermont Agency of Natural Resources. He informed me that the State filed an "Administrative Order" against Frank Irish for wetlands violations on or about May 8, 1997. The State is specifically requesting fines of $17,500, plus remediation of the damaged wetlands. Mr. Irish has until May 23, 1997, to request a hearing in the Environmental Court if he wants to challenge the Administrative Order. I expect that he will seek such a hearing. In the event a hearing is requested, I will file a motion with the Chittenden Superior Court (where our case is pending) to consolidate our action with the State's. By so doing, we will be able to present all of the evidence to one Judge, Honorable Merideth Wright, and also get the benefit of the State's resources and experience in prosecuting this type of case. Mr. Richard Ward City of South Burlington Page 2 May 13, 1997 In that regard, our case is currently on the "back-up" list for a hearing on May 21, 1997. 1 learned this week, however, that Cathy O'Brien, who I had hoped to use as a witness, is scheduled to be in the hospital that day having a baby. Therefore, with the agreement of Michael Clapp, Esq. (Irish's attorney), I have asked the Court to give us an additional sixty (60) days before holding a hearing. That time will enable us to decide whether to file a motion to consolidate and will give Cathy time to recover so that she can testify for us. I have not received the Court's response to my motion yet. I will keep you informed as matters develop. Please let me know if you have any questions. Very'.truly yours, Jos�eph S. McLean SON3284.COR STITZEL5 PAGE & FLETCHEF, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E. FLErCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMM-ED IN N.Y.) Diane A. Lavallee, Clerk Chittenden Superior Court P.O. Box 187 Burlington, VT 05402-0187 (902) 660-2555 (VOICErrDD) FAX (802) 660-2552 E-MARJUtM2555@AOL.COM) April 18, 1997 Re: City of South Burlington v. Frank Irish Docket No. S0730-96CnC Dear Diane: OF COUNSEL ARTHUR W. CERNOSIA I have enclosed, for filing with the Court, a Subpoena dated April 10, 1997, and Return of Service evidencing service of the Subpoena and appropriate witness fees upon Ronald Brosseau on April 14, 1997, relative to the above -referenced matter. me. If you have any questions, please do not hesitate to contact Sincerely, J'.eph S. McLean JSM/maf Enclosure cc: Michael B. Clapp, Esq. (w/out Enclosures) Gary Kessler, Esq. (w/out Enclosures) Richard Ward (w/out Enclosures) 8=3236.� STEVEN F. STITZEL PATTI R. PAGE* JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (*ALSO ADMrrrED IN N.Y) STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (902) 660-2555 (VOICE(rDD) FAX (802) 660-2552 E-MAnjUtM2555@AOL.COM) April 10, 1997 Kevin McLaughlin, Sheriff Chittenden County Sheriff's Department PO Box 1426 Burlington, VT 05402 Re: City of South Burlington v. Frank Irish Docket No. S0730-96CnC Dear Kevin: OF COUNSEL ARTHUR W. CERNOSIA ROBERT E. FLETCHER Enclosed please find a Notice of Deposition and Subpoena for service upon Ronald Brosseau, relative to the above -referenced matter. I have also enclosed a check in the amount of $12.00, made payable to Ronald Brosseau, representing a mileage fee of $2.00 and a witness attendance fee of $10.00. Please be advised that the only address which we have for Mr. Brosseau is 191 Allen Street, in South Burlington, Vermont. After service, please make return to us together with a statement of your fees for the same. JSM/maf Enclosures cc: Michael B. Clapp, Esq. Gary Kessler, Esq. Richard Ward SON3239.COR 5 Si erely, 1 e, h S. McLean i Sep, I I STITZEL & PAGE, P.C. ATTORNEYS AT LAW P 0. BOX 1507 171 BA77ERY STREET BURLINGTON, VT Ob4O2-1507 STATE OF VERMONT CHITTENDEN COUNTY, SS. CITY OF SOUTH BURLINGTON Plaintiff, Chittenden Superior Court V. Docket No. S0730-96CnC FRANK IRISH, Defendant. SUBPOENA To Any Sheriff, Constable or other Person Authorized by Law: BY THE AUTHORITY OF THE STATE OF VERMONT, you are hereby commanded to serve the Subpoena on Ronald Brosseau, at 191 Allen Road, South Burlington, Vermont, directing him to appear at his deposition, at the offices of Stitzel, Page & Fletcher, P.C., 171 Battery Street, Burlington, Vermont, on April 25, 1997, at 1:00 p.m., and to give evidence of what he knows with respect to the above -entitled matter, and to bring with him to the deposition and make available for review and copying all documents in his possession that relate or refer to the Irish Development Corporation and/or its application to the City of South Burlington for subdivision (sketch plan) approval to construct a residential subdivision on Mr. Frank Irish's property on the south side of Allen Road, including, but not limited to, correspondence, notes, memoranda, photographs, recordings, materials relied upon or reviewed in preparation of said application, and materials stored in computers or on computer disks. This he may not omit, as he will answer the default under 1 TITZEL & PAGE, P.C. ATTORNEYS AT LAW PO BOX 1507 171 BATTERY STREET 3URLINGTON, VT05402-1507 the pains and penalties of the law in such case made and provided NOTICE TO THE RESPONDENT: The following information is provided to you pursuant to Rule 45 of the Vermont Rules of Civil Procedure: (c) Protection of Persons Subject to Subpoenas. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court for which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. if objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court for which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded. (3) (A) On timely motion, the court for which a subpoena was issued shall quash or modify the subpoena if it (I) fails to allow reasonable time for compliance; (ii) requires a resident of this state to travel to attend a deposition more than So miles one way unless the court otherwise orders; requires a nonresident of this state to travel to attend a deposition at a place more than 50 miles from the place of service unless another convenient place is fixed by order of court, or (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden. (B) If a subpoena (I) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or (iii) requires a person who is a party or an officer of a party to incur substantial expense to travel more than 50 miles one way to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) Duties in Responding to Subpoenas. F, (1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to content the claim. FAIL NOT, BUT SERVICE AND IURM MAKE ACCORDING TO LAW. Date: April 10, 1997 Z Jose%1h S. McLean, Esq. STATE OF VERMONT CHITTENDEN COUNTY, SS. RETURN OF SERVICE On April 1997, 1 served this subpoena upon RONALD BROSSEAU, at , South Burlington, Chittenden County, by delivering to him a copy of this subpoena, and tendering the witness fee prescribed by law. SON426.LIT rITZEL & PAGE, P.C. ATTORNEYS AT LAW P.O. BOX 1507 171 BATTERY STREET URLINGTON. VT 05402-1507 1791 STATE OF VERMONT CHITTENDEN COUNTY, SS. CITY OF SOUTH BURLINGTON Plaintiff, Chittenden Superior Court V. Docket No. S0730-96CnC FRANK IRISH, Defendant. NOTICE OF DEPOSITION TO: Ronald Brosseau 191 Allen Road South Burlington, VT 05403 PLEASE TAKE NOTICE THAT at 1:00 p.m. on the 25th day of April, 1997 at the offices of Stitzel, Page & Fletcher, P.C., 171 Battery Street, Burlington, Vermont, the Plaintiff, City of South Burlington, will take the deposition of Ronald Brosseau, whose address is 191 Allen Road, South Burlington, Vermont, upon oral deposition pursuant to the Vermont Rules of Civil Procedure, before a Notary Public or before some other officer authorized by law to administer oaths. Ronald Brosseau is requested to bring with him to the deposition and make available for review and copying all documents in his possession that relate or refer to the Irish Development Corporation and/or its application to the City of South Burlington for subdivision (sketch plan) approval to construct a residential subdivision on Mr. Frank Irish's property on the south side of Allen Road, including, but not limited to, correspondence, notes, memoranda, photographs, recordings, materials relied upon or reviewed in preparation of said application, and materials stored in computers or on computer disks. DATED at Burlington, Vermont, this loth day of April, 1997. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Jr%cApW S.-McLean SON425.LIT T TITZEL & PAGE, P.C. ATTORNEYS AT LAW P.0 BOX 1507 171 BATTERY STREET 3URLINGTON, VT 05402-1507 ri STITZEL, PAGE & FLETCHF-R, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI K PAGE* ROBERT E. FLETCHER JOSEPH S. MCLEAN TIK40THY M. EUSTACE (-ALSO ADNMTM IN MY) Diane A. Lavallee, Clerk Chittenden Superior Court P.O. Box 187 Burlington, VT 05402-0187 (902) 660-2555 (VOICErMD) FAX (802) 660-2552 E-MAROMWM55@AOL.COM) April 11, 1997 Re: City of South Burlington v. Frank Irish Docket No. S0730-96CnC 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 hesitate to contact me. /Si - c rely Joseph S. McLean JSM/maf Enclosure cc: Michael B. Clapp, Esq. Gary Kessler, Esq. Richard Ward SON3236.COR STATE OF VEP14ONT CHITTENDEN COUNTY, SS. CITY OF SOUTH BURLINGTON Plaintiff, V. FRANK IRISH, Defendant. Chittenden Superior Court Docket No. S0730-96CnC DISCOVERY CERTIFICATE NOW COMES Joseph S. McLean, a member of the firm of Stitzel, Page & Fletcher, P.C., attorneys of record for the Plaintiff, and hereby certifies that on the 11th day of April, 1997, he served Plaintiff's Notice of Deposition of Ronald Brosseau, dated April 10, 1997, upon the Defendant by mailing a copy of same, first class mail, postage prepaid, to the Defendant's attorney at the following address: Michael B. Clapp, Esq. Affolter Clapp Gannon, Ltd. P.O. Box 8430 Burlington, VT 05402-8430 DATED at Burlington, Vermont, this 11th day of April, 1997. STITZEL, PAGE & FLETCHER, P.C. By: /14- iJ bph S. McLean . Box 1507 ror'lington, VT 05402-1507 SON414.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOIC=D) STEVEN F. ST1TZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAR#UtM2555@AOL.COM) ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMM-ED IN N Y.) April 7, 1997 Michael B. Clapp, Esq. Affolter, Clapp, Gannon, Ltd. P.O. Box 8430 Burlington, VT 05402-8430 -Re: City of South Burlington v. Frank Irish Docket S0730-96CnC Dear Mike: OF COUNSEL ARTHUR W. CERNOSIA I am writing relative to the above -referenced matter. I have enclosed a letter that this office has received from Patricia Irish, your client's sister-in-law. As you can see, Ms. Irish claims that the development activity and disturbance to the wetland on your client's property has resulted in substantial damage to her property. Should this matter proceed to trial, the City intends to call Ms. Irish as a witness to testify about the matters set forth in her correspondence. I have also enclosed a new nopice of deposition for Mr. Irish. Please let me know if the time and date that I have selected is inconvenient. In addition, the City intends to take the deposition of Ronald Brosseau and Crawford Gregory. I will inform you of the time and date of those depositions shortly. Please give me a call if you would like to discuss this matter further. JSM/maf Enclosures cc: Gary.Kessler, sq. Richard Ward,>, SON3234.COR ;si ely, seph S E . McLean I STATE OF VERMONT CHITTENDEN COUNTY, SS. CITY OF SOUTH BURLINGTON Plaintiff, V. FRANK IRISH, Defendant. Chittenden Superior Court Docket No. S0730-96CnC NOTICE OF DEPOSITION TO: Michael B. Clapp, Esq. Affolter Clapp Gannon, Ltd. P.O. Box 8430 Burlington, VT 05402-8430 PLEASE TAKE NOTICE THAT at 9:00 a.m. on the 25th day of April, 1997 at the offices of Stitzel, Page & Fletcher, P.C., 171 Battery Street, Burlington, Vermont, the Plaintiff, City of South Burlington, will take the deposition of Frank Irish, whose address is 200 Allen Road, South Burlington, Vermont, upon oral deposition pursuant to the Vermont Rules of Civil Procedure, before a Notary Public or before some other officer authorized by law to administer oaths. Mr. Irish is requested to bring with him to the deposition and make available for review and copying all documents in his possession that relate or refer to the Irish Development Corporation and/or its application to the City of South Burlington for subdivision (sketch plan) approval to construct a residential subdivision on Mr. Irish's property on the south side of Allen Road, including, but not limited to, correspondence, notes, memoranda, photographs, recordings, materials relied upon or reviewed in preparation of said application, and materials stored in computers or on computer disks. SON424.LIT ;TITZEL & PAGE, P.C. ATTORNEYS AT LAW P.O. BOX 1507 171 BATTERY STREET BURLINGTON, VT 05402-1507 DATED at Burlington, Vermont, this 7th day of April, 1997. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. J re�h S. McLean 7 0 125 Allen Road So. Burlington, VT April 3. 1997 Mr. Steven Stitzel 171 Battery Street Burlington, VT 05401 Re: Irish Development and or Frank Irish Dear Mr. Stitzel, F R 0 W APR - 4 1997 STEITZ;EL & PAGEP!C I understand that you are the City Attorney and are involved in the matter of City of South Burlington vs Frank Irish. My name of Pat Irish and I am the wife of Douglas Irish (Brother of Frank). Our property has been seriously impacted by the illegal disturbance of the wetlands on the Irish Farm. We built our house about 24 years ago and had dampness in the basement. Since the wetlands have been disturbed the problem has reverted back to what it was before Allen Road was ditched. In their messing up the brook they have changed the water table so that I get al I the runoff from the hi I I (Spear SO - I have pumped out 25 - 30 gal Ions of water out of my basement every day since Easter Sunday. Last Fall it was the same thing. There are "tons and tons" of silt on the brook behind my house. To add insult to injury the proposed development has kept the Realtors away as potential buyers shy away from looking at a house on the edge of a 42 house development. We own 1.3 acres. My husband has been very ill and will never be able to go back to his job at Vermont Gas so our house has been for sale for nearly a year. If you will look to a wetlands expert, I suspect that he will tell you that most of that property is wetland and when you disturb any part of it, it will impact the rest of it. According to U. S. Government Soil Conversation maps from the 1930's it is officially a "Wetland". I The day that the work was started Moose Gregory called my house looking for "Billy" Irish, as that is the name that the Brosseaus have given Frank. The rest of us call him Bill. Ron Brosseau calls him "Billy Boy". Bill was in the hospital in the intensive care unit trying to recover from a severe heart attack. My husband and I thought that it was strange that Moose was going to do some work as he is a "long time buddy" of Ron Brosseau. Moe Duboise has always done all of that kind of work on the farm. Moose did not have the correct phone number or legal name. Brosseau admitted to me and my husband that he was the one who got Moose to do the work. Later in the week I confronted Mr. Gregory who admitted that he did not have a signed proposal with the land owner and he intimated that he was working for Ron Brosseau too. He gave me the impression that he thought that Bill and Ron were partners. Gregory and Brosseau made the brag that they could do anything that they wanted and Kathy O'Brien could not do anything to stop them as Moose had a friend "higher up". We watched the work going on and took photographs and never once did I see Mr. Gregory stop at the farm to confer with the landowner. Mr. Brosseaus however* was there to confer with Mr. Gregory at the site. The workmen started to use my driveway to exit the project and I decided to see who was giving the orders. So I told Ron Brosseau to tell his contractor Mr. Gregory that my driveway was not P��* of the project and that if they used it again, I would call the police. ) . &V-1 4V-1--Xb alvu�l Durift/the weeks that Bill was in tihKehospital, we wen t4��ffit�d Bill admitted that -the work that was going on was to clear the land to make way for a development. Irish Development was not legally registered with the Secretary of State and in Public Meetings presented themselves as a legal entity. They lied during the meetings about several things. At the time Ron Brosseau had a lien on his house by the IRS. There is no way that he could get bonded to complete a project even if he had the money. They told us they were going to sell the front lots to get their operating capital. As far as I am concerned I would like the land put back the way it was and the brook behind my house cleaned up so that I can sell my house and move. I would also like to city to declare that property to be an official wetland. But if Ron Brosseau coul d be implicated legally that would be the frosting on the cake because he was behind the whole thing. Bill Irish would never have dared to do all that mess if Brosseau wasn't feeding him a line of "bull" Bill is 74 years and has "never left the farm". In other words he is very naive. Mr. Brosseau. can be very charming when he wants to be and if he is sober. He showed up at Planning Commission meeting reeking of alcohol I And right now there is no reason for them to come to any agreement, nor will there be in the near future. I wish the City would be more aggressive. If you need any more information please do not hesitate to get in touch with me. I have enclosed my business card for your convenience. Very truly yours, Patricia B. Irish, (Mrs. Douglas) STITZEL, PAGE & FLETCHEF, P.C. AT-rORNEYS AT LAW 171 BATrERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STTrZEL PATTI R. PAGE* ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMnTED IN N Y.) Diane A. Lavallee, Clerk Chittenden Superior court P.O. Box 187 Burlington, VT 05402-0187 (802) 660-2555 (VOICEIDD) FAX (802) 660-2552 E-MAR#UM555@AOL.COh4) April 7, 1997 Re: City of South Burlington v. Frank Irish Docket No. S0730-96CnC 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 hesitate to contact me. Sincerely, ir ph S McI,4ffi�� ism/maf Enclosure cc: Michael B. Clapp, Esq. Gary Kessler, Esq. Richard WardL,,-" SON3236.COR STATE OF VERMONT CHITTENDEN COUNTY, SS. CITY OF SOUTH BURLINGTON Plaintiff, V. FRANK IRISH, Defendant. Chittenden Superior Court Docket No. S0730-96CnC DISCOVERY CERTIFICATE NOW COMES Joseph S. McLean, a member of the firm of Stitzel, Page & Fletcher, P.C., attorneys of record for the Plaintiff, and hereby certifies that on the 7th day of April, 1997, he served Plaintiff's Notice of Deposition of Frank Irish, dated April 7, 1997, upon the Defendant by mailing a copy of same, first class mail, postage prepaid, to the Defendant's attorney at the following address: Michael B. Clapp, Esq. Affolter Clapp Gannon, Ltd. P.O. Box 8430 Burlington, VT 05402-8430 DATED at Burlington, Vermont, this 7th day of April, 1997. SON414.LIT ;TITZEL & PAGE, P.C. ATTORNEYS AT LAW P.O. BOX 1507 171 BATTERY STREET BURLINGTON, VT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. -/-- -0 il By: " / 4 . Jos,&bli' S. McLean Stit'zel & Page, P.C. P.O. Box 1507 Burlington, VT 05402-1507 STITZEL & PAGE, 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-MAILMRM2555@AOL.COM) JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMM-ED IN N.Y.) VIA FACSIMILE AND FIRST CLASS MAIL January 21, 1997 Michael B. Clapp, Esq. Affolter Clapp Gannon, Ltd. P.O. Box 8430 Burlington, VT 05402-8430 Re: City of South Burlington v. Frank Irish Dear Michael: OF COUNSEL ARTHUR W. CERNOSIA ROBERT E. FLETCHER I am writing to address the status of the above -referenced matter. As you know, the trial readiness date for this case, December 30, 1996, has come and gone. Accordingly, the Court may set this matter for trial at any time. While the City is prepared to proceed to trial, if necessary, we may wish to consider other options before incurring the expense of litigation. I have discussed this matter with Gary Kessler, Esq., counsel for the Agency of Natural Resources Enforcement Division. It is my understanding that the State is seriously considering initiating a parallel enforcement action against Mr. Irish for wetland violations on his Allen Road property. Given the corresponding interests of the State and the City, it may be worthwhile to engage in some form of joint settlement negotiation(s) with your client. Therefore, if Mr. Irish is prepared to acknowledge the activity that has occurred on his property and to consider various remedial measures, the City is willing to discuss the possibility of settlement with him. It also occurs to me that we may be able to resolve this case by summary judgment. No real dispute exists regarding what has occurred on Mr. Irish's property, leaving only the legal question of whether his activities meet the definition of "accepted agricultural practice" under 24 V.S.A. §4495. To facilitate either of the options outlined above, it is necessary to move the Court to extend our trial readiness date. I suggest asking the Court to give us until at least February 28, Michael B. Clapp, Esq. Affolter Clapp Ganon, Ltd. Page 2 January 21, 1997 1997, to attempt to resolve this matter or to move for summary judgment. To that effect, I have enclosed a motion for extension of time for your review and signature. If my proposal is acceptable to you, please sign the motion and forward it to the Court. Thank you for your attention to this matter. Please give me a call if you have any questions. Very truly yours, 1 ";-7 Joseph S. McLean ism/ Enclosure CC: Richard Ward (w/o enclosure) Gary Kessler, Esq. (w/o enclosure) SON414.COR PLANNER 658-7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 April 17, 1996 Frank Irish 200 Allen Road South Burlington, Vermont 05403 Re: Zoning Violation, Allen Road Dear Mr. Irish: ZONING ADMINISTRATOR 658-7958 Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 V.S.A. S4443(a) (1). Specifically, you have initiated the following activities on the above -described property: 1. Excavated earth materials within the Conservation and Open Space District. 2. Cut and removed trees and other natural vegetation from within the Conservation and Open Space District. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Restore the property to its original condition. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to $50.00 per day for each day your violation continues beyond the seven (7) day period provided in this letter. If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. Frank Irish Zoning Violation, Allen Road April 17, 1996 Page 2 You may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal within fifteen (15) days of the date of this letter with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington. If you have any questions regarding this letter, please call me at the telephone number setforth above.,, I 1 /1 Sincerply, Ra 0 J. Bela 4r,.�� YOT-J Zoning and Planning Assistant RJB/mcp Certified Letter #Z 185 845 383 cc: Peter Smejkal April 23, 1996 Raymond J. Belair Zoning and Planning Assistant City of South Burlington 575 Dorset Street So. Burlington, Vermont 05403 Mr. Belair: This letter is in response to your letter dated April 17, 1996; Reference my property on Allen Road and is my Formal Appeal to it. I am not starting Land Development as you stated; I am clearing the land so that I can plant more Crops and work the land easier and better as it used to be. As far as cutting down trees; if you had looked at them yourself you would have noticed that they are being blocked up for firewood for my own use, as I have been doing for over 60 years. As for the Wetlands as shown on the Town map in the middle of my field; you would notice that there are Tractor and plow furrows going right thru it and I plan to plant Oats or Pumpkins there this year. We didn't have any " Wetland" until they put that Power line in and Bulldozed the land altering the normal flow of the Spring runoff. I feel that I am being impositioned by you telling me that I cannot maintain my land as a Farmer, and telling me that I should hire a Wetlands Engineer at this finic. Sincerely: Frank Irish City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 April 30, 1996 Mr. Frank Irish 200 Allen Road South Burlington, Vermont 05403 Re: Zoning Violation Notice of April 17, 1996 Dear Mr. Irish: ZONING ADMINISTRATOR 658-7958 As a follow up to the notice of violation dated April 17, 1996 issued by Mr. Raymond Belair. Be advised that your violation and the letter of appeal was transferred to this office. In your letter to Mr. Belair dated April 23, 1996, you informed us that you cleared the land for the purpose of planting corps. Upon inspecting the land, I found that the clearing of the land is not the only issue. The entire westerly drainageway has been severely encroached upon which is a direct violation of the City's zoning bylaws. We agree that clearing of land for agricultural purposes is a permitted use, however, the excavation of trees and other debris and the depositing of this material within a drainageway is a serious violation. As stated, within your notice of violation letter dated April 17, 1996, you have seven (7) days in which to take appropriate remedial action. My major concern is the damage done to the drainageway located along the westerly portion of the land in question. The entire drainageway must be cleared of the trees, stumps and other debris to include car parts and agricultural material. Please advise this office of the corrective action you plan to undertake and the time frame in which the work will be done. You may also appeal this notice to the Zoning Board of Adjustment within fifteen (15) days from the date of this letter. Enclosed is the appeal application. If you have any questions, pleae don't hesitate to call me. Very truly, Richard Ward, Zoning Administrative Officer RW/mcp 1 Encl State of Vermo Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation State Geologist RELAY SERVICE FOR THE HEARING IMPAIRED 11800-253-0191 TDD>Voice 1-800-253-0195 Voice>TDD Mr. Frank Irish 200 Allen Road South Burlington, VT 05403 AGENCY OF NATURAL RESOURCES Department of Environmental Conservation WATER QUALITY DIVISION 103 South Main Street Building 10 North Waterbury, VT 05671-0408 802-241-3770 May 6, 1996 Subject: Notice of Alleged Violation, Irish Property, Allen Road, South Burlington Wetland File #96-070 Dear Mr. Irish: This letter is in response to a complaint I recently received from Ray Belair, Assistant Planner with the City of South Burlington, regarding a wetland alteration on the property you own on the south side of Allen Road in South Burlington, Vermont. 0 , n March 19, 1996 1 had conducted a site visit to this site with Peter Smejkal regarding a proposed subdivision on this property. I showed Mr. Smejkal which portions of the property were considered wetlands under the Vermont Wetland Rules. I explained that these were Class Two wetlands and were protected, along with an adjacent 50 foot buffer zone, by the Vermont Wetland Rules. I am enclosing a copy of the letter I sent Mr. Smejkal following our site visit. After receiving the complaint, I called Mr. Smejkal to ask him what was occurring. He denied knowledge of any wetland alterations. I then leff a message on Crawford Gregory's answering machine, who I wasinformed was the contractor doing the work on site, informing him that this property contained wetlands and alteration of them would be a violation under the Vermont Wetland Rules. I then spoke with Ron Brosseau who informed me that you were in the hospital. He called me back to tell me you had authorized me to go on site to determine if a wetland violation had occurred. On April 16, 1996 1 conducted a site visit to this property. At that time, I noted that there had been substantial work within the wetlands and buffer zones, including cutting trees down and stumping the land, pushing the stumps and dirt into the wetlands, and digging a very large ditch along the southern and western edge of the property. The water leaving the site by the ditch was extremely turbid due in part to the erosion occurring along the banks of the ditch. I took photographs while I was on site. Our records show that you have not received a Conditional Use Determination for the work that you have reportedly done. The wetland alteration activities occurring on your property constitutes an alleged violation of 10 V.S.A. Section 905(7)-(9), the Vermont Wetland Rules, and the Vermont Water Quality Standards. The project that was proposed on the site plans dated 2/26/96 would have required an Act 250 permit. Site work related to the proposed subdivision prior to the issuance of the Act 250 permit is not allowed. Chlorine Free 100% RecycJed Paper RE-�anral 'D",ces - Elarre/Essex Jct /Pit-fpr-1 Pufland/N Spnnq'iold Sr Frank Irish Allen Road, South Burlington Page 2 a In response to the alleged violation, the Secretary of the Agency of Natural Resources may issue an Administrative Order requiring full compliance with all applicable statutes and regulations; assessing penalties; or if necessary, requiring corrective action. Your efforts to achieve compliance may lessen the severity of the final result of any enforcement action. All work on this site should immediately be stopped. Please respond by phone or in writing by May 10, 1996 regarding your intentions to correct this alleged violation. Failure to respond by the specified date may initiate an enforcement action by the Department. If you have any questions regarding this matter, please contact me at 241-3770. Sincerely, Catherine L. O'Brien Assistant Wetlands Coordinator enclosure cc: Herb Conly, Enforcement Officer Sal Spinosa, Director, Enforcement Division Marty Abair, U.S. Army Corps of,Engineers Lou Borie, District Coordinator Ray Belair, City of South Burlington REGISTERED MAIL: RETURN RECEIPT REQUESTED State of Vermont ROUTi.11.401 AGENCY OF NATURAL RESOURCES Department of Fish and Wildlife GE Kr_� A Department or Environmental Conservation Pepartment of Forests, Parks and Recreation WATER QUALITY DIVISION Department of Environmental Conservation State Geologist 0 L) DAI-E 103 South Main Street RELAY SERVICE FOR THE HEARING IMPAIRE Building 10 North 11800-253-0191 TDD>Voice Waterbury, VT 05671-0408 1-8W-253-0195 Voice>TDD FAX 802-241-3287 TIEL 802-241-3770 ®r March 27, 1996 Peter Smejkal J.A. Morrissey, Inc. P.O. Box 745 Burlington, VT 05402 RE: Irish Development Corporation, 48 Lot Subdivision, Allen Road, South Burlington Wetland File #96-070 Dear Mr. Smejkal: Thank you for meeting me on March 19, 1996 at the site of yourproposed project on Allen Road in South Burlington, Vermont. As we discussed in the field, there are several wetlands on and adjacent to this property that are shown on the National Wetlands Inventory'(NWI) maps (see enclosed map). The Vermont Wetland Rules designate all palustrine wetlands identified on NWI maps and contiguous wetland areas as Class Two wetlands. I would recommend that you have a qualified wetland consultant delineate all the wetlands on the 26 acre property. I gave you a list of wetland consultants at the time of our site visit. There appears to be an emergent wetland in the field in the northwest portion of the property in addition to several forested wetlands. The ground was still frozen at the time of our site visit so I could not confirm the presence of the emergent wetlands. Any activity in a Class Two wetland or associated 50 foot buffer zone, other than allowed uses specified in Section 6.2 of the Wetland Rules, requires a Conditional Use Determination (C.U.D.) from the Agency of Natural Resources (Vermoni Wetland Rules', Section 6.3 and 8). Such a determination may only be granted -if it is shown that the proposed activity will not have undue adverse impacts on protected wetland functions [Vermont Wetland Rules, Section 8.5(a)]. I would strongly recommend that the wooded wetlands and their adjacent 50 foot buffer zones be entirely avoided. If the area in the field is a wetland, it is likely that it does not have the same level of functions. Once the delineation has been completed and surveyed onto the site plans, we can discuss this area further. V Chlorine Free 100% Recyded Paper Irish Development Page 2 Please feel free to call me if you have any questions or comments. I would be happy to meet with you at any time to further discuss this project. Sincerely, Catherine L. O'Brien Assistant Wetlands Coordinator enc. cc: Ray Belair, Zoning and Planning Assistant, City of South Burlington Johrf Austin, District Wildlife Biologist cob\irish.let k1l Vv PFOI '0 LIO\JYH '""PE , 3 ON NT I,A PI&Y F I... I ) h ,,,PFOIY:n �Emy o L20WZ PSSIY p P()� (Foil PFDY POWZ R30-wz..'' R20WZ PIS Is IY- Or PF IY o,wz w 4AW L! u PD -u el p z P Y ly: /-j )IY I PFO nI A 17 IY STIT=L & PAGE, P.C. ATTORNEYSATIAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660.2555 (VOICE17M) STEVENF. STITZEL FAX (802) 66D.25S2 PATTI R. PAGE* E-1LAIL*MtM2SS5@AOL_CMA) JOSEPH S. WLEAN TIMOTHY M EUSTACE ('ALSO ADMJMD IN N.Y.) November 26, 1996 Gary Kessler, Esq. Environmental Conservation Enforcement 103 Main Street Waterbury, VT 05676 OF COUNSEL. AR77M W. CEMNOSIA ROBERT E. FLETCHER Re: Irish Property (Allen Road, South Burlington, Vermont) Dear Gary: I am writing to follow-up on our conversation relative to the above -referenced matter. I have enclosed certain documents related to Frank Irish's proposal to create a 48 lot subdivision on the south side of Allen Road in South Burlington. The City of South Burlington is extremely interested in following and/or participating in any enforcement action the State intends to take against Mr. Irish for his alleged wetlands violations. Accordingly, I would appreciate it if you would keep me informed of your progress in this case. Thank you for your attention to this matter. Please let me know if you have any questions or if I may be of further assistance. Very__:ttr3;�ly yours.,. 4eph S. McLean ism/11 Enclosures cc: Richard Ward SON3157.COR STEVEN F. STMEL PAM R. PAGE* JOSEPH S McLEAN (-ALSO ADUnMM IN N.Y.) S TITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICErMD) PAX (802) 66D.2552 October 2, 1996 Michael B. Clapp, Esq. Affolter Clapp Gannon, Ltd. P.O. Box 8430 Burlington, VT 05402-8430 Re: City of South Burlington v. Frank Irish Docket No. S0730-96 CnC Dear Michael: OF COUNSEL ARTHUR W CERNOSIA ROBERT E, FLETCHER I am writing to follow-up on our telephone conversation of Monday, September 23, 1996, relative to the above -referenced matter. Specifically, you asked me what relief the City was seeking in connection with this action. Since we spoke last, I have had an opportunity to visit Mr. Irish's property on the south side of Allen Road and to examine the alleged zoning violations that have occurred there. Richard Ward, the South Burlington Zoning Administrator, accompanied me during the site visit. At the site, I observed what appears to be substantial land development near the southern and western boundaries of the property. This development includes the clearing of trees and stumps, as well as the excavation of earth materials. At least some of this activity appears to have occurred within the boundaries of the CO district, as defined in 3.10, et sec., of the South Burlington Zoning Regulations. The City is very concerned about Mr. Irish's clearing land within the boundaries of the CO district. A matter of more pressing concern, however, involves Mr. Irish's depositing the excavated materials into a clearly defined watercourse and/or wetland. It is this activity that the City views as his most egregious violation. The City maintains that Mr. Irish must restore the watercourse in question so that water can flow freely through it. Absent some specific proposal by Mr. Irish to restore the watercourse, the City is prepared to proceed to trial. Michael B. Clapp, Esq. Affolter Clapp Gannon, Ltd. Page 3 October 2, 1996 After you have reviewed this letter, please give me a call so that we may discuss this matter further. Very truly yours, Jod��eph S. McLean ism/ cc: Richard Ward SON3116.COR City of SoUtlj- Burlington v. Fran!S Irish DIRECT EXAMINATION OF RICHARD WARD 1. Background and Experience - name/residence/hcw employed/how long/duties & responsibilities - familiar with Irish property/visited/whon IT. Notice of Violation how did you become aware of activities on Irish property did you conduct an investigation into the nature of those activities/when/describe what you did/what did you observe - what did you conclude as a result of your investigation (violation of zoning regulation -- 527-10 -- land development w/o permit) (INTRODUCE ZONING BYLAW) - what did you do (issued NOV)/whon/prepared in accordance with requirement of State law (INTRODUCE NOV) (who is Raymond Belair/how employed/did you review NOV prepared by RB/records of violations kept in regular course of business/regular practice to make record/copies available for public review/who is custodian of those records) - what response, if any, from Irish as a result of NOV (sent letter indicating that he was taking an appeal) (INTRODUCE IRISH LETTER)/who was letter addressed to - what did you do in response (sent Irish another letter raising an additional issue and supplying him with a proper form for taking an appeal; form indicated that fee was required for appeal) (INTRODUCE RW LETTER) - what, if any, response did you receive to your letter (none) - what, if any, corrective action has Irish taken regarding issues raised in NOV III. Relief Requested: what does the City want the Court to do in this case: . > order Irish to comply with the State's plan for remediation > immediately install hay bale dykes, silt fences, and other erosion control devises around now ditch and stream on westerly boundary to prevent erosion from impeding or damaging operation of culvert > impose a penalty of $50/day for every day of violation 7, 3,.) V,-j soy-i 1?7 —7 e; 1� � n � n 'H —, ) /, 6 . n ; from April 25, 1996 to present REDIRECT EXAMINATION (if necessary): to the best Of Your knowledge, was the IRISH LETTER ever filed with either the Secretary of the ZBA Or with the City Clerk (54464) - does City have specific bylaw provisions detailing requirements for NOV (No -- City has incorporated state law) (S270.00) - has City adopted a sPecific fee schedule for taking appeals to the ZBA (yes -- introduce ORDINANCg)/what is fee amount/over received i - Is payment of fee a condition to the validity of filing an appeal (yes) - Does IRISH LETTER contain: > name and address of appellant (name but not full address) > brief description of property with respect to which appeal is taken (no) > reference to the regulatory provisions applicable to the appeal (no) • the relief requested by thG,appollant (no) • the alleged grounds why the,relief requested is believed proper under the circumstances (no� STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLNGTON, VERMONT 05402-1307 (802) 660-2155 (VOICVMD) STEVSK F. STITZEL PAX (802) "0-2332 OF COUNSEL PATTI R PAOE* E-MAII4MC5J5(@AOL COM) ARTHUR W CERNOSIA ROBERT 8. FLETCM JOSEFH S. MCLUN TIMOTHY M. RUSTACIS ('AL30 ADMIT= IN N Y) FACSIMILE TRANSMITTAL SHEET Date; 7/10/97 To: Richard Ward, Zoning Administrator CONFIDENTIAL Fax: Re: Irilh hearing Sender: Joe McLean You should receive 3 page(s), including this cover sheet, If you do not receive all the pages, please call (802) 660-2555. NEESSAGE Dick: I am faxing an outline of my questions for you regarding Idb. Please give me a call if you have any questions or if you think of anything else that you think I should ask. Joe This Message is inta*d only for the u3c of the addressee and m4y cbritidn infbmuLtion -J4t is privileged arid confldantial. If you am not the intended recipient you jwc hereby notif ad that ary d4serninstion of this communication is strictly prohibited. If you have received this communication in error, plena notify us immediAtety by telephone (102-660-2555). Thamit you, TOV-:V77Z� T L-:? eTll JD -A -2� IA rN CAM �AT STITZEL, PAGE & FLETCHF-R, 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-MAR#MZM2555@AOL.COM) ROBERT E. FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE CALSO ADMMED IN N Y) August 1, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main St., 1st Floor Barre, VT 05641 Re: City of South Burlington v. Frank Irish Docket No. E97-093 Dear Judy: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -referenced matter is the City of South Burlington's Exhibits. Please note that I am unable to locate City's Exhibit E (tax map). I will obtain another copy from the City and send under separate cover. Thank you. JSM/dah cc: Charles Hafter Richard Ward Michael B. Clapp, SON3357.COR Esq. Very truly yours, oseph S. McLean STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL (802) 660-2555 (VOICEITDD) PAT71 R, PAGE* FAX (802) 660-2552 ROBERT E. FLETCHER E-MAIIJIRM2555@AOL.CO1,4) JOSEPH S. McLEAN TIMOTHY M. EUSTACE ('ALSO ADMn7ED IN N.Y) HAND DELIVERED August 1, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main St., 1st Floor Barre, VT 05641 Re: City of South Burlington v. Frank Irish Docket No. E97-093 Dear Judy: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -referenced matter is the City of South Burlington's Proposed Findings of Fact, Conclusions of Law and Order. Please don't hesitate to call if you have any questions. Thank you. JSM/dah Enclosure cc: Michael B. Clapp, Charles Hafter Richard Ward Very tg:uly yours, 6��seph S. McLean Esq. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOIC=D) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAWARM@AOL.COM) ROBERT E. FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (-ALSO ADMnTM IN N.Y) August 4, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main Street, 1st Floor Barre, VT 05641 Re: City of South Burlington v. Frank Irish Docket No. E97-093 Dear Judy: OF COUNSEL ARTHUR W. CERNOSIA I am writing to correct an error in the City of South Burlington's Proposed Findings of Fact, Conclusions of Law and order filed in the above -referenced matter. On pages 2 and 8 it states that Ronald Brosseau is the Defendant's "son-in-law". In fact, Mr. Brosseau is the Defendant's "brother-in-law". Thank you for your attention to this matter. JSM/dah cc: Michael B. Clapp, Esq. Charles Hafter Richard Ward SON3360.COR Vjerruly yours, To Jos h S. McLean STITZEL, PAGE & FLETCHEF, P.C. ATYORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEnDD) STEVEN F. ST]TZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAnAMW555@AOL.COM) ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMnTED IN N Y) August 15, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main St., Ist Floor Barre, VT 05641 Re: City of South Burlington v. Frank Irish Docket No. E97-093 Dear Judy: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -referenced matter is the City of South Burlington's Response to Defendant's Post -Trial Responsive Memorandum of Law. Thank you for your attention to this matter. Very truly yours, ,rop'joseph S. McLean JSM/dah Enclosure cc: Michael B. Clapp, Esq. Charles Hafter Richard Ward SON3373.COR I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATIERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICErMD) 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 ADMrrrED IN N.Y.) VIA FACSIMILE AND FIRST CLASS MAIL August 8, 1997 Hon. Meredith Wright Vermont Environmental Court 255 N. Main St., Ist Floor Barre, VT 05641 Re: City of South Burlington v. Frank Irish Docket No. E97-093 Dear Judge Wright: OF COUNSEL ARTHUR W. CERNOSIA I am writing regarding the above -referenced matter. It was my understanding that Proposed Findings of Fact and Conclusions of Law were to be filed by the parties to this matter on or before August 1, 1997, with responses due on August 8, 1997. The City filed its Proposed Finding of Fact and Conclusions of Law on August 1, 1997, and awaited Defendant's submission. On Tuesday, August 5, 1997, having failed to receive Defendant's filing, I telephoned his counsel to inquire regarding its status. Defendant's counsel informed me that I would receive a copy of Defendant's filing by facsimile that day. I indicated that the City had no objection to extending the established filing deadline to that date (August 5, 1997). The City did not receive Defendant's post -trial filing until 4 p.m on Friday, August 8, 1997. While the City has no objection to Defendant's failure to meet either the established or re-established filing dates, it does object to Defendant's submission to the extent that it responds directly to matters contained in the City's Proposed Findings and Conclusions. In short, it is unfair and prejudicial to the City's case for Defendant to effectively have two Hon. Meredith Wright Vermont Environmental Court Page 2 August 8, 1997 opportunities for response. Therefore, the Court should not consider Defendant's arguments to the extent that they attempt to respond to matters addressed in the City's Memorandum. In light of the foregoing, the City will file its response by Friday, August 15, 1997. Thank you for your attention to this matter. R77�rq,f lly Submitted, % seph S. McLean cc: Michael Clann Esff Mr. Richard Ward SON3365.COR I STITZEL, PAGE & FLETCHER, P.C. AT`TORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICF-rMD) STEVEN F. STITZEL FAX (802) 660-2552 PAT71 R. PAGE* E-MAMJMZM2555@AOL.COM) ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE ('ALSO ADMnTM IN N Y.) August 15, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main St., 1st Floor Barre, VT 05641 Re: City of South Burlington v. Frank Irish Docket No. E97-093 Dear Judy: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -referenced matter is the City of South Burlington's Response to Defendant's Post -Trial Responsive Memorandum of Law. Thank you for your attention to this matter. Very truly yours, ,&'Joseph S. McLean JSM/dah Enclosure cc: Michael B. Clapp, Esq. Charles Hafter Richard Ward SON3373.COR STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON,) Plaintiff,) V. FRANK IRISH, Defendant.) Docket No. E97-093 (former Chittenden Superior Court Docket No. S730-96CnC) CITY OF SOUTH BURLINGTON'S RESPONSE TO DEFENDANT'S_ POST -TRIAL RESPONSIVE 14EMORANDUM OF LAW NOW COMES the Plaintiff, the City of South Burlington (the "City"), by and through its attorneys, Stitzel, Page & Fletcher, P.C., and submits the following response to the post -trial responsive memorandum of law filed by the Defendant, Frank Irish (the "Defendant") in the above -referenced matter. Memorandum In his post -trial "responsive,, memorandum, dated August 8, 1997, Defendant makes two (2) primary arguments. First, he argues that the cutting and removal of trees does not constitute land development within the meaning of 24 V.S.A. §4443(a)(1) and §27.10 of the South Burlington Zoning Regulations (the "Zoning Regulations"). In addition, Defendant contends that the excavation of a drainage ditch is an accepted agricultural practice as defined by the Commissioner of Agriculture, Food and Markets and, therefore, is exempt from zoning regulation under 24 V.S.A. §4495. Based on those arguments, Defendant urges this Court to dismiss the enforcement action filed against him by the City. For the reasons set forth below, this Court should reject both of Defendant's arguments as irrelevant and without merit. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P 0. BOX 1507 BURLINGTON. VERMONT 05402-1507 I. Defendant is Statutorily Precluded From Challenging the Relevant Decisions of the South Burlington Zoning Administrator It is well established that the exclusive statutory remedy for persons aggrieved by any act or decision of a zoning administrator is to appeal it. See 24 V.S.A. §4472(a); Town of Charlotte v. Richmond, 158 Vt. 354, 356 (1992). Moreover, 24 V.S.A. §4472(d) provides that in the absence of an appeal, all parties are bound by local zoning decisions and "shall not thereafter contest, either directly or indirectly, such decision or act . . . in any proceeding, including, without limitation, any proceeding to enforce [Chapter 117].11 See 24 V.S.A. §4472(d); Richmond, 158 Vt. at 357. Further, the "exclusivity of remedy" provision contained in §4472 is applicable even where the act or decision appealed from is otherwise void ab initio or is ultra vires. See Levy v. St. Albans Zoning Board of Adjustment, 152 Vt. 139 142-43 (1989). At no point in his post -trial memorandum does Defendant address the applicability of §4472 to this case. As discussed in the City's Proposed Findings of Fact and Conclusions of Law, dated August 1, 1997, however, Defendant failed to file a proper and valid appeal from either the April 17 or April 30, 1996 decisions of the South Burlington Zoning Administrator. Therefore, he is now bound by those unappealed decisions and is statutorily precluded from contesting them in the context of this proceeding. See Richmond, 158 Vt. at 357 (citing Sandgate v. Colehamer, 156 Vt. 77, 85 (1990) ("by its terms, §4472(d) clearly applies to defenses raised in enforcement proceedings")). STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 173 BATTERY STREET RO BOX 1507 BURLINGTON, VERMONT 05402-1507 II. Defendant's Activities Constitute "Land Developmentff Within the Meaning of State Law Even assuming, arquendo, that §4472's procedural bar does not apply in this case, this court may properly reject Defendant's arguments as meritless. Specifically, there is no legal basis for Defendant's claim that the "cutting and removal of trees"' does not constitute "land development," as def ined in 24 V.S.A. §4303(3) and §28.123 of the Zoning Regulations (which incorporates the statutory definition). Land development, as that term is used in chapter 117 of Title 24, is def ined in pertinent part as "any change in the use . . . of land, or extension of use of land." See 24 V.S.A. §4303(3); South Burlington Zoning Regulations, §28.123. Accordingly, if Defendant's activities resulted in either a change to or extension of the pre-existing use of the land, this Court may conclude that he commenced land development within the meaning of the statute. It is undisputed that prior to the clearing activities that occurred on Defendant's property and which involved, among other things, the cutting and removal of trees and other natural vegetation, the land in question was essentially an undeveloped, wet, partially wooded meadow. Today, a substantial portion of Defendant's property, which was once wooded, stands clear of trees and other natural vegetation. There is no question that 1 The Zoning Administrator's April 17, 1996 notice of violation alleges that Defendant "cut and removed trees and other natural vegetation from within the Conservation and Open Space District." See City's Exhibit B (emphasis added). 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON. VERMONT 05402-1507 Defendant has never applied for or received a zoning permit authorizing that clearing activity. Further, despite Defendant's claims to the contrary, there is substantial evidence before this Court (discussed below), that the area involved was cleared in preparation for residential development, and not for any 2 agriculturally -related purpose. Based on the foregoing, this Court should reject Defendant's claims that he was involved in agricultural activity, and conclude that the cutting and removal of trees and other natural vegetation constitutes "land development" within the meaning of both Chapter 117 of Title 24 and the Zoning Regulations. III. Defendant's Activities Do Not Constitute Accepted Agricultural Practice This Court should also reject Defendant's contention that his excavation of a drainage ditch is an "accepted agricultural practice" and, therefore, exempt from zoning regulation under 24 V.S.A. §4495. As set forth in its previous filing, the City disputes that Defendant was engaged in agricultural activities in the area of his property at issue in this case. Indeed, the evidence before this Court, including the Irish Development Corporation's February 26, 1996 application to develop the entire south side of Allen Road as a forty-eight (48) lot residential subdivision (Secretary's Exhibit 1); the testimony of Ms. Llewellyn that 2 The credible evidence indicates that the relevant portion of Defendant's land was not used for farming purposes during the 1980s, and Patricia Irish testified that it has never been so used. Testimony of A. Llewellyn; P. Irish. 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 there is no evidence of agronomic or other agricultural activity in the southwest corner of the property; and the testimony of Ms. Irish that that area has never been farmed due to the wetness of the land, all suggest that Defendant's intent in clearing and excavating the property was to prepare it for residential development. Further, even assuming that Defendant was engaged in agricultural activity, both (1) the excavating and clearing of earth materials, and the depositing of those materials into the pre-existing watercourse and (2) the excavation of the new drainage ditch constitute violations of the Accepted Agricultural Practice Rules (the 11AAPR11) (copy attached). 24 V.S.A. §4495(b) provides that no plan or bylaw adopted under chapter 117 of Title 24 "shall restrict accepted agricultural or farming practices . . . as such practices are defined by the commissioner of agriculture food and markets." See 24 V.S.A. §4495(b). This Court should note, however, that §4495(b) does not exempt all "agricultural" activities from municipal zoning regulation. See Office of the Attorney General, State of Vermont, Opinion No. 91-2F (revised), 1991 WL 334855 (January 17, 1991), at 2. Rather, §4495(b) only covers those p.ractices (as opposed to uses) specifically defined as "accepted" by the Commissioner of Agriculture. Id., at 5, 7-8. Therefore, to the extent that an activity has not been defined by the Commissioner as an "accepted agricultural practice," or to the 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 extent that an otherwise accepted practice violates the AAPR, it is subject to municipal regulation.. Id., at 8. The applicable regulatory provision of the AAPR specifically states: Persons engaged in agricultural operations who follow the agricultural practices as defined in Section 3.2 of these rules and who comply with the conditions and restrictions contained in Section 4 shall be presumed to be pursuing Accepted Agricultural Practices. See AAPR, at §3.1 (emphasis added). Among the conditions and restrictions set forth in Section 4, is S4.01 (Discharges), which provides: Agricultural operations shall not create any direct discharges of wastes into the surface waters or groundwater of the State from a discrete conveyance such as, but not limited to, a pipe, ditch, or conduit without a permit from the secretary. Id., at §4.01(a). The AAPR define "discharge" as "the placing, depositing, or emission of any wastes directly or indirectly, into an injection well or into waters of the state." Id., at S2.05. Further, the AAPR broadly define "wastes" as rslediments, minerals including heavy metals, plant nutrients, pesticides, organic wastes (including livestock waste and crop debris), waste oils, pathogenic bacteria and viruses, thermal pollution, silage runoff, and any other waste compound or material which is determined by the Commissioner or the secretary to be harmful to the waters of the State, or 3 other wastes as defined in 10 V.S.A. Section 1251(121. 3 10 V.S.A. §1251(12) defines "waste" as "effluent, sewage or any other substance or material, liquid, gaseous, solid or radioactive, including heated liquids, whether or not harmful or deleterious to waters. See 10 V.S.A. §1251(12). 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 17 1 BATTERY STREET P.O. BOX 1607 BURLINGTON, VERMONT 05402-1507 Id., at §2.15 (emphasis added). Finally, the AAPR define "waters and waters of the State" to "include all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs and all bodies of surface waters, artificial or natural, which are contained within, flow through or border upon the state or any portion of it.- Id., at S2.19. It is undisputed that before Defendant commenced clearing and excavation activities on his property, a minor stream flowed across the site in a westerly direction. Sediment and other materials, including trees, stumps and other vegetation, cleared 4 from the land have been deposited into that watercourse. In addition, it is evident that excavation of the new drainageway has caused streambank erosion and substantial sedimentation into that portion of the original watercourse which flows in a northerly direction behind Ms. Irish's house and through the culvert under Allen Road to Bartlett Brook.5 In light of the foregoing, it is clear that Defendant's activities in excavating earth materials in and around the new ditch (see City's Exhibit B), and in filling and otherwise encroaching upon the original westerly drainageway (see City's Exhibit C) do not constitute accepted agricultural practice, within the meaning of the AAPR. 4 The depositing of materials into the pre-existing watercourse was clearly evident during this Court's site visit. 5 Both the original watercourse and Bartlett Brook meet the definition of "waters of the state" under the AAPR. 6 Defendant has never alleged that he has a permit from the secretary authorizing the discharge of wastes into waters of the state. 7 Therefore, this Court should reject Defendant's argument that his activities are exempt from zoning regulation under 24 V.S.A. §4495. Conclusion For all of the reasons set forth above, the City of South Burlington respectfully requests that this Court reject the arguments set forth in Defendant's memorandum and adopt and incorporate the City's Proposed Findings of Fact and Conclusions of Law into its Decision and order in this matter. DATED at Burlington, Vermont, this 15th day of August, 1997. CITY OF SOUTH BURLINGTON SON468.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 By: STITZEL, PAGE & FLETCHER, P.C. 1 /t 3. zp�d- 1!;01,Jodeph S. McLean 8 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT 1AW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660-2555 (VOIC&rMD) STEVENF. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAIL0IR1,U555@AOL.CO4 ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M EUSTACE ('ALSO ADMM-ED IN N.Y.) August 26, 1997 Michael B. Clapp, Esq. Affolter, Clapp, Gannon, Ltd. Five Burlington Square PO Box 8430 Burlington, VT 05402-8430 OF COUNSEI, ARTHUR W. CERNOSIA Re: City of South Burlington v. Frank Irish Docket No. E97-093 Secretary, Vermont Agency of Natural Resources v. Irish Docket No. E97-069 Dear Mike: I am writing in response to your letter to me dated August 22, 1997. Specifically, my August 18, 1997 letter to you requested your agreement to admit the sketch plan referenced in Item 8 of Secretary's Exhibit 1, admitted in the above -referenced proceedings. You have asked that I explain the basis of that request. As you know, on or about February 26, 1996, an application for sketch plan approval was submitted to the City. That application specifically requires an applicant to submit five (5) copies and one (1) reduced copy of a sketch plan containing certain specified information. That sketch plan was submitted to the City and has been provided to you. Quite simply, it is the City's position that Secretary's Exhibit 1, an application for sketch pj= approval, has been admitted by the Court. However, the actual sketch, which is specifically referenced in the application and which is the subject of that application, has not been provided. We believe that it is reasonable and appropriate for the Court to review the complete application. Therefore, the city renews its request that you agree to the Court's review of the above -referenced sketch plan. 0 Michael B. Clapp, Esq. Affolter, Clapp, Gannon, Ltd. Page 2 August 26, 1997 Thank you for your attention to this matter. Please let me know if you have any questions. JSM/cjmt cc: Ray Belair SON3377.COR Very/tFuly yours, Jose0h S. McLean STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVENF STITZEL PATTI R PAGE* ROBERT E. FLETCHER JOSEPH S. MCLEAN TIMOTHY M. EUSTACE (-ALSO ADMMD IN N.Y.) (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 13- -MkIL�FnZM22 5 5 5 (4kol, � C CM November 4, 1997 Mr. Richard Ward Zoning Administrator City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: South Burlington v. Irish Docket No. E97-093 Dear Dick: OF COUNSEL ARTRURW. CERNOSIA Enclosed are copies of Notice of Appeal and Motion to Stay Enforcement of Mandatory Injunction Pending Appeal filed with the Vermont Environmental Court in connection with the above - referenced matter. Please give me a call if you have any questions. Singerely id§eph S. McLean JSM/cjmt Enclosures son3441.cor AFFOLTER CLAPP GANNON, LTD. ATTORNEYS AT LAW FIVE BURLINGTON SQUARE - P.O. BOX 8430 - BURLINGTON, VT 05402-8430 TEL: 802-864-3499 FAX: 802-864-3889 November 3, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main Street, 2st Floor Barre, Vermont 05641 Re: South Burlington v. Irish Docket No. E97-093 Dear Ms. Whitney: IE! 'TJ NOV - STITZEL, PAGE & FLETCHER PC 7 Enclosed please find Defendant's Notice of Appeal, Motion to Stay Enforcement of Mandatory Injunction Pending Appeal, and filing fee for filing in the above -captioned matter. Thank you. Yours very truly, AFFOLTER CLAPP GANNON, LTD. P/ & �' ,� 6 (410L, Michael B. Clapp ac Enclosures cc: Joseph S. McLean, Esquire Lecia A. Wilson, Esquire STATE OF VERMONT ENVIRONMENTAL COURT SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Complainant, V. FRANK IRISH, Respondent. CITY OF SOUTH BURLINGTON, Plaintiff, V. FRANK IRISH, Defendant. NOTICE OF APPEAL Docket No.: E97-069 Docket No.: E97-093 NOW COMES, Respondent -Defendant, Frank Irish, by and through his Counsel, Affolter Clapp Gannon, Ltd., and appeals to the Supreme court from the Judgment dated October 20, 1997. Dated at Burlington, Vermont this 3rd day of November, 1997. AFFOLTER CLAPP GANNON, LTD. By: /V) U'll 6 .61 4'e-1AA') Mchael B. Clapp, Esq. / I Attorneys for Respond ent-Defendant. cc: AFFOLTER CLAPP GANNON, LTD. - Five Burlington Square - P.O. Box 8430 - Burlington, VT 05402-8430 - Tel. (802) 864-3499 - Fax (802) 864-3889 STATE OF VERMONT ENVIRONMENTAL COURT SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Complainant, V. FRANK HUSH, Respondent. CITY OF SOUTH BURLINGTON, Docket No.: E97-069 Plaintiff, Docket NO.: E97-093 V. FRANK IRISH, Defendant. MOTION TO STAY ENFORCEMENT OF MANDATORY INJUNCTION PENDING APPEAL NOW COMES, Respondent -Defendant, Frank Irish, by and through his Counsel, Affolter Clapp Gannon, Ltd. and hereby requests that this Court stay enforcement of the mandatory injunction issued with its Decision and Order dated October 20, 1997. The mandatory injunction which this Court issued requires Respondent -Defendant to expend his funds to hire a wetlands consultant to delineate wetlands on his property, to prepare a plan to restore the wetland, and for implementation of such plan. Respond ent-D efend ant holds the position that he is not subject to the penalties imposed and has concurrently herewith filed an appeal. V.R.C.P 62 provides that a court may "suspend an injunction during the pendency of appeal upon such terms ... as it considers proper for the security of the rights of the adverse party." The per-tinent injunction is a mandatory injunction which would require Respondent - Defendant to expend monies which, pending the outcome of the appeal, he may not be liable to AFFOLTER CLAPP GANNON, LTD. - Five Burlington Square - P.O. Box 8430 - Burlington, VT 05402-8430 - Tel. (802) 864-3499 - Fax (802) 864-3889 expend. The injunctive order has substantially the same effect as the civil penalties imposed by the Order which are automatically stayed during the appeal. Both the penalties and the injunctive order require Respondent to expend his funds. Unless the injunctive portion of the Order is stayed, Respondent's appeal with respect to that portion of the Order will for all practical purposes, be mooted. If his appeal is successful, he,%ill nevertheless have been forced to expend his funds, with no means of obtaining their return. It is for this reason that the imposition of the fines are stayed pending appeal. Respondent's rights demand that the mandatory injunction also be stayed pending appeal. It is therefore, the Respond ent-Defendant's request that because there is "no claim of potential for public health or safety harm" and because "the magnitude of the harm has not been great," Vermont Agency of Natural Resources v. Irish, No. E97-069, No. E97-093, slip op. at 6 (Vt. Environ. Oct 20, 1997) (see attached Exhibit A), that it is not necessary to enforce the mandatory injunction at issue until the appeal has been heard. WHEREFORE, Respondent -Defendant respectfully requests this court stay enforcement of its mandatory injunction pending appeal. Dated this 3rd day of November, 1997. AFFOLTER CLAPP GANNON, LTD. By: __j �,.,4; P-1 A Michael B. Clapp,ts'q- Attorneys for Respond ent-Defend ant cc: Joseph S. McLean, Esquire AFFOLTER CLAPP GANNON, LTD. - Five Burlington Square - P.O. Box 8430 - Burlington, VT 05402-8430 - Tel. (802) 864-3499 - Fax (802) 864-3889 STATE OF VERMONT ENVIRONMENTAL COURT FILED OCT 2 0 1W VtKMUNI Secretary, ENVIRONMENTAL COURT Vermont Agency of Natural Resources, V. Docket No. E97-069 Frank Irish, Respondent. City of South Burlington V. Docket No. E97-093 Frank Irish DECISION AND ORDER On May 6, 1997, the Secretary of the Vermont Agency of Natural Resources issued an administrative order pursuant to 10 V.S.A. §8008 regarding Respondent Frank Irish. Respondent timely requested a hearing in Environmental Court. On or about May 20, 1996, the City of South Burlington had filed a zoning enforcement action in Chittenden Superior Court against Mr. Irish regarding the same activities on the same parcel of land. The zoning enforcement action was transferred to Environmental Court in June of 1997 and the two matters were consolidated for hearing. The Court also took a site visit to the property. Respondent -Defendant Frank Irish is represented by Michael B. Clapp, Esq.; the Secretary of the Agency of Natural Resources (11ANR") is represented by Gary S. Kessler, Esq.; and the City of South Burlington ("the City") is represented by Joseph S. McLean, Esq. The Court extended the time for the hearing for good cause at the request of and by agreement of the parties, to accommodate the schedules of the parties and to allow the transfer of the Superior Court case to Environmental Court. The Court also extended the time for the issuance of the decision for good cause, to accommodate the other urgent matters on the docket of this Court, the Essex Superior Court, Windsor Superior Court, and Grand Isle Superior Court. The statutes, rules and permits applicable to Docket No. E97-069 are 4 1 V.S.A. Chapter 27, 10 V.S.A. Chapter 201, 10 V.S.A. §1259(a), 10 V.S.A. §905(7), (8), and (9), and §6.3 of the Vermont Wetland Rules. 10 V.S.A. §8012(c)(2). Findings Mr. Frank Irish owns a 26.3-acre parcel of land in the City of South Burlington, on the south side of Allen Road, as well as other property in the area including his residence and land he has farmed. Early in 1996, Mr. Irish discussed with Peter Smejkal and Ron Brousseau the possible sale of the 26.3- acre parcel to them for residential development, at a price in the vicinity of $200,000. Mr. Brousseau is Mr. Irish's brother-in-law. Mr. Smejkal was the project manager and is familiar with residential subdivision development. In February 1996 the so-called "Irish Development Corporation" as applicant submitted an application to the City for a 48-lot subdivision proposed for the property. There was no evidence to show. that the so-called Irish Development Corporation was ever incorporated, or that Mr. Irish personally had any interest in the development other than as seller of the property. The application was signed by Mr. Smejkal. The application showed the applicant as having the legal interest of "optionee," although no written option agreement or other contract was submitted in evidence at trial. The application showed Frank Irish as the land owner of record, and showed Peter Smejkal and Ron Brousseau as "contactsif for the applicant "Irish Development Corporation." Mr. Brousseau acted as Mr. Irish's agent in March and April of 1996 when Mr. Irish was in the hospital, and continued so to act by accepting certified mail on his behalf into May and June, 1996. We cannot find from the evidence that Mr. Smejkal ever acted as agent for or on behalf of Mr. Irish, nor that Mr. Irish acted as a de facto r)artner of Mssrs. Smejkal and Brousseau in this development. However, given the family relationship between Mr. Brousseau and Mr. Irish, we do find from the circumstances that Mr. Irish knew of Mssrs. Brousseau and Smejkal's plans to build a 48-lot residential subdivision on the land in question. On March 19, 1996, ANR Assistant Wetlands Coordinator Catherine O'Brien met with Mr. Smejkal on the property, and identified for him areas of Class II wetland on the property, including areas of wetland contiguous to those identified on the National Wetlands Inventory Map. She informed Mr. Smejkal that a prior Conditional Use Determination (CUD) would be necessary before any development could take place on the property in the wetland. On March 27, 1996, P-11 she sent Mr. Smejkal a letter confirming the conversation and recommending that a wetland consultant be hired to delineate the wetland areas and their 50-foot buffer zones. This work is estimated to cost approximately $1,500. Also in March, 1996, Frank Irish arranged with C.W. Gregory, an excavation contractor, to excavate a drainage ditch near the power line right-of-way, to intercept water draining onto his land, in particular from a water supply line bedded in gravel which was acting as a conduit for water to flow onto his property. Frank Irish believed that the drainage ditch would asSi!:.L in keeping the field nearest the power line drier, and believed that drainage or development work in a wetland would be exempt if it was for agricultural purposes. The contractor proceeded to do the work, which included cutting and removing trees and brush, excavating the ditch, grubbing up tree roots of significant size, depositing some of the brush, stumps and sediment in the ditch or the natural watercourse, and allowing additional sediment to flow and be deposited in Bartlett Brook, a watercourse running along the edge of and from Mr. Irish's property. The disturbed area is located within the Conservation and Open Space District under the City's zoning regulations. It is also in an area of Class II wetlands as that term is defined in the Wetlands regulations, because it is functionally a wetland and is contiguous to an area mapped on the National Wetlands Inventory map. Sediment from the disturbed area flowed and continues to flow into Bartlett Brook, constituting a discharge under 10 V.S.A. §1259(a). From the evidence we cannot find that the disturbed area constituted land which grows food or crops in connection with farming activities. 10 V.S.A. §902(5) and Vermont Wetland Rules §6.2(f). Unlike the neighboring fields, the disturbed area showed no traces of having been used as cropland, pasture, or other farmland in accepted agricultural practices. In early April 1996, after receiving a complaint that site work was proceeding in the wetland, Catherine O'Brien telephoned Mr. Smejkal, who referred her to Mr. Gregory as the contractor doing the work. From this 40 referral we find that Mr. Irish informed either Mr. Brousseau or Mr. Smejkal of the work he was having done on the property. Ms. O'Brien informed Mr. Smejkal and Mr. Gregory by telephone that work in the wetland would be in violation of the Vermont Wetland rules and should cease immediately. As of April 16, 1996, under Mr. Irish's instructions and with Mr. Smejkal's 3 knowledge, Mr. Gregory had cut trees, pulled stumps, regraded the surface, and dug a ditch approximately 1000 feet long and five feet deep in the Class II wetland and its 50 foot buffer zone, and had caused a continuing discharge of silt to state waters, Bartlett Brook. The discharge of silt continued in December, 1996 and into July of 1997. On April 17, 1996, the City's "Zoning and Planning Assistant" issued a Notice of Violation to Mr. Irish. The notice stated the means of filing an appeal was to file with the Clerk of the ZBA. Mr. Irish responded to the =ing and planning assistant, stating that the response was his "formal appeal" and claiming that the work was being done for agricultural purposes and that the tree cutting was for firewood. Agriculture and forestry are permitted uses in the Conservation and Open Space District. §3.201 of the South Burlington Zoning Regulations. We need not reach the question of whether Mr. Irish failed to perfect his appeal by failing to file it with the ZBA and by failing to file the required fee, because on April 30, 1996, the City's Zoning Administrative office issued a second Notice of Violation to Mr. Irish, acknowledging that clearing land for agricultural purposes is a permitted use in the zone, but stating that the excavation of trees and the deposition of the brush and silt in the drainage way was a serious additional violation. The April 30, 1996 letter also stated the means of appeal and included the appeal application. Mr. Irish did not appeal the April 30, 1996 Notice of Violation. On May 10, 1996, Mr. Irish received a Notice of Alleged Violation instructing him to cease all work in the wetland. Mr. Brousseau signed for this of certified mail as Mr. Irish's agent. - As of June 7, 1996, additional stumping and grading had been performed in the Class II Wetland, beyond the work done as of April 16, 1996. As of July 21, 1997, neither Frank Irish, nor anyone acting on his behalf, had applied for or obtained a Conditional Use Determination to allow the work performed in the Wetland. As of July 21, 1997, neither Frank Irish, nor anyone acting on his behalf, had taken any remedial action to stabilize the sides of the ditch or prevent the continuing discharge of silt to Bartlett Brook. Mr. Gregory had intended to stabilize the bank with rip -rap, but neither he nor Mr. Irish sought permission to proceed to that step after receiving the stop work instructions. 4 As of July 21, 1997, neither Frank Irish, nor anyone acting on his behalf, had applied for or obtained a zoning permit to allow the site work performed in the Conservation and Open Space District. Conclusions as to ANR Enforcement Violation (10 V.S.A. §8012(c)(1)): The statute requires this Court to determine whether a violation has occurred, 10 V.S.A. § 8012(b)(1), independently of reviewing and determining anew a penalty amount. 10 V.S.A. § 8012(b)(4). A violation has occurred, for which Mr. Irish is responsible as the owner of the property and the person who directed Mr. Gregory's work, regardless of whether Mssrs. Smejkal, Brousseau, or Gregory also could be cited under any state statute or regulation or any city ordinance. The disturbed area did not meet the requirements for the agricultural exemption in 10 V.S.A. §905(2)(5) and Vermont Wetland Rules §6.2(f). The Wetland. Rules do not offend principles of due process and do not create a "taking" by defining wetlands by their function, by their contiguity to mapped wetlands, or by requiring a 50-foot buffer zone. - By failing to obtain a conditional use determination before commencing work in a wetland, Respondent violated the Vermont Wetland Rules. By having work done caused a continuing discharge of sediment to Bartlett Brook, without having a permit for that discharge, Respondent violated 10 V.S.A. § 1259(a). Conclusions as to City Zoning Enforcement Violation The same activities violated Article 3 of the City's zoning regulations, and in particular §§3.402, 3.403, and 3.405. Mr. Irish did not appeal the April 30, 1996 Notice of Violation, therefore 24 V.S.A. §4472 prevents this cottrt from further considering it in the present enforcement case. Remedial action was not taken, nor was permission for remedial action sought from the Agency or the City. The duration of the violation for the purpose of the City's enforcement action begins seven days from the April 30, 1996 Notice of Violation, that is, May 7, 1996 and continued to the date of trial, July 21, 1997, or a total of 439 days. ANR enforcement case: Determination of Order and Penalty (10 V.S.A. §8012(c)(3)): The remedial portions of the Administrative Order were issued under 10 V.S.A. § 8008(5), and therefore this Court must determine whether to affirm them, or vacate and remand them, under 10 V.S.A. § 8012(b)(2). The remedial portions 5 are affirmed, as the remedial procedure contained in the order is reasonably likely to achieve the intended result. Within 30 days of the date of this Order Frank Irish shall hire a wetlands consultant to delineate the wetland and buffer zone on his property. and to identify the disturbed area which constitutes the violation within the wetland and buffer zone. Within 60 days of the date of this Order Frank Irish shall have the wetlands consultant develop and submit to the Enforcement Division of the ANR a plan to restore the wetland to its condition prior to the violation. The ANR shall rule promptly on whether the submittal is complete, and shall rule promptly in writ ing on whether the plan is accepted, rejected or modified to comply with current statutes and regulations governing wetland protection. Within 45 days of the approval of the restoration plan, or such later date as may be approved in writing by the ANR ' due to seasonal considerations, Frank Irish shall complete implementation of the restoration plan. Within 20 days after completion, Frank Irish shall have the wetlands consultant submit a completion report to the ANR, and shall allow ANR inspectors to come onto the property to evaluate implementation of the plan. The Court must also review and determine anew an appropriate penalty amount for the violation by applying the eight criteria set forth in 10 V.S.A. §8010(b). 10 V.S.A. §8012(b)(4). The Secretary makes no claim of potential for public health or safety harm resulting from this violation. § 8010(b)(1). There was actual impact on public welfare and the environment due to the siltation in Bartlett Brock, although the magnitude of that harm has not been great. §8010(b)(1). The duration of the violation is measured from the date of the activity, late March 1996, to the date of trial, late July 1997, or approximately 16 months. §8010(b)(8). The need to deter disregard of the requirements of the law (§8010(b)(6)) requires the imposition of a monetary penalty for Respondent's failure to apply for a conditional use determination or discharge permit, even without lasting environmental or public harm. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 622 (1991). Vermont's environmental permit programs cannot function if activities intended to be subject to permit requirements are conducted without obtaining the required permits, regardless of the personal or business reasons �-9 for that failure. That is, a monetary penalty would be warranted whether Mr. Irish thought the dredging would improve the saleability of the land for development purposes, or whether he truly but mistakenly thought it would be exempt as an agricultural purpose. It is only the magnitude of the penalty which would be affected by those considerations. In the present case, at the time of authorizing Mr. Gregory to perform the excavation, Respondent may have thought or assumed that his activities did not require a permit, but he knew or had reason to know the violations existed at least as of shortly before the April 16, 1996 site visit. Ms. O'Brien's May 6, 1996, letter to Irish refers to Brousseau having informed her that Irish was in the hospital and that Irish had orally through Brousseau authorized Ms. O'Brien to go on the site to determine if a wetland violation had occurred. §8010(b)(3). It is also important to the "even-handed enforcement" of Vermont's environmental laws (10 V.S.A. § 8001(3)), that anyone conducting activities which require a permit must recognize that it is necessary to apply for and obtain the necessary permits before commencing the activity. Moreover, after being informed of the conditional use determination requirement in April of 1996, Respondent took no steps to apply for such a determination after the fact, to propose remedial action for the discharge to the brook, or to seek a declaratory ruling on whether the agricultural exemption applied to this activity. If any of these actions had been taken, that action or attempt might have been considered as a mitigating factor (§8010(b)(2)) or as evidence of efforts to comply. §8010(b)(4). In the present case there is no delay attributable to the Secretary which was unreasonable under the circumstances of this case. §8010(b)(2). The Secretary has not claimed other instances in which Respondent has failed to comply with environmental laws, and has not issued this order against Mr. Smejkal or Mr. Brousseau. who may have more experience with development projects. §8010(b)(4). The Secretary presented no evidence of the Agency's actual costs of enforcement. §8010(b)(7). Respondent received two types of economic benefit from this violation. §8010(b)(5). The first was the avoided cost of having a wetland consultant go on the site, and characterize or delineate the boundaries of the Class II wetland. This is estimated at $1,500. The Secretary argues that Respondent also would have received the profit of his sale of the property to Mssrs. Smejkal and FA Brousseau for the subdivision, and that it was worth for development more in a drained state than with undisturbed wetlands. While there was testimony that the parcel would have been sold for $200,000, there was no evidence of the relative market value of the property with the wetland intact and in its present state. The Secretary proposes a total penalty of $17,500 to account for what the Secretary argues is Respondent's ingenuous attempt to render the property more suitable for development while claiming to be doing the work under the agricultural exemption. So substantial a penalty above the costs of remediation is appropriate only if Respondent had the work performed to promote the suitability of the land for development, that is, if the land is in fact transferred or developed within five years of the drainage work on the site. Accordingly, taking all these factors into account, the Court will impose two alternative penalties for this violatiop, to account for whether the ditching and drainage activities are in fact linked to future �ale, transfer or development of the property, as follows. Based on the findings, conclusions, and reasoning of this decision, it is hereby ORDERED that Paragraph A of the May 6, 1997 Administrative Order is vacated. On or before December 1, 1997, Respondent shall pay a penalty of $2,500 to the State of Vermont, to be deposited in the general fund pursuant to 10 V.S.A. §8010(e). If on or before May 6, 2001, the property is sold or otherwise transferred for any reason, or is subdivided or developed by Respondent for other than agricultural or open space purposes, then at such time Respondent shall pay an additional penalty of $15,000 to the State of Vermont on account of this violation, to be deposited in the general fund pursuant to 10 V.S.A. §8010(e), making the total penalty for this violation the $17,500 requested by the Secretary. ANR Enforcement case - Specific Rights of Appeal (10 V.S.A. §8012(c)(4) and (5)): WARNING: this decision will become final if no appeal is requested within 10 days of receipt of this decision. Respondent and the Secretary of the Agency of Natural Resources have a right to appeal this decision. The procedures for requesting an appeal are found in the Vermont Rules of Appellate Procedure (V.R.A.P.) subject to the exceptions in Vermont Rules of Civil Procedure (V.R.C.P.) 76(a)(3) and (d)(5). Within 10 days of receipt of this Order, any party seeking w to file an appeal must file the notice of appeal with the Clerk of this Court, together with the applicable filing fee. Questions may be addressed to the Clerk of the Vermont Supreme Court, III State Street, Montpelier, VT 05609-0801, (802) 828-3276. An appeal to the Supreme Court operates as a stay of payment of a penalty, but does not stay any other aspect of an order issued by this Court. 10 V.S.A. §8013(d). A party may petition the Supreme Court for a stay under the provisions of V.R.C.P. 62 and V.R.A.P. 8. City enforcement case: Order and Penalty: The remedial order imposed for the state law violation will suffice for the City's zoning violation. For the same reasons as in the state law violation, the Court will impose two alternative penalties for the City's zoning violation, to account for whether the ditching and drainage activities are linked to the future sale, transfer or development of the property. On or before December 1, 1997, Respondent shall pay a p;nalty of $5 per day of violation, or $2,195 for the 439 days of violation, to the City of South Burlington. If on or before May 6, 2001, the property is sold or otherwise transferred for any reason, or is subdivided or developed by Respondent for other than agricultural or open space purposes, then at such time Respondent shall pay an additional penalty of an additional $45 per day of violation, or an additional $19,755 for the 439 days of violation, to the City of South Burlington on account of this violation, making the total penalty for this violation the $50 per day requested by the City. Done at Barre, Vermont, this 20th day of October, 1997. A, 6& Merideth Wright Environmental Judge 9 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 August 5, 1996 Peter Smejkal P.O. Box 745 Burlington, Vermont 05402-0745 Re: 42 Lot Subdivision, Allen Road Dear Mr. Smejkal: ZONING ADMINISTRATOR 658-7958 Enclosed is a copy of the July 9, 1996 Planning Commission meeting minutes. If you have any questions, please give me a call. l P Tyicere&Ly v JoWeith, t P Ci Plannier Jw/mcp 1 Encl cc: Bill Burgess PLANNER 658-7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 April 17, 1996 Frank Irish 200 Allen Road South Burlington, Vermont 05403 Re: Zoning Violation, Allen Road Dear Mr. Irish: ZONING ADMINISTRATOR 658-7958 Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 V.S.A. S4443(a) (1). Specifically, you have initiated the following activities on the above -described property: 1. Excavated earth materials within the Conservation and Open Space District. 2. Cut and removed trees and other natural vegetation from within the Conservation and Open Space District. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Restore the property to its original condition. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to $50.00 per day for each day your violation continues beyond the seven (7) day period provided in this letter. If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. Frank Irish Zoning Violation, Allen Road April 17, 1996 Page 2 You may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal within fifteen (15) days of the date of this letter with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington. If you have any questions regarding this letter, please call me at the telephone number setforth above.,, SincerAly, Ra 'o J. Belalr,.'� Zoning and Planning Assistant RJB/mcp Certified Letter #Z 185 845 383 cc: Peter Smejkal State of Vermont ROU-1-11,1"4G Department of Fish and Wildlife I GENf-.,F!A_' Department of Forests, Parks and Recreation Department of Environmental Conservation TO State Geologist RELAY SERVICE FOR THE HEARING IMPAIRE 1-800-253-0191 TDD>Voioe 1-BW-253-0195 Voioe>TDD �?i_ PILA Peter Smejkal J.A. Morrissey, Inc. P.O. Box 745 Burlington, VT 05402 DATE AGENCY OF NATURAL RESOURCES Department of Environmental Conservation WATER QUALITY DWISION 103 South Main Street Building 10 North Waterbury, VT 05671-0408 FAX 802-241-3287 TEL 802-241-3770 March 27, 1996 RE: Irish Development Corporation, 48 Lot Subdivision, Allen Road, South Burlington Wetland File #96-070 Dear Mr. Smejkal: Thank you for meeting me on March 19, 1996 at the site of your proposed project on Allen Road in South Burlington, Vermont. As we discussed in the field, there are several wetlands on and adjacent to this property, that are shown on the National Wetlands Inventory'(NWI) maps (see enclosed map). The Vermont Wedand Rules designate all palustrine wetlands identified on NWI maps and contiguous wetland areas as Class Two wetlands. I would recommend that you have a qualified wetland consultant delineate all the wetlands on the 26 acre property. I gave you a list of wetland consultants at the time of our site visit. There appears to be an emergent wetland in the field in the northwest portion of the property in addition to several forested wetlands. The ground was still frozen at the time Qf our site visit so I could not confirm the presence of the emergent wetlands. Any activity in a Class Two wetland or associated 50 foot buffer zone, other than allowed uses specified in Section 6.2 of the Wetland Rules, requires a Conditional Use Determination (C.U.D.) from, the Agency of Natural Resources (Vermoni Wetland Rules, Section 6.3 and 8). Such a determination may only be granted -if it is shown that the proposed activity will not have undue adverse impacts on protected wetland functions [Vermont Wetland Rules, Section 8.5(a)]. I would strongly recommend that the wooded wetlands and their adjacent 50 foot buffer zones be entirely avoided. If the area in the field is a wetland, it is likely that it does not have the same level of functions. Once the delineation has been completed and surveyed onto the site plans, we can discuss this area further. V Chlorine Free 100% Recycled Paper Irish Development Page 2 Please feel free to call me if you have any questions or comments. I would be happy to meet with you at any time to further discuss this project. Sincerely, Catherine L. O'Brien Assistant Wetlands Coordinator enc. cc: Ray Belair, Zoning and Planning Assistant, City of South Burlington Johrf Austin, District Wildlife Biologist cob\irish.let Rd n-i mo: z Z d zmo,- 8 AC- AlGgd, ZtAod/ : % d '(OJd"- oee ce, ZMOC7 10 Z%m ZN z d !A�q A:'a Hmoll i.e S, 47 a 103d PLANNING COMMISSION 9 April 1996 page 3 any mitigation to improve net traffic flow on site. Mr. Isham said they did a traffic count and did only 13 cars in the peak hour. Mr. Crow noted that is still above the allowable peak hour traffic generation. Aft,�!r a brief discussion, the applicant agreed to continue the application to see if they can come up with an acceptable plan. Mr. Austin moved to continue the application until 28 May 1996. Mr. Sheahan seconded. motion 2assed unanimousLy. 7. Sketch plan application of Hospitality Inns, Inc, to amend a planned unit development consisting of a 315 room hotel/ conference center, Sheraton Inn, 870 Williston Road. The amendment consists of 1) constructing a new drop-off canopy, 2) enclosing existing canopy for shops, and 3) site modifications: Mr. Boyle explained that they will relocate the entranceway to the front. Parking circulation will be changed slightly as the entrance drive will be moved back about 40 feet. The old steps to Caroline's will be kept and will be used to tie into a walkway leading to gardens. The project will be in 2 phases. Phase I will be mainly a reorganization of the frontags area. Phase II will consist of construction of shops and the new entranceway. Mr. Sheahan noted the plan shows encroachment into the CO Zone. Mr. Boyle said that has been adjusted. There is now only a 3-1/2 foot encroachment which will also be corrected by adjusting the roadway. Mr. Weith noted that when the expansion was approved in 1988, it was aproved for 300 rooms, a 150 seat restaurant, and 26,800 sq. ft. ballroom. Some things have slightly changed over the years. There are actually 309 rooms now. He asked that this application be used to update the 1988 approval. He also noted that the 1988 plan had a 25-year plan approved which should also be updated. No other issues were raised. 8. Sketch plan application of Irish Development Corp. to subdivide a 26.3 acre parcel into 42 lots, Allen Road: Mr. Smejkalsaid that the proposed project falls into 2 zones, an R1 and R2, and borders a commercial zone. There is a 60-foot right-of-way. The applicant proposes to extend the water line up to Spear St. PLANNING COMMISSION 9 April 1996 page 4 to make it a high pressure 8" line. They will extend the sewer all the way from the Pepsi entrance. If needed, they will design a storm water detention pond. They are asking for 3 curb cuts on Allen Rd. Mr.Smejkal showed the location of these. One existing curb cut might possibly be used for one of the 3. Members felt the number of curb cuts was excessive and wanted a maximum of 2 on Allen Rd. They noted that Allen Rd. is very heavily travelled and will have even more traffic in the future. They felt more than 2 curb cuts was not safe. Mr. Sheahan asked why a private right-of-way is proposed to serve 2 or 3 units. Mr . Smejkalsaid they didn't want to disrupt the privacy of the lots above with another road. Mr. Weith said he had no concern with this. Mr. Sheahan raised the question of the Rec Path. Mr Weith said they want to see it extended to hook up to the Shelburne path. The applicant said they could use the 150 ft. right-of-way under the power lines for the Rec Path. Ms. White of the Natural Resources Committee said there is a sig- nif icant wetland on the property. Mr. Smej�kal said they talked with Cathy O'Brien regarding this wetland and she suggested contacting a wetland expert. He said they would modify the plan to fit the wetland. Ms. Pizzagalli noted there is currently a backhoe working in the wetland. Mr. Smekel said this is relieving an area which drains water from the property. Mr. Marcelino said the Shelburne map shows the wetland across the whole back line of the property and the backhoe is now in that area. Mr. Weith said staff will look into this. Ms. Irish said she has to run a sump pump 365 days a year and the backhoe has made a mess behind her property. She felt 42 lots was too many and added she can't sell her house now because people have heard about the proposed development. Ms. Ravin of the Natural Resources Committee said 2 of the lots touch on the power area and the Committee is concerned with the danger of children spending so much time near that area. Mr. Sheahan asked if there is an proposed recreation area for the development. Mr. Smejkal said there is not. Ms. Barr said there was some burning going on there last week. PLANNING COMMISSION 9 April 1996 pa ge 5 The applicant said they are not responsible for this. It is being done by the neighbor on the Shelburne side. Mr. Smejkal said the plan meets the density limitations. They have also adjusted the zoning boundary. The question of school capacity was then raised. Mr. Sheahan noted the Commission had just gotten a memo from the City Attorney on this issue. It appears that this will be an issue and can be discussed at the next hearing. Mr. Weith said it is the first time the Commission has ever received such a letter. He will sit down with the Supt. of Schools and City Manager to see how this situation came about. Mr. Gentile said that Allen Rd. is a very busy street with blind traffic coming down. He felt the issue of 42 more homes had to be addressed from a traffic point of view. Mr. Sheahan suggested the applicant have a traffic expert present information on this for Preliminary Plat. Neighbors asked how much of the tree line would be cut. Mr. Smejkalshowed this on the plan. He said there would be trees along the proposed drives to reduce the impact of lights and noise. Ms. Pizzagalli asked if the proposed houses will block views. Mr. Sheahan said this is not a view protection zone and there is nothing the Commission can do. He added that the applicant could take this into consideration as a good neighbor. The applicant felt they wouldn't be blocking any views. The lots are big. He said the development won't look like Oak Creek or Butler Farms. There will be nice lighting and it would be a nice neighborhood. Residents asked that the wetland study be done soon. If the applicant is draining off water, it may appear not to be a wetland. Mr. Burgess reviewed the issues raised. These include: curb cuts, traffic, wetlands, Rec Path, and the school issue. 9. Sits plan application of Paul Mergens to construct a 15,000 sq. ft. warehouse building, 1 Green Tree Drive: Mr. Hart identified this as lot #3 of the Green Tree Park development. The lot is 1.8 acres. There will be three spaces in the building, one for the owner, the other 2 for tenants. There are 2 curb cuts proposed, one on Green Tree Dr. and one on Gregory Drive to separate the vehicles from the various uses. The owner's service vehicles will be parked in the'back at night. Memorandum - Planning July 9, 1996 agenda items July 5, 1996 Page 2 The Nowland I subdivision was originally approve by the Planning Commission on August 11, 1981. The approved plat was subsequently recorded in map volume 173, pages 83 and 84 on 2/14/83, which was not within the required 90 day recording period. A subsequent plat for the development which showed several revisions was recorded on 4/10/96 in map volume 200, pages 28 and 29. This amended plat never received approval by the Planning Commission and does not contain the required Planning Commission stamp and signature. Almost all of the deeds for the lots within the subdivision reference the plat recorded in map volume 200, pages 28 and 29. The purpose of the hearing is to officially approve the plat recorded in map volume 200, pages 28 and 29. The major changes made to the volume 173 plan which appear on the volume 200 plan are as follows: 1. The temporary cul-de-sac between lots #5 and 6 was eliminated. 2. The secondary access to Spear Street between lots #27 and 28 was eliminated. 3. Utility easements on lots #1, and 13-15 were changed. 4. Added utility easement for the sewage pumping facilities. 5. Added utility easement on lot #54. 6. Revised the multi -family configuration. 5) IRISH DEVELOPMENT CORPORATION - 42 LOT SUBDIVISION - SKETCH PLAN This project consists of the subdivision of a 26.3 acre parcel into 42 lots. A sketch plan was held on 4/9/96 (minutes enclosed) but it did not count due to the lack of a quorum. This property located on Allen Road lies within the Rl, R2 and CO Districts. It is bounded on the south by undeveloped land, on the east by two (2) single family residences, on the north by Allen Road and on the west by a church, single family residence and a bottling plant. Access: Access to the subdivision in proposed to be via a "looped" street with two (2) access points on Allen Road. This street has a 60 foot r. o. w. and would be built to City standards. A 30 foot private r.o.w. is proposed to serve lots #40-42. F, Memorandum - Planning July 9, 1996 agenda items July 5, 1996 Page 3 Applicant is proposing three (3) shared curb cuts on Allen Road. Staff recommends that the subdivision be designed so that all lots are served by internal roads and that there be no curb cuts on Allen Road. The Town of Shelburne is currently reviewing a proposal for a 15 lot subdivision on the adjacent property to the south. There are wetland areas between the Shelburne proposal and this subdivision which may make connecting roads difficult. The applicant is proposing a 20 foot r.o.w. to the rear of lots #19 and 20. Applicant should explain purpose for this r. o. w. Lot size/frontage: The minimum lot size requirement in the RI District is one (1) acre and in the R2 District is 19,000 square feet. The applicant has indicated that the lot size requirements will be met. The minimum frontage requirement in the RI District is 120 feet and in the R2 District is 100 feet. The applicant has indicated that the frontage requirements will be met. Density: The maximum density permitted is 51 units. This is based on 25.03 acres in the R2 District and 1. 27 acres in the R1 District. Wetlands: The Wetlands map show a wetland in the center of this property. The applicant was requested to show the wetland on the sketch plan but has not done so. All wetlands should be delineated and shown on the preliminary plat with the corresponding C.O. zone. The Natural Resources Committee has reviewed the sketch plan and their comments are enclosed. Since the sketch plan was held on 4/9/96, staff discovered that the owner of this property excavated earth materials, cut and removed trees and other natural vegetation from within the C. 0. Zone. This is a violation of the zoning regulations. Enforcement proceedings are in process. Recreation Path: The Recreation Path Committee has reviewed these plans and their comments are enclosed. The Comprehensive Plan and Official Map show a proposed recreation path along the south side of Allen Road and a proposed pedestrian trail along the Shelburne Town line. Bartlett Brook Watershed Protection Overlay District: This project is subject to BBW Protection Overlay District. The applicant should submit applicable information regarding the development and storm management design to Nelson Heindel & Noyes prior to preliminary plat. Zoning boundaries: The location of the zoning boundary between the RI and R2 Districts is incorrect. It is located approximately 300 feet to the east from that shown on the plan. The westerly property line is the boundary between the R4 3 Memorandum - Planning July 9, 1996 agenda items July 5, 1996 Page 4 District to the east and the C1 District to the west. This zoning boundary information should be shown on the preliminary plat. Impact fees: The applicant should be aware that each dwelling unit will be charged an impact fee for sewer, schools, roads and recreation. Sewer: The applicant should submit the request for sewer allocation at preliminary plat. School impact: Staff received a letter from School Superintendent Bruce Chattman (see enclosed) which indicates that there is not sufficient capacity at the Orchard School for the children from this project. See enclosed letter from the City Attorney on this matter. 6) TECHNOLOGY PARK ASSOCIATES - 11 LOT SUBDIVISION - FINAL PLAT This project consists of the resubdivision of two (2) lots consisting of approximately 160 acres of land into 12 lots (i.e., ten (10) developable lots) ranging in size from 6.59 acres to 3. 11 acres, former Digital property. The preliminary plat was approved on 11 / 14 / 95 (minutes enclosed) . Access: Access to the proposed subdivision will be via the existing access road. A new cul-de-sac street will be constructed serving lots #9, 10 and 11. Existing lots #2 and 3 will be served by a shared access on Kimball Avenue and existing lots #1 and #4 by the existing access road. A 60 foot r. o. w. connection is being reserved to the Tilley parcel to the west and to the Willis parcel to the east. Preliminary plat approval allowed the applicant to phase the construction of improvements to the "loop" road prior to occupancy of two (2) of the currently undeveloped internal lots (i.e., lots #6,7,9,10,11,12,13,14), orwithinfive (5) years from the date the existing building, or a portion thereof, on lot #8a (i.e., former Digital building) is first occupied, whichever first occurs. The proposed cul-de-sac street will be constructed to City standard at the time of construction. Lot size/frontage: The minimum lot size of 40,000 square feet is being met by all lots. The minimum frontage requirement of 120 feet on a local street and 200 feet on an arterial or collector is being met. Coverage/ setbacks (lot #8a): Building coverage is 20.6% (maximum allowed is 30%). Overall coverage is 53.7% (maximum allowed is 70%). Front yard coverage is 6.7% (maximum allowed is 30%). 4 July 10, 1996 Mr. Joe Weith, City Planner City Hall Dorset Street So. Burlington, VT. 05403 Dear Mr. Weith. Enclosed are the tranparancies that I used at the meeting last night. You may want them for your records. I also took photographs. They are in my safe. Ron Brosseau has made claims to me, my husband and the neighbors that he is acting on behalf of Frank Irish. He told us he was "his agent so to speak" Why isn't the city charging him as well as Frank Irish. I'd be happy to talk to the City Attorney about this. Moose Gregory told me himself that he did not have a signed proposal with Frank Irish. He alluded to fact that he was clearing land to do a development. I'm sure by now you are tired of hearing about the Irish Development Corp, which as far as I know is not even incorporated. Thank you to you and your staff for your patience with me. Very truly yours, Pat Irish 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 ADMTED IN N Y) Ray Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 E-MAEL(FR�2555@AOL.COM) June 2, 1997 Re: Deposition of Ronald Brosseau and Frank Irish Dear Ray: OF COUNSEL ARTHUR W. CERNOSIA Enclosed herewith are the depositions of Ronald Brosseau and Frank Irish. ve��r�/t uly yours,, seph S. McLean JSM/dah SON3303.COR Enclosures City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 November 15, 1996 Joseph S. McLean Stitzel & Page, P.C. P.O. Box 1507 Burlington, Vermont 05402-1507 ZONING ADMINISTRATOR 658-7958 Re: Appeal of Homer & Marie Dubois & Frank Irish Violation Dear Joe: Enclosed are copies of documents from the Homer & Marie Dubois file which you requested. Also, please find documents from the Frpnk Irish file. It appears that the excavation took place betwfeen March 19, 1996 and April 9, 1996. If you need more information, please let me know. sincerely, Raym J,. Belair, In Zon'.Xygdand Planning Assistant L" RJB/mcp Encls PLANNING COMMISSION 9 JULY 1996 PAGE 5 the applicant bulldozed so the stream couldn't be seen. The "big ditch" the applicant put in is 2-3 ft. higher than the brook, she said. She then overlayed the plat plan to show the result: the drainage allows for more houses. Mr. Brosseau said the power company cleared the land. He said the supposed wetland is over 4 ft. higher than the rest of the land and is bone dry. He said Bill Irish owns the land and he did what was done. Mr. Enzio, a neighbor, said he wants any development to comply with the rules. James Irish said whoever did the work made a mess. He said it was a wetland and would still be wet if the applicant hadn't done what he did. Members of the Commission felt they could not discuss the wetland issue until they got something definitive from a wetlands expert. Ms. Pizzagalli raised the issue of traffic. She noted that Pillsbury Manor has started 64 new units which have to be factored into the traffic situation. Ms. Barone asked if a traffic light would be warranted at Spear/Allen. Mr. Teeson said he didn't think so. Ms. Irish said she has had to call traffic control because traf f ic backs up to her house, .4 miles. Ms. Snyder asked that Natural Resources be allowed to walk the land with the wetlands experts. Mr. Teeson reviewed outstanding issues: wetland, traffic, school report. Mr. Burgess rejoined the Commission. 6. Public Hearing: Final Plat Application of Technology Park Associates for re -subdivision of 2 lots consisting of approximately 160 acres of land into 12 lots (i.e., 10 develop- able lots) ranging in size from 6.59 acres to 31.11 acres, former Digital Property, Kimball Ave: Mr. Dillock noted the property was approved in 1977 for Digital at 260,000 sq. ft. and 1000 parking spaces, mostly on the east side. There were also 2 detention basins, softball fields and a running trail. One softball field is currently being used. In 1994, 4 lots were subdivided plus a Green Mountain Power lot. The current plan would be served by a new spur road, and the loop road would be deeded to the city and upgraded to city standards PLANNING COMMISSION 9 JULY 1996 PAGE 4 Mr. Burgess noted there is no legal subdivision now. Mr. Jacob moved to continue the APRlication until 23 July 1996. Mr. Teeson seconded. Motion passed unanimously. 5. Sketch plan application of Irish Development Corporation to subdivide a 26.3 acre parcel into 42 lots, Allen Rd: Mr. Burgess and Mr. Crow stepped down due to a conflict of interest. Mr. Teeson chaired this portion of the meeting. Mr. Smej kel said they have responded to requests from the last sketch hearing. They removed 3 curb cuts on Allen Rd. The land is in the R-1 and R-2 zones. They can have up to 51 lots, but have 42 in this project. They meet all frontage and size requirements. Water will come from Spear St. and sewer will go to the Pepsi entrance. Mr. Jacob said they cannot connect the 2 water systems because of the size of the lines. He suggested the applicant contact the Water Dept. Mr. Smejkel said they talked with the Supt. of Schools who says there is enough room in the system, though not in Orchard School. Mr. Teeson said the applicant still ' hasn't delineated the wetland as the commission requested. Mr.Smeike.1 said the map shows its in the center of the property but it is not wet there. The field is being plowed by the farmer. Mr. Weith said there must be a wetland delineation prior to preliminary plat. Shelley Snyder of Natural Resources Committee said that till recently the area was wooded, but a significant portion of that has been destroyed and is bare. Natural Resources has concerns with the wetland being drained. This acts as a natural storm water retention area and also as a protection to the Lake. Ms. Provost said it was very apparent the applicant went in and drained a wetland. Kathy O'Brien can attest that there has been unauthorized tampering. Mr. Teeson said there is a significant wetland on the back of the property that has been damaged. Both the city and state have issued notices of violation to get it corrected. Pat Irish, the adjoining property owner, showed transparencies of the area including wetlands, stream, brook, woods, etc., where I OFCgUEWWTSS CHIPMEN I RONALD BROSSEAU, having been duty sworn by the Notary 2 2 Public to tell the whole truth and nothing but 3 3 the truth, deposes and says as follows: 4 C-1-T-Y--&F-i6RH-iiLINGTON ----- x 4 EXAMINATION BY JOSEPH S. MCLEAN, ESQUIRE: 5 VS 5 Q. Good afternoon, Mr. Brosseau. 6 FRANK IRISH 6 A. Good afternoon. 7 7 Q. My name is Joe McLean, as I am sure you are aware. a a I represent the City of South Burlington in a Lawsuit 9 D E P 0 S I T 1 0 N 9 that the City has comenced against Frank Irish. You 10 -Of- 10 are here today in response to a subpoena that I had 11 RONALD BROSSEAU 11 served on you; is that correct? 12 13 To F r ihy, R OLA 6,1997, 'Teo?a ter w 0 12 13 A. Yes. Q. Could you tell me, sir, your date of birth, for 14 ., rF It , ngton, Ve=?!,r7at IN p.m. ... ---------------------------- 14 the record? 15 15 A. 6/23/38. 16 APPEARANCES: 16 0. And where do you reside? 17 18 JOSEPI F. MCL%V, ESQUIRE of the L8w 1i StitzeL rm ox .157 fttntneoW 17 is A. South Burlington, Vermont. 0. How Long have you Lived there, in South 19 05402-1507, an beh f'of the r it nr4t 19 Burlington? 20 21 "IC1$fg(tC1 r E ESQUIRE of She �ew firm of G 0 ermont H-g x 1e V"' ngt*&4,2, Me 20 21 A. 34 years. 0. And what specifically is your address? 22 ,'Jr.(1ngt,, =6 t a e t Lf o 22 A. 191 Alton Road, South Burlington. 23 24 MT!S�JJOCIA 117 RANKCRYRRIEF VE&T 05401 2 23 24 0. How tong have you Lived at that address? A. 34 years. 25 25 Q. Okay. Were you born in that? 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 2 EXHIBITS I A. No. #D1 - p. 4 survey 2 Q. I'm showing you what I marked as Exhibit D1 for #02 - p. 11 c�at:3r frm ifthy9g'Brien to Mr. SmejkaL 3 the purposes of this deposition. I am just wondering t gar 4 if you could first identify this plan for me and then ND3 - p. 20 Vtion obtained from the City dated 2R/1 5 Locate your residence with your initials. First of #04 - p. 20 dpcument With a heading "Irish Ettatet" 6 all, have you ever seen this document before? that consists of a W a a to p 0 a Proposed dev t t i f of tre 7 A. Yes. vrvey S t9 ZrMfitoncozgi ma and ist Of ting property zorys 19 a Q. Can you tell me what it is? rank 1r:15t 9 A. It is a part of a survey or a plot plan for the #05 - p. 24 photograph 10 land that is adjacent to mine. #D6 - p. 24 photograph 11 Q. Can you locate your residence on this with your #D7 - p. 27 - photograph 12 initiats, pLease? #D8 - p. 27 - photograph 13 A. Okay. #D9 - p. 27 - photograph 14 0. Thank you very mich. Mr. Brosseau, how are you STIPULATION 15 empLoyed? It is hereby ItipuLated and *greed W and 16 A. I am self-employed. se t as Pat 17 Q. How are you seLf-ampLoyed? LL for ection w1th the taking q th LL ? maLities it) h Is A. I own Commercial Industrial Electric, Inc., and RP ition are qxc t t a i:1 t Gatc walvf Ition o t ent to , 6 ': a Jec ectRan t( questions, wi feg Mew1oasthe time of trial. Ot te%r et 1 V 1w oF it Al the 19 Brosseau and Company. 20 Q. And what are those businesses? 21 A. Electrical contractors, engineering, that type of 22 work. 23 Q. And how Long have you dorm that? 24 A. ALL my life. WeLt, my adult Life. 25 Q. Do you have other employees besides yourself? 4 5 7 1 A. Yes. 1 0. Okay. If you would, could you describe for me 2 Q. What is your position within the companies? 2 what the natural features of that..Lands-cape are or 3 A. I am president of both companies. 3 what the -- actually, let me ask, what were the 4 (A recess was taken.) 4 natural features of that Landscape prior to 1996? 5 Q. When we stopped, I was about to ask you what your 5 MR. CLAPP: Do you understand the 6 responsibilities were within your companies. 6 question? 7 A. I am president of the companies. 7 0. Do you understand the question? 8 Q. And what do you do as president? a A. The natural Landscape? 9 A. I handle the normal routine: money, bid jobs, 9 Q. I asked -- what I am asking you to do is simply 10 meet with people, or arrange work. 10 describe the property for me. 61hat's out there, as 11 Q. You know Frank Irish? 11 far as you know? 12 A. Frank Irish lives across the road from me, yes. 12 A. Much Like it is right now. There's meadows, 13 Q. Are you related to him? 13 fields, kind of sLashy woods. I remember when it was 14 A. My wife is Frank's sister. 14 almost atL open tand, too. is Q. Okay. So you are Frank's brother-in-law? is 0. Are there stream an the property? 16 A. Yes. 16 A. Not a formal stream. 17 Q. And your spouse's raw is who? 17 0. Is there a water course on the property? 18 A. Francine. is A. Well, I don't know what you mean by water course. 19 0. How tong have you been married? 19 a. is there a ditch or ravine or some type of contkift 20 MR. CLAPP: Now you are in trouble. 20 through which water flows an a regular basis? 21 A. Almost 37 years. 21 A. On the extreme west side in back of Doug and Pat 22 0. Okay. And during that time have you lived across 22 Irish's Land, there is a culvert that crosses the road 23 the -- continued to live across the street from Frank 23 is there. And there is a kind of a ditch right there. 24 continuously? 24 0. Mm-hmm. Have you seen water flowing through that 25 A. Since 1963. 25 area? 6 1 0. Now would you characterize your relationship with 1 A. Well, in W whole course of -- since I have been 2 Frank? 2 there, probably, yes. 3 (A recess was taken.) 3 Q. Now, the strew behind Doug and Pat Irish's 4 Q. I believe I just asked you, how would you 4 property that you just referred to and which flows 5 characterize your relationship with Frank? 5 under Allen Road by means of a culvert, also crosses 6 A. We got along well. 6 Mr. Irish's property, Frank's property, at some point, 7 Q. Friendly? 7 isn't that correct? a A. Yes. 8 A. First of all, I didn't call it a stream. 9 0. Okay. Do you have a no= or nickname that you use 9 sometimes there's water there but sometimes there 10 to refer to Frank, other than Frank? 10 isn't. There must be some kind of drainage, yes. 11 A. Yeah. Everybody colts him Bill. 11 0. Okay. There is saw type of drainage there, 12 0. Okay. Are you fmitiar with Mr. Irish's property 12 whether it meets the definition of a stream as that 13 an the south side of Alton Road? 13 term is defined either by the City or by the State? 14 A. Yes. 14 it is not something that you are qualified to attest Is a. You've walked that property before? 15 to; is that correct? 16 A. Yes. 16 A. Yes. 17 0. How many times? 17 0. Okay. Now, did you make an application to the 18 A. Oh, geez. is City for approval to subdivide that property in 1996? 19 Q. Many, many times throughout your life? 19 A. Did I make -- 20 A. Yes. 20 Q. Did you make a -- did you apply to the City in 21 0. Do you know how many acres he's got out there? 21 1996 for approvat to subdivide that property? 22 A. it says 25 or 26. 1 didn't know the exact amount. 22 A. No, I did not. 23 0. From your residence, do you have a clear view of 23 a. Do you know who did? 24 that property? 24 A. Yes. 25 A. Yes. 25 0. Who would that be? a 9 11 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 A. Peter Smejkat. Q. Who is Peter Smejkat? A. He is my partner if we did whatever we could do. 0. How do you know him? A. From working. 0. Did you have discussions with him about subdividing that property? A. Yes. Q. Arid what were those discussions? A. That it could be subdivided. 0. Do you have any format business relationship with Mr. Smejkat? A. He -- what do you call format? MR. CLAPP: Yeah. A. Yeah. MR. CLAPP: Is there a written -- 0. -- a written agreement between the two of you? A. No. 0. 1 thought you indicated that he was your partner. I didn't know if there was a format partnership agreement or anything of that nature. A. There was not a format partnership agreement. 0. Whose idea was the subdivision of the property? A. Well, I don't know what you mom. Q. As between you and Mr. Smelkat, who came up with 10 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 Is 19 20 21 22 23 24 25 property? A. No. Q. When was the development of the property intended to begin? A. if whatever permits went through, it would have began as soon as possible. Q. And was the -- was it your understanding that the property was to be subdivided for the purpose of constructing dwelling units on the lots that were created? A. Yes. 0. Can you give -- can you tell me who Cathy O'Brien is? A. Cathy O'Brien that I krxm, yes. Q. Yes. Who is she? A. She works for the State of Vermont wetlands. Q. Okay. Are you familiar with discussions or correspondence that she way have had with Mr. SmejkaL in March of 19967 A. Maybe some of them but not all. I can't say that, no. 0. What do you recall? Let me do this. I am showing you what I am going to mark as Deposition Exhibit Wvinr 2. This is a letter from Me. O'Brien to Mr. SmejkaL dated March 27, 196. Can you tell me if 12 1 the idea that a subdivision of his property might be I you've ever seen this document before? 2 worth pursuing? 2 A. I am not sure. I may have. 3 A. My idea. 3 0. Can you recall discussions with Mr. SmejkaL about 4 a. And when did you first formulate that idea? 4 that document or about conversations that he had with 5 A. I can't remwdber. 5 Ms. O'Brien? 6 a. Besides Mr. SmejkaL, who did you discuss this idea 6 A. I don't recaLt them, but I think yes there were. 7 with, if you know? 7 a. And would those discussions have occurred sometime 8 A. I don,t know. a around March of 1996? 9 Q. Okay. You don't recall? 9 A. Probably April. I am not sure. 10 A. No. 10 Q. Okay. 11 Q. Can you describe for me generally, to the best of 11 MR. CLAPP: Can I just took at 2, if you 12 your ability, what was planned for that property? 12 don't mind? 13 A. To put in a certain amount of streets, to have a 13 MR. MCLEAN: Oh, sorry. 14 certain amount of houses. 14 0. Can you tell me what the Irish Development 15 0. And, again, can you give me a general idea of when is Corporation is? 16 you began to discuss with Mr. Smejkat subdivision of 16 A. I don't know what you mean. 17 the property? 17 Q. Does it exist as a legal entity? 18 A. I can't remember. Is A. No. 19 Q. Would it have been sometime in 19957 19 0. Has it ever been registered with the State as a 20 A. I realty can't remember. 20 format corporation? 21 Q. You can't recall if it was 1995 or 1996? 21 A. No. 22 A. I think it would be 1996 because the paperwork 22 Q. Okay. Does the Irish Development Property -- 23 says that. 23 Corporation have any legal interest in the property of 24 0. Okay. Do you recall when you first contacted Mr. 24 Mr. Irish that we are discussing here? 25 SmejkaL to discuss the potential subdivision of the 25 A. I don't know what you mean by legal. 13 15 I Q. By legal interest, I am -- I mean are there any 1 A. I don't know. I didn't fILL that paper out. 2 formal agreements, written or otherwise, between Mr. 2 Q. Okay. To the best of your --.' is it yaw 3 Irish and the Irish Development Corporation that you 3 understanding that you have never been associated with 4 are mare of that would give the Irish Development 4 a group that calls itself the Irish Development 5 Corporation a property interest in that Land? 5 Corporation? 6 MR. CLAPP: Can I have the question 6 A. if this development goes through, then it probably 7 read back? 7 would have been called Irish Development Corporation. 8 (The question was read back.) a a. Okay. 9 MR. CLAPP: I object to the form, but 9 A. it was -- but it might not have. I don't know. 10 the witness can go ahead. 10 0. So there was a group consisting of at least of Mr. 11 MR. MCLEAN: I'LL begin with a Little 11 SmejkaL and yourself who were the contact persons for 12 foundation here. 12 the Irish Development Corporation or -- and that ran 13 Q. Who were the P 'Prs of Irish Development 13 was inteide only to be a way to identify the persons 14 Corporation? 14 involved in this application; is that correct? 15 MR. CLAPP: It doesn't exist. It is is A. I don't know. 16 sort of hard for him to -- 16 Q. Okay. Did Mr. SmejkaL ever discuss with you the 17 MR. MCLEAN: Can I steal the Exhibits 17 recommendation contained in Deposition Exhibit 2, that 18 back? 18 it was necessary to hire a wetlands consultant to 19 Q. I am showing you Deposition Exhibit 3. Can you 19 delineate wetlands on the Irish property prior to 20 tell me what this document is? 20 commencing development? 21 A. It says -- it is a City of South Burlington 21 MR. CLAPP: Objection. 22 subdivision application for a sketch plan. 22 0. You can answer. 23 0. Am I correct that your new appears as a contact 23 A. As for as delineating wetlands or anything? No. 24 person on that application? 24 He said that the girl said it was probable wetlands. 25 A. Yes. 25 0. Are you aware of anyone having ever hired a 14 16 1 Q. Okay. You were listed as a contact person for the I wetlands consultant to delineate wetlands or identify 2 applicant. Am I correct that the applicant is Listed 2 wetlands on the property? 3 as Irish DeveLopmant Corporation? 3 A. Yes. 4 A. Yes. 4 a. And who hired a wetlands consultant? 5 Q. At the time that this application was filed, what 5 A. Peter Smejkat called a fellow. 6 did you believe the Irish Development Corporation to 6 Q. And who was hired? 7 be? 7 A. William Countryman, I believe his name is. 8 A. I don't know what you mean. a 0. When was that? 9 Q. Was there a group of or association of individuals 9 A. Within the Last year. 10 who collectively used the new Irish Development 10 Q. 1996 sometime? 11 Corporation? 11 A. I am not sure. Yes, it would have been 1996. 12 A. Again, I don't know what you mean group. 12 Q. Are you aware of any reports that were produced as 13 Q. Am I correct that this application lists as owner 13 a result of that review by the wetlands consultant? 14 of record for the property to be subdivided Frank 14 A. Yes. 15 Irish? You are welcome to Look at it. 15 0. Do you have a copy of that? 16 A. Yes. 16 A. Yes. 17 Q. And It also Lists as the applicant an behalf of 17 MR. 14CLEAN: Can I get a copy of that? 18 the property owner Irish Development Corporation? is MR. CLAPP: Yes, probably so. Do you 19 A. Yes. 19 want a copy right now? 20 Q. Arid it lists Peter Smejkat and yourself as the 20 MR. 14CLEAN: No. 21 contact person? 21 MR. CLAPP: Okay. We have a report from 22 A. Yes. 22 Mr. Countryman. 23 Q. ALL I am simply asking you is to tell me what the 23 Q. Are you familiar with Mr. Countryman's concLusions 24 Irish Development Corporation was into to be or 24 or findings as contained in that report? 25 who were the members of Irish Development Corporation. 25 A. Yes. 17 19 1 0. And what is your understanding about those? 1 these documents, if you know? 2 A. That it was -- he states in his letter that there 2 MR. CLAPP: Do you moan who assembled 3 was probable class two wettands, but he didn't know if 3 them? 4 the locations as such were appropriate to the charts. 4 Q. Someone prepared the document on page one with the 5 He said it was not usable or needed wetlands as it 5 heading Irish Estates. Do you know who typed that 6 served no purpose as a wetLand to be there because of 6 information out? 7 probably drainage water. He felt that it should be 7 A. No. a mitigated because it was not a usable wettand &-id it a 0. Who assembled the remainder of the docunents? 9 is only parts of it, very, very minor part. 9 A. I believe Peter Smelkat. 10 a. Okay. Who prepared the aWLicatfon for the Irish 10 0. You were not the person who assembled those 11 estates development? 11 documents? 12 A. Peter -- well, Peter Smejk&L. 12 A. No. 13 0. Did you have any rote in the preparation of those 13 Q. Okay. Did you have conversations with Mr. SmelkaL 14 materials? 14 about these documents? 15 A. Not the materials, no. 15 A. Maybe after the fact. I am not sure. 16 a. What did you do in preparing for -- preparing for 16 Q. Okay. Page one of the documents that I have shown 17 the subdivision process? 17 you has a notation that says wettand Limitation 18 A. Peter actually handled almost all of it. He just is modifications pending -- wettand Limited niodiffcatiom 19 talked to me from time to time. 19 pending. What knowledge, if any, do you have of that 20 Q. How was it that you became Involved in, you know, 20 notation, what it means? 21 this subdivision of this property? 21 A. Nothing. 22 A. I was asked by my wife through my brother-in-law, 22 0. Okay. What was your understanding at the time 23 Bill, that owns the Land, as he needed money " 23 this application was made of the presence of wettands 24 wanted to do something to see if something could be 24 on the property? 25 done with the land. 25 A. What's this -- what's the date of this? 18 20 I Q. So BILL asked your wife to ask you if you would I Q. Exhibit D3, which is the application that's 2 help him with the subdivision process? 2 obtairwid from the City, is dated 2/26/96. And the 3 MR. CLAPP: Objection. 3 Irish Estates packet of materials, which is Deposition 4 A. No. 4 Exhibit 4, which was also submitted to the City is 5 Q. What's your understanding regarding BiLL's 5 dated 3/28/96. We are talking about an application 6 conversations with your wife? 6 sheet dated February 26, 196, and then the materials 7 A. He asked W wife to ask me because he felt I knew 7 requested in that application sheet were submitted a contractors that might purchase and/or probably a approximately March 28, 196. 1 can repeat the 9 develop the lard. 9 question. And that was, what was your understanding 10 0. When was that, approximately? 10 regarding the presence of wettand on the property at 11 A. I can't even remember. 11 the time the application material was submitted? 12 Q. Was it prior to the time that you submitted the 12 A. If that girt, Cathy -- if the wetlands person or 13 application to the City? 13 the girt, Cathy O'Brien, had talked to Peter in 14 A. I didn't submit it, but it was prior to that, yes. 14 between that, then he told me that there might have 15 0. Do you recall whether It was in 1995? 15 been arid/or might be a wetLand in there. If that 16 A. No. 16 wasn't within that time, I don't know about it become 17 0. Okay. I guess we're up to Number 4 now. I am 17 1 only saw it after it was put together. Is showing you a packet of documents that I've Parked as is 0. Okay. Fair enough. There is a survey an page 19 Exhibit D4. Arid this is a facing page with a heading 19 three of Exhibit D4 which shows the locations of 20 Irish Estates, a map, a site plan of a proposed 20 properties on Allen Road and also delineates -- it 21 development, the -- a copy of the survey that we 21 says a notation "delineating a wooded area and a brush 22 looked at before, or similar to the one that we Looked 22 area." Do you know who made that notation? 23 at before identifying tots, and what looks like a 23 A. No. 24 South Burlington zoning map, and finally a list of 24 0. Okay. 25 abutting property owners to Frank Irish. Who prepared 25 MR. CLAPP: Where is it? Where does it 21 23 1 say wooded area and brush area? I A. Moose Gregory. 2 MR. 14CLEAN: Right here. 2 0. Is that Crawford Gregory? 3 MR. CLAPP: Okay. Gotchs. 3 A. Yes. 4 0. Would that have been Mr. SmejkaL, since he 4 Q. I understand you wouldn't call him Crawford to his 5 prepared these documents? 5 face. Do you know for whom he did that work? 6 A. I don,' t know. 6 A. For my brother-in-law. 7 Q. Are you familiar with the bylaws in the City of 7 0. Who hired him, if you know? a South Burlington? a A. I believe my brother-in-law. 9 A. No. 9 Q. Who contacted him? 10 Q. Are you aware that there are bylaws that regulate 10 A. I am not sure if I called Moose or not. I can't 11 Land use in the City? 11 remember. 12 A. I would assume, but I don't know of then, no. 12 Q. What's your relationship with Moose? Have you 13 Q. Are you aware of Mr. SmejkaL consulting with any 13 known him for some time? 14 City officials prior to preparing and submitting the 14 A. Yes. 15 documents contained in Deposition Exhibit D3 and DO is Q. How Long? 16 A. No. 16 A. I can't remember. He was a contractor. 17 Q. Okay. You indicated earlier that you had a clear 17 0. Has he ever -- to the best of your knowledge, has is view from your property of the Land in question. Did 18 he ever done work for Frank Irish before? 19 you observe any clearing or draining on that Land? 19 A. I don't know. 20 MR. CLAPP: From his house? 20 Q. Has he ever done work for you before? 21 0. From your house or from any other Location. 21 A. Yes. 22 A. I don't know what you mean by observe. 22 Q. You noted that you observed ditching on the 23 Q. Did you see any work on the Land that could be 23 property. When did you make that observation? 24 fairly characterized as clearing or draining of the 24 MR. CLAPP: I object but go ahead if 25 property? 25 YOU __ 22 24 I A. Not what I would call clearing. And draining, I I A. I can't remember the date. There came a time when 2 don't know what you mew by draining. 2 there was a ditch put down there. 3 0. What did you observe, in your own words? TeLL me 3 Q. Where was that ditch Located? 4 what you observed. 4 A. Across the southern part of the property and then 5 A. There came a time when there was people working 5 down the westerly part. 6 down there with backhoe and bulldozers. It was more 6 0. Did that ditch join the existing what I am going 7 Like reclaiming what was there. They did dig a ditch, 7 to call a water course that flows behind Doug ard Pat 8 yeah, I did see that, but it was more brush. It 8 Irish's home, which we discussed earlier? 9 wasn't trees. It was brush. 9 A. It ends up tying in there, yes. 10 0. Can you give me an approximate date of when you 10 Q. Let's do this. I am showing you what I believe is 11 made those observations? 11 now Exhibit 5 and also what I am going to Label 12 A. No. 12 Exhibit 6. Are these photographs of the ditch that 13 0. What was your understanding about the activities 13 you are referring to? 14 that were going an down there? 14 A. They could be. 15 A. My brother-in-law wanted to reclaim mWor get 15 0. Have you been to the property? 16 usage of the lard again. 16 A. Yes. 17 Q. For what purpose? 17 0. Recently? 18 A. Farm, clearance, bring it back Like it used to be, is A. Yes. 19 whatever. 19 Q. Have you observed a ditch similar to that? 20 0. Did you have any concerns about what was going on 20 A. I don't know when these were taken so -- you know, 21 down there? 21 1 went down there this winter. 22 A. No. 22 0. Fair enough. Is there a ditch that is similar to 23 Q. Do you know who did the work down there? 23 that on the property? 24 A. I know one of the people over there. 24 A. Yes. 25 Q. Who? 25 Q. Okay. Who did that ditching, to the best of your 25 27 I knowledge? 1 0. 1 am going to show you what we are going to mark 2 A. I don't know. Mr. Gregory's crew. 2 as Exhibits 7, 8 and 9. 1 beLieve�you_testified 3 0. Arid how many persons did Mr. Gregory have working 3 earlier that you've witnessed water flowing an 4 for him down there, if you know? 4 occasion behind Pat and Doug Irishfs home; is that 5 A. I don't know. 5 correct? 6 0. Approximately. 6 A. Yes. 7 A. I don't know. 7 0. Have you ever been down there when water was not a Q. By crew, do you mean to imply that there were at 8 flowing? 9 least two persons working on -site? 9 A. Yes. 10 A. I saw at least two, maybe three. 10 Q. And the water flows over that property and then 11 0. Okay. Are you aware of any written agreements 11 under Allen Road; is that correct? 12 between Mr. Irish and Mr. Gregory with respect to that 12 A. I don't know what you mean by over the property. 13 work? 13 In that Little ditch. 14 A. No. 14 0. Okay. I am going to show you these photographs. 15 0. Are there any written agreements between yourself 15 Can you tell me if this is the area that you've 16 and Mr. Gregory that have wV relationship to that 16 observed? 17 work? 17 A. I don't know where this is, no. 18 A. No. is Q. That's not the area you observed? 19 0. Any oral conversations between yourself and Mr. 19 A. No. 20 Gregory regarding that work? 20 MR. MCLEAN: Okay. I just want to 21 A. No. 21 clarify one point for the record. When you and 1 22 Q. When Mr. Gregory was on-sfte doing the work, did 22 spoke earlier, Mike, you indicated to me that you were 23 you consult with him? 23 going to be representing Mr. Brosseau for the purposes 24 A. Consult, no. 24 of this deposition. is it -- and, in fact, you have 25 Q. Did you speak with him? 25 done that. 26 28 I A. Yes. 1 0. Is it your understanding that Mr. Clapp is your 2 0. What were those conversation? What was the 2 Legal counsel? 3 context of those conversations? 3 MR. CLAPP: In the first place, I am not 4 A. I wasn't there when all of this was going on. 1 4 aware of any reason for Mr. Brosseau to need Legal 5 mean I was there, but I didn't go down there daily. 5 counsel. 6 1 know Moose Gregory as such. And I said h! to him 6 MR. MCLEAN: I just want to clarify. No 7 and go in, and he would be working or whatever. 7 attorneys, other than Mr. Clapp, have ever responded a 0. Now many days did this activity continue, to the a to the subpoena or any other information, notice of 9 best of your knowledge? 9 deposition, that was served upon you7 10 A. I don' t know. 10 MR. CLAPP: I can't -- I have entered an 11 0. More than one? 11 appe rance for Mr. Irish, the Defendant, of the suits 12 A. Yes. 12 brought by the City. I have -- I am not aware of any 13 0. More than a week? 13 response that your sU*oam required. I have a copy 14 A. I do not know. 14 of it. is 0. How Large an area was cleared? 15 MR. 14CLEAR: I am simply trying to 16 MR. CLAPP: Objection. 16 clarify that, for whatever purposes, Mr. Brosseau is 17 A. I don't know your terminology of clear. 17 being represented by you and that I am not is Q. Sure. Approximately how large an area over -- is overstepping any bot by addressing him directly 19 over approximately how Large an area was Mr. Gregory 19 without going through wW other Legal counsel other 20 working? 20 than yourself. 21 A. The ditch just goes down the back side and over. 21 MR. CLAPP: That's fine. 22 There was saw brush down there. 22 MR. MCLEAN: Okay. That's aLL I wanted 23 Q. Okay. Earlier we discussed water that ran behind 23 to be sure of. 24 Pat and Doug Irish's home. 24 Q. You indicated to me earlier that Frank Irish was 25 MR. CLAPP: Sometimes. 25 trying to reclaim the Lard. What did you mean by 45 47 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 A. Yes, if we could get all permits through, whatever, with the Town, and it seemed Like they should have went like nothing, then we would develop it. Q. Have you abandoned the idea of developing the property at this point? A. No. Q. You are still actively pursuing that? A. Well, Yes, actively, I guess you would say so. Q. With Mr. Smejkal? A. Yes. 0. Okay. You plan to reapply to the City at saw point? A. I don't know if reapply is the word. 0. Did you obtain sketch plan approval from the City? A. I believe so. 0. Did you ever receive a written decision from the City indicating that you could apply for preliminary plat approval? A. I believe so. I don't know. I don't know the technicality part. Q. Okay. And you are in the process of procuring whatever permits you may need from the State? A. Yes. MR. MCLEAN: Okay. That's it. MR. CLAPP: ALL right. (The deposition concluded at 2:12 p.m.) 46 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 a 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, given on Friday, April 25, 1997, and the answers made by me are true. Date: RONALD BROSSEAU STATE OF VERMONT COUNTY OF At . in said County, this - day of , 1997, personally appeared before me the above -named, RONALD BROSSEAU, and made oath that the foregoing answers subscribed by him are true. Notary Public :11 C E R T I F I C A T E 1, Arn M. Whiting, Court Reporter and Notary Public, do hereby certify that the foregoing pages numbered 3 through 46, inclusive, are a true and accurate transcription of my stenographic notes of the deposition of RONALD BROSSEAU, taken before me on Friday, April 25, 1997, at 1:00 p.m., for use in the matter of CITY OF SOUTH BURLINGTON VS FRANK IRISH. Am M. Whiting, RPR State of Vermont Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation State GeoNi3t RELAY SERVICE FOR THE HEARING IMPAIRED 1-800-253-0191 TDD>Voice 1-800-253-0195 Voice>TDD AGENCY OF NATURAL RESOURCES Department of Environmental Conservation WATER QUALITY DIVISION 103 South Main Street Building 10 North Waterbury, VT 05671-0408 802-241-3770 May 6, 1996 Mr. Frank Irish 200 Allen Road South Burlington, VT 05403 Subject: Notice of Alleged Violation, Irish Property, Allen Road, South Burlington Wetland File #96-070 Dear Mr. Irish: This letter is in response to a complaint I recently received from Ray Belair, Assistant Planner with the City of South Burlington, regarding a wetland alteration on the property you own on the south side of Allen Road in South Burlington, Vermont. On March 19, 1996 1 had conducted a site visit to this site with Peter Smejkal regarding a proposed subdivision on this property. I showed Mr. Smejkal which portions of the property were considered wetlands under the Vefmont Wetland Rules. I explained that these were Class Two wetlands and were protected, along with an adjacent 50 foot buffer zone, by the Vermont Wetland Rules. I am enclosing a copy of the letter I sent Mr. Smejkal following our site visit. After receiving the complaint, I called Mr. Smejkal to ask him what was occurring. He denied knowledge of any wetland alterations. I then leff a message on Crawford Gregory's answering machine, who I was infortned was the contractor doing the work on site, informing him that this property contained wetlands and alteration of them would be a violation under the Vermont Wetland Rules. I then spoke with Ron Brosseau who informed me that you were in ' the hospital. He called me back to tell me you, had authorized me to go on site to determine if a wetland violation had occurred. On April 16, 1996 1 conducted a site visit to this property. At that time, I noted that there had been substantial work within the wetlands and buffer zones, including cutting trees down and stumping the land, pushing the stumps and dirt into the wetlands, and digging a very large ditch along the southern and western edge of the property. The water leaving the site by the ditch was extremely turbid due in part to the erosion occurring along the banks of the ditch. I took photographs while I was on site. Our records show that you have not received a Conditional Use Determination for the work that you have reportedly done. The wetland alteration activities occurring on your property constitutes an alleged 'violation of 10 V.S.A. Section 905(7)-(9), the Vermont Wetland Rules, and the Vermont Water Quality Standards. The project that was proposed on the site plans dated 2/26/96 would have required an Act 250 pen -nit. Site work related to the proposed subdivision prior to the issuance of the Act 250 permit is not allowed. Chlorine Free 100% Recyded Paper Reqiona! Offices - Barre/Essex kt /Pit, forI,Rutland/N., Springfield/St Johnsbury Frank Irish Allen Road, South Burlington Page 2 In response to the alleged violation, the Secretary of the Agency of Natural Resources may issue an Administrative Order requiring full compliance with all applicable statutes and regulations; assessing penalties; or if necessary, requiring corrective action. Your efforts to achieve compliance may lessen the severity of the final result of any enforcement action. All work on this site should immediately be stopped. Please respond by phone or in writing by May 10, 1996 regarding your intentions to correct this alleged violation. Failure to respond by the specified date may initiate an enforcement action by the Department. If you have any questions regarding this matter, please contact me at 241-3770. Sincerely, Catherine L. O'Brien Assistant Wetlands Coordinator enclosure cc: Herb Conly, Enforcement Officer Sal Spinosa, Director, Enforcement Division Marty Abair, U.S. Army Corps of Engineers Lou Borie, District Coordinator Ray Belair, City of South Burlington REGISTERED MAIL: RETURN RECEIPT REQUESTED No Text OV 1.a'.-3n'-7n� S�l /7 0 bL'6ZL - LO'SOS IQ �.r QS19- 1S/p r °0L i 69 i. tea• h � � �� ! � � 9 �� b sia,, � 1-r�`c�n,�: n t7 a d !-` �,.�'c,� / �•ry =�` •. .-� -, ,-,ram °�9� 6p kl¢ �— �� -,-, .� oP-� ,gam obi 2e �aw��- .5� 2�� - �`� 70/� !Z't;; ��S' ._ � �i�j � � i I rt � Cow � �'i "s z - i, 'sszi T�. i � • �d �N-�., Wj v'. Q4Q0 0 M 1 1 ./ � �• . �. .•C •1•/. T. .SXe 9 1 S9 ,f u Cf noo prl•c.r, 42 Vo n ; ` C ' :�. t r. . ' ., ,CIS W � - ''• ' "� •• � • c 'k��' �:►''• '.' •.: ' - N..� LL 1. :' ,�` ( .. .\ �} •y 1. : of Iu ZI zs .i,+ 1 •' '•" 'M•O•,Y� ._O� .�,'� ''''� � '• 1;'• ,� 1 �."� "...:•;;- Tom' � Ea•6ori •p �. .. . :; .� ••ill • ' � �� ,'� � :r ' t , L 1312.60 ' I APPROXIMATE 'OF MAPPED . DS :.� "_�••� -, - ..,� - '• $fig" E' .. �—....� _ 38A1ti / 1 "VALLEE'- WEST'� PROPERTY/ <'<', � 3.4.AC.t (South Qurlfngton) i ` w i '57.3' AC.t (Shelbume). I �, / / Cot5l-41 co 1 CP. of 4, w 14, TE ZONING' DISTRICT' LINE w w /' w =----- s 23*05,56^ V,%' , )w w 891.45", Il 1 � —: ;RESIDENTIAL I SYLVESTER . 'RURAL I / w SYLVESTEI� LEGENDAC. t '� „1 /' EXISTINGCONTOUR; / 336 PROPOSED CONTOUf�, /. PROPERTY LINE 0 IRON PIk �. o. CONC. MON; SS GRAVITY SEWER�.1LINE;; 1.3 AC. �— _ o�� O� r I ''' I W . WATER LINE ' 500— ST STORM DRAINAGE''UANE �, OE OVERHEAD ELRIC.• �'3 ) _- _ T i I en 310 I I. l 0 ECTSEWER MANHOLE, . ' C DRAINAGE MANHOLE r- $ 'I / I / / • HYDRANT ^, SHUT OFF POWER POLE 320 13 CATCH BASIN DITCH/SWALE ,EDGE' OF BRUSH%WOOD WETLANDS , �.. •.1�' ,f _; tip; ��, SS CF a Vim' GRAPHIC SCALE L I � °on yx ,.F t7 -EY' I` , SYLVESTER" - MYET1 y n o z� 4� v I �--___-� / ".", 5226 co�N - — -- .p I - ,oRom 0 1'45" E — w --- yr-'-�- EXISTING DRAINAGE CLIFFORD ZONING DISTRICT ;. LEY 1.. (RESIDENTIAL I) MooRE 15 miles 031 . EX.-MH P N 1 - PAVED OVER) / . • _ - - RIM-268.6E • „ ��' r ` WOAD[ X: MH - INV= VINEBER E MUMLEY U�/�/� RIM=264.'4 0,q INV=258 4 -� '�'• ' " 07'71, RICHARDSON 7 29--�� WEIGER WOOSTER'- TENNEY / ` bRIGGS s 36.0'iTENNEY ; MOORE i &" ERLYN 01o�p5 409 7 W & REE6 539 \ ' 7o' APPROXIMATE ZONING DIS' /� Sao - '•,�� ' •. \ = ;� � Wit--: , � �I � I= I � I '� = � ; N1.0 AC. 1.0 AC. o p.' - �' 01�.. 0:9 AC.' 1 1.0 AC. 1.2•,F HAYWARD 1.3 1.0 AC. -510 SS z �- 320' ��-EL=-_- -- .�%\ - -- / _ -- •'�-' '.�T.�+__1� _= — SSr— N 2202'07" W - ` N 22'02'07" E s S 18 27 l5 W- 11IN 0 1'h5" E w-23016 -g�05' w w SPEAR STREET OE OE 12 z 8 .TAPP,fNG -SLEEVE do .VALVE CLIF DESAUTELS s'BOUYEA,': ' — -',r, .ti', ��: - �ii� '`�--'�#yl_�y`�,-,i. air-'�� ,��,'`,2+:'i:i...;,i,�'a•ir_.- .. v' - ',r,,i• - ' �tr '"r, i, ',1C... •�:� 1; �1T ,,Af J•`i7„� .,, ryL!�ixe'+�•. ..� •�'.r .. STATE OF VERMONT ENVIRUNMkNTAI, COURT Secretary, Vermont Agency of Naturad Resources, V. Tra.nl� Irish, Resporl clear t. City of South B=lington V. Frank I: ish Docket No. 69-5-97 Vtrc (formerly No, E97-069) Docket No. 93-6-97 Vtec (formerly No. E97-093) Decision And Order after Remand Rcspoad1!11t-Defeiid-,u1L Frwilt Irish Is rdpfWnted by AL(Iiael li, clapp, Esq.; die Sc crctay of the Agetzcy ofNatural Resources ("ANTR") is represcnte:d by Crary S. ICessler, Escl.; and the (city of South Burlington ("the C;iey") is represented by Joseph S. McLmn, Esq. On May G, 1997, the Secretary of the Vermont Agency of Natural Resources issued aii adxrdnistrative. order pursuant to 10 V'.S.A. §3004 regarciuzg Respondent Frank Irish. Respondent uniely requested a hearing in Environmenud Court, In May of 1996, the Clity of South Burlington had filcd a zoning enforcoment action in. Chittenden Superior Co�ut agilrist Mr, Irish regarding the sane activities on die same parcel of J1nd. The is nffig enforcement action was transferred to Environmental Court in Juule of 1997 and me two mat -en were consolidated for h4ai'ing. The Court also took a site visit to the property. The £1/Zo 'd E55F09 Z02 'ON kdd Od �3HOd.3jd 3Obd 73ZJIIIS Wd 6£21 NOW 6661-6Z-AON CA) Urr'S decision was issued in OLtober of 1997, rn July of 1999 the Supreme Court afTirmed the dc.ci:,iori in pert, rcvcxscd "tliaac 1,u1tiu115 of t11V j LJd67r1erits flilding a violation of Vennont Wetland Mules M.S and imposing alternative penalties", and remanded for turEier proceedings. The parties were given the opportunity to request to present additional evidence, and eventually determined not to do so; they did file requests for the additional fin&igs amid nhenioraihda in support of their respective positions. Based on the evidence presented at the original hearing, the site visit, wid all requests for findings and legal nin-noranda, the Courr funds and concludes as follows. For ease of reference acid usc, we reproduce the original decision; all new material is in bold type and any deleted material is represented, by bold brackets: L The statutes, rules and permits applicable to Docket ,No. 69-5-97 Vtec are 4 T.S.A. Chapter 27, 10 V.S.A. Chapter 201, 10 V.S.A. 51259(a), 10 V.S.A. §905(7), (8), -and (9), and §6.3 of the Vermont Waluid Rules, 10 V.S.A. §8012(c)(2). F i 11 d in e- Mr. Prank Irish orris a 26.3-acre: parcel of !arid in tlac City of South 13urli.ngton, on the south side of A J.cn TCmA as well as other property in the area inciUding his residence and land lie has :armed. F.a rly hi 1990, Mr. Irish discussed wirlh Peter Sniejkal and Ron Brousseau the possible saJe of the 26.3-acre parcel to them for residential development, at a price in tlac: vicinity of 5200,000. lair. Brousseau is Mr. Irish's brotlier-in-law. Mr. Sniejkal was the: project manager aihd is familiar with residential subdivision de velopxmcnt. In Fcl)ruary 1996 the so-calle(i"Irish l)cvelcpmznt Corpor iriori" as applic.Tntsuthmined an appR ation to the City for a 48-lot subdivision proposed for the property, There was no evidence to show that the so-called Irish Development Corporation was ever incorporateci, or that Air. Irish personally had any interest in the development other than is seller of tl:c property. The application was signed by 1&, Smejkal The application showed ncc appllcxit 2 £I/£0 'd Z99c099Z08 'ON KV3 Od d3HO1.31d 3OVd 713ZI11.S Wd Ot Z NOW 666I-6Z-AON as having the legal interest of "optionee," although no written oprion agrcclneait or otljcr contract was subrr&red in evidence at trial. The application showed Frame Irish as the land owner of record, and. showed 1'crcr Smelkal and Roca Brousseau as ''contacts" for the applicx E "Trish Development Corporation," Mr. Brousseau acted. as Mr. Irish's agent in March and April of 1996 wiwn Mr. Irish w13 ill the hospital, and continued so to act by accepting certif eel mail on his behalf into May and Tune, 1996. We cannot find from the evidence that Mr. Sinejkal ever acted as agent for or on behalf of Mr. Irish, nor that -V1r. Irish acted as a do facto partner ofMessrs. ,Snncjlc,d :uad Broussctu in this development. However, given the fancily re:latiorishi.p between "dr. Brousseau and Mr. Irish, we do find From the circumstancr-s that Mr. Trish laicw of Messrs. Brousseau wid Snaejkal's plans to built] a 48-lot resldendil subdNislon on the landin question. Given Mr. Irish's fanai:liarity with the land, we also find that he knew that some of the Iand was wet mad that more of the land would be suitable for residential development if it were drained. Oil March 19, 1996, .ANR Assistant Wetlands Coordinator Catharine O'Brien met with Mr. Smejkal on the property, and identified for him areas of Class II wed.u:d on the properry, including ,ucas of wc.dand kXXtliguuus to iltusu idLaitifled or< the Ndtibnll Weelands Liventory Map. She unformed Mr. Sxneikal that a prior Conditional Use Deternauzarion ((;UD) would be ncce wry bcforc siaa, dcvclopmrnt would lake place Oil 0dU j)1UPF_lLY 1rl Lyle wetland. On Mardi 27, 1996, she sent Mr. Smcjk.-.d a latter c:otTrrning the conversation and recommending that a wetland consultant be hired to delineate the wetland arc�is and their 50- foot buffer zones. This work is estimated to cost approximately $1,500, Also in Nfarc_h, 1996, Frank Irish arranged with C.W. Gregory, an excavation contractor, to excavate a drainage ditch rich. r the power line right-of-way, to intercept water draining onto his land, in particular from a water supply line bedded in }ravel �Nf&h wags acting as a conduit for voter to flow onto his properry, Frank Irish believed that die drainage ditch would assist in keeping the field nearest the power line drier, aiad believed that drainage 3 £If�O 'd Z59I,099�06 'C1N X�d �d 33H9131d 3��'d i3ZJJJS Wd NZ NOW 6661-K-AON or developinent work in a wetland would be cxempt if it was for agricultural purposes. ' lac contractor proceeded to do the work, which includod cutting mad removing trees and brush, excavating the Glitch, gn.bbing up tree roots ofsipziiicant size, depositing some of the: brush, stamps and sediment in the ditch or the natural watercourse, and allowing additional sedlincint to flow and be deposited i1 Bartlett brook, a watercourse running along the edge oFand from Mr. lrisiTs property. The work in the disturbed area was more extensive than that necessary merely to intercept water draining onto Mr. Irish's property. ' 'le disturbed area is located within the Conservation -tad Open Space District under the City's zoning regulations. It is also in an area of Class II wetlands is that terni is defitied in Lae Wetlands regulations, becausc it is functionatly a wetland and is contiguous to an aced snapped on the National Wetlands Inventory map, Sediment from the disturbed area flowed and cantinuc:s to flow into B artlett Brook, cons tinting a discharge tuider 10 V. S.A. � 125 9 (a) , From th,F twide.rce we (] f id that tbe� distLirhed.area did beat constitutcL ] land which grows food or crops in connection with fanning; activities as used in 53.1(c) oftlie Vermont Wetland Rules axed see 10 V.S.A. 5902(5). Unlike; thc, neighboring fields, the elisturbat area showed no traces of havi-ng been used as cropland, pasnire, or other farmland in accepted agricultural practices, or in ordinary rotation. Li early April 1996, after re:ceivkig a complaint that site work was proceeding in die wetland, Catherine O'Brien teleplioned Air. Smejkti, who rd erred her to Mr. Crregory mas the contractor doing the work. Prom this referral we- hind that lest. Irish infonrled either Mr. Brousscau or Mr. Sniejlcal of rho work he was having done on the property. Ms. O'Brien informed Mr. Smejkal and Mr. Gregory by telephone that work in the wetland would be in violation of the Vermont Wetland rules and should cease fim nediately. As ofApril 16,1996, under Mr. Irish's in4trU4`ticns and witli Mr. Sirejkal's knowledge, Mr. Gregory had cut trees, pulled stumps, regraded the surface, and dug a ditch a )pro3aaxi:trely 1000 feet long and five feet deep in the Class n wetland aid its 50 foot buffer zone:, zuid had cl used a conrinuing discharge: of Silt to stag waters, Bartlem Brook, The discharge of silt 4 Z0 'd ESKOKKH 'ON M Od NROIEII 3M 73Z.lil.S WV 6Z:80 03h1 6661-10-03Q NOV-29-1999 MON 12:4i ?M STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 05113 cOrttinued in Dccunlmr, 1996 acid into July of 1997. This work altered the flow of water into and out of the wetland, and constituted partial draining, fttling, and grading in the wetland. Given the sequence and tinting of events described above, and in particular Mr. Irish's familial relationship withMr. Brousseau, bir. Irish's discussions with lUr. Smcjkal and Mr. Brousseau regarding the sale of the property to them, Mr. Irish's laiowledge of their plans to build a 48-lot subdivision on the land in question, their submission of the appf he .-iflnn .Ind sato darn to the Cityrin the name oFthc s8-:.illca "Yrisli Dcvelopment Corporation" showing building lots in the area at issue, Mr. Irish's communications with Mr. Brousseau and Mr. Smejkal regarding the work that lie was hawing done on the property, the scope and extent of the cutting, grading and ditching that occurred, and the absence of any evidence that the disturbed area was used or had ever been used for agricultural purposes, we find that the excavation and drainage work was done at Ieast in part to prepare the land for development purposes, and that the fining ac vities planned for the site were incidental and planned to be carried on only until development would take place. On April 17, 1996, the City's "Zoning and Planning Assisnuii" issued a Notice: of Violarion to Mr. Irish. The notice stated the means ol,'fULig an apps-al was to file Nvith the Clerlr oFthe IBA. Mr. Irish responded to the zoning and platstiing assistant, scaling thar tilc respolig wQ his "formral 1ppi,ai" ,jTjd rlauning than the work wai being dome for ageiCaltAl1.Ll purposts and thar the trey_ cutting was for firewood. Agriculture mid. forestry arc permitred Uses in the Conservation and Open Space Districr. 53.201 of the South Burli igron loving R gulations. We need not reach the question of whether. VIr. Irish failed to perfect his appeal by failing to file it with the ZBA and by f�siling to file ncc raluirecifee, because on April 30, 1996, tile: City's Zoning Administrative office issued a second. Notice of Violation to Mr. Irish, acknowledging that clearing land for agricultural purposes is a permitred use in. de zone, bur M NOV-29-1999 MON 12:41 PM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P, 06/13 staring that the cxca%,ltion of rrres quid the deposition of the brush tuid silt in the drainage way was a serious additional violation. The April 30, 1,996 letter also scared the means of appeal asks included the appeal appixation. Mr. Irish did not appeal the April 30, 1996 Notice. of Violation. On May 10, 1990, Mr. Irish received a Noricc of Alleged Violation instructing hire to cease all work in the %VUlaxid. Mr. Brousseau signed for this of certified mail as Mr. Irish's agent, As of'jime 7, 1996, additional stwuping and grading had been performed in the Class 11 Wetland, beyond the work done as of April 16, 1996. We find that this work was also dgnc at Icast in part fnr drvrinpment purposer. 17oraovor, ac of that tunic 1\7r. Irish was on notice of the alleged, violations and the administrative Order requiring, among ether remediation measures, that he hire a wetland consultatir. As of July 21, 1997, neither Frank Irish, not anyu= acting on his beha)f, had applied for or obtained a Condition-,il Usc Y7cterinination to allow the work performed ill the Werland. As of July 21,1997, neither ]Frank Irish, nor anyone acting on his behalf, had taken any remedial ac- on ro stabilize the sides of the ditch or prevent the continuing discharge of silt co Bartlett Brook. W. Gregory had incended to stabilize the batik with rip -rap, but neither he nor Mr. Xrish sought permission to proceed to that step after receiviing the step worse instructions. As of J'tily 21, 1997, neither. Frainlc Irish, nor ulyone acting can ius b-tha0f, h,ad applied for or obtained a zoning perrnit to allow the site work performed in the Conservation and Open Space District. Cnclrisions ,,s to t1: t EiiforcemncLic Violation (10'V'.S-A, The stature requires this Court to determine whether a violation 1ua.5 occurred, 10 V.S,A. � 8012(b)(1), independently of reviewing -and determining allow a penally ainounr. 10 V.S.A. 9 8012(b)(4). 6 NOV-29-1999 MON 12�42 PM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 07113 A violation has occurred, for which Mr. Trish is responsible as the ow,icr of thc: property and the person Who directed Mr. Uregor�s worlc, regardless of whether Messrs. Sfnejk,-d, Brousseaa, or Gregory also could be cited under my state statute or rcgulatiota or any city orciinaricc. '1_`he disturbed area is in an area of Class 11 wetlands and sediment from the disturbed area constitutes a discharge under 10 V.S.A. 91259(a). `Che Supreme Court distinguished between the treatment of ;Farming activities in 53.1.(c) and §6.2(f) of the Vermont Wethmd Rules. The Supreme Court upheld this Court's conclusion that the disturbed area, did not qualify for the §3.1(c) exemption froth the definition of a wetland, as it was not being used to grow food or crops in ordinary rotation and had not been farmed for many years. However, the Supreme Court remanded for this Court to address whether Respondent's use of the disturbed :area gtralitied as an allowed use within a wetland, without a prior conditional use determination by the Secretary, as provided in §6.2(t). Section 56.2 provides a mechanism, which the Supreme Court referred to as an "allowed use," for landowners to engage in the listed activities in wetlands and their buffer areas without any prier review under the Vermont Wetland Rules. This mechanism applies to die "growing of food or crops in connection with farming; activities," when threatened or endangered species are protected, naatpped deer wintering yards are not cleared, and the activities are carried out in "compliance with the most recent Acceptabg� Agricultural Prardres" of the Vermont Depiu-tmtne 61'AfL1►.LJLLLLC. 'These Acceptable Agricultural Practices include preparing the area for pasture ;arid crap production. Accordingly, the Supreme Court and the parties have focused on this Court's malting a finding as to Respondent's purpose in undertaking the work in the disturbed area. But §6.2 also imposes a significant limitation on the list of allowed uses: they only may qualify as allowed rases "provided that the configuration of the wetland's outlet or the flow of water into or out of the wetland is not altered and that no 7 NOV-29-1999 MON 12:43 PM ST?TZEL PAGE FLETCHER PC FAX NO. 8028602552 P, 08/13 draining, dredging, filling, or grading occurs' , , . ," in the present case, draining, filling, and grading have all occrwred in the wetland, and the route of flow of water into die wetland was also altered. For that reason, even if Respondent's purposes for undertaking the work had been purely for farming(unstead, as we have found, ui part for development and in part for incidental famiing until development would take place), the activity did not qualify as a §6.2(f) approved use, and therefore Respondent would still have to have obtained a conditional use determination prior to Laving done the work. However, we have also found rhat Respondent's purposes for undertaking the work were at least in part to render the land, more suitable for future subdivision, and therefore the activity would not qualify for treatment as a §6,2(f) approved use on that basis as well. Further, the Wetland Rules do not offend principles of due process and do not create a "taking" by defining wetlands by dieir function, by their cont;guity to mapped wethinds, or by requiring a 50-foot bufkr zone. By ft.iling to obtain a conditional use determination before conimcncing work in a wc-rland, Respondent violated the Vermont Wetland Rulers. By having tivorlc done caused. a continuing discharge of sedunxcnt to Bartlett Brook, widiout liudng a permit for that discharge, Xe4poadent violated 10 V„S.A, § 1759(a). Conclusions as to City 7.c)ning Fnforcerngnt Violation The same activities ,,iolated Article 3 of the Cityr's zoning regulations, and in particular %3.402, 3,403, and, 3AO5. Mr. L-iLh did not appeal the April 30,1996 Notice; of Violation, d►erefoa-e 24 V.S.A. §4472 prevents this court from furrl;er considering it in die present enforcement case, Rennedial action was not taken, nor was permission for remedial action sought from the Agency or die City, The duration of the violation for dic purpose of the 1 Except as pcovided for in several subsections unrelated to this case. 8 NOV--29-1999 MON 12:43 PM STiTZEL PAGE FLETCHER PC FAX N0, 8026602552 F. 09/13 CitV$ enforcement action begins seven days from the April 30, 3.996 Notice of Violation, that is) May 7, 1996 and continued to the date of trial, July 21, 1997, or a total of 439 days. ANR crnforeement case: Determination of Chdcr andPcnalty (10'V.S,A. §8012(c)(3)); The remedial portions of the Administrative Order were issued under 10 V.&A. § 8008(5), and therefore. this Courr must dctcnnuie whether to affirm them., or -';ncate and rctnnuzd diem, under 10 V.S.A. § 8012(b)(2). The remedial portions arc; affirmed, as Che remedial procedure contained ui the order is reasonably likely to achicve the intcndcd result. Within 30 days of the date of this Order Frank Trish shall hire a wetlands consultant to delineate the wet md. and buffer zone on his property, and to identify the disturbed area which constitutes the violation within the wetland and buffer zone. Within 60 days of the date of this Order Frank Irish shall have the wetlands consultant develop and subrtnit to the Enforcement Division of the ANR a plan to restore the wetland to its condition prior to the; violation. The ANR shall rule promptly on whether d-le submittal is complete, and shall rule promptly in writing on whether the plan is accepted; reje;,tcd or modified to comply with current statutes and regulations governing wethuld protection. Within 45 days of the approval of the restoration plan, or such later elate as may be approval in writing by the ANR due to seasonal considerations, Frank Irish shall complete: implementation of the: restoration plan. Within 20 days after completion, Frank Irish shall have the wetlauicls consultant submit a completioii report to the ANR, and shad! allow ANR inspectors to came ornto the property to evalrritc: irnplernentation of the plan. The Court must also revicw-,uiddctcrinine anew <ui appropriate penalty amount for the violation by applying the eight criteria set forth in 10 V.S.A. 0010(b). 10 V.S.A. §8012(b)(4). The. ,Secrerauy snakes no claim of potential for public health or safety harm resulting from rhis 'kiolation. § 8010(b)(1). There was accual impact on public welfare and the 9 NOV-29-1999 MON 12:44 PM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 10I13 eiv,,lronment dale to the siltation in Bartlett Brook, although the lilagnitude of Chat harm has n.ot been t reat. §80I0(b) ;1; . The duration of the inoladon is measured from the date of thy: activity, late; March 1996, to the dare of trial, late July 1997, or approximately 16 months. 7he need �o dcrcr disregard of the requirements of the law (§ 8010(b) (6)) requires the imposition of a monetary penalty fo: Respondent's failure to apply for a conditional use determinA, Lion or discharge permit, even w,thotit lasting environmental or public h,-wm. State A& ncy of T tural Resources v. Riendcau, 157 Vt. 615, 622 (1991). Vermont's tnviron.mental rcrmit programs cannot function if activities intruded to be subject to hermit requirements arcs conducted Without obtaining die required permits, regardless of the personal or business reasrcns for that failure. That is, a monetary penalty would be warranted vvhcnccr Mr. Irish thought'the dredging would improve the saleability of die land for development purposes, or whethcr he rruly but misttikenly thought it would be exempt as an agricultural purpose. It is only die magnitude of the penalty which would be affected by those considerations. In the present case, at the time of authorizing Mr. Cregory to perform the cYcavaLiozl, R.2spondcnt inay have thought or arssumcd that his activities did not require a perrr�.it, out he imew it had reason to know the violations existed at least as of shortly before file April 16, 1996 si ;.c visit. Nis. O'Brien's May 6, 1996, letter ro Irish refers to Bro wscau leaving informed her that Irish wars si the hospital and that Irish had orally through Brousseau authorized Ms. C.)'lirl�r to go on the sate to dctertninc !f"a wetland,,ioladon had occurred. §8010(b)(3). I, is also unportault to the "even-liazuled eiiforceliient" of Vermont's environmental 1-1 %vs (10 j'. ..k. a 8001(g)). C11Qt Osl)rtln'12- e1511L1uCf iA, .h4L1v1Lica wli«li trLluuc ,:i perlii2r al'1st char it is necessary to apply for uid obtain the necessary permits before comi�.cr,cing the at, viui. Moreover, after being informcdof tic conditional use deter itinarion requirement icy April of' 1996, Respondent took no steps to apply for such a determination after die fact, to propose 1action for the discharge to the brook, or to stek a declaratory ruling on 10 NOV-29-1999 MON 12:45 PM STITZEL PAGE FLrTCHEE PC FAX NO, 8028602552 N4 hither the agricultural exemption applied to this activity. Jf <my of these actions had. been t!:uic action or attempt inight have been considered as a nn t:gatingfactor (§$010(b) (2)) 0,Ls evidence of efforts to comply. §801O(b) (4). In the present case there is no delay attributable ro the Secretary ,which was tZreascaible under the circumstances of this case.. §8010(b)(2). The Secretary has not laimiA other instances in which Respondent has failed to comply with environmental laws, and ici, roz issued this order agunsr Mr. Smeikal or. .I'41r. Brouz6caau wno may have more , .�idi devclopinenc projects..001O(b)(4). Tlx: Sc_cretary presented no evidCr_ce of r ie actual costs of enforcement. §8010(b)(7). ReSpondcntreceived two types of economic benefit from this violation. § 8010(b)(5). The., snit was rhi,. avoided cost of having a wcrluhd consultant go on the site, turd chiraeterize or dedneate the boundaries of the Class 11 wethuid. rhis is estimated at 51,5O0. Th4 Secreury ar& lea that Respondent also would have received the profit of his sale of the property to Messrs. Smejkal and Broursseau for the subdivision, and that it was worth for developincrlt morc in a drained state Than with undisturbed wetlands, M- le therc was restimony that the p;ucc1 Nvould havf- been sold for $200,000, there was no evidence of the relative: market v-,due of the property wirh the wetland intact aixd in its present state. The ,Secretary- proposes a total penalty of $17,500 to account for what the Secretary argvr_s is Respondenr's ingenuous attempt to render the property more suitable for development while clairrming to be doing the work under the agricultural excniption. So sub: _antial a penalty above she costs ofremediation is appropriate only if'Respolident had the work p4rfornied to promote the suitability of the land for development, that is, if the: Loud is in fact transferred or developed within five years of the drainage, work on the site. Accordingly, taking all these factors into accowit, the Court! wilt impose m-o alternadoz penalties for this violation, to account for whether the ditching uhd drainage activities are in fact linked to funire economic benefit from the sale, transfer or development of the property, as IbIlows. 11 NOV-29-1999 LION 12:45 PM STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 12!13 Based on the findings, conchtsions, and rezisoning of this decision, it is hereby 011..DMD that Ilaragraph A of the May 6, 1997 Admuiistratitie Order is vacated. On or before 45 days fxorn the date this order becomes final, Respondent shall pay a penalty of $2,500 to the State of Vermont, to be deposited in the genera' fund. pursuant to 10 V.S.A. 8010(c), If on or before five years from the date this order becomes final, the property is sold or otherwise triuisferred. for any reason, or is subdivided or developed by Respondenr for other duai agricultural or open space purposes, then at such time Respondent shall pay xi additional penalty of $16,000 to the State of Vermonr on account of this violation, to be deposited ui the �ener:fl fluid purswmt to 10 V.S.A. §8010(e), m4ku7g they iuL,d purialg, for this violation the $17,500 requested by the Secretary. ANR Enforccment case - Specific Ri htg s �f Appeal (10 V.S.A. §8012(c)(4) and (5)): WARNING: this decision vd11 become final if no appeal is requested, widiin 10 clays of receipt of this decision. Respond.=[ and the,Serrntary of the Agency of Natural )t"s, urccs have a righr to appeal this decision. The procedures for reques twig an appeal are found in the. Vermont Rules of Appellate Procedure (V.R. A.P,) subject to the exceptions in Vermont Rules of Civil. Procedure (V.R.C.P.) 76(a) (3) tuid (d)(5). Within 10 clays of receipt of this COrdcr, any party seeking to file an appeal must file the notice of appeal with the Clerk of this Court, together with die applicable tiling fee. Questions may be addressed to the Clerk of die Vorniout ,Supreme Court, I II State Street, Montpelier, VT 05609,0801, (802) 828-3276, An appeal to the- Supreme Court operates as a s tay of payment of a penalty, but does not stay any other aspect of an order issued by tans Court, 10 V.S.A. §8013 (d). A party may petition the Supreme Court for a stay under the provisions of V.R.C.P. 62 and V.R.A.P. 8, City crifgrcement c;Lse: Order and Penalty: The remedial order imposed for the state law violation will suffice for the City's zoning violation. For the same reasons as in the state law violation, the Court will impose nvo 12 MOV-29-1999 MON 12:46 PM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P. 13/13 a.lrernative penalties for the City's zoning violation, to account for whether the ditching quid drainage atcthities are linked. to economic) benefit fforn the future sale, transfer or development of the property. On or before 45 days from the date this order becomes final, Respondent shall pay a penalty of $5 per day oflriolation, or $2,195 for rlic 439 clays ()F violation, to the City of South Burluzgcon, If on or before five years from the date this order becomes final, dicproperty is sold or otherMse transferred for any reason, or is subdivided or developed by Respondent for ocher th�ui agriculcural or open space purposes, then ar such tune Respondenc shall pay an additional penalty of ari additional $45 per day of violation, or an additional $19,755 for the 439 days of violation, to the City of South Bi'rlutgton on account of this violation, !mill L lxc waarl 1�cnalry for this violanon the $50 per clay requested by the City. Done at Barre, Vermont, this 19`}' day of Now-mber, 1999. r p Merideth Wright Environmental judge 13 NOV-27-2000 MON 11:26 AM STITZEL PAGE FLETCHER PC STATE OF VI;RMO-W SECRETARY, VERMONT AGENCY OF NATURAL RE URCES Plaintiff V. Frank Irish Respondent FAX NO. 8025602552 F. 02 7 i'7 ! J 21_'. I i C ENVIRONMENTAL COURT �....,,..r.� Socket No, �.r'V V�� J✓,.A �l �*y 0- (�3-(" -�q v-tp-c- 5-Ti?i � '1'ho Parties in Matterthe Se cre ary of the X ency of Nat al Resources (Plaintiff) and 't Frank Irish (Respondent) hereby step la and agree to the - suance of the following C?der t of the Court, 1. On or bofore Novombe>I; 9; 200o Respondent shall tender payment in the amount of 5 $2,500.00 made out to the Txeasurer, State of Vermont. cx.V-C& 6 z, 19 S- `rn 2. Within 5 calendaas days of this Order being signed by the Court Respondent shall mire a wetlands consultant and direct that consultant to contact Enforcement Division (attn: Gary Xesslar) (802/241-3820). 3. Within 15 calendar days of this Order being signed by the Court Respondent shall direct the hired consultant to complete the delineation of the wetland and buffer zone on the property and to identify the disturbed area which constitutes this violation. 4. Within 25 calendar days of this Order being signed by the Court Respondent shall direct the wetlands consultant to develop and submit to the Enforcement Division (attn, Crary Kessler) a plan, which shall include: the deliniation, to restore the impacted wetland to its condition prior to the etiolation. The plan sha11 be reviewed by the Agoncy and accepted, rejected or mod'.1ed to corrnply'with'ctlrrent statutes and regulations governing wetland protection. NOV-27-2000 MOH 11:27 AM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 03 S. 'Within 45 caIendax days of the submitted restoration plan being accepted by the Agency Respondent shall complete implementation of the restoration plan, The Agency may in writing grant more tinze to complete this task if seasonal conditions warrant, G, Within 16 calendax days of completion of tho restoration plan's implementation Respondent shall direct the wetlands consultant to submit a completion report to the Agency. Respondent shall allow Agency inspectors to access the property to evaluate tho implementation of tho plan. For they Secretary of tho Agency of Natural Resources: ��" `�. �-�'-� � � �c.�.r`7 ►� Gary Kessler, Esq. W �� `�s�PH S • J4�1 � �-�,� � For Frank Irish: Michaol B. Clapp, Esq. Dated at "7w�t_ 1 , Clermont this — � Day of�r 2000. r ' Honorable Merideth Wright Environmental judge IN THE SUPREME COURT OF THE STATE OF VERMONT SECRETARY, VERMONT AGENCY ) VERMONT SUPREME COURT OF NATURAL RESOURCES, ) DOCKET NO. E97-069/093 Plaintiff, ) V. ) Vermont Environmental FRANK IRISH ) Court Docket No. E97-069 Respondent. ) Affidavit of Joseph S. McLean I, Joseph S. McLean, being duly sworn attest: I am of legal age and a resident of the state of Vermont. 2. I am an attorney at the law office Stitzel, Page, and Fletcher, P.C. in Burlington, Vermont. 3. I received the Decision and Order after Remand in question from the mail on November 29, 1999. 4. I received the amended cover letter in question from the mail on December 1, 1999. Dated at Waterbury, Vermont this IDday of February, 200(y.; Yseph S. McLean Affiant Subscribed and sworn before me on the & of C/V , 2000. Notary Public My Commission Expires: 3 a6 -03 ENTRY URDER VT. SUPREME CQLJRT F,t_ED IN CLERK S OFFICE SUPREME COURT DOCKET NO, 97-509 JUL 2 1 1999 JUNE TEEM, 1999 Secretary, Vermont Agency of Natural APPEALED FROAII Resources and City of South Burlington v. Environmental Court Frank Irish DOCKET NO. E97-069J093 In the above -entitled cause, the Clerk will enter: The Courrt's opinion, issued June 25, 1999, is modified as follows. At the conclusion of the First partial paragraph on page 6, insert the following: Several weeps later, in a letter addressed to defendant dated May 6, 1996, O'Brien summarized her findings from the site visits and her conversations with SmejkaI, and reaffirmed the need to obtain a CUD because of the presence of significant wetlands. O'Brien also enclosed a copy of her earlier letter to Smcjkal. In all other respects, the motion for reargument fails to identify points of law or fact misapprehended or overlooked by this Court. The motion is therefore denied, See V.R.A,P, 40. Publish �--� Do Not Publish Z0 'd aSK0997,O9 'ON Xd3 Od NEHOIEI[ EOdd 73Zli.La Wd lt:?l NOW 6661-H-If.f r STEVENF SIITZEL PATTI R. PAGE' R011I?RT F. FLETCJMR !WWI S. M_Lrt N. TIM0,11 W M ISUSTAC , ("ALSO ADMCTrED IN K YJ STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATMIZY S'rurrT P.O. BOX 1507 13URLTNG7ON, vERMONr 05402-1507 (802) CFO-2555 (VOICCJT D) FAX (902) 660•25SZ E-MAII.T3=555 r(�F[RM8PF.CUM) WRTMR'S E-MAIL (7MCLEAN(aFiRMsvj�.com) FACSIMILE TRANSMITTAL SHEET Date: July 26, 1999 To; Ray Belair Fax: 846-4101 .Re Sender: or COUNSEL. AK71 UIR W, CEF;NOSL4 Verb on 1t Agency of Natural Resources and City of South Burlinggil .v. !dab (Supretne Court Docket No. 97-509) Joe McLean You should receive 2 Pagc(s), including this covey sheet. If you do not receive all the pages, Rlease call (802) 660-2555, MEISSAGE Transmitted herewith is an Entry Order I received ft'otn the 'Vermont Supreme Court with regard to the above. '111is message is inicuded onlyfor the use otthe addressee and my contain ierormalion that is privileged and eonriddntial. Iryeu xre not the letondod snciplenl you ore bercby notified 10m any dissemination of N% communloAlon is s1664ly pruhibib d. If you have received this cunurmnicaLion in error, plewt notify us irnmediately by tdcfhom (R02-660.2555). Thank you. 10 'd Z55Z039Z06 'ON udd Od 3R0131.d 30Vd 1KI I IS Wd It � ZT NOW 666I-R-1f f JUN-25-1999 FRI 11:39 AM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 01 Sec; Post -It- brard fax Iransmittal memo 7671 rot PAN$ ► T" � —" o. Oopl. Phony U ax N 19 � e�75 Pax M eC71 J's [ Fi le9 . Irish (97-509) NOTiCh: Tnis opinion i5 5u1rj=%.; . l:W 115ti5nay for roargumont 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. No. 97-509 Secretary, Vermont Agency of Natural Resources and City of South Burlington v. Frank Irish Merideth Wright, J. supreme Court On Appeal from Environmental Court January Term, 1999 Gary S. Kessler, Senior Environmental Enforcement Attorney, Waterbury, for Plaintiff -Appellee Agency of Natural Resources. Joseph S. McLean of Stitzel, Page & Fletcher, P.C., Burlington, for Plaintiff -Appellee City of South Burlington. Michael B. Clapp, Burlington, for Defendant -Appellant. PRESENT: Amest,oy-, C.U-.-, Dooley, Morse, Johnson and Skoglund, ,73. SKOGLUND, J. Defendant Frank Irish appeals from, an Environmental Court decision that certain excavation work on his property was in violation of the Vermont Wetland Rules, the city of South Burlington zoning bylaws, and 10 V.S.A. 8 1259 (discharge of waste into state waters without a permit). Defendant contends: (1) the Wetland Rules failed, to provide adequate notice that the work was occurring in a significant wetland; (2) the area in question had not been validly designated as a significant wetland; (3) the work was for farming purposes and therefore did not violate the Watland Rules; (4) the evidence did not support a finding that he violated 10 <Page 2> V.S.A. 2 1259; (5) the zoning -violation finding was erroneous; and (6) the JUN-25-1999 FRI 11:40 AM ST?TZEL PAGE FLETCHER PC FAX NO, 8026602552 P, 02 monetary penalties were improper_ We affirm in part, reverse in part, and remand for further proceedings. FACTS Defendant is a farmer whose property is located in South Burlington. The subject of this dispute concerns a 26-acre parcel of the farm lying south of Allen Road. The northerly and easterly halves of the parcel consist of hayfields. Approximately in the middle of the parcel is a wetland demarcated on the National Wetland Inventory (NWI) maps for the State of Vermont. In February 1996, the Irish Development Corporation submitted an application to the City for a 48-lot subdivision for the property. The application listed defendant as the owner of the property, and Peter Smejkal and Ron Brousseau as contacts for the applicant corporation. on March 19, 1996, Catherine O'Brien, assistant wetlands coordinator for the Agency of Natural Resources (Agency), visited the site in response to a request by the City. She informed Smejkal that the site contained significant wetlands, including areas contiguous to wetlands identified on the NWI maps, informed him that a conditional use determination (CUD) by the Secretary of the Agency would be required before any development could take place an the property, and recommended that he hire a wetlands consultant to further define the wetland areas. The consultant was estimated to cost $1500. Latex that month, defendant hired a contractor to excavate a drainage ditch along the southern and western boundaries of the parcel to intercept water draining onto the land from an existing water supply line. The excavator proceeded to cut and remove trees and brush from the area, grub up tree roots and stumps, excavate the ditch, and deposit some of the brush and roots into the ditch. In early April, O'Brien visited the site again in response to a complaint that work was occurring in a protected wetland. in addition to the excavation work, O'Brien <Page 3> observed substantial erosion in the ditch that was causing a continual discharge of silt into the nearby Bartlett Brook. The City sent defendant a notice of violation on April 17, followed by a second notice of violation on April 30, alleging violations of the City's zoning bylaws. In early May, the Agency sent a notice of violation, stating that the excavation work was within a significant wetland area and required a CUD under the Vermont Wetland Rules. one year later, in Ma 1997, the Secretary of the Agency issued an Administrative Order finding that defendant had violated Q 6.3 of the Wetland Rules by stumVing, grading and ditching in a significant wetland without first obtaining a CUD, and had further violated 10 V.S.A. 2 1259 by causing a discharge into state waters. The same month, the City filed a complaint in Chittenden Superior Court alleging violations of the City's zoning bylaws. Defendant filed a request for hearing on the Agency's Administrative Order with the environmental court, pursuant to 10 V.S.A. 4 8012(a). By stipulation of the parties, the City's complaint was consolidated with the proceeding on the Administrative order. JUN-25-1999 FRI 11:41 0 STITZEL PACE FLETCHER PC FAX NO. 8026602552 P. 03 Following an evidentiary hearing, the court issued a written decision, finding that defendant had committed the charged violations, and imposed "alternative penalties." The court imposed a base penalty of $2,500 for the state violations, and $2,195 for the City violations. In the event that on or before May 6, cool, the property was sold, subdivided, or developed by defendant for other than agricultural purposes, the court ordered that defendant would be required to pay an additional penalty of $15,000 to the State, and an additional penalty of $19,755 to the city. This appeal followed. <Page 4> DISCUSSION Notice Defendant first contends the Vermont Wetland Rules failed to provide sufficient notice that the portion of his property where the excavation work was performed was a significant wetland, thereby requiring a CUD before the work could be commenced. The Wetland Rules require a CUD by the secretary for certain uses within "significant" wetlands. see Vermont Wetland Rules, 2 6.3.(FNI) The Wetland Rules provide further that all wetlands shown on the NWT maps for the State of Vermont, and all wetlands contiguous to such mapped wetlands, are presumed to be Glass Two wetlands, which in turn are deflited as significant. See id. QQ 4.1, 4.2.(FN2) In addition, the Wetland Rules set forth standards and methods for identifying the boundary between wetland and upland areas, and distinguishing wetlands from deepwater habitat. See id. Q 3.2. It is undisputed that the NWI maps for Vermont showed a wetland on defendant's property. although the specific area where the excavation work was performed lay outside the delineated wetland, the Agency alleged, and the court found, that it was within a contiguous wetland area. Defendant asserts that the Rule designating continuous wetlands as significant <Page 5> failed to give reasonable notice of the precise area subject to the CUD requirement. Due process of law .requires notice sufficient to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" and to "provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also State v. Galusha, 164 Vt. 91, 94, 665 A.2d 595, 597 (1995). The degree of precision that will satisfy this standard, however, "varies with the nature -- and in particular, with the consequences of enforcement -- of the statutory provision." General Media communications, Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir. 1997). As the United States Supreme Court has explained: [E3 conomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to JUN-25-1999 FRI 11:41 AM STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P, 04 clarify the meaninq of the regulation by its own inquiry, or by resort to an administrative process. The Court has also expressed greater tolerance for enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99 (1982) (footnotes omitted); sea also In re 1650 Cases of Seized Liquor, Vt. , , 721 A.2d 100, 107 (1998); Rogers v. Watson, 156 Vt. 483, 491, 14 A.2d1 409, 413--14 (1991) . Assessed in light of this standard, the Wetland Rules were sufficient to put defendant on reasonable notice of the existence of significant wetland areas and the possibility that the planned excavation might require environmental review and approval. Indeed, the record discloses that defendant did not have to inquire about the possibility, Catharine u'fsriurn, Llits abni;aLcijA v*tlanrla aisardinator for tho State of Vermont, vAA contacted by the City after it received the subdivision application for defendant's property, and she in turn contacted the applicant and visited <Page 6> defendant's property in mid -March 1996, prior to commencement of the excavation. O'Brien identified several areas of significant wetland on the property, including areas contiguous to those identified on the NWI maps, explained that any work within these areas would require a prior CUD, and recommended that a wetland consultant be hired to further delineate the extent of the wetland area. O'Brien wrote a follow --up letter on March 27 in which she confirmed the presence of significant wetlands on and adjacent to the property,—recommmsnde the hiring of a wetlands consultant, and reaffirmed the need for a CUD before commencing work in the area. Defendant did not hire a wetland consultant or apply for a CUD. Instead, in late March, defendant hired an excavation contractor, who began work in one of the contiguous wetland areas, cutting and removing trees and brush, excavating an irrigation ditch, and depositing some of the renoved brush and stumps in the ditch. During a second site visit in late April, O'Brien discovered that substantial damage had been done to the wetland area by the excavation. A notice of violation issued shortly thereafter. Thus, although the Wetland Rules themselves did not define the precise boundaries of the contiguous wetland areas on defendant's property, the Agency clearly put defendant on notice of the existence of those areas, offered its administrative expertise and advice to clarify the precise boundaries of the wetland areas, and delineated standards and methods for identifying those areas. See Village of Hoffman Estates, 455 U.S. at 498-99 (regulatory statute may be less precise where regulated enterprise has ability to clarify meaning on its own, or through administrative process). Accordingly, we are satisfied that the Wetland Rules provided ample notice to a person of ordinary intelligence of the need to obtain a CUD for the work in question. The imposition of civil penalties in these oircumstancas did not violate due process. <Page 7> J'UN-25-1999 FRI 11:42 AM STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 05 Designation of Wetlands Defendant next contends that Wetland Rule 6.3, requiring a CUD for certain conditional uses within a significant wetland, was unenforceable because the Water Resources Board failed to conduct the statutorily mandated evaluation necessary to designate as "significant" the specific wetlands on defendant's property. Defendant relies on 10 V.S.A. 9 905(7), which provides that the Board shall: "Adopt ruses for the identification of wetlands which are so significant that they merit protection. Any determination that a particular wetland is significant will result from an evaluation of at least tho following functions which the wetland serves." The statute then stets forth eleven oaparato oritoria, includinrl g»rh fnnrtinns aS water storage, spawning of fresh water fish, stopovers for migratory birds, and habitation for endangered species. Id. G 905(7)(A), (D), (F), and (H). Because the Board did not evaluate the specific wetland area located an defendant's property pursuant to the criteria set forth in 4 905(7), defendant argues that it lacked authority to designate the wetland as significant. The argument is unpersuasive. As noted, the Vermont Wetland Rules provide that all wetlands identified on the NWI maps for the State of Vermont, and all wetlands contiguous thereto, are presumed to be Class Two wetlands, which in turn are presumed to serve the functions that qualify a wetland as significant. See Wetland Rules, 44 4.1., 4.2. These rules were the product of a 1988 Agency study of the Vermont wetlands identified on the NWI maps. Based on a random sample, the study found that over 93% of the evaluated NWI wetlands were significant based upon one or more of the eleven criteria set forth in 10 V.S.A. Q 905(7). In light of the over 22,000 acres of NWI wetlands in Vermont, the Board's decision to designate all of the NWI wetlands as significant, ]cased upon the high percentage of the sample <Page 8> meeting the statutory criteria, was reasonable. The statute does not explicitly require a separate and detailed evaluation of every wetland designatedas9 gnificant, and we cannot say that the Board's reliance on the Agency study constituted clear error. See State v. Rolfe, 166 Vt. 1, 8, 686 A.2d 949, 955 (1996) (the Court 11deferLsJ to an agency's interpretation of enabling legislation unless there is a compelling indication of error"). Furthermore, the Wetlands Rules afforded defendant, or any other affected landowner, the opportunity to petition the Board to reclassify the wetland, and areas contiguous thereto, to a higher or lower classification. see wetland Rules, 0 7. Accordingly, the Board's classification of the NW1 wetlands was not clearly erroneous. Agricultural Use Defendant next contends he was not subject to the CUD requirement because the excavation work was for an agricultural purpose. The argument implicates two provisions of the Wetland Rules. Section 3 exempts from the definition of a wetland those areas used for "farming activities," which are generally limited to the 10grow[ing3 of food or crops . in JUN-25-1999 FRI 11:43 AN STITZEL PAGE FLETCHER PC FAX NO. 8026602552 ordinary rotation." Wetland Rules, 4 3.1(c); see also 10 V.S.A. 2 902(5) ("wetlands" shall exclude "such areas as crow food or crops in connection with farming activities"). The Rules provide further that "[t]he exemption will expire whenever the area is no longer used to grow food or crops or in ordinary rotation." Wetland Rules, s? 3.1(c). The court here found, and the evidence amply demonstrated, that the area where the work was performed was not being used to grow food or crops in ordinary rotation, and had not been farmed for many years. Therefore, it did not qualify for the exemption. in addition to the farming exemption, the Wetland Rules also provide that farming constitutes an "allowed use" within a significant wetland area. sea Wetland Rules, 2 6.2. {Page 9> "[P]rovided that the configuration of the wetland's outlet or the flow of water into or out of the wetland is not altered and that no draining, dredging, filling, or grading occurs," a landowner may engage in "[t]he growing of food or crops in connection with farming activities" without prior review by the Secretary. Id. a 6.2(f). Thus, it is undisputed that while the farming exemption requires a current and ongoing use of the land for growing crops, an "allowed use" may include the preparation of land for future farming purposes. Defendant contends that the excavation work was performed for the purpose of preparing the area for pasture and crop production, and therefore constituted an allowed use that required no prior approval. Defendant testified that this was his purpose, and the excavation contractor provided some corroboration, recalling that defendant had said something about wanting to grow soybeans. The State asserts, on the contrary, that the work was not to prepare the land for farming, but rather to prepare the area for development in accordance with the subdivision proposal, a conditional use that required prior approval from the Secretary. The State relies on a map of the proposed subdivision showing the excavation area divided into housing lots. The court's finding on this issue was decidedly ambiguous. It stated: land From the evidence we cannot find that the disturbed area constituted which grows food or crops in connection with farming activities. 10 V.S.A. Q 902(5) and Vermont Wetland Rules 4 6.2(f). Unlike the neighboring fields, the disturbed area showed no traces of having been used as cropland, pasture, or other farmland in accepted agricultural practices. Although the court's finding clearly concerns the farming "exemption," the citations relate to farming as an "allowed use." Despite the contusion, it is clear that the court made no Factual finding concerning defendant's purpose in undertaking the work, other than noting that defendant "believed that drainage or development work in a wetland would be exempt if it was <Page 10> for agricultural purposes." Absent a finding on this issue, we are unable JIJN-25-1999 FRI 11:44 AN STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 07 to determine whether the excavation work was a conditional or an allowed use, and therefore cannot adequately review the court's findings that defendant was required to obtain a CUD, and violated 4 6.3 of the Wetland Rules by failing to do so. Accordingly, this portion of the judgment must be reversed, and the case remanded to the trial court for further findings and, if necessary, additional evidence on these issues. Discharge Without a permit Defendant next contends the evidence failed to support the court's finding of a violation of 10 V.S.A. 4 1259 (discharge into waters of state without a permit). Defendant asserts that he did not intend a discharge into Bartlett Brook, and that the disohargo resulted fr9m the Agency's stop -work order which prevented him from completing the ditch. The claims are unpersuasive. Although the law requires that any person who intends to discharge waste into state waters must obtain a permit, see 10 V.S.A. 4 1263, there is no requirement that the State prove intent to establish a violation of Q 1259, which simply provides that, "No person shall discharge any waste, substance, or material into waters of the state without first obtaining a permit." Furthermore, the record showed that Catherine O'Brien, the assistant wetlands coordinator for the Agency, visited the site in April, one month before the stop -work order, and observed significant erosion of silt and sediments from the ditch into Bartlett Brook. Accordingly, the court's finding of a violation of 2 1259 was not clearly erroneous. See Agency of Natural Resources v. Bean, 164 Vt. 438, 443, 672 A.2d 469, 472 (1995) (findings of trial court are not clearly erroneous and will stand if there is any credible evidence to support them). [Page 11> zoning Violations Defendant raises several claims concerning the zoning violations. The City's zoning bylaws permit certain uses, including farming, within the Conservation and open space District where defendant's land is located, subject to certain specific limitations. The use may not damage the quantity or quality of surface or ground water, and any excavation of earth materials or cutting or removal of trees is limited to the extent necessitated by the permitted use. see south Burlington Zoning Regs., 2 3.40. The court here found that the same activities that violated Q 6.3 of the Wetland Rules and 10 V.S.A. Q 1259, also violated the above -referenced zoning provisions. Defendant argues that the finding was unclear as to the nature of the violations, and was unsupported by the evidence. There was no lack of clarity in the court's finding, however, which plainly referred to the clearing of trees, brush, and stumps, the depositing of debris in the irrigation ditch, and the discharge of sediment into Bartlett creek. Furthermore, even assuming, as defendant contends, that the work was done for agricultural purposes, the evidence amply supported a finding that erosion from the irrigation ditch had impaired the quality of surface water, and that the excavation and removal of trees and brush exceeded what was necessary for the supposed use, in violation of the zoning bylaws. Although defendant argues that the Accepted Agricultural J'JN-25-1999 FRI 11:44 AM STITZEL PAGE FLETCHER PC FAX N0, 8028602552 P. 08 Practice regulations adopted by the Commissioner of the Department of Agriculture, Food, and Markets specifically authorize the ditching and subsurface draining of farm fields, they also explicitly prohibit the discharge of waste into the surface waters of the state, in accordance with State law. See Accepted Agricultural Practice Regs., 92 3.2(e), 4.01(a). Thus, the court's finding was supported by the evidence, and must be upheld. See Sean, 164 Vt. at 443, 672 A.2d at 472 (court's findings will stand if supported by any credible evidence). <Page 12> Finally, defendant contends the City's complaint failed to adequately specify the zoning violut.luns SuL6ac3ut:,x,Lly rauncl by the. trial Court. All of the issues relating to the violations found by the court were actively tried by the parties. Accordingly, they were properly addressed by by the trial court. See V.R.C.P. 15 (b) (when issues not raised by pleadings are tried by express or implied consent of parties, they shall be treated in all respects as if they had been raised in pleadings).(FN3) Penalties Finally, defendant contends that the monetary penalties were erroneously imposed in three respects. First, he contends that the base fines payable to the State ($2,500) and to the City ($2,195) for failure to take remedial action were improper because the State's notice of violation of May 6, 1996, ordered defendant to stop work an the site. The notice in question, however, ordered defendant to cease the excavation work Q%aL was causing erosion and damage within a protected wetland. it did not prohibit defendant from taking corrective action; indeed, it urged defendant to take remedial measures, stating, "[y]our efforts to achieve Compliance may lessen the severity of the final result of any enforcement action." The notice further directed defendant to call or write the Agency concerning his efforts to "correct this alleged violation." Accordingly, defendant's claim is without merit. Defendant also argues that the imposition of a penalty based upon the avoided cost of hiring a wetland consultant, estimated at $1,500, was improper because defendant was not a partner in the corporation proposing the development. Defendant owned the property, knew of the plans to build the development, instigated the excavation work, and was on notice of the Page 13> alleged violations and the Administrative order requiring, among other remediation measures, that he hire a wetlands consultant. Under these circumstances, the penalty was proper. Lastly, defendant contends the imposition of conditional penalties was improper. in addition to the base penalties, the court ruled that if, prior to May 6, 2001, the property is "sold or otherwise transferred for any reason, or is subdivided or developed by [defendant] for other than agricultural or open space purposes," defendant would be required to pay an additional penalty of $15,000 to the State, and an additional penalty of $19,753 to the City, on account of the violations. The conditional penalties were designed, the court explained, "to account for whether the ditching and drainage activities are in fact linked to future sale, SUN-25-1999 FRI 11:45 AM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P. 09 transfer or development of the property." (M) The imposition of civil penalties represents a discretionary ruling that will not be reversed if there is any reasonable basis for the ruling. Bee Town of Hinseburg v. Dunkling, 167 Vt. 514, 528, 711 A.2d 1163, 1171 (1998). Here, the court's conclusion that a higher penalty would be warranted if the excavation was undertaken to enable the development and sale of the property, was reasonable. In that event, the enhanced penalty would properly reflect the potential economic gain from the violation, see 10 V.S,A. Q 8010(b)(5), and would fall well within the remedial scope and limits of the zoning -penalty statute. See 24 V.S.A. Q 4444; Dunkling, 167 Vt, at 528-29, 711 A.2d at 1171. The court's broad discretion, however, did not include the authority to simply decline Page 143 to rule on whether the excavation was done for development purposes. The trial court has a fundamental duty to make all findings necessary to support its conclusions, resolve the issues before it, and provide an adequate basis for appellate review. See V.R.c.P. 52(a); Roy V. Mugford, 161 Vt. 501, 507, 642 A.2d 688, 692 (1994). This includes the duty to make all findings necessary for the assessment of an appropriate penalty. Although understandable given the conflicting evidence, the court's decision to defer making findings on the purpose of the excavation work violated this fundamental duty. Defendant is entitled to a definitive ruling on this factual issue, which is critical not only to the court's conclusion that defendant violated Wetland Rules, 2 6.3 (as previously discussed), but also to the penalty ultimately to be imposed. Accordingly, the imposition of alternative penalties must be reversed, and the matter remanded for further findings and, if necessary, additional evidence on these issues. Those portions of the judgments finding a violation of Vermont Wetland Rules, R 6.3, and imposing alternative penalties, are reversed, and the case is remanded for further proceedings on these issues, In all other respects, the judgments are affirmed. FOR THE COURT: Associate Justice Footnotes JUN-25-1999 FRI 11:46 AM STITZEL PAGE FLETCHER PC FAX NO. 8028602552 P. 10 FN1. Section 6.3 in pertinent part provides: "All uses which are not allowed uses are conditional uses. conditional uses may be allowed, within significant wetlands or their associated buffer zones, only under the terms of an order issued by the Secretary." FN2. Section 4.1(b) defines Class Two wetlands as those "found to be so significant, either taken alone or in conjunction with other wetlands, that they merit protection under these Rules. Section 4.2(b) provides that"[a]ll wetlands shown on the National Wetlands Inventory maps for the State of Vermont (1978) published by the U.S. Fish and Wildlife Service, and all wetlands contiguous to such mapped wetlands, are presumed to be Class Two wetlands, unless determined otherwise by the Board as provided for in Section 7 of these rules." FN3. The parties also dispute whether defendant properly appealed the city,s two violation notices. -Ln view of ouK huldliiy LImL LILT �,Lvidanae supported the finding, we need not address this issue. Md . The city had requested a fine of $50 per day for the 439 days of violation between the effective date of the notice of violation, and the date of trial. The base penalty of $2,195 represented a penalty of $5 per day for the violations. The conditional penalty of $19,755 represented an additional. $45 penalty per day. The State had proposed a total penalty of $17,500. The court imposed a base penalty of -$2500. The conditional penalty of $150000 represented the balance of the penalty requested by the State. e STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2535 (VO10E/CDD) STE VEN F STITZEL FAX (802) 660-2552 or 660.9119 PATTI R PAGE* E-MAWIRM2555 FIRMSPF COM) ROBERT E FLETCHER WRITER'S E-MAIL (IMCLEANQa FIRMSPF COM) JOSEPH S MCLEAN TIMOTHY M EUSTACE MIA 1:ARVONIDES AMANDA S.E LAFFERTY ('ALSO ADMITIED IN N Y ) January 31, 2000 Ms. Martha Hicks -Robinson Docket Clerk Vermont Supreme Court 109 State Street Montpelier, VT 05609-0801 Re: Vermont Agency of Natural Resources v. Irish City of South Burlington v. Irish Supreme Court Docket No. 2000-001 Dear Ms. Hicks -Robinson: Enclosed for filing with regard to the above -captioned matter is Appellee's Docketing Statement. Thank you. Sincerely, is ep JSM/gmt Enclosure cc: Gary Kessler, Esq. Michael B. Clapp, Esq. Ray Belair / SON4232.COR OF COUNSEL ARTHUR W CERNOSIA APPELLEE'S DOCKETING STATEMENT Appealed From: Vermont Environmental Court Vermont Agency of Natural Resources Plaintiff/Appellee V. Frank Irish Defendant/Appellant City of South Burlington Plaintiff/Appellee V. 69-5-97Vtec (Trial Court Docket No.) E97-069 (Former Trial Court Docket No.) 2000-001 (Supreme Court Docket No.) 93-6-97Vtec (Trial Court Docket No.) E97-093 (Former Trial Court Docket No.) Frank Irish 2000-001 (Supreme Court Defendant/Appellant Docket No.) A. COURT/COUNSEL 1) Trial Judge: Hon. Merideth Wright 2) Trial Counsel for Plaintiff: Gary Kessler, Esq. for Agency of Natural Resources; Joseph S. McLean, Esq. for City of South Burlington 3) Trial Counsel for Defendant: Michael B. Clapp, Esq. 4) Counsel in Supreme Court for Plaintiff: Same as above. 5) Counsel in Supreme Court for Defendant: Same as above. 6) Please list other parties and their counsel: None. 7) Date of Decision Being Appealed: November 19, 1999 8) Date of Notice of appeal Filed: December 29, 1999 B. CRIMINAL CASES Not applicable. 1) Was Defendant given a sentence of imprisonment? 2) If so, what is the sentence? 3) If so, has the sentence been stayed pending an appeal? 4) If the sentence has not been stayed, when did the Defendant begin service of the sentence? 5) What penalty other than a sentence has been imposed? Please describe: 6) Was trial counsel appointed or retained? C. BRIEF DESCRIPTION OF NATURE OF CASE AND RESULT This is a consolidated proceeding that is before this Court for a second time. Following a remand by this Court, Appellant, Frank Irish, appeals from a November 19, 1999 decision of the Vermont Environmental Court -- the Environmental Court's second substantive ruling in this case. His appeal is opposed by Appellees, the State of Vermont and the City of South Burlington. On or about June 25, 1999, this Court issued a written opinion affirming, in part, and reversing, in part, an October 1997 Environmental Court ruling that Mr. Irish had violated applicable provisions of the Vermont Wetlands Rules and the South Burlington Zoning Regulations. This Court's mandate specifically stated "[t]hose portions of the judgments finding a violation of Vermont Wetlands Rules, §6.3, and imposing alternative penalties, are reversed, and the case is remanded for further proceedings on these issues. In all other respects, the judgments are affirmed." Given this Court's mandate, the only issue on remand relevant to the City's case involved the propriety of the so-called "alternative penalties." In accordance with this Court's order, on remand, the trial court conducted further proceedings and provided the parties with an opportunity to present additional evidence, to file requests for additional findings, and to submit memoranda in support of their respective positions. No party sought to submit additional evidence, and Appellant did not file any post -remand proposed findings or memoranda. Both the State of Vermont and the City did file post -remand proposed findings and memoranda (copies attached). On or about November 19, 1999, the Environmental Court issued its Decision and Order after Remand, in which it made certain critical findings necessary to support its continuing conclusion that alternative penalties are an appropriate remedy in this case. In particular, the Environmental Court found that the excavation and drainage work done on Appellant's property was for development purposes. On December 29, 1999, Appellant filed a notice of appeal from that decision. These proceedings followed. D. STATEMENT OF ISSUES TO BE RAISED ON APPEAL I. Was the Environmental Court's finding that Appellant had excavation and drainage work done on his property to prepare it for development clearly erroneous? II. Did the Environmental Court err in imposing alternative penalties in this case? E. PHOTOCOPIES OF THE DOCUMENTS TO BE ATTACHED Was there a written decision? Yes The following documents must be attached (check if attached); 1) Written decision or order or opinion. X 2) Relevant pleadings and motions (other than discovery, unless it is an issue on appeal.) X 3) Citations to constitutions, statutes, or cases relied upon, and copies of pertinent texts of ordinances and regulations. 4) Memoranda of law filed in support of, and in opposition to, motion to dismiss, motion to set aside verdict, or any other motion relevant to the appeal. X 5) Parties' requests for findings or for jury instructions, if relevant, with marginal notes as to whether granted or denied, unless discussed in a memorandum of law. X NOTE TO APPELLEE: If you agree that Appellant has attached all appropriate documents, check here You need not attach documents provided by Appellant; if you believe that additional documents should be provided to the Supreme Court, please indicate which ones and attach them to this statement. F. INVENTORY OF HEARINGS: TRANSCRIPTS ORDERED The Appellant must list every recorded hearing which was held in this matter, including the date, the type of hearings (e.g., pretrial, suppression, status conferences, trial) and the stenographer for each. If the hearing was tape-recorded, so state instead of naming the stenographer. Attach additional pages if needed. (NOTE: Transcript(s) must be ordered within ten (10) days of notice of appeal; the attorney ordering the transcript(s) must serve copies of each order upon the Clerk of 3 U the Supreme Court and all parties, as well as the trial court. See V.R.A.P. 10(b)(1). Date of Length of hearing hearing days/hours 7/11/97 2 days 7/21/97 Type of Reporter's hearing name (or "TAPE") Tammy Martel Cindy Hayden Transcript Date nec- necessary essary for appeal?* transcript ordered Does the Appellee agree as to which transcript(s) are essential for the appeal? Yes X No If not, indicate name(s), date(s), and reporter(s) of additional transcript(s) needed? G. CONFERENCE; EXPEDITED RESOLUTION 1) Do you request a conference with a No staff attorney to discuss either settlement or expedited resolution? (Most conferences are done by telephone.) 2) Do you consent to decision on Yes written briefs without oral argument? 3) Is this matter appropriate for Yes V.R.A.P. 33.1 and Administrative Order 27? Please explain. As to the City's case, there are no substantial questions of law at issue, an#,this matter is amenable to a decision on the briefs.• ) Submitted by: CITY OF SOUTH BURLINGTON, Plaintiff/Appellee X. Dated: Dated: January 31, 2000 Signed: Jdsdph S. McLean StItzel, Page & Fletcher, P.C. 1 Battery Street P.O. Box 1507 Burlington, VT 05402-1507 *If no transcripts are necessary for appeal, check here [ X SON621.LIT 4 STATE OF VERMONT ENVIRONMENTAL COURT Secretary, Vermont Agency of Natural Resources, } } V. } Docket No. 69-5-97 Vtec } (formerly No. E97-069) Frank Irish, } Respondent. } City of South Burlington } } V. } Docket No. 93-6-97 Vtec } (formerly No. E97-093) Frank Irish } Decision And Order after Remand Respondent -Defendant Frank Irish is represented by Michael B. Clapp, Esq.; the Secretary of the Agency of Natural Resources ("ANR") is represented by Gary S. Kessler, Esq.; and the City of South Burlington ("the City") is represented by Joseph S. McLean, Esq. On Mav 6, 19971) the Secretary of the Vermont Agency of Natural Resources issued an administrative order pursuant to 10 V.S.A. §8008 regarding Respondent Frank Irish. Respondent timely requested a hearing in Environmental Court. In May of 1996, the City of South Burlington had filed a zoning enforcement action in Chittenden Superior Court against Mr. Irish regarding the same activities on the same parcel of land. The zoning enforcement action was transferred to Environmental Court in June of 1997 and the two matters were consolidated for hearing. The Court also took a site visit to the property. The Coures decision was issued in October of 1997. In July of 1999 the Supreme Court affirmed the decision in part, reversed "those portions of the judgments finding a violation of Vermont Wetland Rules §6.3 and imposing alternative penalties", and remanded for further proceedings. The parties were given the opportunity to request to present additional evidence, acid eventually determined not to do so; they did file requests for the additional findings and memoranda in support of their respective positions. Based on the evidence presented at the original hearing, the site visit, and all requests for findings and legal memoranda, the Court finds and concludes as follows. For ease of reference and use, we reproduce the original decision; all new material is in bold type and any deleted material is represented by bold brackets: [ ] The statutes, rules and permits applicable to Docket No. 69-5-97 Vtec are 4 V.S.A. Chapter 27, 10 V.S.A. Chapter 201, 10 V.S.A. §1259(a), 10 V.S.A. 5905(7), (8), and (9), and §6.3 of the Vermont Wetland Rules. 10 V.S.A. §8012(c)(2). Findings Mr. Frank Irish owns a 26.3-acre parcel of land in the City of South Burlington, on the south side of Allen Road, as well as other property in the area including his residence and land he has farmed. Early in 1996, Mr. Irish discussed with Peter Smejkal and Ron Brousseau the possible sale of the 26.3-acre parcel to them for residential development, at a price in the vicinity of $200,000. Mr. Brousseau is Mr. Irish's brother-in-law. Mr. Smejkal was the project manager and is familiar with residential subdivision development. In February 1996 the so-called "Irish Development Corporation" as applicant submitted an application to the City for a 48-lot subdivision proposed for the property. There was no evidence to show that the so-called Irish Development Corporation was ever incorporated, or that Mr. Irish personally had any interest in the development other than as seller of the property. The application was signed by Mr. Smejkal. The application showed the applicant as having the legal interest of "optionee," although no written option agreement or other contract was submitted in evidence at trial. The application showed Frank Irish as the land owner of record, and showed Peter Smejkal and Ron Brousseau as "contacts" for the applicant "Irish Development Corporation." Mr. Brousseau acted as Mr. Irish's agent in March and April of 1996 when Mr. Irish was in the hospital, and continued so to act by accepting certified mail on his behalf into May and June, 1996. We cannot find from the evidence that Mr. Smejkal ever acted as agent for or on behalf of Mr. Irish, nor tha: Mr. Irish acted as a de facto partner of Messrs. Smejkal and Brousseau in this development. However, given the family relationship between Mr. Brousseau and Mr. Irish, we do find from the circumstances that Mr. Irish knew of Messrs. Brousseau and Smejkal's plans to build a48-lot residential subdivision on the land in question. Given Mr. Irish's familiarity with the land, we also find that he knew that some of the land was wet and that more of the land would be suitable for residential development if it were drained. On March 19, 1996) ANR Assistant Wetlands Coordinator Catherine O'Brien met with Mr. Smejkal on the property, and identified for him areas of Class II wetland on the property, including areas of wetland contiguous to those identified on the National Wetlands Inventory Map. She informed .Mr. Smejkal that a prior Conditional Use Determination (CUD) would be necessary before any development could take place on the property in the wetland. On March 27, 19961) she sent Mr. Smejkal a letter confirming the conversation and recommending that a wetland consultant be hired to delineate the wetland areas and their 50- foot buffer zones. This work is estimated to cost approximately $1,500. Also in March, 1996, Frank Irish arranged with C.W. Gregory, an excavation contractor, to excavate a drainage ditch near the power line right-of-way, to intercept water draining onto his land, in particular from a water supply line bedded in gravel which was acting as a conduit for water to flow onto his property. Frank Irish believed that the drainage ditch would assist in keeping the field nearest the power line drier, and believed that drainage 3 or development work in a wetland would be exempt if it was for agricultural purposes. The contractor proceeded to do the work, which included cutting and removing trees and brush, excavating the ditch, grubbing up tree roots of significant size, depositing some of the brush, stumps and sediment in the ditch or the natural watercourse, and allowing additional sediment to flow and be deposited in Bartlett Brook, a watercourse running along the edge of and from Mr. Irish's property. The work in the disturbed area was more extensive than that necessary merely to intercept water draining onto Mr. Irish's property. The disturbed area is located within the Conservation and Open Space District under the City's zoning regulations. It is also in an area of Class H wetlands as that term is defined in the Wetlands regulations, because it is functionally a wetland and is contiguous to an area mapped on the National Wetlands Inventory map. Sediment from the disturbed area flowed and continues to flow into Bartlett Brook, constituting a discharge under 10 V.S.A. § 1259 (a). From the evidence we [ ] find that the disturbed area did not constitute[ ] land which grows food or crops in connection with farming activities as used in P.1(c) of the Vermont Wetland Rules and see 10 V.S.A. §902(5). Unlike the neighboring fields, the disturbed area showed no traces of having been used as cropland, pasture, or other farmland in accepted agricultural practices, or in ordinary rotation. In early April 1996, after receiving a complaint that site work was proceeding in the wetland, Catherine O'Brien telephoned Mr. Smejkal, who referred her to Mr. Gregory as the contractor doing the work. From this referral we find that . r. Irish informed either Mr. Brousseau or Mr. Smejkal of the work he was having done on the property. Ms. O'Brien informed Mr. Smejkal and Mr. Gregory by telephone that work in the wetland would be in violation of the Vermont Wetland rules and should cease immediately. As of April 16,1996, under Mr. Irish's instructions and with Mr. Smejkal's knowledge, Mr. Gregory had cut trees, pulled stumps, regraded the surface, and dug a ditch approximately 1000 feet long and five feet deep in the Class H wetland and its 50 foot buffer zone, and had caused a continuing discharge of silt to state waters, Bartlett Brook. The discharge of silt 4 continued in December, 1996 and into July of 1997. This work altered the flow of water into and out of the wetland, and constituted partial draining, filling, and grading in the wetland. Given the sequence and timing of events described above, and in particular Mr. Irish's familial relationship with Mr. Brousseau, Mr. Irish's discussions with Mr. Smejkal and Mr. Brousseau regarding the sale of the property to them, Mr. Irish's knowledge of their plans to build a 48-lot subdivision on the land in question, their submission of the application and site plan to the City in the name of the so-called "Irish Development Corporation" showing building lots in the area at issue, Mr. Irish's communications with Mr. Brousseau and Mr. Smejkal regarding the work that he was having done on the property, the scope and extent of the cutting, grading and ditching that occurred, and the absence of any evidence that the disturbed area was used or had ever been used for agricultural purposes, we find that the excavation and drainage work was done at least in part to prepare the land for development purposes, and that the farming activities planned for the site were incidental and planned to be carried on only until development would take place. On April 17, 1996, the City's "Zoning and Planning Assistant" issued a Notice of Violation to Mr. Irish. The notice stated the means of filing an appeal was to file with the Clerk of the ZBA. Mr. Irish responded to the zoning and planning assistant, stating that the response was his "formal appeal" and claiming that the work was being done for agricultural purposes and that the tree cutting was for firewood. Agriculture and forestry are permitted uses in the Conservation and Open Space District. §3.201 of the South Burlington Zoning Regulations. We need not reach the question of whether Mr. Irish failed to perfect his appeal by failing to file it with the ZBA and by failing to file the required fee, because on April 30, 1996, the City-'s Zoning Administrative office issued a second Notice of Violation to Mr. Irish, acknowledging that clearing land for agricultural purposes is a permitted use in the zone, but 5 stating that the excavation of trees and the deposition of the brush and silt in the drainage way was a serious additional violation. The April 30, 1996 letter also stated the means of appeal and included the appeal application. Mr. Irish did not appeal the April 30, 1996 Notice of Violation. On May 10, 1996, Mr. Irish received a Notice of Alleged Violation instructing him to cease all work in the wetland. Mr. Brousseau signed for this. of certified mail as Mr. Irish's agent. As of June 7, 1996, additional stumping and grading had been performed in the Class II Wetland, beyond the work done as of April 16, 1996. We find that this work was also done at least in part for development purposes. Moreover, as of that time Mr. Irish was on notice of the alleged violations and the Administrative Order requiring, among other remediation measures, that he hire a wetland consultant. As of July 21, 1997, neither Frank Irish, nor anyone acting on his behalf, had applied for or obtained a Conditional Use Determination to allow the work performed in the Wetland. As of July 21, 1997, neither Frank Irish, nor anyone acting on his behalf, had taken any remedial action to stabilize the sides of the ditch or prevent the continuing discharge of silt to Bartlett Brook. Mr. Gregory had intended to stabilize the bank with rip -rap, but neither he nor Mr. Irish sought permission to proceed to that step after receiving the stop work instructions. As of July 21, 1997, neither Frank Irish, nor anyone acting on his behalf, had applied for or obtained a zoning permit to allow the site work performed in the Conservation and Open Space District. Conclusions as to ANR Enforcement Violation (10 V.S.A. §8012(c)(1)): The statute requires this Court to determine whether a violation has occurred, 10 V.S.A. § 8012(b)(1), independently of reviewing and determining anew a penalty amount. 10 V.S.A. § 8012(b)(4). R A violation has occurred, for which Mr. Irish is responsible as the owner of the property and the person who directed Mr. Gregory's work, regardless of whether Messrs. Smejkal, Brousseau, or Gregory also could be cited under any state statute or regulation or any city ordinance. The disturbed area is in an area of Class II wetlands and sediment from the disturbed area constitutes a discharge under 10 V.S.A. §1259(a). The Supreme Court distinguished between the treatment of farming activities in §3.1(c) and §6.2(f) of the Vermont Wetland Rules. The Supreme Court upheld this' Court's conclusion that the disturbed area did not qualify for the §3.1(c) exemption from the definition of a wetland, as it was not being used to grow food or crops in ordinary rotation and had not been farmed for many years. However, the Supreme Court remanded for this Court to address whether Respondent's use of the disturbed area qualified as an allowed use within a wetland, without a prior conditional use determination by the Secretary, as provided in §6.2(f). Section §6.2 provides a mechanism, which the Supreme Court referred to as an "allowed use," for landowners to engage in the listed activities in wetlands and their buffer areas without any prior review under the Vermont Wetland Rules. This mechanism applies to the "growing of food or crops in connection with farming activities," when threatened or endangered species are protected, mapped deer wintering yards are not cleared, and the activities are carried out in "compliance with the most recent Acceptable Agricultural Practices" of the Vermont Department of Agriculture. These Acceptable Agricultural Practices include preparing the area for pasture and crop production. Accordingly, the Supreme Court and the parties have focused on this Court's making a finding as to Respondent's purpose in undertaking the work in the disturbed area. But §6.2 also imposes a significant limitation on the list of allowed uses: they only may qualify as allowed uses "provided that the configuration of the wetland's outlet or the flow of water into or out of the wetland is not altered and that no 7 draining, dredging, filling, or grading occurs' ...." In the present case, draining, filling, and grading have all occurred in the wetland, and the route of flow of water into the wetland was also altered. For that reason, even if Respondent's purposes for undertaking the work had been purely for farming(instead, as we have found, in part for development and in part for incidental farming until development would take place), the activity did not qualify as a §6.2(f) approved use, and therefore Respondent would still have to have obtained a conditional use determination prior to having done the work. However, we have also found that Respondent's purposes for undertaking the work were at least in part to render the land more suitable for future subdivision, and therefore the activity would not qualify for treatment as a §6.2(f) approved use on that basis as well. Further, the Wetland Rules do not offend principles of due process and do not create a "taking" by defining wetlands by their function, by their contiguity to mapped wetlands, or by requiring a 50-foot buffer zone. By failing to obtain a conditional use determination before commencing work in a wetland, Respondent violated the Vermont Wetland Rules. By having work done caused a continuing discharge of sediment to Bartlett Brook, without having a permit for that discharge, Respondent violated 10 V.S.A. § 1259(a). Conclusions as to City Zoning Enforcement Violation The same activities violated Article 3 of the City's zoning regulations, and in particular §§3.4021 3.403, and 3.405. Mr. Irish did not appeal the April 30,1996 Notice of Violation, therefore 24 V.S.A. §4472 prevents this court from further considering it in the present enforcement case. Remedial action was not taken, nor was permission for remedial action sought from the Agency or the City. The duration of the violation for the purpose of the ' Except as provided for in several subsections unrelated to this case. N. City's enforcement action begins seven days from the April 30, 1996 Notice of Violation, that is, May 7, 1996 and continued to the date of trial, July 21, 1997, or a total of 439 days. ANR enforcement case: Determination of Order and Penalty (10 V.S.A. §8012(c)(3)): The remedial portions of the Administrative Order were issued under 10 V.S.A. § 8008(5), and therefore this Court must determine whether to affirm them, or vacate and remand them, under 10 V.S.A. § 8012(b)(2). The remedial portions are affirmed, as the remedial procedure contained in the order is reasonably likely to achieve the intended result. Within 30 days of the date of this Order Frank Irish shall hire a wetlands consultant to delineate the wetland and buffer zone on his property, and to identify the disturbed area which constitutes the violation within the wetland and buffer zone. Within 60 days of the date of this Order Frank Irish shall have the wetlands consultant develop and submit to the Enforcement Division of the ANR a plan to restore the wetland to its condition prior to the violation. The ANR shall rule promptly on whether the submittal is complete, and shall rule promptly in writing on whether the plan is accepted, rejected or modified to comply with current statutes and regulations governing wetland protection. Within 45 days of the approval of the restoration plan, or such later date as may be approved in writing by the ANR due to seasonal considerations, Frank Irish shall complete implementation of the restoration plan. Within 20 days after completion, Frank Irish shall have the wetlands consultant submit a completion report to the ANR, and sha1 allow ANR inspectors to come onto the property to evaluate implementation of the plan. The Court must also review and determine anew an appropriate penalty amount for the violation by applying the eight criteria set forth in 10 V.S.A. §8010(b). 10 V.S.A. §8012(b)(4). The Secretary makes no claim of potential for public health or safety harm resulting from this violation. § 8010(b)(1). There was actual impact on public welfare and the 9 environment due to the siltation in Bartlett Brook, although the magnitude of that harm has not been great. §8010(b)(1). The duration of the violation is measured from the date of the activity, late March 1996, to the date of trial, late July 1997, or approximately 16 months. §8010(b)(8). The need to deter disregard of the requirements of the law (§8010(b)(6)) requires the imposition of a monetary penalty for Respondent's failure to apply for a conditional use determination or discharge permit, even without lasting environmental or public harm. State Agencv of Natural Resources v. Riendeau, 157 V t. 615, 622 (1991) . Vermont's environmental permit programs cannot function if activities intended to be subject to permit requirements are conducted without obtaining the required permits, regardless of the personal or business reasons for that failure. That is, a monetary penalty would be warranted whether Mr. Irish thought'the dredging would improve the saleability of the land for development purposes, or whether he truly but mistakenly thought it would be exempt as an agricultural purpose. It is only the magnitude of the penalty which would be affected by those considerations. In the present case, at the time of authorizing Mr. Gregory to perform the excavation, Respondent may have thought or assumed that his activities did not require a permit, but he knew or had reason to know the violations existed at least as of shortly before the April 16, 1996 site visit. Ms. O'Brien's May 6, 1996, letter to Irish refers to Brousseau having informed her that Irish was in the hospital and that Irish had orally- through Brousseau authorized Ms. O'Brien to go on the site to determine if a wedand ,,violation had occurred. §8010(b)(3). It is also important to the "even-handed enforcement" of Vermont's environmental laws (10 V.S.A. § 8001(3)), that anyone conducting activities which require a permit must recognize that it is necessary to apply for and obtain the necessary permits before commencing the activity. Moreover, after being informed of the conditional use determination requirement in April of 1996, Respondent took no steps to apply for such a determination after the fact, to propose remedial action for the discharge to the brook, or to seek a declaratory ruling on 10 whether the agricultural exemption applied to this activity. If any of these actions had been taken, that action or attempt might have been considered as a mitigating factor (0010(b) (2) ) or as evidence of efforts to comply. §8010(b)(4). In the present case there is no delay attributable to the Secretary which was unreasonable under the circumstances of this case. §8010(b)(2). The Secretary has not claimed other instances in which Respondent has failed to comply with environmental laws, and has not issued this order against Mr. Smejkal or Mr. Brousseau who may have more experience with development projects. §8010(b) (4). The Secretary presented no evidence of the Agency's actual costs of enforcement. §8010 (b) (7). Respondent received two types of economic benefit from this violation. §8010(b) (5). The first was the avoided cost of having a wetland consultant go on the site, and characterize or delineate the boundaries of the Class II wetland. This is estimated at $1,500. The Secretary argues that Respondent also would have received the profit of his sale of the property to Messrs. Smejkal and Brousseau for the subdivision, and that it was worth for development more in a drained state than with undisturbed wetlands. While there was testimony that the parcel would have been sold for $200,000, there was no evidence of the relative market value of the property with the wetland intact and in its present state. The Secretary proposes a total penalty of S 17,500 to account for what the Secretary argues is Respondent's ingenuous attempt to render the property more suitable for development while claiming io be doing the work under the agricultural exemption. So substantial a penalty above the costs of remediation is appropriate only if Respondent had the work performed to promote the suitability of the land for development, that is, if the land is in fact transferred or developed within five years of the drainage work on the site. Accordingly, taking all these factors into account, the Court will impose two alternative penalties for this violation, to account for whether the ditching and drainage activities are in fact linked to future economic benefit from the sale, transfer or development of the property, as follows. 11 Based on the findings, conclusions, and reasoning of this decision, it is hereby ORDERED that Paragraph A of the May 6, 1997 Administrative Order is vacated. On or before 45 days from the date this order becomes final, Respondent shall pay a penalty of $2,500 to the State of Vermont, to be deposited in the general fund pursuant to 10 V.S.A. §8010(e). If on or before five years from the date this order becomes final, the property is sold or otherwise transferred for any reason, or is subdivided or developed by Respondent for other than agricultural or open space purposes, then at such time Respondent shall pay an additional penalty of $15,000 to the State of Vermont on account of this violation, to be deposited in the general fund pursuant to 10 V.S.A. §8010(e), making the total penalty for this violation the $17,500 requested by the Secretary. ANR Enforcement case - Specific Rights of Al2peal (10 V.S.A. §8012(c)(4) and (5)): WARNING: this decision will become final if no appeal is requested within 10 days of receipt of this decision. Respondent and the Secretary of the Agency of Natural Resources have a right to appeal this decision. The procedures for requesting an appeal are found in the Vermont Rules of Appellate Procedure (V.R.A.P.) subject to the exceptions in Vermont Rules of Civil Procedure (V.R.C.P.) 76(a)(3) and (d)(5). Within 10 days of receipt of this Order, any party seeking to file an appeal must file the notice of appeal with the Clerk of this Court, together with the applicable filing fee. Questions may be addressed to the Clerk of the Vermont Supreme Court, 111 State Street, Montpelier, VT 05609-0801, (802) 828-3276. An appeal to the Supreme Court operates as a stay of payment of a penalty, but does not stay any other aspect of an order issued by this Court. 10 V.S.A. §8013 (d). A party may petition the Supreme Court for a stay under the provisions of V.R.C.P. 62 and V.R.A.P. 8. City enforcement case: Order and Penalty: The remedial order imposed for the state law violation will suffice for the City's zoning violation. For the same reasons as in the state law violation, the Court will impose two 12 alternative penalties for the City's zoning violation, to account for whether the ditching and drainage activities are linked to economic benefit from the future sale, transfer or development of the property. On or before 45 days from the date this order becomes final, Respondent shall pay a penalty of $5 per day of violation, or $2,195 for the 439 days of to the City of South Burlington. If on or before five years from the date this violation, order becomes final, the property is sold or otherwise transferred for any reason, or is subdivided or developed by Respondent for other than agricultural or open space purposes, then at such time Respondent shall pay an additional penalty of an additional $45 per day of violation, or an additional $19,755 for the 439 days of violation, to the City of South Burlington on account of this violation, making the total penalty for this violation the $50 per day requested by the City. Done at Barre, Vermont, this 19' day of November, 1999. Merideth Wright Environmental Judge 13 ;T]TZEL, PAGE & FLETCHEP, P.C. TTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 l'1i1_I\6TON. VF.RMO%'T 05404-1507 STATE OF VERMONT ENVIRONMENTAL COURT SECRETARY, VERMONT AGENCY ) OF NATURAL RESOURCES and ) CITY OF SOUTH BURLINGTON ) VERMONT ENVIRONMENTAL COURT DOCKET NOS. E97-069/093 V. ) FRANK IRISH ) CITY OF SOUTH BURLINGTON'S PROPOSED FINDINGS NOW COMES the Plaintiff, City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and asks this Court to make the following findings in connection with its Decision and Order on remand in the above -referenced matter. Proposed Findings Regarding Purpose of Excavation Work On the basis of the evidence presented at trial, the submissions of the parties and the record in this case, this Court's October 20, 1997 Decision and Order in this matter is hereby modified as follows. Peginning with the last sentence on ,page 3. and continuing on the top of page 4. As of April 16, 1996, under Mr. Irish's instructions and with Mr. Smejkal's knowledge, Mr. Gregory had cut trees, pulled stumps, regraded the surface, and dug a ditch approximately 1000 feet long and five feet deep in the Class II wetland and its 50 foot buffer zone, and had caused a continuing discharge of silt to state waters, Bartlett Brook. The discharge of silt continued in December and into July of 1997. Given the sequence and timing of events described above, particularly Mr. Irish's discussions with Mr. Smejkal and Mr. Brousseau regarding the sale of the property to them, Mr. Irish's familial relationship with Mr. Brousseau, the submission of an application to the City in the name of the so-called "Irish Development Corporation" together with a site plan showing building lots in the area at issue, Mr. Irish's 1 PITZEL, PAGE & 'LETCH£R. P.C. "TORNFYS AT LAW 71 BATTERY SPREET PO ROX I607 IHLI\C1'OK, NTHMO\T n u7: 1SU7 knowledge of Messrs. Brousseau and Smejkal's plans to build a 48-lot subdivision on the land in question, Mr. Irish's communications with Mr. Brousseau and/or Mr. Smejkal regarding the work that he was having done on the property, the scope and extent of the cutting, grading and ditching that occurred (which appears to have involved much more than was necessary to intercept any water that may have been draining onto Mr. Irish's land) and the absence of any evidence that the disturbed area was used or had ever been used for agricultural purposes, we find that the April 16, 1996 excavation work was done to prepare the land for development purposes. Forth full tiaragranh on page 4. As of June 7, 1996, additional stumping and grading had been performed in the Class II Wetland, beyond the work done as of April 16, 1996. We find that this work was also done for development purposes. Defendant owned the property, knew of the plans to build the development, instigated the excavation work, and was on notice of the alleged violations and the Administrative Order requiring, among other remediation measures, that he hire a wetland consultant. conclusion To date, Defendant has not undertaken any remediation measures with regard to the property at issue in this case. Defendant's request for a stay of enforcement was denied by this Court. Accordingly, as a result of Defendant's failure to comply with the order of this Court, continuing harm has occurred to Plaintiffs. Given this circumstance and on the basis of the above -stated findings, the City of South Burlington respectfully requests that this Court modify and reimpose the conditional penalties contained in its October 20, 1997 Decision and order, providing that Defendant will be subject to said conditional penalty if the involved land is transferred or developed within five years of the date in which the decision in this matter becomes final. 2 DATED at Burlington, Vermont, this 15th day of November, 1999. son603.1it CITZEL, PAGE do 'LETCHER, P.C. TORNEYS AT LAW 71 B ATTEHY STREET PO Box lao7 '11LI'.GT0N. VEHMONT 0'..117-1 sol CITY OF SOUTH BURLINGTON By: STITZEI,�,r�GE & FLETCHER, P.C. 3 STATE OF VERMONT AGENCY OF NATURAL RESOURCES SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES, Plaintiff ' V. MR. FRANK IRISH, Respondent ENVIRONMENTAL COURT DOCKET # 69-5-97 Vtec MEMORANDUM REGARDING REMAND FROM THE SUPREME COURT The Secretary ("Secretary") of the Vermont Agency of Natural Resources ("Agency"), pursuant to an Entry Order of the Court issued October 21, 1999, hereby files the following Memorandum. Background In 1996 Respondent violated the Vermont Wetland Rules by dredging and draining a Class 2 wetland and by discharging material into waters of the state in violation of 10 V.S.A. §1259. A trial was held in this matter in July of 1997. This Court issued its Decision and Order on October 20, 1997. In the Decision and Order this Court found that Respondent violated both 10 V.S.A. §1259 and the Vermont Wetland Rules. In response to these violations this Court vacated the Secretary's Order and in its place imposed a two -tiered penalty. This two -tiered penalty required that Respondent pay $2,500 by December 1, 1997. If the land in question was developed or sold for development prior to May 6, 2001, Respondent was required to pay an additional $15,000 penalty. Respondent was also required to hire a wetland consultant and restore the wetland. As of this date no portion of this Court's Order has b:complied with. Respondent appealed this Court's decision to the Supreme Court. On July 21, 1999, the Supreme Court issued its decision in this matter. The Supreme Court reversed and remanded this matter back to this Court. The sole basis for the remand was the Supreme Court's conclusion that this Court had not made a definitive finding on the issue of the claimed farming exemption. The Supreme Court stated: 44 Absent a finding on this issue, we are unable to determine whether the excavation work was a conditional or an allowed use, and therefore cannot adequately review the Court's findings that defendant was required to obtain a CUD, and violated §6.3 of the Wetland Rules by failing to do so. The Supreme Court went on to conclude that the Respondent is entitled to a definitive ruling on this factual issue. Discussion The sole issue for this Court's consideration on remand is whether the excavation in the wetland was done to foster development. It is the position of the Secretary that this work was done to improve the site for the development of a housing subdivision. Prior to any work in the wetland Respondent had offered to sell his land for development. Respondent would only get paid approximately $200,000 when the application for subdivision was approved. An application had been made in February 1996 to the City of South Burlington for the creation of the 48-lot subdivision on the site. Ms. O'Brien met with one of the applicants, Mr. Smejkal, at the site on March 19, 1996 to determine if a wetland was present. Ms. O'Brien was contacted only after the subdivision application had been filed and as a result of City Zoning Board having suggested it. Ms. O'Brien informed Mr. Smejkal that a Class 2 wetland was located on the site and that a wetland consultant should be hired to delineate the boundaries of the wetland. Ms. O'Brien also told Mr. Smejkal that there was a 50-foot buffer protecting the wetland and she advised him to simply avoid the forested wetland altogether. (Transcript 1, July 11, 1997, Page 25, Line 11) Ms. O'Brien followed -up her meeting with Mr. Smejkal with a letter outlining what needed to be done prior to the development moving forward. During his testimony Respondent was asked on direct: Q ....development, of that land, did you think that was something that was going to occur right away? A Well, yeah, part of it. (Transcript 2, July 21, 1997, Page 19, line 27) On cross-examination of the Respondent the following exchange occurred: Q Did you tell Mr. McLean at that time that your long-term plans were to sell that land and build houses on it? A I was planning on it. 2 �A Q And you were not planning on farming it at the time you were going to sell it? A Yeah. (T2, P23, L6) To the Secretary the evidence is clear and overwhelming, Respondent intended to sell the land for development. A fair conclusion can be drawn from the evidence that the excavation on the land was intended to drain the wetland, thereby destroying it, and allowing the full site to be used for the construction of house lots. As regards the claim that the land was being prepared for some agricultural purpose, such a claim is specious in light of the plain evidence, and even if true it still would not have qualified as an exemption to the Vermont Wetland Rules. Vermont Wetland Rule §3.1(c) provides a significant limitation on the farming exemption. That limitation reads as follows: The farming exemption shall apply to all areas used to grow food or crops in connection with farming activities including areas in ordirraryrotation, as of the effective date of these rules. The exception wiUexpire whenever the area ssnolonger used to growfood or crops orin ordinaryrotation. (emphasis added) Testimony at trial from Patricia Irish whose house is adjacent to the site in question was that the land that was excavated had not been used for an agricultural purpose since at least the early 1980s. Respondent himself testified that he had not been growing any crops or grazing cattle in that area since the mid 1980s (T2, P24, L2 - 19). Even if Respondent is given the benefit of the doubt regarding what he intended to do on the site, a benefit which the facts clearly do not warrant, he still could not have qualified for the farming exemption, a fact already determined by this Court in its October 20, 1997 Decision and Order. Conclusion The Secretary recognizes that Frank Irish is a sympathetic Respondent. In spite of that fact, Mr. Irish, as the landowner of the site stood to make a large amount of money if the site were subdivided and fully developed. The timing of the events in this matter clearly evidence the fact that Respondent intended to develop his property. Respondent's testimony while often confused, adds to the fact that Respondent ]mew and intended to sell the property m for development in the near term. The fact that some portion of the property was a Class 2 wetland reduced the number of lots that could be created on the site. Respondent's motive in draining the wetland was to allow the full site to be developable and thus allow him to maximize the money paid to him. For the reasons above the Secretary asks that this Court make an additional finding that Respondent undertook the excavation and draining of the wetland for the purposes of development. As regards the penalty the Secretary asks that the Court impose the entire $17,500 amount to be payable at this time. The Secretai?also asks that the Court include the site remediation and restoration from the October 20, I997 Decision and Order. Dated at Waterbury, Vermont, this 15th day of November 1999. SECRETARY, AGENCY OF NATURAL RESOURCES BY: C14 zl-� (— Gary Kessler, Esq. Senior Environmental Enforcement Attorney Agency of Natural Resources El STATE OF VERMONT VERMONT ENVIRONMENTAL COURT Sccr�aQY A.N.R. v. Irish Dockct No: 69-5-97 Vtcc ENTRY ORDER At the telephone conference on or about September 16, 1999, Attorney Clapp stated that he was not intending to request or brief the opportunity to submit additional evidence. The parties were to discuss with each other and submit to the court a briefing schedule for the decision ; on remand, based on the evidence already submitted to the Court. That schedule has not been filed, but Attorney Kessler has written to inquire regarding the decision. Accordingly, the parties shall submit any requests for findings and memoranda regarding the decision on remand so that thcy arc rcccivcd by the Court on or bcforc 4 p.m. Monday Novcmbcr 15, 1999, and no responsive memoranda will be expected, unless the parties submit an alternative agreed schedule. Date copies sent to: A. essler Arry. Clapp Atn . Mdcan Merideth Wright Date Environmental Judge Clerk's lnitialsy-- — l� l5 . U P I I OCT 2 2 STITZEL, PAGE & FLETCHER PC JUL-15-1990 THU 11:02 AN STITZEL PAGE FLETCHER PC FAX N0, 8026602552 STITZEL, PAGE & FLtTCHER, P, C. ATTORNEYS AT TAW 171 l3ATTFRY STREET P.O. BOX 1507 BURLINGTON,'VratMONT 05402-1507 (802) W-2555 (VOICE/MD) 8i4.VfiNF. �1rrGlaf, FAX (ro2)660-2552 OFCOUNSFIL NAM R. MOLa L.MAIT.(F2=535QFMMSPF.00bA) A RMIUR W. CERNOSIA AonF.RTE.l. &TC11I;R. WttlIMt-SI!-MAiL(MXr 6AN(IFIRML-FCahn) 103rPH S. NWIZAN TL OINY M. EUSTAC3 r ALso ADMrrraa IN N.v,1 rACSIMILE TRANSMITTAL SHhEl Date: July 15, 1999 To: Ray Belair Fax: 846-4101 Re: 'Valmont Agency of Natural Resources v.1zsh Sender: Joe McLean You should receive 12 Page(s), including this cover sheet. Wyou do not receivo all the pages, please call (802) 660-2555. MESSAGE Transmitted herewith is a copy of Liberty Mutual's Motion for Reconsideration filed by Michael Clapp with regard to the above -referenced matter. Thin mas;sip is intendod Wy Per Iho use aNie nddreaacc and may contain inromotion that is priviiNgod and eoufidontial If you arc not the inlcndad rcCipiont, you arc htnvby r»tiflod that any diarcmination orthis conununicat ion ir• sLrietly prolubited. Ifyou lama ruucived this ownmanicatioa ill CITeF, plome noti [y us immediately by tolophenc (802-660-2553). "Renic you, JUL-15-1999 THU 11:03 AM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 02 MICHAEL B. CLAPP ATTORNEYATTAW R Q, BOX 4009 BUM-iNOTON, VEIMONr 05402.5009 TFI s02-98S-91N0 • M:802485.4964 E.ttLa4 • c' alawGdAeZ.cr. M July 12, 1.999 Lee 5uskin, Court Administrator and Clerk Vermont Supreme Court 109 State Street Montpelier, Vermont 05609-0801 Re: Vermont Agency of Natural Resources v. Frank Irish Supreme Court Docket No: r97-0691073 Dear Mr. Suskin: Enclosed please find an original and five copies of Liberty Mutual's Motion for Reconsideration f'ortiling with the Court, 'Thank you. Yours very truly, Michael B. Clapp ac Enclosure ac Gary Kessler, Esquire Joseph S. McLean, Esquire JUL 15 199 R S ITlFL, RAGE N FLETCHER K JUL-15-1999 7AU 11�03 AN STITZEL PAGE FLETCHER PC FAX N0, 8028602552 P. 03 SUPREME COURT STATE OF VERMONT VERMONT AGENCY OF NATURAL RESOURCES ) Plaintiff ) V. ) Docket No: FRANK 1RISH ) E97-069/093 Defendant ) CITY OF SOUTH BURLNGTON ) Plaintiff ) V. ) FRANK rR.ISH ) Defctidant lam( TTON FOR RECONSIDER AT'Il N NOW COMES defendant, Frank Irish, by and through his attorney of record and moves for rearl utnent pursuant to V.R.A.P, 90 on the grounds that the Court has overlooked or misapprehended the points of law and/or fact specifically cuumerated in the attached memorandum of law with respect to each of the issues identified in the accompanying memorandum. Defendant Irish states that in his opinion the points of law which defendant believes the Court has overlooked or misapprehended have enacted the opinion of the Court to the extant that the Court's opinion will likely change upon its recognition of the facts and/or points of law which defendant believes it has overlooked or nn sapprchended. The opinion of the Court with respect to the due process notice issue raised by defendant 1 JUL 10 1099 THU 11104 AM GTITZEL PAGE FLET011EP PO FAX N0, OO200025,52 P. 04 demonstrates a misapprhension of fact and the points of law raised by defendant. The due process notice issue raised by defendant is whether the State provided him with the nunimum notice required by due process that his activities on his land outside of the trapped NWI wetland on his property could subject him to a civil penalty. The ltc A of the Court's opinion reads as follows, Thus, although the Wetland Rules themselves did not define the precise boundaries of the contiguous wetland areas on defendant's property, the Agency clearly put defendant on notice of the existence of those areas, offered its administrative expertise and advice to clarify the precise boundaries of the wetland areas, and delineated standards and methods of identifying those areas As the Court's opinion recognizes, there is nothing in the Wetland Rules themselves which would alert defendant that the area where he performed his activities was part of wetland protected under the Rules, The declaration in the Rules that wetlands contiguous to a mapped NWT wetland are presurned to be Class Two (protected) wetlands does nothing to define a discreet area of defendants property in which activity could subject the defendant to a fine. Indeed, the Vermont SigaicWd Wetlands Inventory Map, published persuant to the Rules, affirmatively represonts that the area, where Mr. Irish performed his activities is not within the boundrics of a significant wetland. When the Rules are read in conjunction with the official map depicting the portion of defendant's land which has been designated as significant, protected wetland, it is clear that the Mr. Irish was put on notice that the area where be worked was decidedly not within the boundrics of a protected wetland. The Court's opinion to the effect that the clearly defective, and misleading notice provided by the Rules and the official map published by the State persuant to the Rules is cured because the Agc:rey alcarly put &Cq& Jaut wu audix: of the existence of those protected areas on his land is 04 JUL-15-1999 THU 11;04 AM STiTZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 05 based upon a misapprehension of fact. In particular, the opinion to spereeives that the Agency put Mr. Irish on any notice. The opinion is clearly based on and refers to written and oral communications from Catherine O'Brien, an employee of the Agency to Peter Smkel, The first and most important factual error in the Court's opinion is its conclusion that Ms. O'Brien's statements to Mr. Smejkel constitute notice to the defendant, The evidence is conclusive and the lower court found, as a matter of law, that Mr. Smejkel was -o an went of Mr. Irish, (See findings oflower court). There is, therefore, no basis for imputing any knowledge of Mr. Smejkel to the defendant. The evidence is also conclusive. that Mr. Smejkel did not communicate his conversation with Ms. O'Brien to Mr. Irish. There is, therefore, no basis for a conclusion that Ms. O'Brien's conversations or written communications with Mr. Smejkel provided Mr. Irish with notice either that: (1) the area where Mr. Trish performed his activities was a designated protected wetland; or (2) that the wetland map filed by the Agency with the town clerk as required by law inaccurately represented the boundaries of the protected wetland on Mr. Irish's property, The Courts opinion that the Agency pLA Mr. Irish Oil notice that the area where he performed his activities was within a protected wetland is clearly based upon the misperception of fact that Ms. O'Brien communications were with defendant rather thin Mr. Smejkel. Even if the in-r9cmation provided by Ms O'Brien to Mr. Smejkel could be unputod to 1 1r, Irish, the Court's opinion reflects a misunderstanding of the information provided to Mr. Smejkel. Tile Court's opitlion reflects an assumption that Ms O'Brien told Mr. Smejkel that there were wetlands on the Irish property that were contingent to the mapped wetlands. In fact' as a review of Ms. O'Brien's testimony and her written correspondence with Mr. Smejkel clearly reveal, she 3 JUL-15-1999 THU 11:05 AM STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 06 never stated to Mr. Smejkel that there was a wetland on the Irish property which was a contiguous to a mapped NWI wetland, Instead, she stated to Mr. Smejkel that there were srvcrai forested wetlands on the property in addition to the NWI mapped wetland and recommended to Mr, Smejkel that he retain a wetland consultant to delineate the boundaries of the various forested wetlands. Nowhere in her communications with Mr. Smejkel did Ms. O'Brien state that any of the forested wetlands which she observed were contiguous to the N W1 mapped wetland, Indeed, because Ms. O'Brien did not know the boundries of any of the several forested wetlands, she 3«A_MQACL1 lu Nh* Smejkel that he lure a wetland consultant to delineate the boundries of those untnappcd wetlands on the property, It must also be observed that as an employee of the Agency, Ms, O'B441715 Qhargefl with knnurledge of the 6ct that tho Water TlcmwBudl d had never determined the boundries of any of the several forested wetlands on the property wYth tho exceptiun of the NWI mapped wetland. Ms. O'Brien could not, therefore, have represented in good faith that any of the forested wetlands to which she made reference were contiguous to the mapped wetland within the moaning of the Wetland Rules Likewise, as hereinafter discussed, Ms, O'Brien is charged with, knowledge that the Board has never evaluated any area of defendant's property other than the NIVI mappta wutlwiJ, avid dieretre could not in good faith represent that any of the property outside of the mapped wetland had been designated as a significant, protected wetland, Thus, evenven if Ms. O'Brien's conversation and written communication with Mr. Smejkel had been shared with defendant, it still would not have placed him on notice that the area of his land where he perfortned his activities was a wetland, much less a wetland which had been evaluated by the Board and declared significant, Further, nothing in Ms, O'Brien's communications with Mr. Smejkel indicated that the areas where defendant conducted lvs 4 JUL-15-1999 THU 11:06 AM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P. 07 Activities was part of a wetland which was contiguous to a N%VI wetland. To the extent that Nis. O'Brien indicated to Mr. Smejkel her opinion that portions of the land in question which had not been evaluated by the Board were protected wetlands. II. THE SIGNIFICANT WETLAND DESIGNATION ISSUE The Court's opinion that the 1988 study by the Agency of a sampling of N W1 mapped wetlands meets the requirement that the area where Mr. Irish performed his activities before it can be designated as a significant wetland missapprehends the scope of the Agency study. Both the provisions of 10 V.S.A. 905 (7), (8) and (9) and Wetland Mule 4, lb, require that an evaluation of a particular wetland be performed before that wetland can be designated as significant and subjected to Rules protecting significant wetlands. Hence, Rule 4. le, provides that all wetlands that have not been evaluated by the Board are classified as Class Three(unprotected) wetlands, It is clear that both the statutes and the Wetland Rules require that some level of evaluation of the particular wetland be conducted as a prerequisite to a valid designation of that particular wetland as significant. The Courts opinion, holding that a 1988 study conducted by the Agency of a sampling of the NWI mapped wetlands Yneets the requirement for the mandated valuation of the particular wetland in which the defendant performed his activities reflects the Court's misapprehension of the scope of that etudy, 'rho study was limited to a„ avuluaLly a of the area Mthin the boundnes of the mapped wetlands and does not purport tp �ya]t}atg area,5 oll.gide, nf'thn houndrier ofthq mappped wetlands, such as the area in which W Irish worked. Hence the study forms no basis for a conclusion that the Board met the requirements for a predesignation study when it attempted to designate all wetlands contiguous to NWI mapped wetlands as significant. The 1988 study JUL-15-1999 THU 11:06 AM STITZEL PAGE FLETCHER PC FAX NO, 8028602552 P. 08 may well have been sufficient to meet the requirements for a predesignation study with respect to all I WI mapped wetlands, but it was clearly not sufficient to form a basis for the designation of areas outside the boundries of the W. 11 retlands as significant.. Defendant does not quarrel with the Board's designation of the NWI mapped wetland on his property as significant based on the random study of those areas conducted by the Agency.1-10 asserts instead that no evaluation has ever been conducted with respect to the area where he performed his activities, Since the evidence supports his contention that no evaluation of the area where he worked has ever been conducted, he is entitled to a judgment that the area in question is a Class Three (unprotected) wetland to which the CUD requirements do not apply, It is no answer to his challange that the Board may have evaluated some other area of his property as a signitican wetland, It is likewise no answer to the Boards invalid attempt to classify "condpous" wetlands as significant to observe that the defendant could have challanged that designation in proceedings before the Board, Ia the first place, Defendant did not know that the Board had attempted to designate the area where he worked as a significant wetland. More importantly, the law simply does not recognize an obligation on the part of Mr. Irish to assist the Board in undoing an invalid and ineffective act. (The Coµq ihotitld nets, has not, that the Wctlaad Rules provide 4 P�mdore for thr. temporary designation of an unoyaluated watla.«! as n gig, iffcunt wetland (see Wetland Mules, § 7.5). That procedure requires, however, that any owner of land within or adjacem to the wetland proposed for temporary designation be given notice of both the proposal and any decision made by the Board with respect to the proposal, Unless otherwise ordered by the Board, any temporary designation of a wetland as significant expires after sixty days.) n JUL-15-1999 THU 11:07 AN STITZEL PAGE FLETCHER PC FAX N0, 5026602552 P. 09 In surnrnary, the evidence establishes as a matter of law that the area where Mr. Irish conducted his activities has never been validly designated as a significant protected wetland so as to subject defendant to a civil penalty for performing activities without a CUD. Tssue. IV. THE DISCHARGE WITHOUT A PERNRT ISSUEThe Discharge without a Permit The Court's opinion upholding the lower court's judgment that defendant violated 10 V.S.A. § 1259 by discharging stormwater erosion frorn the sides of the drainage ditch overlooks or misapprehends the following point of law raised by defendant: Stormwater runoff is not waste within the meaning of 10 V,S, A. § 1259; 2. Stormwater discharged into waters of the state is controlled by the provisions of 10 V.S.A. § 1264 and the stormwater plan adopted thereunder rather than 10'V'.S.A. § 1259; 3, The term "stormwater runoff' as used in § 1262 does not include "ditching .. _ within agricultural land," 4. NO permit under the stormwater maaagement plan is required for runoff from fields used for normal agricultural activities. If the lower court on remand determines that defendant's activities were for agricultural rather than development purposes, then any discharge or silt from stormwater erosion in the drainage ditch or the fields adjacent to the ditch would not be subject to regulation under 10 V.S.A. Chapter 47. Under any circumstance, the provisions of 10 V.S,A. § 1259 do not apply to any discharge of silt into state waters caused by stormwater Qrosion and rrilnirm a reuercat of tho lower court's judgment that defendant had violated that statute. V. THE ZONrNG VIOLATION ISSUES. 7 JUL-15-1999 THU 11:07 AN STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 10 Initially the Court's opinion misapprehends the point of lawn raised by defendant with respect to the pleadings in the City's case. The complaint charlcs that defendant violated the city's Zoning Ordinance by commencing development without a zoning permit. The complaint alleges that defendant's excavation of the drainage ditch and clearing of trees constitutes development. Nowhere does the complaint charge defendant with violating the zoning ordinance by impairing the quality of surface water. Nor does the complaint allege a violation of the zonng ordnance by cutting more brush and trees than was necessary to clear the land for farming purposes or that the excavation of the drainage ditch was more extensive than necessary to construct the drainage ditch. Defendant conducted his defense of the City's charges at trial in light of the charges made in the complaint on the grounds that his clearing of his land and excavation of the drainage ditch were for agficultural, rather than development purposes, The City never amended its complaint to assert that defendant was liable to it for reasons other than those alleged in its complaint. In co,a,ducting Ws defense at trial, defendant was unaware of any need to defend against charges that lie had violated the zoning ordinance by clearing more trees than was necessary to clear his land in preparation for growing crops, or excavating more extensively than was necessary to construct his drainage ditch or by impairing the quality of surface water. The purpose of a complaint is to put the defendant on notice of charges against him so as to allow the preparation of defense. Henco, an amendment of the complaint after trial is completed should be granted only where (1) there is a request on the part of plaintiff to amend the pleadings; and (2) there is some evidence that the defendant has expressly or impliedly consented to the amendment. Desrochers v. p rault, (pleadings may be amended after JUL-15-1999 THU 11:08 AM STITZEL PAGE FLETCHER PC FAX NO. 8028602552 P. 11 trial nil when an issue not raised by the pleadings has been tried by express or implied consent of the parties.) A, post trial amendment which brings in an entirely extrinsic theory on charges the theory on which the case was tried is not permissible even if there is evidence in the record introduced as relevant to some other issue which would support the amendment. The issue raised by plaintiffs complaint, and the only theory upon which the C:ity`s case was tried was that the defendant had commenced development of his property without first obtaining a zoning permit, There was no evidence introduced to the effect that the excavation and removal of trees and brush exceeded what was necessary inn order to effect the agricultural purposes which motivated those Activities. Those issues were not tried, Instead, the City's case against defendant was limited to the claim that the clearing of land rind excavation conducted by defendant were part of a plan to develop the property into residential house lots and therefore required a permit under § 27.1_, The City has at no time moved to amend its complaint to assert a violation of § 3.402, § 3.403 or § 3.445 of the toning Ordinance. Instead, the decision to cliarge and find defendant liable for violating those sections of the Zoning Ordinance appears to have been solely that of the trial court made after the trial was completed and without giving notice of its determination. It is, of course, not the prerogative of the trial court to sue sponte amend the plaintilr s complaint to assert a charge against defendant, even if the court is convinced that the evidence establishes that the defendant is guilty of the charge. The Court is not a prosecutor. Its duty is to try the claims asserted by the City, not the claims that it believes the City Should have Assnr rd, but did not. As with the State's Wetland Rules claims, the lower court has never ruled on the claims asserted by the City or the defendant's defense of those claims. As with. the States claims, the JUL-15-1999 THU 11;08 All STiTZEL PAGE FLETCHER PC FAX N0, 8028602552 P. 12 Court should remand the City's claim to the trial court with instructions to make findings as to whether or not defendant's activities constitute "development activities" as opposed to agricultural activities so as to require a permit under § 27,10 of the Zoning Ordinance IV, THE PENALTIES ISSUE The opinion and order of the Court reverses the lower court's judgment that defendant violated the Wetland Rules, but appears to leave in place the base penalties and avoided cost penalty, imp000d as the basis uC a vivialivn of the Wetland roles. Defendant believes that the Courts order reflects a mistake on the part of the Court and that the Court did not intend to leave in place the penalties imposed for violation of the wetland rules unless the trial court on remand ultimately determines that defendant, in fact, violated those rules. It goes without argument that the imposition of civil penalties on deendant without a finding that the defendant has violated the Rules is unconstitutional.. Respectfully submitted, this 12th day of July, 1999, cc: Gary Kessler, Esquire Joseph S. McLean, Esquire cIxa,n;n'rskIPL]si nrcr•.co1u,7c Michael B. Clapp, Esgtdro jM ram 4, Torn of Shelburne, Vermont ..r# r11 ' CHARTERED 1763 P.O. BOX 88 ROUTE 7 SHELBURNE, VT 05482 Clerk/Treasurer Town Manager Zoning & Planning Assessor Recreation FAX Number (802)985-5116 (802)985-5110 (802)985-5118 (802)985-5115 (802)985-9551 (802)985-9550 March 18, 1996 Raymond J. Belair South Burlington City Offices 575 Dorset St. S. Burlington, VT 05403 Dear Ray, We have received the copy of the sketch plan for the Irish Development Corporation subdivision on Allen Road in South Burlington. The Shelburne Planning Commission will also be considering a sketch plan for a 16 lot PRD (15 houselots and one open space lot) on the adjacent property at their March 28 hearing. I have enclosed a section of that plan showing the access points onto Spear Street and the lot layout. We support the idea of reserving r.o.w.'s to adjoining properties. However, the land being subdivided adjacent to the Irish parcel has wetland areas which may make the development of a connecting road in this location difficult. We will probably ask the developer to provide a 20' easement for a bike and pedestrian path which could link with South Burlington. Do you have any plans for a similar easement in the Irish subdivision? A third issue which we may need to coordinate is stormwater. I'll discuss this with you before we start preliminary plan review and when we get more information from the developer's engineer. Let me know if you have any questions or comments. After both sketch plans let's compare notes. Sincerely, K to Bortz, Town Planner Printed on recycled paper STITZEL, PAGE & FLEMBER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE(IDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE* E-MAIL(FIRM2555@A0L.COM) ROBERT E. FLETCHER IOSEPH S. MCLEAN TIMOTHY It EUSTACE ('ALSO ADMITTED IN N.Y.) November 5, 1997 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 N. Main St., 1st Floor Barre, VT 05641 Re: Secretary, Vermont Agency of Natural Resources v. Frank Irish (Docket No. E97-069) -and- South Burlington v. Frank Irish (Docket No. E97-093) Dear Carolyn: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -referenced matter is City of South Burlington's Memorandum in Opposition to Motion to Stay Enforcement of Mandatory Injunction Pending Appeal. Thank you. Very) t,kuly yours, S. McLean JSM/gmt cc: Michael Clapp, Esq. Gary Kessler Richard Ward son3442.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTPHI STREET P O BON 1507 BURLINGTON VERMOVT STATE OF VERMONT ENVIRONMENTAL COURT SECRETARY, VERMONT AGENCY OF ) NATURAL RESOURCES, Complainant) V. ) FRANK IRISH, ) Respondent ) -and- CITY OF SOUTH BURLINGTON, ) Plaintiff ) V. ) FRANK IRISH, ) Defendant ) DOCKET NO. E97-069 DOCKET NO. E97-093 CITY OF SOUTH BURLINGTON'S MEMORANDUM IN OPPOSITION TO MOTION TO STAY ENFORCEMENT OF MANDATORY INJUNCTION PENDING APPEAL By Motion to Stay Enforcement of Mandatory Injunction Pending Appeal, dated November 3, 1997, Respondent/Defendant, Frank Irish ("Irish" herein), has asked this Court to stay enforcement of the mandatory injunction issued with its Decision and Order in these matters, dated October 20, 1997. For the reasons set forth in this Memorandum, the City of South Burlington believes that this Court should deny this request. MEMORANDUM As noted above, Irish has asked this Court to stay enforcement of the injunctive provisions of the October 20, 1997, Decision and Order.' ' Those provisions specifically require Irish to (1) hire a wetlands consultant to delineate the wetland and buffer zone on E STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW I -I B117I-:RY STItFFT BUTUAM,TON. CE'RM01T U'.402-I',07 Irish's Motion fails to set forth a sufficient legal basis upon which the Court may grant a stay of enforcement. Vermont Rule of Civil Procedure 62(d)(2) provides in pertinent part that (w]hen an appeal is taken from a final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. See V.R.C.P. 62(d)(2). As the Vermont Supreme Court has observed, to prevail on a motion for stay, the moving party must demonstrate (1) that the party seeking the stay is likely to succeed on the merits; (2) that such party will suffer irreparable injury if the stay is not granted; (3) that the issuance of a stay will not substantially harm other parties; and (4) that the best interest of the public will be served by the issuance of the stay. See In re: Insurance Services Offices, Inc., 148 Vt. 634, 635 (1997); Petition of Allied Power and Light Company, 132 Vt. 554, 556 (1974). Irish's request for stay of enforcement scrupulously avoids any analysis under the criteria set forth in the Insurance Services and Allied Power decisions. his property, and to identify the disturbed area which constitutes the violation within the wetland and buffer zone; (2) prepare a plan to restore the wetland to its condition prior to the violation; (3) complete implementation of the restoration plan; and (4) have the wetland consultant submit a completion report to the Vermont Agency of Natural Resources. See Secretary, Vermont Agency of Natural Resources v. Frank Irish, Docket No. E97-069 and City of South Burlington v. Frank Irish, Docket No. E97-093 (October 20, 1997), Decision and Order, at 6 ("Decision and Order" herein). 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW ;i I34TTER) STRE1:1' PO NOa 1507 BURLIV;TON, VERMONT 0:,102-1 fill; Applying the applicable criteria, however, it is clear that his request for a stay of enforcement must be denied. As an initial matter, it is unlikely that Irish will prevail on the merits of his appeal. In this Court's nine (9) page Decision and order, this Court carefully set forth detailed findings on which it based its decision and fully explained its reasons for imposing the injunctive and other relief granted. Given the facts of this case, there is nothing tenuous about the basis of this Court's decision that Irish violated both the City of South Burlington Zoning Regulations and the Vermont Wetland Rules, nor does that decision smack of "bad faith" or "frivolousness." See Petition of Allied Power and Light Company, 132 Vt. 554, 556 (1974). Accordingly, it is unlikely that Irish will succeed in having this Court's decision overturned on appeal. Next, Irish has the burden of demonstrating that he will suffer irreparable harm if a stay is not granted. There is no evidence that Irish will suffer "irreparable damage" in the absence of a stay. While Irish may suffer some economic loss, it is generally recognized that the loss of revenue or other forms of monetary income, even if substantial, does not amount to irreparable damage. See Teleconnect Company v. Iowa State Commerce Commission, 366 N.W.2d 511, 514 (Iowa 1985) (copy attached). Considered in light of this criteria, Irish's allegations of potential economic loss do not substantiate a claim of irreparable damage. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW ,71 1; rrTF 1!Y STRFXT HU;1.1\ ,TOR %EHNI0KT O:, 102-1507 Finally, Irish has not met his burden of demonstrating that issuance of a stay will not substantially harm the other parties involved in this proceeding, nor has he demonstrated that the best interest of the public will be served by the issuance of a stay. In this case, any harm to the interest of the City or the State is, to varying degrees, necessarily detrimental to "the best interest of the public." In its Decision and Order, dated October 20, 1997, this Court stated that "[t]here was actual impact on public welfare and the environment due to the siltation in Bartlett Brook, although the magnitude of that harm has not been great." See Decision and Order, at 6 (emphasis added). Given the clearing activities that have occurred on the Irish property and Irish's failure to take any remedial action to abate discharges to Bartlett Brook, it is reasonable to conclude that there are likely to be additional adverse impacts on the public health, safety and welfare if a stay is granted and another spring thaw and run-off occurs without any remedial measures being undertaken. Further, as this Court noted in its Decision and Order, "Vermont's environmental permit programs cannot function if activities intended to be subject to permit requirements are conducted without obtaining the required permits, regardless of the personal or business reasons for that failure." Here, "after being informed of the conditional use determination requirement in April of 1996, Respondent [Irish] took no steps to allow for such a determination after the fact, to propose remedial action 4 for the discharge to the brook or to seek a declaratory ruling onj whether the agricultural exemption applied to this activity." Id. at 7. The best interest of the public require that flagrant disregard of the requirements of law be dealt with sternly and promptly. Under the circumstances of this case, the Court should conclude that the best interest of the public would not be served by granting a stay, and that such a stay would necessarily harm the other parties to this proceeding. conclusion For the reasons set forth above, the City of South Burlington asks that this Court deny Irish's Motion to Stay Enforcement of Mandatory Injunction Pending Appeal. DATED at Burlington, Vermont, this 5th day of November, 1997. son474.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 7 ; l B %TTF 11Y STREET 110 BOX 1507 RURLINGTON VERNIO%T 1 510_-1'.07 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys -� Jo S. McLean 5 r SnTZEL, PAGE & FLETcBER, P.C. ATTORNEYS AT1AW 171 BATTERY STREET P.O. BOX 1507 BMWOTON, VERMONT 05402.1307 (M2) NO-U35 CVOXW=) iTzvxNF. /Tn 7zL. FAX (tot)6W3$52 PAMILPAOY• R4,n1?1%1v MAA0L-0f.M )IAMT1 FUTCHRR mom I. WMIM TA6= u WATAC= (OAL/0 AOMMM IN KY) November 4, 1997 Mr. Richard Ward Zoning Administrator City of South Burlington 573 Dorset Street South Burlington, VT 05403 Re: South Burlington v. Irish Docket No. E97-093 Dear Dick: CF COLIN>IiI, AAT = W. C10=4 Enclosed are copies of Notice of Appeal and Motion to Stay Enforcement of Mandatory Injunction Pending Appeal filed with the Vermont Environmental court in connection with the above - referenced matter. Please give me a call if you have any questions. Sin erely, -i J ph S. McLean JSM/gmt Enclosures mon3441.Cor I 3OV3 30VdV7SZ T 1L8 3tb 5 b (3f l) L6 . b0 AON AFFOLTER CLAPP GANNON, LTD. ATTORNEYS AT LAW FIVE BURLINOTON SQUARE - P.O. BOX 9430 - BURLINGTON, VT 05402.8430 TEL: 802-864-3499 FAX: $02-864-3889 November 3, 1997 Judith C. Whitney, Clerk Vermont Environmental Court 255 N. Main Street, 2st Floor Barre, Vermont 05641 Re: South Burlington v. Irish Docket No. E97-093 Dear Ms. Whitney: Enclosed please find Defendant's Notice of Appeal, Motion to Stay Enforcement of Mandatory Injunction Pending Appeal, and filing fee for flling in the above -captioned matter. Thank you. Yours very truly, AFFOLTER CLAPP GANNON, LTD. Michael B. Clapp ac Enclosures cc: Joseph S. McLean, Esquire Lecia A. Wilson, Esquire L 3odd 30vdV73Z1118 bb 5; (3r1.L) L6 . t10 AON m STATE OF VERMONT ENVMONMENTAL COURT SECRETARY, ) VERMONT AGENCY OF NATURAL RESOURCES, ) Complainant, ) V. ) FRANK MSH, ) Respondent. ) CITY OF SOUTH BURLINGTON, } Plaintiff, ) v. ) FRANK MISH, ) Defendant. ) PE Docket No.: E97-069 Docket No.: E97-093 NOW CONMS, Respondent -Defendant, Frank Irish, by and through his Counsel, Affolter Clapp Gannon, Ltd., and appeals to the Supreme court from the Judgment dated October 20, 1997. Dated at Burlington, Vermont this 3rd day of November, 1997. AFFOLTLR CLAPP GANNON, LTD. By: &r I C"14't'J 6--af Michael B. Clapp, Esq. Attorneys for Respondent -Defendant, cc: AFFOLTER CLAPP GANNON, LTD. - Five Burlington Square - F.O. Box 8430 - Burlington, VT 05402.8430 • Tel. (802) $64-3499 • Fax (802) 864.3899 5 30Yd 30Y4*i3Z.LI.LS 5b 5l (3r11) L6 . b0 AON STATE OF VERMONT ENVMONMENTAL COURT SECRETARY, ) VERMONT AGENCY OF NATURAL RESOURCES, ) Docket No.: E97.069 Complainant, ) V. ) FRANK MISR, } Respondent. ) Crff OF SOUTH BURLINGTON, ) Plaintiff, ) Docket NO.: E97-093 v. ) FRANK IRISH, ) Defendant. ) MOTION IQ STAY ENFORCEMENT OF MANDATORY INJUNCTION PENDINra ArPF&L NOW COMES, Respondent -Defendant, Frank Irish, by and through his Counsel, Affolter Clapp Gannon, Ltd. and hereby requests that this Court stay enforcement of the mandatory injunction issued with its Decision and Order dated October 20, 1997. The mandatory injunction which this Court issued requires Respondent -Defendant to expend his funds to hire a wetlands consultant to delineate wetlands on his property, to prepare a plan to restore the wetland, and for implementation of such plan. Respondent -Defendant holds the position that he is not subject to the penalties imposed and has concurrently herewith filed an appeal. V.R.C.P 62 provides that a court may "suspend an injunction during the pendency of appeal upon such terms ... as it considers proper for the security of the rights of the adverse party." The pertinent injunction is a mandatory injunction which would require Respondent - Defendant to expend monies which, pending the outcome of the appeal, he may not be liable to AFFOLTER CLAPP GANNON, LTD. • Five Burlington Square • P.O. Box 8430 - Burlington, VT 05402-8430 - Tel. (802) 964.3499 • Pax (802) 864-3889 b aovd sovdViazi:.Ls 5b 5b (af1.L) L6. b0 nox expend. The injunctive order has substantially the same effect as the civil penalties imposed by the Order which are automatically stayed during the appeal. Both the penalties and the injunctive order require Respondent to expend his funds. Unless the injunctive portion of the Order is stayed, Respondent's appeal with respect to that portion of the Order will for all practical purposes, be mooted. If �js appeal is successful, he will nevertheless have been forced to expend his funds, wth no means of obtaining their return. It is for this reason that the imposition of the fines are stayed pending appeal. Respondent's rights demand that the mandatory injunction also be stayed pending appeal. It is therefore, the Respondent -Defendant's request that because there is "no claim of potential for public health or safety harm" and because "the magnitude of the harm has not been great," Vermont A&Mgy of Natural Resources v. Irish, No. E97-069, No. E97-093, slip op. at 6 (Vt. Environ. Oct 20, 1997) (see attached Exhibit A), that it is not necessary to enforce the mandatory injunction at issue until the appeal has been heard. WBEREFORE, Respondent -Defendant respectfully requests this court stay enforcement of its mandatory injunction pending appeal. Dated this 3rd day of November, 1997. AFFOLTER CLAPP GANNON, LTD. By: l —J 1Vlichael B. Clapp, sq. Attorneys for Respondent -Defendant cc: Joseph S. McLean, Esquire AFFOLTER CLAPP GANNON, LTD. - Five Burlington Square • P.O. Box 0430 • Burlington, VT 03402-8430 • Tel. (802) 864.3499 - Fax (802) W-3889 5 3Ovd zovd*-IaZ.:: 3 Sb 5 b (ani.) L6 . bO AON STEVEN F. SMIZEL PAM R PAGE* IOSEPH S. McLEAN ('AUO ADM nl= IN KY) STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660.2555 (VOICE/TDD) FAX (802) 660.2552 May 20, 1996 Kevin McLaughlin, Sheriff Chittenden County Sheriff's Department PO Box 1426 Burlington, VT 05402 Re: City of South Burlington v. Frank Irish Dear Sheriff McLaughlin: OF COUNSEL ARTHUR W. CERNOSIA ROBERT E FLEI'CHER Enclosed please find an original Summons together with a copy of the Summons and Complaint for service upon the Defendant, Frank Irish. I have also enclosed a Return of Service for your convenience. Please be advised that Mr. Irish's address is 200 Allen Road, in South Burlington Vermont. After service, please make return to us together with a statement of your fees for the same. Sincerely, 1�oseph S. McLean JSM/maf Enclosures cc: Richard Ward SON3003.COR STATE OF VERMONT COUNTY OF CHITTENDEN, SS. CITY OF SOUTH BURLINGTON, Plaintiff, V. FRANK IRISH, Defendant. On the day of CHITTENDEN SUPERIOR COURT DOCKET NO. , 1996, I made service of the Summons and Complaint upon the Defendant, FRANK IRISH, by delivering a copy to: Service Mileage Postage Total Due $ SON354.LIT STITZEL & PAGE, P.C. A17014NE.YS AT LAW 171 RAWERY STREIST RURMNOTON, VERA10NT05401 Deputy Sheriff STITZEL & PAGE., P.C. A17ORNEYS A,r LAW 171 BATTERY STREET BURLINGTON, VERMONT 05401 STATE OF VERMONT COUNTY OF CHITTENDEN, SS. CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) FRANK IRISH, ) Defendant. ) TO THE ABOVE -NAMED DEFENDANT: CHITTENDEN SUPERIOR COURT DOCKET NO. You are hereby summoned and required to serve upon Joseph S. McLean, Esq., Plaintiff's attorney, whose address is 171 Battery Street, P.O. Box 1507, Burlington, Vermont 05402-1507, an answer to the Complaint which is herewith served upon you, within 20 days after service of this Summons upon you, exclusive of the day of service.* If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. Your answer must be filed with the Court. Unless the relief demanded in the Complaint is for damage covered by a liability insurance policy under which the insurer has the right or obligation to conduct the defense, or unless otherwise provided in Rule 13(a), your answer must state as a counterclaim any related claim which you may have against the Plaintiff, or you will thereafter be barred from making such claim in any other action. Dated: r ;-1-) r SON353.LIT r JoVph S . McLean, Esq . *Served on Date Deputy Sheriff STATE OF VERMONT COUNTY OF CHITTENDEN, SS. CITY OF SOUTH BURLINGTON, Plaintiff, V. FRANK IRISH, Defendant. CHITTENDEN SUPERIOR COURT DOCKET NO. NOW COMES the City of South Burlington, by and through its attorneys, Stitzel & Page, P.C., and for its Complaint states as follows: 1. The City of South Burlington is a Vermont municipality situated in Chittenden County. 2. At all times material to this Complaint the City of South Burlington has had zoning regulations in effect. 3. Frank Irish owns property located at 200 Allen Road in the City of South Burlington. 4. Mr. Irish has commenced land development on his property at 200 Allen Road without obtaining a permit from the City as required by Section 27.10 of the South Burlington Zoning Regulations and 24 V.S.A. §4443(a)(1). Specifically, Mr. Irish has: (1) excavated earth materials within the Conservation and Open Space District and (2) cut and removed trees and natural vegetation from within the Conservation and Open Space District. 5. At no time has Mr. Irish applied for or received approval from the City of South Burlington for permission to commence the above -described activities. STITZEL & PACE, P.0 ATTORKI,N•SATLAW 6. The excavation of earth materials and the cutting and 171 BATTERY STREET BURLINGTON, VERMONT 05401 removal of trees and other natural vegetation in the Conservation and Open Space District without having first obtained approval under the City of South Burlington Zoning Regulations constitutes a violation of such regulations. 7. On or about April 17, 1996, the City of South Burlington provided Mr. Irish with written notice of the violations pertaining to the excavation of earth materials and the cutting and removal of trees and other natural vegetation within the Conservation and Open Space District. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. Mr. Irish did not properly appeal from that notice. 8. In spite of said notice, Mr. Irish has failed and/or refused to comply with the requirements of the City of South Burlington Zoning Regulations as of the date of this Complaint. WHEREFORE, the City of South Burlington requests this Court to enter an Order granting the following relief: 1. Direct Mr. Irish to immediately restore the property on 200 Allen Road to its pre -development condition. 2. Permanently enjoin Mr. Irish from excavating earth materials and/or cutting and removing trees and other natural vegetation within the Conservation and Open Space District without first obtaining a variance from the requirements of the City of South Burlington Zoning Regulations. 3. Award the City fines of Fifty Dollars ($50.00) per violation, for each day that Mr. Irish has been in violation of the City of South Burlington Zoning Regulations from April 25, STITZF,I. & PAGE, P.C. 1996. ATTORNEYS AT LAW 171 BATTERY STREET RUTILIN(.TON, VERMONT 05401 4. Award the City such other relief as the Court deems proper. Dated at Burlington, Vermont, this 7,.6 �-day of May, 1996. SON352.LIT STITZEL & PAGE, P.C. A'PPOIiNF.YS AT LAW 171 RATTER}' STREEIT RURLINGTON, VERMONT 05401 CITY OF SOUTH BURLINGTON By: Stitzel & Page, P.C. J eph S. McLean, Esq. • 11W 07 '9G 07.37 CITY OF S BURLINGTON P.1/10 PLANNER 65D-7955 City of South Burlington 575 DOASET STREET SOUTH DUALINGTON. VERMONT 05403 FAX 658-4748 April 1.7, 1996_ Frank Irish 200 Allen Road South Burlington, Vermont 05403 Re: Zoning Violation, Allen Road Dear Mr. Irish: ZONING ADMINI$TRAT 85& 7958 Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 V.S.A. 54443(a) (1). Specifically, you have initiated the following activities on the above -described property: 1. Excavated earth materials within the Conservation and Open Space District. 2. Cut and removed trees and other natural vegetation from within the Conservation and Open Space District. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Restore the property to its original condition. if you do not accomplish the actions directed in this letter within seven ( 7 ) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to $50.00 per day for each day your violation continues beyond the seven (7) day period provided in this letter. If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. EXHIBIT MAY.07 '96 (TUE) 07 30 COMMUNICATION No 30 PAGE 1 fIHY 0' '96 07-:38 CITY OF S BURLINGTON P.2110 Frank Irish Zoning Violation, Allen Road April 17, 1996 Page 2 You may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal within fifteen (15) days of the date of this letter with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington. If you have any questions regarding this letter, please call me at the telephone number sotforth above.., Sincer 'ly, , Ra o J. Bela r, Zoning and Planning Assistant RJB/mcp Certified Letter #Z 185 845 383 cc: Peter Smejkal MAY. 07 ' 96 (TUE) 07 30 COMMUNICATION No.30 PAGE 2 TO: Planning Commission FROM: Natural Resources Committee DATE: 5 April 1995 RE: 42 subdivisions on Allen Road The Natural Resources Committee would like to suggest having a park/open space developed that would serve a dual purpose. First we would like to continue to preserve the open space and maintain the wetland located in this area. Second, we would like to see an area preserved as open space for neighborhood residents to enjoy the out-of-doors. P.1 Match 6, 1996 To- Joe Weith, City Planner oe From: Lou Breseetary - Recreation Patti Committee Re: Irish Estates The Recreation Path Conirnittee met March 4, 1996 and 1scussed the proposed referenced project. The proposed project is located on the soath side of Allen Road west of Spear Street and, of pa:ricular interest to the committi;e, r is on rlie South Burlington - Shelburne line. This developrnenr would make a potential location figs a cornecr.ion with a future path from Shelburne. Other projects are planned which, if completed would allow access to the existing Recreation Path on Deerfield Drive without having to go on the main roads of Spear Street or Shelburne Road. It is the committee's recommendation that the 10 foot access shown to the storl"n retention pond and access around the pond be considered as a potential bike path and that an easement be requested for that purpose. We behev, ',hat this would requir: no land that is now being shown for lot development and it would provide foi• the potential of a nice alternate transportation route to Shelburne in the future. We stand ready to discuss our thoughts with either you or the developer. City of South Burtington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 May 1, 1996 Peter Smejkal P.O. Box 745 Burlington, Vermont 05402-0745 Re: 42 Lot Subdivision, Allen Road Dear Mr. Smejkal: ZONING ADMINISTRATOR 658-7958 We have just received a legal opinion from the City Attorney regarding the review process for the above referenced project. Based on his opinion, another sketch plan review will be required and there must be at least four (4) Commission members participating. The sketch plan review held on 4/9/96 had only three (3) members participating which does not constitute a quorum. Therefore, please let us know when you would like us to schedule another sketch plan review. The Planning Commission's schedule is filling up fast so please let us know as soon as possible. in erely e Weith, ity Planner JW/mcp cc: Bill Burgess City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 May 1, 1996 Peter Smejkal P.O. Box 745 Burlington, Vermont 05402-0745 Re: 42 Lot Subdivision, Allen Road Dear Mr. Smejkal: ZONING ADMINISTRATOR 658.7958 We have just received a legal opinion from the City Attorney regarding the review process for the above referenced project. Based on his opinion, another sketch plan review will be required and there must be at least four (4) Commission members participating. The sketch plan review held on 4/9/96 had only three (3) members participating which does not constitute a quorum. Therefore, please let us know when you would like us to schedule another sketch plan review. The Planning Commission's schedule is filling up fast so please let us know as soon as possible. in erely r e Weith, ity Planner JW/mcp cc: Bill Burgess 125 Allen Road So. Burlington, VT 05403 April 22, 1996 Dear Natural Resource Board Member, This letter is to inform -you of the planned 42 lot development on Allen Road that recently was before the planning commision. There were two people from your group at that meeting but I neglected to get names. According to the wetlands map in the zoning regulations of South Burlington there is an established wet land on the property. I am hoping that you will get involved in this project. My husband was born in the white farmhouse on the north side of Allen Road and we built our home there next to the church 23 years ago. We have enjoyed walking through the property and teaching our daughter about the flowers, trees and wild birds that live there. Friday night I was out on my front porch listenting to the frogs. If this is destroyed it will be lost forever. My mother in law gave each of her children a building lot on the farm. Some have sold and others of us have built there. She designated one acre lots as she was very much "in tune with the land". Even though zoning is two houses per acre the neighborhood has been established with all adjoining property owners having a minimum of one house per acre. I believe this is the best way to preserve what is already there. The "so called developer", Irish Development Corp has already violated the subdivision rules and raped the land. Please don't let them destroy what's left. Very truly yours, Patricia B. Irish, 863-4440 Home 962-9228 work 4e-!/91-7/ i r*L 1%f-7 / / /99� I-ZR7-7BZ- CITY OF SOUTH BURLINGTON Subdivision Application - SKETCH PLAN 1) Name, address, and phone number of: a. Owner of record �' 14AIIL b . Applicant I'-/2Hy/`yza01Pe&VT ��PO�•r—nod/ c . Contact 717 2) Purpose, location, and nature of subdivision or development, including number of lots, units, or parcels and proposed use(s). � %ZgTi/7G�/ !Oev--� pW * 2G -/ 1!5Zv /1r,57- .eil9� Dl-- /f'LL� iZ o4-P 3) Applicant's legal interest in the property (fee simple, option, etc. DPr/O.U�� 4) Names of owners of record of all contiguous properties �,ev'�L � �fsGB�%S'1p<J Lr/Tti• C�,d,�y� /•P/.r�/ � ,��2vsd1�-r/� 5) Type of existing or proposed encumbrances on property such as easements, covenants, leases, rights of way, etc. /Z'O / r'O 4z-eo iree- A-L ��ln1 i7prr/ Z-11j1G7- 0 1 6) Proposed extension, relocation, or modification of municipal facilities such as sanitary sewer, water supply, streets, storm drainage, etc. _601/77;yy ZWu021_1 C--F-p.*j g' ee-4-lz2 " /,or- re S>rz-- �Z2,'j XRb_4_1Z Zr: 7) Describe any previous actions taken by the Zoning Board of Adjustment or by the South Burlington Planning Commission which affects the proposed subdivision, and include the dates of such actions: /(lbtl� a Submit five copies and one reduced copy (8J x 11, 8} x 14 or 11 x 17) of a Sketch plan showing the following information: a) Name and address of the owner of record and applicant. b) Name of owners of record of contiguous properties. c) Date, true north arrow and scale (numerical and graphic). d) Boundaries and area of: 1) all contiguous land belonging to owner of record, and 2) proposed subdivision. e) Existing and proposed layout of property lines; type and location of existing and proposed restrictions on land, such as easements and covenants. f) Type of, location, and size of existing and proposed streets, structures, utilities, and open space. g) Existing zoning boundaries. h) Existing water courses, wetlands, floodplains, wooded areas, ledge outcrops, and other natural features. i) Location of existing septic systems and wells. j) Location map, showing relation of proposed subdivision to adjacent property and surrounding area. k) All applicable information required for a site plan, as provided in the South Burlington Zoning Regulations, shall be submitted for subdivisions involving a commercial or industrial complex, multi -family project, planned unit development, or planned residential development. 11 ~ /e r Ia (Signature) �plicInt or contact person Date M E M O R A N D U M To: South Burlington Planning Commission From: Wallace Possich, South Burlington Fire Chief Re: Plans Reviewed for April 9, 1996 Agenda Date: April 4, 1996 I have reviewed the following site plans and my comments are as follows: 1. Irish Development Corporation Allen Road Acceptable 2. Green Tree Park Lot #3 Dated 2/14/96 Green Tree Drive Acceptable 3. Jacqueline Marceau Dated 3/7/96 1545 Hinesburg Road Project No. 391-96 Acceptable 4. Sheraton Inn Dated 3/6/96 870 Williston Road Acceptable 5. Champlain Valley Sunoco Dated 3/6/96 1143 Williston Road Acceptable No Text (c) In either of the foregoing cases, the approval of the Code Officer shall be limited to increasing the number of signs permissible under this Ordinance, such signs otherwise to conform with all other provisions relating to size, location, quality and all other applicable provisions with the exception that size also can be increased by the Code Officer in the case of residential subdivisions, but in no event may such a residential subdivision sign be greater than 32 square feet in area. The Code Officer, in permitting additional signs, may impose such reasonable conditions and safeguards when he deems it necessary, including a limitation of the period during which such signs may be maintained. SECTION 25. Unsafe and Unlawful Signs If the Code Officer shall find that any sign is unsafe or insecure, or is a menace to the public, or has been constructed, erected or is being maintained in violation of the provisions of this Ordinance, he shall immediately give written notice to the owner thereof and shall have said written notice served by certified mail with return receipt requested. If the owner failed to remove or alter the structure, so as to comply with the standards herein set forth, at the discretion of the Code Officer after receipt of such notices, said sign or structure may be removed by the City Code Officer at the expense of the owner of the sign and owner of the property upon which it is located, such expense of removal to be the joint and several liability of all such owners. The City Code Officer may cause any sign which is an immediate peril to person or property, to be removed summarily and without notice. SECTION 26. Removal of Certain Signs Any sign now or hereafter existing which no longer identifies a bona fide business conducted, or a project sold, on the lot on which it is located, shall be taken down and removed by the owner, agent or person having the beneficial use of the building or structure upon which such sign may be found on the lot on which located within ten (10) days after written notification from the City Code Officer, and upon failure to comply with such notice within the time specified in such order, the City Code Officer is hereby authorized to cause removal of such sign, and any expense incident thereto shall be paid by the owner of the building, structure or lot to which such sign is attached or is located. SECTION 27. Revocation of Permits The Code Officer is hereby authorized and empowered to remove any permit issued by him upon failure of the permittee to comply with any provisions of this Ordinance. 24 PLANNER 658-7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 April 5, 1996 Peter Smejkal P.O. Box 745 Burlington, Vermont 05402-0745 Re: 42 Lot Subdivision, Allen Road Dear Mr. Smejkal: ZONING ADMINISTRATOR 658-7958 Enclosed is the agenda for next Tuesday's Planning Commission meeting, revised comments from Fire Chief Wally Possich and my comments to the Planning Commission. Comments from City Engineer Bill Szymanski were sent to you at an earlier date. Please be sure someone is present on Tuesday, April 9, 1996 at 7:30 P.M. to represent your request. If you have any questions, JW/mcp Encls cc: Bill Burgess please give me a call. S7neel,Jith, Clanner IRISH ESTATES A Residential Lot Subdivision Allen Road South Burlington, Vermont IM Irish Development Corporation 12 Oak Creek Drive South Burlington, Vermont I IRISH ESTATES A 42 lot subdivision in South Burlington, Vermont By Irish Development Corporation Present Owner of Record: Frank Irish 200 Allen Road South Burlington, VT Applicant: Irish Development Corporation 12 Oak Creek Drive South Burlington, VT 05403 Attn: Peter Smejkal or Ron Brosseau Attachments: Page 1 - Location Map Page 2 - Proposed lot subdivision layout (Engineering and wetland limited modifications pending) Page 3 - City records (copy) with wooded areas Page 4 - South Burlington zoning map Page 5 - List of owners - Abutting properties Page 6 - Survey Water Service: Existing: North side of Allen Road R.O.W. - Low pressure 8"D.I. Proposed: 1)Extending present water line East to Spear street - 8"D.I. 2)Tap into existing line with new 6"D.I. and cross Allen Road south and make the loop thru the development. Fire protection design per city specifications (with fire hydrants max. 500' apart) Sewage Disposal: Sewer system will be designed to City specifications, PVC piping and concrete manholes with cast iron covers. The main line would run West along Allen Road, South side R.O.W. without pavement distortion. Electrical Distribution System: Underground from the North side of Allen Road. Phone: Underground from the South side of Allen Road. CATV, Natural Gas, Outdoor Lighting Power: Underground Storm Drainage: To be designed. Street storm water catch basins, PVC piping and shed to S.W. corner of the property. This is subject to Bartlett Brook water shed protection overlay district requirements. Streets : Roads,Curbs and Sidewalks will be designed per Article IV of City of South Burlington subdivision standards. Note: Final lot layout and amount of the lots is pending on the wetland consultant's review. 3/28/96 k YV-Vd e6lG lYoil1,20 7 o rr t� R.O.W. �1; po" Ri I R2 i R. J• YALLE•E I I I 3 I /7 !8 19 sY�v�srtR i 16 20 is 2/ �fluRcy ' 12. ?9 ZZ yZ. 33 gy 8S 36 S7 J8 3o'R.O.W. Il \ 23 z y ko to ?/a2,6,ft 32 31 3a 29 29 27 w Lie � I i Z'r fAQR�L I I I i 3Rosse/c v i 6 ,� •�tLL �c�/47� -- — -- — ,vim SF[GER uA/E—) 727AepS/EvrR�kF — —_. �- ,----- — rIN6 B"D.r w,IrERc/A/E — -- Ei1KVG B�RI, KAfirQ I Na0 K/ArFP LI vE Lgpp 70 I been urs p IRIS'H , -STA7 F,5 A XES/DFU77N_ /Or 2'LSD/v/S/OA1 - �OarH aaQc11A6i-o v / PZRlyomr aY /IzisvG�vecootr��vr e'oRP. SC9LE /"� 2cb' MASH 28, 1996 0' loo, aoo' �, z ABUTTING PROPERTY OWNERS TO F. IRISH 94-4-5 L & C Farrell 94-4-2 Ascension Lutheran Church 94-5-7 Douglas L and Patricia B. Irish 94-5-20 Ronald P. & Francine L. Brosseau 94-5-21 Angelo P. and Patricia Pizzagalli 94-5-3 Angelo P. and Patricia Pizzagalli 94-7-15 Alan F. and Diane H. Sylvester 94-5-25 R.J. Vallee, Et., Al. PA&F 5 M E M O R A N D U M To: South Burlington Planning Commission From: William J. Szymanski, South Burlington City Engineer Re: April 9, 1996 Agenda Items Date: February 29, 1996 IRISH ESTATES - ALLEN ROAD 1. The storm water retention area shall be owned and maintained by a Home Owners Association. 2. Cul de sacs shall include an island. 3. A sidewalk along Allen Road should be considered especially if the lots fronting on Allen Road are acceptable. 4. Allen Road is planned to be extended easterly to Dorset Street. Traffic will increase making it undesirable for direct access driveway. City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 March 29, 1996 Bruce C. Chattman Superintendent of Schools 550 Dorset Street South Burlington, Vermont 05403 Re: School Impact Dear Bruce: ZONING ADMINISTRATOR 658-7958 The South Burlington Planning Commission is currently reviewing proposals for three (3) residential developments. These developments are as follows: 1. Irish development on Allen Road consisting of 42 single family lots. The Commission will review the sketch plan for this proposal on April 9, 1996. 2. Centennial Heights development on Patchen Road consisting of 92 condominiums (46 two (2) bedroom units and 46 three (3) bedroom units) . The Commission will review the final plat for this proposal on April 16, 1996. 3. Homer Dubois, Ledge Knoll Phase III on Dubois Drive consisting of 42 single family lots. The Commission will review the sketch plan for this proposal on April 23, 1996. A plan for each of these developments is enclosed. If you would like to comment on these proposals please submit them by the Friday proceeding the meeting at which the proposal will be reviewed. If you have any questions, please give me a call. r JofWeith, Cifv Planner JW / mcp Encls PLANNER 658.7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 March 1, 1996 Peter Smejkal P.O. Box 745 Burlington, Vermont 05402-0745 Re: 48 Lot Subdivision, Allen Road Dear Mr. Smejkal: ZONING ADMINISTRATOR 658-7958 Enclosed are preliminary comments on the above referenced project from City Engineer Bill Szymanski, Fire Chief Wally Possich and myself. Please respond to these comments with additional information and/or revised plans no later than Friday, March 29, 1996. If you have any questions, please give me a call. Sincerely, Ra and J. Belair, Zoning and Planning Assistant RJB/mcp cc: William Burgess M E M O R A N D U M To: South Burlington Planning Commission From: Wallace Possich, South Burlington Fire Chief Re: Plans Reviewed for April 9, 1996 Agenda Date: February 27, 1996 I have reviewed the following site plans and my comments are as follows: 1. Irish Development Corporation Allen Road Acceptable except the plan should show current water plans, hydrants and proposed hydrant locations (should be every 500 feet apart). City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 February 29, 1996 Kate Bortz Shelburne Town Planner Shelburne Town Hall Shelburne, Vermont 05482 ZONING ADMINISTRATOR 658-7958 Re: Irish Development Corporation, 48 Lot Subdivision, Allen Road Dear Kate: Enclosed is a copy of a sketch plan for a 48 lot subdivision on Allen Road which abuts the Town of Shelburne. The Planning Commission will review this sketch plan at their 3/26/96 meeting. Please forward any comments to me so I can pass them along to the Planning Commission. Staff is recommending that the applicant reserve a r.o.w. to the abutting parcel to the south so that any future neighborhoods in Shelburne could connect to this development. If you have any questions, RJB/mcp please give me a call. //1 Since�egly, Ra rand lair, Zonanning Assistant M E M O R A N D U M To: South Burlington Recr�eation Path Committee From: Raymond J. Belair� onin and Planning Assistant Ym g g Re: Irish Development Corporation 48 Lot Subdivision Date: February 27, 1996 The Planning Commission on 3/26/96 will review a sketch plan proposal for a 48 lot subdivision on Allen Road (plan attached). Please review this proposal and submit any comments to the Planning Commission in writing by 3/15/96. State of Vermont Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation State Geologist RELAY SERVICE FOR THE HEARING IMPAIRED 1-800-253-0191 TDD>Voice 1-800-253-0195 Voice>TDD AGENCY, OF NATURAL RESOURCES Department of Environmental Conservation WATER QUALITY DIVISION 103 South Main Street Building 10 North Waterbury, VT 05671-0408 802-241-3770 October 15, 1996 Mr. Prank Irish 200 Allen Road South Burlington, VT 05403 Subject: Irish Property Wetland Alteration, Allen Road, South Burlington Dear Mr. Irish: This letter is in follow up to the Notice of Alleged Violation that was sent to you on May 6, 1996 regarding the wetland alteration on your property on Allen Road. Although you were specifically asked to respond by phone or in writing regarding your intentions 'to correct this alleged violation, you have never contacted the Department. In that letter, it was stated that failure to respond might inititate an enforcement action by the Department. Accordingly, I am now referring this case to the Enforcement Division for enforcement action. One of the attorneys with the Enforcement Division will be contacting you shortly to resolve this matter. Sincerely, Catherine L. O'Brien Assistant Wetlands Coordinator cc: Herb Conly, Enforcement Officer Sal Spinosa, Director, Enforcement Division Marry Abair, U.S. Army Corps of Engineers Lou Borie, District Coordinator Ray Belair, City of South Burlington Chlorine Free 100% Recycled Paper Regional Offices - Barre/Essex Jct./Pittsford/RufJand/N. Springfield/St. Johnsbury M E M O R A N D U M To: Applicants/Projectiles From: Raymond J. Belair,'Zoning and Planning Assistant Re: Preliminary Comments, April 9, 1996 Agenda Items Date: March 1, 1996 IRISH DEVELOPMENT CORPORATION - 48 LOT SUBDIVISION - SKETCH PLAN Sketch plan should include the following additional information: --- name and address of record owner --- address of applicant --- type of, location and size of existing and proposed utilities (water and sewer). --- existing zoning boundaries --- scale (numerical and graphic) --- the wetlands map shows ,a wetland on this property. This wetland and corresponding C.O. Zone should be shown. Also, show any streams/drainageways with the corresponding C.O. Zone. --- wooded areas --- location map Other: --- applicant should consider reserving a 60 foot r.o.w. to the southerly property for possible future road extension. --- provide acreage of project which is located in the R1 and R2 Districts. --- this project is subject to the Bartlett Brook Watershed Protection Overlay District (Article XXIII of the zoning regulations). --- subdivision should be designed so that all lots are served by internal roads. There should be no curb cuts on Allen Road. Memorandum - Planning April 9, 1996 agenda items April 5, 1996 Page 7 Coverage/setbacks: Building and overall coverage information should be provided with the revised final plat. Front yard coverage is 27.5% (maximum allowed is 30%). Setback requirements will be met. Parking: Applicant has not yet submitted the information needed to determine parking requirements. Parking should be adequate since a restaurant was removed which was part of part of the original approval. Landscaping: The minimum landscaping requirement, based on building costs, is unknown. Applicant has not provided staff with the information necessary to calculate the minimum landscaping requirement. The revised final plat should include a landscaping plan which meets the minimum requirement. C.O. District: There is a 50 foot C.O. Zone along the I-89 ramp r.o.w. It appears that a portion of the expanded parking area will be located in the C.O. zone. This encroachment is not permitted. Traffic: Traffic generation has probably decreased due to the removal of the restaurant that was part of the original approval. Other: The revised final plat should include the following additional information: --- details of existing and proposed exterior lights (cut -sheets) and show locations. --- show all dumpsters, dumpsters should be screened. --- a bike rack should be provided as required under Section 26.253(b) of the zoning regulations. 8) IRISH DEVELOPMENT CORPORATION - 42 LOT SUBDIVISION - SKETCH PLAN This project consists of the subdivision of a 26.3 acre parcel into 42 lots. This property located on Allen Road lies within the R1, R2 and CO Districts. It is bounded on the south by undeveloped land, on the east by two (2) single family residences, on the north by Allen 7 Memorandum - Planning April 9, 1996 agenda items April 5, 1996 Page 8 Road and on the west by a church, single family residence and a bottling plant. Access: Access to the subdivision in proposed to be via a "looped" street with two (2) access points on Allen Road. This street has a 60 foot r.o.w. and would be built to City standards. A 30 foot private r.o.w. is proposed to serve lots #40-42. Applicant is proposing three (3) shared curb cuts on Allen Road. Staff recommends that the subdivision be designed so that all lots are served by internal roads and that there be no curb cuts on Allen Road. The Town of Shelburne is currently reviewing a proposal for a 15 lot subdivision on the adjacent property to the south. There are wetland areas between the Shelburne proposal and this subdivision which may make connecting roads difficult. The applicant is proposing a 20 foot r.o.w. to the rear of lots #19 and 20. Applicant should explain purpose for this r.o.w. Lot size/frontage: The minimum lot size requirement in the R1 District is one (1) acre and in the R2 District is 19,000 square feet. The applicant has indicated that the lot size requirements will be met. The minimum frontage requirement in the R1 District is 120 feet and in the R2 District is 100 feet. The applicant has indicated that the frontage requirements will be met. Density: The applicant has not provided the information requested to determine compliance with the density limitation. The applicant should provide the acreage of the project in each of the two (2) zoning districts for preliminary plat. Wetlands: The Wetlands map show a wetland in the center of this �N property. The applicant was requested to show the wetland on the sketch plan but has not done so. All wetlands should be delineated and shown on the preliminary plat with the corresponding C.O. zone. the Natural Resources Committee has reviewed the sketch plan and will submit comments in the future. Recreation Path: The Recreation Path Committee has reviewed these plans and their comments are enclosed. The Comprehensive Plan and Official Map show a proposed recreation path along the south side of Allen Road and a proposed pedestrian trail along the Shelburne Town line. 8 1 Memorandum - Planning April 9, 1996 agenda items April 5, 1996 Page 9 Bartlett Brook Watershed Protection Overlay District: This project is subject to BBW Protection Overlay District. The applicant should submit applicable information regarding the development and storm management design to Nelson Heindel & Noyes prior to preliminary plat. Zoning boundaries: The location of the zoning boundary between the R1 and R2 Districts is incorrect. It is located approximately 300 feet to the east from that shown on the plan. The westerly property line is the boundary between the R4 District to the east and the Cl District to the west. This zoning boundary information should be shown on the preliminary plat. Impact fees: The applicant should be aware that each dwelling unit will be charged an impact fee for sewer, schools, roads and recreation. Sewer: The applicant should submit the request for sewer allocation at preliminary plat. School impact: Staff received a letter from School Superintendent Bruce Chattman (see enclosed) which indicates that there is not sufficient capacity at the Orchard School for the children from this project. Staff will have an opinion from the City Attorney at the meeting regarding the legal ramifications of the Superintendent's letter. 9) PAUL MERGENS - OFFICE/WAREHOUSE - SITE PLAN This project consists of constructing a 15,000 square foot building for warehouse use on a 1.85 acre lot. This property located at 1 Green Tree Drive lies within the IC District. It is bounded on the north by a vacant lot, on the west by Resolution, Inc., on the south by Gregory Drive and on the east by Green Tree Drive. Access/circulation: Access will be via two (2) 24 foot ingress and egress curb cuts, one (1') on Gregory Drive and one (1) on Green Tree Drive. Section 26.103(a) of the zoning regulations states that "unless specifically approved by the Planning Commission there shall be a maximum of one (1) driveway per lot accessing a public street." Applicant has indicated that the two (2) driveways are 9 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 April 25, 1996 Peter Smejkal P.O. Box 745 Burlington, Vermont 05402-0745 Re: 42 Lot Subdivision, Allen Road Dear Mr. Smejkal: ZONING ADMINISTRATOR 658-7958 Enclosed is a copy of the April 9, 1996 Planning Commission meeting minutes. If you have any questions, please give me a call. i ncerelv. Jo Wei-th, Ci y Planner JW/mcp 1 Encl cc: Bill Burgess wilm, -Ai- PIT c—:, V--YVC M3/�� a+s�Y2 October 25, 1972 Mr. & Mrs. Dou las Irish R.F.D. #2 Bristol, VT 05-443 Dear Mr. & Mrs. Irish: This letter is to advise you that the Sputa I'urlington Planning Commission has given the Irish homestead o side of Allen Road. be served by a sixty way be located to the this be recorded as a of the City Engineer 1' W/ j approval to set-off fiVve (5) lots from n a parcel of land located on the southerly They stipulated that the Dewey Trish lot foot right-of-way and 1,hat said right -of - easterly portion of this lot and that final plan in accordance with the office and. Zoning Administrator's requirements. Very truly, 1',ichard 'Ward Zoning Administrative Officer WEBSTER - MARTIN Incorporated P. 0. Box 2246 SOUTH BURLINGTON, VERMONT 05401 Area Code 802 864-0223 F% GENTLEMEN: L[EUTEM OF DATE JOB NO. Y ATTENTION RE _._._ < �> WE ARE SENDING YOU P-Attached ❑ Under separate cover vi following items: ❑ Shop drawings ❑ Prints ❑ Plans ❑ Samples ❑ Specifications ❑ Copy of letter ❑ Change order 0� r��/2 C r/4 Tiaj/ en r i—,y COPIES DATE NO. DESCRIPTION THESE ARE TRANSMITTED as checked below: ❑ For approval ❑ Approved as submitted ❑ For your use ❑ Approved as noted p4s requested ❑ Returned for corrections ❑ For review and comment ❑ ❑ FOR BIDS DUE REMARKS ❑ Resubmit copies for approval ❑ Submit copies for distribution ❑ Return corrected prints 19 ❑ PRINTS RETURNED AFTER LOAN TO US COPY Fenn 240-T—New ENIMM I—Sn ,Ine, T—Ad, MM i SIGNED: (/ If enclosures are not as noted, kindly notify us at once. SOUTH BURLINGTON NOTICE SUBDIVISION HEARING The South Burlington Planning Commission will hold a public hearing at the South Burlington City Hall, Conference Room, 1 175 Williston Road, South Burlington, Vermont on Tuesday, October 24, 1972 at 7:30 p.m. to consider the following: Appeal of Bernice Irish of South Burlington, Vermont for approval of a subdivision of a parcel of land into five (5) lots for single family dwellings, situated on Allen Road, bounded on the north by Allen Road; on the east by Li- ,moge and Pizzagalli properties; on the southeast by Syl- vester, Brior, Lozon and McKee properties, on the south by Briar property and on the west by Lozon and the Ascen- sion Church. Parcel contains approximately 34.8 acres, as per plans on file in the office of the City Manager. James A. Lamphere, Chairman South Burlington Planning Commission October 9, 1972 4V I 'p", L.0y -ON IN i f /✓ r + 6 a \, fy�� p �. � /acres ��Y •�� V� I/oL. /5 U O ` _ ! 3 Py 373 v ,�lG z_E/v Ro. (94K•7-0P SuRr,9C_4 Gc ,ic JiLC/J //rr y r•7,Y. /J S� JCra L 7Gf fEr'�, S 6 4.57 E e S=� lti �0 i 5 o E �/' -0g s�41,a 6 t G To us #7 DRA\YN SCALE RcVIt310NS y DATE I CHECKED APPROVED, APPROVED, DATE TITLE NO. CHRr,LES BRUNING CO. - FIVE HUNDRED No Text Of South Burlington' �'` ` ;'i` "' '` in the County o,�' `'°Chitteaden' and State -of Vermont }' .'Grantor in'' the 'consideration of Ten and more - - - - - - - - - - - - - Dollars paid to my.. full satisfaction by Douglas L. Irish and Patricia B. Irish, husband and wife Of New Haven in the County of Addison and State of Vermont Grantees , by these presents, do freely Oibt, Orant, &ell, Conbtp anb (Confirm unto the said Grantee Douglas L. Irish and Patricia B. Irish, as tenants by the entireties , and their heirs, successors or assigns forever a certain piece of land in South Burlington in the County of Chittenden and State of Vermont, described as J follows, viz: A certain lot of land lying on the southerly side of Allen Road in said Town of South Burlington, and being more particularly described as follows: Commencing at a concrete monument at the southerly sideline of Allen Road, marking the northwest corner of the lot being herein conveyed and being the northeast corner of the land of the Ascension Lutheran Church, formerly part of the land of Lauzon and McKeep thence proceeding along the easterly line of land of said Ascension Lutheran Church for a distance of 209.80 feet to an iron pin set in the ground marking the southwest corner of the lot being herein conveyed; thence turning to the left at an angle of 105' 100 45" and proceeding in an easterly direction along a northerly line of Bernice S. Irish for a distance of 255.98 feet to an iron pin set in the ground marking the southeast corner of the lot being herein conveyed; thence turning to'the left with an angle of 89° 411 20" and proceeding in a northerly direction along a westerly line of said Bernice S. Irish for a distance of 200 feet to an iron pin set in the ground at a point in the southerly sideline of said Allen Road marking the northeast corner of the lot being herein conveyed; thence turning to the left at an angle of 90• and proceeding in a westerly direction along the southerly sideline of Allen Road for a distance of 310 feet to the point or place of beginning. WILLIS ENGINEERING ASSOCIATES C; ity of So. furl ington Attn: ,r,. ichar.d Ward, Zoning Administrator :>o. Purlington, Vermont 0>401 year. dick : CONSULTANTS 295 SHUN PIKE ROAD S0. BURLINGTON, VERMONT 8E2-9786 ('ctober 2, Attached herewith are copier of the subdivi- sion Plan for ttie Irish property on kll.en Road. Also included is a lot plan .for T)oumlas Irish and supporting data for subsurface sew-qge dispo- sal. :I'lease advise me if any further information is required for r1r. Trish to secure a building nermi_t. '?'hank you, Sincerely, jilin TH. 6tuart, I . E.lis �;ngineerinf, Associates, Inc. WILLIS ENGINEERING ASSOCIATES land�?_'arcel_Pescription CONSULTANTS 295 SHUN PIKE ROAD SO. BURLINGTON, VERMONT B62-9766 A, parcel of land owned by !',"rs. Bernice Irish and consisting of approximately 34.E acres, is lo— cated in ,3outh T��urlington and bounded as follows: on the Nforth by Allen road; on the 'east by i.imo,Te and Pizzagalli; on. the 6outheast by 6ylvester, rrior, and. Lozon/ Xckee; on the aouth by 13rior; and on. the ,;est by I,ozon and the Ascension Church. 1-rish 7arm ;;ubdivision Jlhe parcel of land decribed above has been Subdivided into six pi ecf-�s of land of which five are lots for sinf-J e family dwelli nk;s and rani;inq in size from 1.0 to 1.� acres. See attached draw— 1 ncr, for lot locatiorns„ and lot, owners. Proposed Ordinance AN ORDINANCE TO AMEND THE "SOUTH BURLINGTON ZONING ORDINANCE" BY CREATION OF AN ADDITIONAL AREA OF RESIDENCE DISTRICT A. The Councilmen of South Burlington hereby ordain: Section 1. The South Burlington Zoning Ordinance adopted February 28, 1964 and the official zoning map adopted in connection therewith is hereby amended by changing the land use of the following described land from Planned District to Residence District A. A parcel of land located on the south side of Allen Road, commencing at a point marked by an iron stake, which is 392 feet, more or less, southerly of the traveled portion of Allen Road, so called, which said point is also 129 feet, more or less, easterly of the westerly boundary of the lands and premises of the grantor herein; thence proceeding in an easterly direction 208 feet, more or less, to a point marked by an iron stake; thence turning and proceeding in an southerly direction 208 feet, more or less, to a point marked by an iron stakethence turning and proceeding in a westerly direction 20A feet, more or less, to a point marked by an iron stake; thence turning and proceeding in a northerly direction 208 feet, more or less, to the point or place of beginning. Included herein is a right-of-way thirty (30) feet in width running southerly from Allen Road to the northwesterly corner of the property. Section 2. This ordinance shall take effect from its passage. Raymond E. Stearns, Chairman Frederick G. Blais Walter Nardelli Harold P. Brown Kenneth W. Jarvis SOUTH BURLINGTON CITY COUNCIL July 2 P 11(; 71 Attorney 11obert J. Perry 14<'10 Williston T{oad South Purlinrrton, Vermont 0 401 Dear Mr. Perry: ^om the comments made at the Tuesday evening meeting of the South l'uri ington Planning Commission, I feel that some information must be furnished to you so that you will understand what action has been taken to date regarding the sub -division of the Irish property on Allen Road. For the past 12 to IP months on different occasions I have been approached by members of the Irish family re- questing a permit to construct a dwelling for themselve,,. With the exception of a Mr. Brosseau, not one of the Irish family has completed an application made from this office. Be advised that to date as shown by records in the City Clerkts Office a total of six (6) lots have been set- off from the Irish homestead. The entire farm is in a Planned District, again with the exception of Frosseau. The Champlain '.pater District also received approval sometime ago. In 'May 1971, this office received a request from Dewey Irish for a building porm.it. lit this time I explained what had to be done before I could issue a permit. On different occasions, I have had discussion with a member of the Irish farr:a ly and each time tried to advise them that they should get together- and make proper application, as you are aware, I have not been too successful. Being in Planned District, any lot in question must be rezoned and in this area most .requests are to zone property to liesidential District A which is a lot of one acre or more. Therefore, in order for Dewey Irish to secure a permit, he must do the following: Attorney Robert J. Perry Page 2 July 2P, 1971 A) Obtain approval for sub -division. B) Rezone the land in question. C) Request a variance from Zoning Loard of Adjustment (Providing the lane] doesn't have 'rontage on an accepted street). Proper application for sub --division must be advertized fifteen (15) days prior to the hearing. The same applies to re:rone a parcel of land. R'herefore, in order to accomplish both, it normally requires 30 to 40 days. "he next regular meeting of. the Planning Commission will be Tuesday, August 24, 1971 and application must be made no later than Tuesday, August 3, 1971 in order to rake thou advertizing possible. If I can be of any assistance, phase feel free to contact me. I feel that r. Irish can complete the necessary action which will prevent any further problems for the Irish family. Very truly, Richard Ward Zoning Administrator RW/ j certain piece of land in and THEIR heirs and assigns forever, a SOUTH BURLINGTON in. the County of CHITTENDEN and State of Vermont, described as follows, viz: Being a portion of the same lands and premises conveyed to Dewey W. Irish, now deceased and Bernice S. Irish by Carrie A. McMurphy by warranty deed dated November 2, 1942 and recorded in volume 13, page 373 of the land records of the Town of South Burlington. The property herein conveyed is -more_ partisn1 arly described as -follows: Commencing at a point marked by an iron stake, which is-392 feet] more or less, southerly of the traveled portion of Allen Rnad, so called, which said point is also 129 feet, more or less, easterly of the westerly boundary of the lands and premises of the grantor herein; thence proceeding in an easterly direction 208 feet_, more or less, to a point marked by an iron stake; thence turning and proceeding in an southerly direction 208 feet, more or less`, to a point marked by an iron stake; thence turning and proceeding in a westerly direction 208 feet, more or less, to a point marked by an iron stake; thence turning and proceeding in a northerly direction 208 feet, more or less, to the point or place of0beginning. Included in this conveyance is a right of way th-irty(30) feet in width running southerly from Allen Road to the northwesterly corner_ of the property conveyed herein. To which deed and other title deeds of record, reference is hereby made for a more particular description of the property herein con- veyed. )y c 04- -2cad "y IJAC H c aT R rt A If J, A A June 9, 1971 Mr. ,Dewey Irish, Jr. 313 Hinesburg Road South Burlington, VT 05401 Dear Mr. Irish: The South Burlington Planning Commission has great reservation re,$arding giving approval to the zone change to your parcel of," land on Allen Load. They feel that due to the fact that Your land doesn't have frontage on i.71en Road that this is poor planning. They are requesting your presence at the next regular meeting which is Tuesday June 22, 1971 at the Central School Offices. 1175 Williston Road, to explain your reasons for setting -off your acre of land 392 feet back from Allen Road, also what is to happen to the land that I have marked in red on the attached plan. They feel that a 30 foot right-of-way to your parcel will create problems in the future and are requesting that you consider securing a parcel with a minimum of 150 foot frontage on Allen Road, As I explained to you, if plan showing the entire layout of all parcels of land to be divided within the Irish family could be shown, this would be to everyone's adv,,ntage in the overall planning; of Allen Road. Very truly, Richard Ward Zoning Administrator R W/ j I ----- - \•-I,p= J,.Y__ }.y[..''.D6 .x s, //=f zl ti f � \ �1 I — Un, CITY OF B_ _ �RLINGTO ------- i. r°. °�•��'� _ —�—� ��I_=• "L; 1;�\ jj I JI ` '� H,ph f;'•. rErr.EDv H �- � �IyI^I1ln ,��3 y1Jf�L`�,l�J R,ce N.emor,°1 ; 11, �� t� School =_ r•�L �'" ^��.,••1•rL H,ph School I �� .� � — — _- •I �c�-- nk d'ii:'(j'i+/f Ij; �',: r.�'!!'7 i�l' I,� t •--�— -_ — _•,'�-_ _ rl ' ter'•, �c•;/ ; ��., t; �4•.�,�- - a ,r } r r r i1 r \ r r v �i_ r•J o� . � - � ��J7f:::::i'�: �'``i'i..''`'.'`• :"+l y :`i'-r "�r� fir/ rfF{il� r •C ., , r/�! .:: fir' TJY/„',• err; Y/ — � _ — i`rr' ��•.:,/:S (: >r/,�+ 1%{rJ }, ilj •l fr f� \ ..DRIVE !j � i� y15 .` N !•. ;J• 'f f�` r, E, -,`-?t� E.ir LAKE ' �{ji, ��c;;r�;r,«.s,,•;; �' S,,;,:;�. F :/Jl c rrr�' rw a ;\ � rlririF (J./.Sc,{Y.,. /lr, „y if, Y / lr •'�r. CHAMPLAIN- r 5 •>> .f: ,c�ir, ri i.i� �j��:ir�r�i ,S r,/.�.f r ,` (S f''.r1�.1 :�n �'-'��-yr�i f.�l.,,'fii•�'. 11 �ir��/.'1 �•r J�4ri To Shrlb,.s reLl 'r' :/• ,� �• !.r•//�f: 1. j ram•/�/ Y�� '4 `! •i ` //}C: S`Li4r!'��lriV� )/:�'�'r•F�:1�'� r� SCALE OF FAILFS Prepared by THE NATIONAL SURVEY, C HESTER, VERMONT �` � r rl�•,.,.,,ry April 23, 1996 Raymond J. Belair Zoning and Planning Assistant City of South Burlington 575 Dorset Street So. Burlington, Vermont 05403 Mr. Belair. This letter is in response to your letter dated April 17, 1996; Reference my property on Allen Road and is my Formal Appeal to it. I am not starting Land Development as you stated; I am clearing the land so that I can plant more Crops and work the land easier and better as it used to be. As far as cutting down trees; if you had looked at them yourself you would have noticed that they are being blocked up for firewood for my own use, as I have been doing for over 60 years. As for the Wetlands as shown on the Town map in the middle of my field; you would notice that there are Tractor and plow furrows going right thru it and I plan to plant Oats or Pumpkins there this year. We didn't have any " Wetland" until they put that Power line in and Bulldozed the land altering the normal flow oT the Spring runofff. I feel that I am being impositioned by you telling me that I cannot maintain my land as a Farmer, and telling me that I should hire a Wetlands Engineer at this time. Sincerely- Frank Irish