HomeMy WebLinkAboutAgenda 07B_MP-18-01 & SD-18-29_1505 Dorset St_Dorset Meadow Assoc_Prelim_docsMP‐18‐01 & SD‐18‐29
1505 Dorset Street
Dorset Meadows
Packet for 3/19/2019 Hearing
Table of Contents
Documents are provided in the order they are mentioned in the Staff Comments, starting with
MP‐18‐01 and proceeding to SD‐18‐29.
Transcript of 2‐19‐2019 Status Conference on Docket No. 2‐1‐19 Vtec (Related to Decision #AO‐18‐
01)
Judgement order on Docket No. 114‐8‐17 Vtec (Related to Spear Meadows, 2‐28‐2019)
Decision on Docket No. 114‐8‐17 Vtec (Related to Spear Meadows, 2‐28‐2019)
Interested Person Comments in order received
Louise Hammond (1‐29‐2019)
Natural Resources Committee (1‐31‐2019)
Ray Gonda (2‐3‐2019)
Atty Daniel Seff on behalf of Tom and Donna Anfuso, Robert Brinckerhoff and Louise
Hammond, Andrew Chalnick, Rosanne Greco and Higley Harmon, William and Kathy Hays,
Noah Hyman, Claudia J. Miller, Steven and Dunia Partilo, Darrilyn Peters (3‐6‐2019)
Atty Daniel Seff on behalf of Tom and Donna Anfuso, Robert Brinckerhoff and Louise
Hammond, Andrew Chalnick, Rosanne Greco and Higley Harmon, William and Kathy Hays,
Noah Hyman, Claudia J. Miller, Steven and Dunia Partilo, Darrilyn Peters (3‐8‐2019)
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
1
1 IN THE VERMONT SUPERIOR COURT
ENVIRONMENTAL DIVISION
2
3
) Case No. 2-1-19 Vtec
4 )
IN RE: ) Burlington, Vermont
5 )
DORSET MEADOWS ASSOCIATES LLC ) February 19, 2019
6 PUD ) 1:06 PM
)
7 )
)
8 _______________________________ )
9
TRANSCRIPT OF STATUS CONFERENCE
10
BEFORE THE HONORABLE THOMAS G. WALSH,
11 SUPERIOR COURT JUDGE
12
APPEARANCES:
13
DANIEL A. SEFF, ESQ., by telephone
14 Attorney for The Citizens of South Burlington
15 MATTHEW B. BYRNE, ESQ., by telephone
Attorney for Dorset Meadows Associates LLC PUD
16
AMANDA S.E. LAFFERTY, ESQ., by telephone
17 Attorney for the City of South Burlington
18
19
20
Transcription Services: eScribers, LLC
21 7227 N. 16th Street
Suite 207
22 Phoenix, AZ 85020
(973) 406-2250
23
PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING.
24
TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.
25
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
2
1 I N D E X
2
RULINGS: PAGE
3 Environmental Division will issue a 17
scheduling order in the coming days
4 that just sets March 15th as the first
deadline for motion practice.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
3
1 (Proceedings convened at 1:06 PM)
2 THE COURT: Let me know when you're ready.
3 MR. DANIEL SEFF: Okay.
4 MR. MATTHEW BYRNE: Okay.
5 THE COURT: Good afternoon, everyone. This is Judge
6 Walsh. Thanks for participating in this status conference.
7 The matter before the Court is entitled Dorset Meadows
8 Associates LLC PUD appeal. The docket number is 2-1-19 Vtec.
9 I'm on the record here in Burlington, and this proceeding is
10 being recorded.
11 I want to start with a quick roll call for the
12 record. We have Attorney Seff on behalf of several
13 appellates.
14 Good afternoon, to you.
15 MR. SEFF: Good afternoon, Your Honor.
16 THE COURT: We have Attorney Byrne on behalf of
17 Dorset Meadows Associates LLC.
18 Good afternoon, Attorney Byrne.
19 MR. BYRNE: Good afternoon.
20 THE COURT: And we have Attorney Lafferty on behalf
21 of the City of South Burlington.
22 Good afternoon, Attorney Lafferty.
23 MS. AMANDA LAFFERTY: Good afternoon.
24 THE COURT: I want to start with a quick disclosure
25 for everybody's benefit, and we can talk about the process
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
4
1 related to the disclosure. For about ten years I served as a
2 board member on the board of directors of the Intervale
3 Center, a local not-for-profit organization. At a holiday
4 party in 2018, I was introduced to Andrew Chalnick and his
5 wife Alyson. We chatted generally for a few minutes. A few
6 days later they invited me to a holiday party, which I
7 originally said I would enjoy attending. A few days later,
8 Mr. Chalnick advised me via a telephone call that there was
9 potential for him to be involved in litigation in front of
10 this division, and upon learning that, I told him that, while
11 I appreciated his invitation to the party, the model rules of
12 judicial conduct required that I not attend to prevent any
13 type of either appearance of a conflict or a conflict of
14 interest itself.
15 So with that, I declined the invitation, and I've had
16 no further correspondence with either Mr. Chalnick or his wife
17 Alyson. So I disclose that situation to avoid any appearance
18 of impropriety. Under the model rules of judicial conduct I'm
19 required to recuse myself if there's a conflict of interest,
20 but it's also a violation of the rules to recuse myself when
21 there is no conflict.
22 In this situation, Mr. Chalnick and I did not talk
23 about this case. He didn't tell me what the case was about.
24 I didn't ask any questions, and I feel as though by my
25 avoiding any further social activities with them, I can remain
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
5
1 fair, impartial, and neutral, and would continue to preside
2 over this matter.
3 Now that I've disclosed that, if any of you have a
4 follow-up question, I'm happy to provide any answers that I
5 can, and we can talk about that. Also, so it's clear what the
6 process is, you will need an opportunity to advise your
7 clients of this disclosure. If anybody has a question, I
8 invite you to call the Court, talk to Jennifer Teske, our
9 court manager; any questions can be answered.
10 Ultimately, if you feel as though there's a conflict,
11 and you would like me to recuse myself, you would then file a
12 motion. I would consider the motion. If I decided to recuse
13 myself, that would be the end of it. If I decide not to
14 recuse myself, the matter would be referred to the chief trial
15 judge, Brian Grearson, who would look at the situation, and
16 ultimately, make a decision.
17 So with that, Attorney Seff, any questions?
18 MR. SEFF: No, Your Honor. Thank you.
19 THE COURT: Attorney Byrne, questions, concerns?
20 MR. BYRNE: No, Your Honor.
21 THE COURT: Attorney Lafferty, any questions?
22 MS. LAFFERTY: No.
23 THE COURT: Okay. Thank you for that, again. That
24 doesn't foreclose the issue. I want you all to feel
25 comfortable to take time to talk to your clients, follow-up
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
6
1 questions with Jennifer Teske, and/or file a motion. That's
2 not offensive to me. That's the process. It should be open
3 and very clear, so thank you for your attention to that
4 matter.
5 So Attorney Lafferty, I'll start with you on a quick
6 question. Your representation of the City, are you in an
7 observing pattern or do you intend to be fairly active or do
8 you even know yet?
9 MS. LAFFERTY: I think the City is going to take a
10 more active role.
11 THE COURT: Okay. Thank you for that.
12 So in broad scopes, I've reviewed the file, I've
13 looked at the statement of questions, it appears that this
14 matter takes issue with the City's sketch plan review process
15 and completeness determinations of two applications, one of
16 them being a master plan review and a preliminary plat review,
17 pursuant to the town's subdivision regulations.
18 Attorney Seff, have you had an opportunity to talk to
19 the other parties in advance of today's conference?
20 MR. SEFF: Not -- thank you, Your Honor. Not since
21 the filing of the statement questions.
22 THE COURT: Okay.
23 MR. SEFF: There was talk of -- at the time, leading
24 to the City of South Burlington DRB decision that's the
25 subject of this appeal, but since the appeal has been filed,
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
7
1 I'm not recalling any substantive communications with either
2 the City or the applicant.
3 THE COURT: Fair enough. And the reason why I check
4 in, pursuant to the Vermont rules for environmental court
5 proceedings, specifically 2(d), our effort today is to try to
6 craft a schedule for leading to a full, fair, efficient
7 resolution. Topics are: motion practice, discovery,
8 mediation, ultimately getting a trial ready date. So I check
9 in with the parties to see if there's been some discussion,
10 and if there's an idea of the next stage or phase of this
11 matter.
12 I'll start with Attorney Seff. Did you have an idea
13 of certain aspects that you think make sense to try to handle
14 first in this matter?
15 MR. SEFF: Thank you, Your Honor. Yes, I've given it
16 some thought, and I think that what I would suggest, on behalf
17 of appellants, is that the good news here, Your Honor, is that
18 this is a relatively straightforward appeal. We believe the
19 facts are not in dispute, and it's really a question of law --
20 it's a narrow question of law as to whether the City of South
21 Burlington DRB needs to make a final decision and take a roll
22 call vote on a sketch plan before proceeding to master plan
23 and preliminary plat.
24 And it's undisputed that in this case, the DRB did
25 not take a vote, did not reach a final decision. So it's
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
8
1 really a question of law as to what the legal significance of
2 that, of non-vote and non-decision, is. And I think it can be
3 handled, I would suggest respectively, to be handled on cross
4 motions for summary judgment. And from the appellant
5 standpoint, I think I can be in position to file the
6 appellant's motion by the end of this month.
7 THE COURT: Okay. Thank you for that. I'm going to
8 take things a little out of order.
9 I'm going to come to you in a second, Attorney Byrne.
10 But Attorney Lafferty, you've heard Attorney Seff
11 suggest the broad strokes of undisputed facts. Is the City of
12 a similar opinion?
13 MS. LAFFERTY: Yes. I was also going to suggest that
14 this could be resolved by petition of summary judgment.
15 THE COURT: Okay. Thank you for that.
16 Attorney Byrne, thoughts?
17 MR. BYRNE: I think this is premature at this point.
18 There's still proceedings going on, and it seems that the
19 question is not right for judicial determination at this
20 point. There's some chance that this might not even come to
21 the Court, so it doesn't seem to be a use of good judicial
22 resources to resolve a hypothetical question that the Court
23 may not even have to address.
24 So I think we would be of the view that the Court
25 should either dismiss the appeal and take up all issues when
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
9
1 they have a final plat approval is done, or a permit is
2 issued, or the Court should stay this until the time that this
3 determination is made.
4 THE COURT: So in hearing, kind of, a difference of
5 perspective, I'm not going to rule from the bench in this
6 status conference. So I guess what I would like to discuss a
7 bit is, whatever process each of you thinks you need to
8 undertake, because Attorney Seff suggests a motion for summary
9 judgment, where there are no real facts in dispute. Attorney
10 Lafferty might share that view, but Attorney Byrne thinks
11 that, perhaps, a motion to dismiss, or a motion to stay
12 further consideration of this matter for the time, is
13 appropriate.
14 Do I understand your offer, Attorney Byrne,
15 correctly?
16 MR. BYRNE: Yeah. I was hoping that we might come to
17 some sort of agreement, but failing coming to an agreement, I
18 think that the path that Your Honor's outlined is probably the
19 only procedural path we can take to get the petition resolved.
20 Maybe it makes sense for us to chat, and either get
21 back to you with a proposed schedule for the motions or to let
22 you know we've reached an agreement on a stay. That way we
23 can just submit something in writing that outlines a schedule
24 for the agreement to a stay.
25 THE COURT: All right. So for future reference, I
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
10
1 guess, if there's parties hoping that there can be agreement
2 on a process of staying a matter before the Environmental
3 Division, or considering a voluntary dismissal without
4 prejudice -- the way that happens is either a stipulation is
5 filed by all the parties, or there's motion practice that
6 leads to that, so if you're hoping there's a stipulation,
7 that's a good thing to discuss outside of the Court's presence
8 among the parties. And I'm happy to provide you all with time
9 to do that, but I don't feel as though we can do that, and it
10 would be inappropriate to do that, in this status conference.
11 So what I would like to do is craft a schedule that,
12 if everybody agrees, has a little time for the parties to talk
13 to see if a process can be agreed upon, followed by fairly
14 brief amount of time for parties to file whatever motion they
15 think would be appropriate for the next phase of this matter.
16 So Attorney Seff, you've heard Attorney Byrne suggest
17 that there be an opportunity to talk a little bit; do you have
18 any opposition to that?
19 MR. SEFF: No, no opposition to talking at all and
20 Matt and Amanda and I have talked multiple times in connection
21 with other matters and I think we have a good working
22 relationship and I think that could be productive. Except for
23 one thing, I didn't understand Matt, or Attorney Byrne's,
24 point that it would be somehow a bad use of resources to
25 proceed with this appeal now. It sounds like what Attorney
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
11
1 Byrne is suggesting is that the DRB proceedings on preliminary
2 plat and master plan, he's suggesting that those proceed, and
3 that a lot of time, energy, and money be spent in those
4 proceedings, and we wait and see what happens in those
5 proceedings before taking up these court proceedings again.
6 And I think, if that's what he's suggesting, that's
7 what it sounded like to me, then I think that gets it exactly
8 backwards. The reason to proceed with this appeal now is to
9 save parties time, energy, and money -- from wasting time,
10 energy, and money in the DRB if there's no reason to do so.
11 So happy to discuss it with him, but his view of the
12 world -- if the applicants' view of the world is, let's spend
13 a lot of time, energy, and money in DRB and see what happens,
14 and then, and only then, come back to court, I think my
15 clients would be -- I'm fairly confident, my clients would not
16 agree with that.
17 THE COURT: Okay. Thank you for that.
18 Here's what I'm thinking. Although, Attorney Seff
19 suggested he could file his motion within about ten days or
20 the end of this month, what I want to do is give you all a
21 little time to promptly talk with each other to see if you can
22 all agree to a process leading to resolution, but set a
23 deadline for motion practice. And I'm thinking that maybe
24 March 15th would be an appropriate timeframe for you all to,
25 first, talk and then have a sufficient enough time to either
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
12
1 file your motion for summary judgement or motion to dismiss or
2 motion to put on hold this matter.
3 Thoughts on that process and that deadline, Attorney
4 Seff?
5 MR. SEFF: I mean, I'm happy to speak with Matt and
6 Amanda right after this call, and maybe we can get back to the
7 Court this afternoon if we're able to agree or not agree. The
8 appellant's preference would be -- they don't want to spend,
9 if they don't have to, a lot of time, energy, and legal
10 resources in the DRB if the current DRB proceedings are,
11 effectively, invalid because the matter never got out of
12 sketch.
13 So from the appellants' perspective, we'd like to get
14 a ruling on whether or not the thing properly got out of
15 sketch as soon as possible. We could certainly file a motion
16 for summary judgment by March 15th. I was prepared to file it
17 by the end of this month, so March 15th would work.
18 THE COURT: Okay. One issue that seems to be maybe
19 coming up that I'm not clear on, and I'll start with Attorney
20 Lafferty.
21 With this appeal being filed, I guess I might be
22 concerned that jurisdiction over the project is before the
23 Environmental Division and the City would be without authority
24 to be considering anything. Is that accurate, or is there
25 something else happening?
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
13
1 MS. LAFFERTY: There -- well, I guess the status of
2 the application, right now, is the applicant submitted
3 preliminary plat applications and a master plan application
4 in, I believe it was, mid to late September, and thereafter,
5 the applicants then -- or excuse me, the appellants then filed
6 their appeals to the DRB in connection with issues regarding
7 whether the applications for preliminary plat and master plan
8 were complete. And one of the arguments was based in the
9 status of the sketch plan application, one of them was not.
10 So the DRB proceeded to hear the appeal -- the
11 current appellants' appeal first, and issued its decision and
12 I believe it was a meeting or two after that that the DRB
13 opened its hearings on the master plan application and the
14 application for preliminary plat review. So those are
15 continuing -- they have not -- the DRB has not closed those
16 hearings.
17 THE COURT: Okay, but is it true that the appeal
18 before the Court right now relates to the application for
19 master plan review and the application for preliminary plat
20 review? Because if that is true, then I would be concerned
21 that the DRB doesn't have jurisdiction to further consider
22 those applications since they have been appealed to the
23 Environmental Division.
24 MS. LAFFERTY: I don't think -- hmm. From the City's
25 perspective, the sketch plan is kind of -- so let me say this,
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
14
1 from the City's perspective the applications for preliminary
2 plat and master plan, those are the beginnings of a municipal
3 proceeding -- a separate municipal proceeding. But the sketch
4 plan is basically an introduction to the application for DRB
5 and does not, itself, constitute an application.
6 So moreover, the matters being raised in the
7 statement of questions are procedural.
8 THE COURT: Well, they are, but I'm looking at the
9 City of South Burlington Department of Planning and Zoning
10 decision that seems to be on appeal, and the opening paragraph
11 states as follows: "Appeal Number AO18-01 of Tom and Donna
12 Anfuso, et al: appealing the decisions of the administrative
13 officer holding that the following two applications submitted
14 by Dorset Meadows Associates LLC for the property located at
15 1505 Dorset Streets are complete. 1: application for master
16 plan review. 2: application for subdivision plat review".
17 So it seems to me that the appellants are taking
18 issue with the issue of completeness related to these two
19 applications, and if they have an appeal before the
20 Environmental Division, subject matter jurisdiction would be
21 divested from the City and reside within the Environmental
22 Division, and the City couldn't do anything while this matter
23 was pending before the Environmental Division.
24 So that's my concern, that we be efficient and
25 recognize there's a possibility that the Environmental
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
15
1 Division can't be considering something, and at the same time,
2 the City be considering a similar aspect of the same
3 applications, because anything the City did would be void
4 because they'd be without jurisdiction to consider it.
5 So we don't need to answer --
6 MR. SEFF: Your Honor --
7 THE COURT: -- we don't need to answer that today. I
8 leave it to the parties. The issue isn't before the
9 Environmental Division at the moment. What I'd like to return
10 to, because we have four minutes left before I have to take up
11 another appeal, is whatever preliminary process the parties
12 wish to put forward.
13 It seems the parties are willing to talk. If it
14 resolves things, great; if not, there should be a deadline for
15 filing motions. Attorney Seff has suggested a deadline of the
16 end of February, which is ten days from now. After hearing
17 from Attorney Byrne, I suggested the middle of March.
18 So Attorney Byrne, it's the applicants', probably,
19 timing concern as well. What do you suggest as far as a
20 deadline for motion practice?
21 MR. BYRNE: I think we can work with March 15th. I
22 think it does make some sense to talk before we file a whole
23 bunch of motions. I will note, for the record, I think that
24 the fact that it's not a final decision means that there's no
25 jurisdiction in this court rather than the other way around.
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
16
1 I mean, if we want -- if we end up briefing that, we'll put it
2 in our briefs, and the Court will be able to make a
3 determination about that issue.
4 But March 15th seems to be a reasonable deadline.
5 THE COURT: Okay.
6 MR. BYRNE: What I suggest is we put that into a
7 briefing schedule and submit it to the Court.
8 THE COURT: There's no need for you to do that,
9 because I'm going to give you a deadline today, but going
10 back, I want everybody to be clear. There is an appeal with
11 the Environmental Division. It seems to challenge the
12 application for master plan review and preliminary plat
13 review. The fact that that appeal is here, divests the City
14 from further considering those applications until this appeal
15 is resolved. Even if the appeal has no merit, the question,
16 or questions raised relative to those applications, is before
17 the Environmental Division, and the City can't touch them. So
18 be aware of that.
19 If, at the end of the day, it's an inappropriate
20 appeal and we dismiss it, jurisdiction goes back to the City.
21 But in the meantime, while the matter is pending, jurisdiction
22 is with the Environmental Division.
23 Attorney Lafferty, on behalf of the town, any
24 concerns with setting March 15 as a deadline for motion
25 practice?
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
17
1 MS. LAFFERTY: No, that'd be fine.
2 THE COURT: All right. So then, on the record, I'm
3 going to set March 15th as the deadline for parties to file
4 whatever motion they think is appropriate. We've talked about
5 a motion for summary judgment, we've talked about a motion to
6 dismiss, and a motion to stay these proceedings while
7 something else happens. If there's a motion to stay the
8 proceedings, we would also want to combine that with an order
9 that remands jurisdiction back to the City. So that's an
10 aspect that's possible as well.
11 So with that, the Environmental Division will issue a
12 scheduling order in the coming days that just sets March 15th
13 as the first deadline for motion practice. What I'm asking of
14 all of you to do is, talk to each other, before you start to
15 work in earnest on your motions over the next couple of days,
16 to see if you come to an agreement of how to handle this
17 matter, and if you do, quickly file your stipulated process
18 with the Court. If it's reasonable, I'm going to accept it.
19 Anything else we can do today, Attorney Seff?
20 MR. SEFF: No, Your Honor. Thank you very much.
21 THE COURT: Attorney Byrne, anything else?
22 MR. BYRNE: No, thank you, Your Honor.
23 THE COURT: Attorney Lafferty, anything further?
24 MS. LAFFERTY: No, thank you.
25 THE COURT: Thank you, all, for participating today.
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
18
1 That concludes our conference. Have a good Tuesday afternoon.
2 MR. SEFF: Thank you, Your Honor, you too.
3 MR. BYRNE: (Indiscernible).
4 (Proceedings concluded at 1:28 PM)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
19
1
2 C E R T I F I C A T I O N
3 I, Abbey L. Roberts, the court-approved transcriber,
4 do hereby certify the foregoing is a true and correct
5 transcript from the official electronic sound recording of the
6 proceedings in the above-entitled matter.
7
8
9
10 February 24, 2019
11 ______________________________ __________________
12 ABBEY L. ROBERTS DATE
13
14
15
16
17
18
19
20
21
22
23
24
25
DORSET MEADOWS ASSOCIATES LLC PUD
February 19, 2019
A
able (2)
12:7;16:2
accept (1)
17:18
accurate (1)
12:24
active (2)
6:7,10
activities (1)
4:25
address (1)
8:23
administrative (1)
14:12
advance (1)
6:19
advise (1)
5:6
advised (1)
4:8
afternoon (9)
3:5,14,15,18,19,
22,23;12:7;18:1
again (2)
5:23;11:5
agree (4)
11:16,22;12:7,7
agreed (1)
10:13
agreement (6)
9:17,17,22,24;
10:1;17:16
agrees (1)
10:12
al (1)
14:12
Although (1)
11:18
Alyson (2)
4:5,17
AMANDA (3)
3:23;10:20;12:6
among (1)
10:8
amount (1)
10:14
and/or (1)
6:1
Andrew (1)
4:4
Anfuso (1)
14:12
answered (1)
5:9
AO18-01 (1)
14:11
appeal (20)
3:8;6:25,25;7:18;
8:25;10:25;11:8;
12:21;13:10,11,17;
14:10,11,19;15:11;
16:10,13,14,15,20
appealed (1)
13:22
appealing (1)
14:12
appeals (1)
13:6
appearance (2)
4:13,17
appears (1)
6:13
appellant (1)
8:4
appellants (3)
7:17;13:5;14:17
appellants' (2)
12:13;13:11
appellant's (2)
8:6;12:8
appellates (1)
3:13
applicant (2)
7:2;13:2
applicants (1)
13:5
applicants' (2)
11:12;15:18
application (12)
13:2,3,9,13,14,18,
19;14:4,5,15,16;
16:12
applications (10)
6:15;13:3,7,22;
14:1,13,19;15:3;
16:14,16
appreciated (1)
4:11
appropriate (4)
9:13;10:15;11:24;
17:4
approval (1)
9:1
arguments (1)
13:8
around (1)
15:25
aspect (2)
15:2;17:10
aspects (1)
7:13
Associates (3)
3:8,17;14:14
attend (1)
4:12
attending (1)
4:7
attention (1)
6:3
Attorney (33)
3:12,16,18,20,22;
5:17,19,21;6:5,18;
7:12;8:9,10,10,16;
9:8,9,10,14;10:16,
16,23,25;11:18;12:3,
19;15:15,17,18;
16:23;17:19,21,23
authority (1)
12:23
avoid (1)
4:17
avoiding (1)
4:25
aware (1)
16:18
B
back (6)
9:21;11:14;12:6;
16:10,20;17:9
backwards (1)
11:8
bad (1)
10:24
based (1)
13:8
basically (1)
14:4
beginnings (1)
14:2
behalf (5)
3:12,16,20;7:16;
16:23
bench (1)
9:5
benefit (1)
3:25
bit (2)
9:7;10:17
board (2)
4:2,2
Brian (1)
5:15
brief (1)
10:14
briefing (2)
16:1,7
briefs (1)
16:2
broad (2)
6:12;8:11
bunch (1)
15:23
Burlington (5)
3:9,21;6:24;7:21;
14:9
BYRNE (21)
3:4,16,18,19;5:19,
20;8:9,16,17;9:10,
14,16;10:16;11:1;
15:17,18,21;16:6;
17:21,22;18:3
Byrne's (1)
10:23
C
call (5)
3:11;4:8;5:8;7:22;
12:6
can (16)
3:25;4:25;5:5,5,9;
8:2,5;9:19,23;10:1,9,
13;11:21;12:6;
15:21;17:19
case (3)
4:23,23;7:24
Center (1)
4:3
certain (1)
7:13
certainly (1)
12:15
challenge (1)
16:11
Chalnick (4)
4:4,8,16,22
chance (1)
8:20
chat (1)
9:20
chatted (1)
4:5
check (2)
7:3,8
chief (1)
5:14
City (17)
3:21;6:6,9,24;7:2,
20;8:11;12:23;14:9,
21,22;15:2,3;16:13,
17,20;17:9
City's (3)
6:14;13:24;14:1
clear (4)
5:5;6:3;12:19;
16:10
clients (4)
5:7,25;11:15,15
closed (1)
13:15
combine (1)
17:8
comfortable (1)
5:25
coming (3)
9:17;12:19;17:12
communications (1)
7:1
complete (2)
13:8;14:15
completeness (2)
6:15;14:18
concern (2)
14:24;15:19
concerned (2)
12:22;13:20
concerns (2)
5:19;16:24
concluded (1)
18:4
concludes (1)
18:1
conduct (2)
4:12,18
conference (5)
3:6;6:19;9:6;
10:10;18:1
confident (1)
11:15
conflict (5)
4:13,13,19,21;5:10
connection (2)
10:20;13:6
consider (3)
5:12;13:21;15:4
consideration (1)
9:12
considering (5)
10:3;12:24;15:1,2;
16:14
constitute (1)
14:5
continue (1)
5:1
continuing (1)
13:15
convened (1)
3:1
correctly (1)
9:15
correspondence (1)
4:16
couple (1)
17:15
COURT (42)
3:2,5,7,16,20,24;
5:8,9,19,21,23;6:11,
22;7:3,4;8:7,15,21,
22,24;9:2,4,25;11:5,
14,17;12:7,18;13:17,
18;14:8;15:7,25;
16:2,5,7,8;17:2,18,
21,23,25
Court's (1)
10:7
craft (2)
7:6;10:11
cross (1)
8:3
current (2)
12:10;13:11
D
DANIEL (1)
3:3
date (1)
7:8
day (1)
Min-U-Script®eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
(1) able - day
DORSET MEADOWS ASSOCIATES LLC PUD
February 19, 2019
16:19
days (6)
4:6,7;11:19;15:16;
17:12,15
deadline (10)
11:23;12:3;15:14,
15,20;16:4,9,24;
17:3,13
decide (1)
5:13
decided (1)
5:12
decision (7)
5:16;6:24;7:21,25;
13:11;14:10;15:24
decisions (1)
14:12
declined (1)
4:15
Department (1)
14:9
determination (3)
8:19;9:3;16:3
determinations (1)
6:15
difference (1)
9:4
directors (1)
4:2
disclose (1)
4:17
disclosed (1)
5:3
disclosure (3)
3:24;4:1;5:7
discovery (1)
7:7
discuss (3)
9:6;10:7;11:11
discussion (1)
7:9
dismiss (5)
8:25;9:11;12:1;
16:20;17:6
dismissal (1)
10:3
dispute (2)
7:19;9:9
divested (1)
14:21
divests (1)
16:13
division (13)
4:10;10:3;12:23;
13:23;14:20,22,23;
15:1,9;16:11,17,22;
17:11
docket (1)
3:8
done (1)
9:1
Donna (1)
14:11
Dorset (4)
3:7,17;14:14,15
DRB (14)
6:24;7:21,24;11:1,
10,13;12:10,10;13:6,
10,12,15,21;14:4
E
earnest (1)
17:15
effectively (1)
12:11
efficient (2)
7:6;14:24
effort (1)
7:5
either (7)
4:13,16;7:1;8:25;
9:20;10:4;11:25
else (4)
12:25;17:7,19,21
end (7)
5:13;8:6;11:20;
12:17;15:16;16:1,19
energy (5)
11:3,9,10,13;12:9
enjoy (1)
4:7
enough (2)
7:3;11:25
entitled (1)
3:7
environmental (13)
7:4;10:2;12:23;
13:23;14:20,21,23,
25;15:9;16:11,17,22;
17:11
et (1)
14:12
even (4)
6:8;8:20,23;16:15
everybody (2)
10:12;16:10
everybody's (1)
3:25
everyone (1)
3:5
exactly (1)
11:7
Except (1)
10:22
excuse (1)
13:5
F
fact (2)
15:24;16:13
facts (3)
7:19;8:11;9:9
failing (1)
9:17
fair (3)
5:1;7:3,6
fairly (3)
6:7;10:13;11:15
far (1)
15:19
February (1)
15:16
feel (4)
4:24;5:10,24;10:9
few (3)
4:5,5,7
file (12)
5:11;6:1,12;8:5;
10:14;11:19;12:1,15,
16;15:22;17:3,17
filed (4)
6:25;10:5;12:21;
13:5
filing (2)
6:21;15:15
final (4)
7:21,25;9:1;15:24
fine (1)
17:1
first (4)
7:14;11:25;13:11;
17:13
followed (1)
10:13
following (1)
14:13
follows (1)
14:11
follow-up (2)
5:4,25
foreclose (1)
5:24
forward (1)
15:12
four (1)
15:10
front (1)
4:9
full (1)
7:6
further (6)
4:16,25;9:12;
13:21;16:14;17:23
future (1)
9:25
G
generally (1)
4:5
gets (1)
11:7
given (1)
7:15
goes (1)
16:20
Good (12)
3:5,14,15,18,19,
22,23;7:17;8:21;
10:7,21;18:1
Grearson (1)
5:15
great (1)
15:14
guess (4)
9:6;10:1;12:21;
13:1
H
handle (2)
7:13;17:16
handled (2)
8:3,3
happening (1)
12:25
happens (4)
10:4;11:4,13;17:7
happy (4)
5:4;10:8;11:11;
12:5
hear (1)
13:10
heard (2)
8:10;10:16
hearing (2)
9:4;15:16
hearings (2)
13:13,16
Here's (1)
11:18
hmm (1)
13:24
hold (1)
12:2
holding (1)
14:13
holiday (2)
4:3,6
Honor (10)
3:15;5:18,20;6:20;
7:15,17;15:6;17:20,
22;18:2
Honor's (1)
9:18
hoping (3)
9:16;10:1,6
hypothetical (1)
8:22
I
idea (2)
7:10,12
impartial (1)
5:1
impropriety (1)
4:18
inappropriate (2)
10:10;16:19
Indiscernible (1)
18:3
intend (1)
6:7
interest (2)
4:14,19
Intervale (1)
4:2
into (1)
16:6
introduced (1)
4:4
introduction (1)
14:4
invalid (1)
12:11
invitation (2)
4:11,15
invite (1)
5:8
invited (1)
4:6
involved (1)
4:9
issue (8)
5:24;6:14;12:18;
14:18,18;15:8;16:3;
17:11
issued (2)
9:2;13:11
issues (2)
8:25;13:6
J
Jennifer (2)
5:8;6:1
Judge (2)
3:5;5:15
judgement (1)
12:1
judgment (5)
8:4,14;9:9;12:16;
17:5
judicial (4)
4:12,18;8:19,21
jurisdiction (8)
12:22;13:21;
14:20;15:4,25;16:20,
21;17:9
K
kind (2)
9:4;13:25
L
Lafferty (17)
3:20,22,23;5:21,
22;6:5,9;8:10,13;
9:10;12:20;13:1,24;
16:23;17:1,23,24
Min-U-Script®eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
(2) days - Lafferty
DORSET MEADOWS ASSOCIATES LLC PUD
February 19, 2019
late (1)
13:4
later (2)
4:6,7
law (3)
7:19,20;8:1
leading (3)
6:23;7:6;11:22
leads (1)
10:6
learning (1)
4:10
leave (1)
15:8
left (1)
15:10
legal (2)
8:1;12:9
litigation (1)
4:9
little (4)
8:8;10:12,17;
11:21
LLC (3)
3:8,17;14:14
local (1)
4:3
located (1)
14:14
look (1)
5:15
looked (1)
6:13
looking (1)
14:8
lot (3)
11:3,13;12:9
M
makes (1)
9:20
manager (1)
5:9
March (9)
11:24;12:16,17;
15:17,21;16:4,24;
17:3,12
master (10)
6:16;7:22;11:2;
13:3,7,13,19;14:2,
15;16:12
Matt (3)
10:20,23;12:5
matter (16)
3:7;5:2,14;6:4,14;
7:11,14;9:12;10:2,
15;12:2,11;14:20,22;
16:21;17:17
matters (2)
10:21;14:6
MATTHEW (1)
3:4
may (1)
8:23
Maybe (4)
9:20;11:23;12:6,
18
Meadows (3)
3:7,17;14:14
mean (2)
12:5;16:1
means (1)
15:24
meantime (1)
16:21
mediation (1)
7:8
meeting (1)
13:12
member (1)
4:2
merit (1)
16:15
mid (1)
13:4
middle (1)
15:17
might (4)
8:20;9:10,16;
12:21
minutes (2)
4:5;15:10
model (2)
4:11,18
moment (1)
15:9
money (4)
11:3,9,10,13
month (3)
8:6;11:20;12:17
more (1)
6:10
moreover (1)
14:6
motion (24)
5:12,12;6:1;7:7;
8:6;9:8,11,11;10:5,
14;11:19,23;12:1,1,
2,15;15:20;16:24;
17:4,5,5,6,7,13
motions (5)
8:4;9:21;15:15,23;
17:15
much (1)
17:20
multiple (1)
10:20
municipal (2)
14:2,3
myself (5)
4:19,20;5:11,13,14
N
narrow (1)
7:20
need (5)
5:6;9:7;15:5,7;
16:8
needs (1)
7:21
neutral (1)
5:1
news (1)
7:17
next (3)
7:10;10:15;17:15
non-decision (1)
8:2
non-vote (1)
8:2
note (1)
15:23
not-for-profit (1)
4:3
number (2)
3:8;14:11
O
observing (1)
6:7
offensive (1)
6:2
offer (1)
9:14
officer (1)
14:13
one (5)
6:15;10:23;12:18;
13:8,9
only (2)
9:19;11:14
open (1)
6:2
opened (1)
13:13
opening (1)
14:10
opinion (1)
8:12
opportunity (3)
5:6;6:18;10:17
opposition (2)
10:18,19
order (3)
8:8;17:8,12
organization (1)
4:3
originally (1)
4:7
out (3)
8:8;12:11,14
outlined (1)
9:18
outlines (1)
9:23
outside (1)
10:7
over (3)
5:2;12:22;17:15
P
paragraph (1)
14:10
participating (2)
3:6;17:25
parties (12)
6:19;7:9;10:1,5,8,
12,14;11:9;15:8,11,
13;17:3
party (3)
4:4,6,11
path (2)
9:18,19
pattern (1)
6:7
pending (2)
14:23;16:21
perhaps (1)
9:11
permit (1)
9:1
perspective (4)
9:5;12:13;13:25;
14:1
petition (2)
8:14;9:19
phase (2)
7:10;10:15
plan (15)
6:14,16;7:22,22;
11:2;13:3,7,9,13,19,
25;14:2,4,16;16:12
Planning (1)
14:9
plat (11)
6:16;7:23;9:1;
11:2;13:3,7,14,19;
14:2,16;16:12
PM (2)
3:1;18:4
point (3)
8:17,20;10:24
position (1)
8:5
possibility (1)
14:25
possible (2)
12:15;17:10
potential (1)
4:9
practice (6)
7:7;10:5;11:23;
15:20;16:25;17:13
preference (1)
12:8
prejudice (1)
10:4
preliminary (10)
6:16;7:23;11:1;
13:3,7,14,19;14:1;
15:11;16:12
premature (1)
8:17
prepared (1)
12:16
presence (1)
10:7
preside (1)
5:1
prevent (1)
4:12
probably (2)
9:18;15:18
procedural (2)
9:19;14:7
proceed (3)
10:25;11:2,8
proceeded (1)
13:10
proceeding (4)
3:9;7:22;14:3,3
Proceedings (11)
3:1;7:5;8:18;11:1,
4,5,5;12:10;17:6,8;
18:4
process (11)
3:25;5:6;6:2,14;
9:7;10:2,13;11:22;
12:3;15:11;17:17
productive (1)
10:22
project (1)
12:22
promptly (1)
11:21
properly (1)
12:14
property (1)
14:14
proposed (1)
9:21
provide (2)
5:4;10:8
PUD (1)
3:8
pursuant (2)
6:17;7:4
put (4)
12:2;15:12;16:1,6
Q
quick (3)
3:11,24;6:5
quickly (1)
17:17
R
raised (2)
14:6;16:16
Min-U-Script®eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
(3) late - raised
DORSET MEADOWS ASSOCIATES LLC PUD
February 19, 2019
rather (1)
15:25
reach (1)
7:25
reached (1)
9:22
ready (2)
3:2;7:8
real (1)
9:9
really (2)
7:19;8:1
reason (3)
7:3;11:8,10
reasonable (2)
16:4;17:18
recalling (1)
7:1
recognize (1)
14:25
record (4)
3:9,12;15:23;17:2
recorded (1)
3:10
recuse (5)
4:19,20;5:11,12,14
reference (1)
9:25
referred (1)
5:14
regarding (1)
13:6
regulations (1)
6:17
related (2)
4:1;14:18
relates (1)
13:18
relationship (1)
10:22
relative (1)
16:16
relatively (1)
7:18
remain (1)
4:25
remands (1)
17:9
representation (1)
6:6
required (2)
4:12,19
reside (1)
14:21
resolution (2)
7:7;11:22
resolve (1)
8:22
resolved (3)
8:14;9:19;16:15
resolves (1)
15:14
resources (3)
8:22;10:24;12:10
respectively (1)
8:3
return (1)
15:9
review (10)
6:14,16,16;13:14,
19,20;14:16,16;
16:12,13
reviewed (1)
6:12
right (6)
8:19;9:25;12:6;
13:2,18;17:2
role (1)
6:10
roll (2)
3:11;7:21
rule (1)
9:5
rules (4)
4:11,18,20;7:4
ruling (1)
12:14
S
same (2)
15:1,2
save (1)
11:9
schedule (5)
7:6;9:21,23;10:11;
16:7
scheduling (1)
17:12
scopes (1)
6:12
second (1)
8:9
seem (1)
8:21
seems (7)
8:18;12:18;14:10,
17;15:13;16:4,11
SEFF (22)
3:3,12,15;5:17,18;
6:18,20,23;7:12,15;
8:10;9:8;10:16,19;
11:18;12:4,5;15:6,
15;17:19,20;18:2
sense (3)
7:13;9:20;15:22
separate (1)
14:3
September (1)
13:4
served (1)
4:1
set (2)
11:22;17:3
sets (1)
17:12
setting (1)
16:24
several (1)
3:12
share (1)
9:10
significance (1)
8:1
similar (2)
8:12;15:2
situation (3)
4:17,22;5:15
sketch (7)
6:14;7:22;12:12,
15;13:9,25;14:3
social (1)
4:25
somehow (1)
10:24
soon (1)
12:15
sort (1)
9:17
sounded (1)
11:7
sounds (1)
10:25
South (4)
3:21;6:24;7:20;
14:9
speak (1)
12:5
specifically (1)
7:5
spend (2)
11:12;12:8
spent (1)
11:3
stage (1)
7:10
standpoint (1)
8:5
start (6)
3:11,24;6:5;7:12;
12:19;17:14
statement (3)
6:13,21;14:7
states (1)
14:11
status (5)
3:6;9:6;10:10;
13:1,9
stay (6)
9:2,11,22,24;17:6,
7
staying (1)
10:2
still (1)
8:18
stipulated (1)
17:17
stipulation (2)
10:4,6
straightforward (1)
7:18
Streets (1)
14:15
strokes (1)
8:11
subdivision (2)
6:17;14:16
subject (2)
6:25;14:20
submit (2)
9:23;16:7
submitted (2)
13:2;14:13
substantive (1)
7:1
sufficient (1)
11:25
suggest (7)
7:16;8:3,11,13;
10:16;15:19;16:6
suggested (3)
11:19;15:15,17
suggesting (3)
11:1,2,6
suggests (1)
9:8
summary (6)
8:4,14;9:8;12:1,
16;17:5
T
talk (14)
3:25;4:22;5:5,8,
25;6:18,23;10:12,17;
11:21,25;15:13,22;
17:14
talked (3)
10:20;17:4,5
talking (1)
10:19
telephone (1)
4:8
ten (3)
4:1;11:19;15:16
Teske (2)
5:8;6:1
Thanks (1)
3:6
that'd (1)
17:1
thereafter (1)
13:4
thinking (2)
11:18,23
though (3)
4:24;5:10;10:9
thought (1)
7:16
thoughts (2)
8:16;12:3
timeframe (1)
11:24
times (1)
10:20
timing (1)
15:19
today (5)
7:5;15:7;16:9;
17:19,25
today's (1)
6:19
told (1)
4:10
Tom (1)
14:11
Topics (1)
7:7
touch (1)
16:17
town (1)
16:23
town's (1)
6:17
trial (2)
5:14;7:8
true (2)
13:17,20
try (2)
7:5,13
Tuesday (1)
18:1
two (4)
6:15;13:12;14:13,
18
type (1)
4:13
U
Ultimately (3)
5:10,16;7:8
Under (1)
4:18
undertake (1)
9:8
undisputed (2)
7:24;8:11
up (5)
8:25;11:5;12:19;
15:10;16:1
upon (2)
4:10;10:13
use (2)
8:21;10:24
V
Vermont (1)
7:4
via (1)
4:8
view (4)
8:24;9:10;11:11,
12
Min-U-Script®eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
(4) rather - view
DORSET MEADOWS ASSOCIATES LLC PUD
February 19, 2019
violation (1)
4:20
void (1)
15:3
voluntary (1)
10:3
vote (2)
7:22,25
Vtec (1)
3:8
W
wait (1)
11:4
Walsh (1)
3:6
wasting (1)
11:9
way (3)
9:22;10:4;15:25
whole (1)
15:22
wife (2)
4:5,16
willing (1)
15:13
wish (1)
15:12
within (2)
11:19;14:21
without (3)
10:3;12:23;15:4
work (3)
12:17;15:21;17:15
working (1)
10:21
world (2)
11:12,12
writing (1)
9:23
Y
years (1)
4:1
Z
Zoning (1)
14:9
1
1 (1)
14:15
1:06 (1)
3:1
1:28 (1)
18:4
15 (1)
16:24
1505 (1)
14:15
15th (7)
11:24;12:16,17;
15:21;16:4;17:3,12
2
2 (1)
14:16
2018 (1)
4:4
2-1-19 (1)
3:8
2d (1)
7:5
Min-U-Script®eScribers, LLC | (973) 406-2250
operations@escribers.net | www.escribers.net
(5) violation - 2d
STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 114-8-17 Vtec
Snyder Group Inc. PUD Final Plat
JUDGMENT ORDER
For the reasons set forth in the Decision on Cross-Motions for Summary Judgment that
accompanies this Judgment Order, the Court concludes that the City of South Burlington transfer
of development rights bylaw (“TDR Bylaw”), as set forth in the City of South Burlington Land Use
Regulations (“Regulations”) is invalid. As detailed in our Decision, we conclude that the TDR
Bylaw fails to comply with the enabling statute, 24 V.S.A. § 4423 with respect to subsections
§§ 4423(a)(3) and (5) and is unconstitutionally vague. We further conclude that a dead-end
street longer than 200 feet may be permitted in the context of a Planned Unit Development
pursuant to the Regulations
Therefore, Appellants’ summary judgment motion is GRANTED IN PART and DENIED IN
PART. Similarly, Snyder Group, Inc.’s motion is GRANTED IN PART and DENIED IN PART. The
consequence of our determinations is that judgment is entered in favor of the neighboring
Appellants and against Appellee/Applicant Snyder Group, Inc. The August 1, 2017, approval of a
final plat application submitted by Snyder Group, Inc., issued by the City of South Burlington
Development Review Board is therefore VOIDED.
This concludes the matters before the Court in this proceeding.
Electronically signed on February 28, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
1
STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 114-8-17 Vtec
Snyder Group Inc. PUD Final Plat
Decision on Cross-Motions for Summary Judgment
The present appeal is of an August 1, 2017 approval of a final plat application submitted
by Snyder Group, Inc. (“Snyder”) issued by the City of South Burlington Development Review
Board (“DRB”). The application proposes to construct 47 new dwelling units and maintain one
existing dwelling unit, all on property located at 1302, 1340, and 1350 Spear Street in South
Burlington, Vermont. The DRB approved the project as a Planned Unit Development (“PUD”).
Neighboring property owners William Gilbert, Maurene Gilbert, Louise Kleh, Michael
Scollins, Mary Scollins, Robert Skiff, Marley Skiff, and the Pinnacle at Spear Homeowners
Association (collectively, “Appellants”) appealed that decision to this Court.1 Presently before
the Court are Snyder and the Appellants’ cross-motions for summary judgment.
Snyder is represented in this matter by Matthew B. Byrne, Esq., Robert H. Rushford, Esq.,
and Jeffrey O. Polubinski, Esq. Appellants are represented by Daniel A. Seff, Esq. The City of
South Burlington (“City”) is represented by Amanda S. E. Lafferty, Esq.
Legal Standard
Summary judgment is appropriate where there is no genuine dispute concerning the
material facts and a party is entitled to judgment as a matter of law. V.R.C.P. 56(a), applicable
here through V.R.E.C.P. 5(a)(2). When considering the facts presented to us, “the nonmoving
party receives the benefit of all reasonable doubts and inferences.” Gauthier v. Keurig Green
Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125 (quoting Robertson v. Mylan Labs., Inc., 2004 VT
15, ¶ 15, 176 Vt. 356). When considering cross-motions for summary judgment, the Court
1 We note that Attorney Seff has moved to withdraw as counsel for Maureen and William Gilbert as they
have moved from South Burlington and no longer wish to be parties in this litigation. That motion is GRANTED and
Mr. & Mrs. Gilbert are relieved of their party status.
We further note that, over the course of these proceedings Louise Kleh passed.
2
considers each motion individually and gives the opposing party the benefit of all reasonable
doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt.
332.
Factual Background
We recite the following facts solely for the purpose of deciding the pending motions for
summary judgment. Our recitation here summarizes the facts that we have deemed undisputed
and material to the legal issues raised by the parties, but should not be mistaken for factual
findings, which cannot occur until after the Court conducts a trial. Fritzeen v. Trudell Consulting
Eng’rs, Inc., 170 Vt. 632, 633 (2000).
1. On April 27, 2017, Snyder submitted a subdivision application for a PUD. The application
proposed to raze one single family dwelling, construct 18 single family dwellings, construct three
3-unit multi-family dwellings, and construct 10 two family dwellings (“the Project”). In total, the
Project consists of 48 residential units.
2. On August 1, 2017, the DRB approved final plat application #SD-17-14 for the Project. See
In re the Snyder Grp. Inc. – 1302, 1340 & 1350 Spear St., #SD-17-14, Final Plat Application,
Findings of Fact and Decision, at 1 (S. Burlington Dev. Rev. Bd. Aug. 1, 2017) (hereinafter “DRB
Decision”).
3. The Project was reviewed and approved pursuant to the South Burlington Land
Development Regulations that were last amended on June 27, 2016 (“Regulations”).
4. The Project is located on 25.93 acres at 1302, 1340, and 1350 Spear Street in South
Burlington, Vermont. The parcel is in the Southeast Quadrant Neighborhood Residential Zoning
District (“SEQ-NR”).
5. Spear Meadows, Inc., 1350 Spear Street, LLC, and Gary J. Farrell currently own the three
parcels which comprise the Project. Snyder has an option to purchase the properties.
6. The Project was approved as a PUD and proposes 48 units, which results in 1.85 units per
acre. Snyder seeks to increase the Project’s density from the applicable maximum density limit
for the zoning district of 31 dwelling units to 48 units by using transferable development rights
(“TDRs”).
3
TDR Bylaw
7. The City has adopted a TDR bylaw, which is set forth in Regulations § 9.05(B) and 9.13(C)
(together, “TDR Bylaw”). The Bylaw became effective on April 24, 2006.
8. A municipal TDR bylaw must comply with the statutory requirements set forth in 24 V.S.A.
§ 4423. 24 V.S.A. § 4423(a) states that:
(a) In order to accomplish the purposes of 10 V.S.A. § 6301, bylaws may contain provisions
for the transfer of development rights. The bylaws shall do all the following:
(1) Specify one or more sending areas for which development rights may be
acquired.
(2) Specify one or more receiving areas in which those development rights may be
used.
(3) Define the amount of the density increase allowable in receiving areas, and the
quantity of development rights necessary to obtain those increases.
(4) Define “density increase” in terms of an allowable percentage decrease in lot
size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or
any combination.
(5) Define “development rights,” which at minimum shall include a conservation
easement, created by deed for a specified period of not less than 30 years, granted
to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending
area solely to specified purposes, but including, at a minimum, agriculture and
forestry.
9. Regulations § 9.13(C) sets forth the basis for the TDR Bylaw. It requires that:
(a) The applicant shall demonstrate that development rights have been secured and
encumbered from lands lying within the SEQ-NRP or SEQ-NRT sub-districts, or adjacent
lands on the same tax parcel lying within any sub-district, or from lands acquired by the
City or State for the purpose of providing public parks in any sub-district, and EITHER that
the sending parcel is sufficiently encumbered against further land subdivision and
development through a purchase or other agreement acceptable to the City Attorney to
ensure conformance with these Regulations; OR
(b) All encumbered parcels not subject to a permanent conservation easement or restriction
of similar binding effect shall be reviewed as components of the PUD and shall be subject
to the provisions of this article.
10. It then states in § 9.13(C)(2) that:
If the conditions of 9.13(C)(1) above are met, the Development Review Board may then
approve the assignment (transfer) of all or a portion of the residential development
4
density calculated for a noncontiguous encumbered parcel to another parcel to satisfy
the provisions of Section 9.05 above
11. Regulations § 9.05(A) state that the maximum density within the SEQ-NR is 1.2 units per
acre. Pursuant to this, the base density of the Project would be 31.12 units.
12. Regulations § 9.05(B) states that the applicable density “within a contiguous development
parcel subject to a single PUD or Master plan approval shall not exceed an average density” of 4
dwelling units per acre in the Neighborhood Zoning District. It further notes that “[s]uch average
densities may be achieved only under a PUD Planned Unit Development application. See Section
9.13, SEQ Review and Approval Process.” Regulations § 9.05(B).
13. Under the TDR Bylaw, the Project would have an allowable density of 103.72 units within
at PUD proposal.
14. Snyder applied for approval for 17 development rights to be transferred for the Project.
It proposes that the Project is the “receiving parcel” and the Bread and Butter Farm, formerly
known as the Leduc Farm, on Leduc Farm Road in South Burlington as the “sending parcel.” It
proposes a density of 1.85 dwelling units per acre.
Dead End Street
15. Snyder proposes a 320-foot-long dead-end roadway, referenced as Street A.
16. Regulations § 9.08(A)(2)(b) state that “[d]ead end streets (e.g. culs de sac) are strongly
discouraged. Dead end streets shall not exceed 200 feet in length.”
17. Nevertheless, the DRB approved Street A, in part under the possibility that it could be, at
some as-yet determined point in the future, connected with another nearby roadway, Vale Drive.
It also concluded that § 9.08(A)(2)(b) was waivable.
Discussion
Both Snyder and Appellants move for complete judgment all Questions Appellants raise
in their Statement of Questions. The Town has filed a brief in opposition of Appellants’ motion.
Appellants raise five Questions in their Statement of Questions.2
2 Four of those Questions have multiple subparts. This results in 37 Questions, including subparts.
5
Question 1 asks whether Regulations provisions “concerning the purported transfer of
development rights, including without limitation [Regulations] §§ 2.02 . . ., 9.05(A)—(B) and
9.13(C) . . ., [are] invalid and unenforceable?” Question 2 asks whether the TDR Bylaw is
unconstitutional. Question 3 asks whether the TDR Bylaw is facially unconstitutional, with
subparts addressing vagueness. Question 4 asks whether the TDR is unconstitutional as applied,
similarly addressing vagueness. Question 5 asks if Snyder’s proposed 320-foot dead-end street
should be rejected and prohibited. The subparts of each Question address more specific aspects
of these broader Questions.
Before addressing the substance of these Questions, we address a threshold argument
raised by Snyder: that Appellants lack standing to raise their statutory and constitutional
challenges to the TDR Bylaw. We then address the remaining legal issues in turn.
I. Whether the Neighbors have standing to raise their statutory and constitutional
arguments.
We begin by noting that Snyder’s motion is one for summary judgment. However, in
substance, it appears to be a, at least in this aspect, a motion to dismiss pursuant to V.R.C.P.
12(b)(1). In this aspect of its motion, Snyder does not seek judgment on any question posed by
Appellants in their Statement of Questions but instead challenges their standing to be an
appealing party in this appeal.
We first note that “standing is a necessary component of the court’s subject-matter
jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt .235 (citing Brod v. Agency of Nat. Res.,
2007 VT 87, ¶ 2, 182 Vt. 234). The absence of subject matter jurisdiction may be raised at any
time, including by this Court on its own motion. Id.; see, e.g., Brigham v. State, 2005 VT 105, ¶ 9,
179 Vt. 525 (mem.) (citation omitted).
Therefore, we will review Snyder’s motion, solely with respect to the issue of standing, as
a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. In reviewing such a
motion, we accept all uncontroverted factual allegations as true and construe them in the light
most favorable to the nonmoving party. See Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245.
Snyder raises two arguments as to why Appellants lack standing in this matter. First, it
asserts that Appellants have not demonstrated that the Project has the potential to result in a
physical or environmental impact on their interests, and therefore do not qualify as “interested
6
persons” pursuant to 24 V.S.A. § 4465(b). Second, Snyder challenges Appellants’ standing to raise
their specific statutory and constitutional arguments. We address these issues in turn.
a. Physical or Environmental Impact
To qualify as interested persons as Appellants seek to do in this appeal, a showing is
required that such persons claiming such status (1) own or occupy property in the “immediate
neighborhood” of the subject property; (2) can “demonstrate a physical or environmental impact
on his interest under the criteria reviewed”; and (3) “alleges that the decision or act, if confirmed,
will not be in accord with the policies, purposes, or terms” Regulations. See 24 V.S.A.
§ 4465(b)(3). To preserve their status as appellants, an interested person must also demonstrate
that they participated in the proceeding below. 24 V.S.A. § 4471.
It appears undisputed that the Appellants participated in the proceedings below and that
that they live in the immediate neighborhood.3 Snyder argues, however, that they have failed to
meet their burden of demonstrating a physical or environmental impact on their interests under
the criteria reviewed.4
An interested person must establish a non-speculative demonstration, or a reasonable
possibility, of a physical or environmental impact under the criteria reviewed. In re UVM
Certificate of Appropriateness, (Vt. Super. Ct. Envtl. Div. Feb. 26, 2013) (Walsh, J.). (citations
omitted) aff’d by No. 2013-301 (Jan. 23, 2014). To demonstrate such a possibility, the person or
persons “must describe how the development under review will impact him or her specifically
(i.e., describe a concrete and particularized injury) and must reference evidence showing that
such impact is not hypothetical (i.e., demonstrate an actual or imminent injury).” Id. (citations
omitted).
3 Whether Appellants have alleged that the decision on appeal, if confirmed by this Court, “will not be in
accord with the policies, purposes, or terms” of the Regulations appears undisputed as well. See 24 V.S.A.
§ 4465(b)(3).
4 Snyder appears to argue that the criteria reviewed are not the applicable Regulations, but instead 24
V.S.A. § 4423 and the Constitution, as Appellants raise statutory and constitutional challenges. However, the Project
is to be reviewed, as a general matter, under the Regulations, which Appellants contend are improper. Therefore,
we conclude, for the general purposes of whether Appellants have standing to appeal pursuant to § 4465, the criteria
reviewed are the Regulations. An in-depth analysis of whether Appellants may raise their statutory and
constitutional challenges occurs below.
7
We note that the elements of whether a party is in the “immediate neighborhood” and
whether their interests could be affected by a development are closely intertwined. See In re
Appeal of Stank & Mulvaney, No. 101-7-01 Vtec, slip op. at 1 (Vt. Envtl. Ct. Oct. 15, 2001) (Wright,
J.). It is uncontested that Appellants live in the immediate neighborhood of the Project. Further,
Appellants have described alleged impacts that an allegedly improperly increased density would
have on their interests, such as increased traffic, noise, light pollution, and adverse aesthetic
impacts. These facts have not been controverted, and we conclude that Appellants have alleged
a reasonable possibility of a physical or environmental impact under the criteria reviewed.
We decline to require Appellants, as Snyder asserts we should, to “prove” these impacts
at this stage of the proceeding. To do so would be to place a higher burden on Appellants than
contemplated by the “reasonable possibility” standard. Therefore, we conclude that Appellants
may generally appeal the DRB’s decision to this Court. We next turn to whether they may raise
their statutory and constitutional arguments.
b. Statutory and Constitutional Arguments
Snyder essentially asserts that Appellants lack standing to raise their statutory and
constitutional arguments because they are not the proper party to raise these issues, Snyder is.
To have standing, a party must show: (1) injury-in-fact, (2) causation, and (3)
redressability. Parker v. Town of Milton, 169 Vt. 74, 77 (1998) (citations omitted). “The
prudential elements of standing include . . . the requirement that a plaintiff’s complaint fall within
the zone of interest protected by the law invoked.’” Hinesburg Sand & Gravel Co., Inc. v. State,
166 Vt. 337, 341 (1997) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)) (citations omitted).
Injury in fact is the “invasion of a legally protected interest.” Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, (1995) (internal quotations omitted). The determination of whether a
party has suffered such an invasion “requires inquiry into the substance of plaintiff's claim.”
Hinesburg Sand & Gravel Co., Inc, 166 Vt. at 341.
The zone of interest test is “whether the interest sought to be protected by the [party] is
arguably within the zone of interests to be protected or regulated by the statute or constitutional
guarantee in question.” Ass’n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153
(1970).
8
Snyder asserts that Appellants cannot show any of the three elements of standing as
related to their void for vagueness argument. It further asserts Appellants are outside the zone
of interest with respect to their statutory claim.
Appellants assert that, because it fails to comply with statutory and constitutional
requirements, the TDR Bylaw is improper. From this improper bylaw, they assert that they will
be injured by an improperly permitted development which permits an increase in density beyond
what is otherwise permissible in the Regulations. They further assert that, should the Court
conclude that the TDR Bylaw is either improperly enacted or unconstitutional, their injury will be
redressed, as the development would be limited to the density available without the use of TDRs.
We begin with the constitutional claim. Neighboring property owners, as a general
matter, have interests most often impacted by neighboring development. Further, as stated
above, there is a reasonable possibility that Appellants’ interests will be impacted by the Project.
The TDR Bylaw, if the Court concludes it is void for vagueness, therefore invades their interests
as it unconstitutionally permits the increased density of a neighboring property. We therefore
conclude that there is a direct link between their injury (i.e., impacts to their respective
properties from increased density) and the alleged vagueness.
We decline to adopt Snyder’s assertion that only applicants would or could suffer the
requisite injury to have standing to raise constitutional challenges to zoning ordinances. Such a
conclusion would disregard important interests that neighboring property owners have that may
be impacted by a neighboring development.5 We also have found no precedent that supports
Snyder’s position.
We further note that, should the Court conclude the TDR Bylaw unconstitutional,
Appellants alleged injury would be redressed, as the applicable maximum density in the district
would apply as set out in § 9.03. We see no justification, as Snyder suggests, that a conclusion
that the TDR Bylaw is unconscionably vague would somehow invalidate the Regulations in its
entirety, resulting in no limitations on density, at which time Snyder could construct the Project
5 We further note that the Vermont Supreme Court has previously entertained constitutional challenges
raised by neighboring property owners, without addressing the issue of their standing to raise the issue. See In re
Peirce Subdivision Application, 2008 VT 100, 184 Vt. 365.
9
at any density it saw fit.6 Therefore, Appellants injury is redressable. We conclude that
Appellants have standing to raise their constitutional challenges.
With respect to Appellants’ statutory claim, Snyder has limited its standing challenge,
asserting that Appellants are not within the zone of interest and therefore cannot raise their
statutory challenges. We begin by noting we are slightly confused by Snyder’s argument. It
appears to assert that Appellants lack standing to challenge § 4423, which is not what Appellants
are attempting. Instead, Appellants challenge the Regulations compliance with § 4432, its
enabling statute with respect to TDRs. Appellants are therefore asserting no legal right under
§ 4423, but assert such a right under the Regulations. As neighboring property owners, we
conclude that Appellants are within the zone of interests the Regulations seek to protect.7 We
therefore conclude that Appellants have standing to raise their statutory clams.
Having concluded that Appellants have standing to raise all of their arguments, we turn
to the substance of their challenges.
II. Whether the City’s TDR Bylaw complies with 24 V.S.A. § 4423.
Zoning ordinances are presumed to be valid. McLaughry v. Town of Norwich, 140 Vt. 49,
54 (1981). As such, the Court “will not interfere with zoning unless it clearly and beyond dispute
is unreasonable, irrational, arbitrary or discriminatory.” City of Rutland v. Keiffer, 124 Vt. 357,
367 (1964).
However, “[a] municipality has zoning authority only in accordance with, and subject to,
the terms and conditions imposed by the state in making the power grant.” Flanders Lumber &
Bldg. Supply Co. v. Town of Milton, 128 Vt. 38, 45 (1969) (citations omitted); see also N. Country
Sportsman’s Club v. Town of Williston, 2017 VT 46, ¶ 12, 205 Vt. 1 (“While municipalities are
entitled to create their own regulatory ordinances, those ordinances must conform to statutory
standards.”) (citing In re White, 155 Vt. 612, 618 (1990)).
6 A more in-depth analysis of this issue is provided below in Section III.
7 Much like their constitutional challenge, we note that the Vermont Supreme Court has previously
entertained a neighboring property owners challenge to zoning regulations as inconsistent with the relevant
enabling statute, though without addressing the argument of whether the neighbor had standing to do so. See In
re John A. Russell Corp., 2003 VT 93, 176 Vt. 520.
10
Therefore, “[s]tatutes are the state’s legislative policies; municipalities are its
instrumentalities.” Kedroff v. Town of Springfield, 127 Vt. 624, 627 (1969). As such, if “an
ordinance does not properly comply with or effectuate a statute, that ordinance should be read
to include and effectuate the statute.” N. Country Sportsman’s Club, 2017 VT 46, ¶ 12.
24 V.S.A. § 4423 authorizes municipalities to use the possible transfer of development
rights in zoning ordinances.8 Section 4423 requires that:
(a) In order to accomplish the purposes of 10 V.S.A. § 6301, bylaws may contain provisions
for the transfer of development rights. The bylaws shall do all the following:
(1) Specify one or more sending areas for which development rights may be
acquired.
(2) Specify one or more receiving areas in which those development rights may be
used.
(3) Define the amount of the density increase allowable in receiving areas, and the
quantity of development rights necessary to obtain those increases.
(4) Define “density increase” in terms of an allowable percentage decrease in lot
size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or
any combination.
(5) Define “development rights,” which at minimum shall include a conservation
easement, created by deed for a specified period of not less than 30 years, granted
to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending
area solely to specified purposes, but including, at a minimum, agriculture and
forestry.
In interpreting zoning ordinances, we apply familiar rules of statutory construction. In re
Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. First, we “construe words according to their
plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” Id.
(citations omitted). If there is no plain meaning, we will “attempt to discern the intent from other
sources without being limited by an isolated sentence.” In re Stowe Club Highlands, 164 Vt. 272,
8 The City and Appellants agree that § 4423 is the statutory authority under which municipalities may enact
TDR programs. Snyder does not appear to contest that § 4423 authorizes the TDR Bylaw, but also states that there
are other sources of authority to enact such a bylaw. Snyder specifically references 24 V.S.A. § 4410, which grants
the Town broad authority to enact zoning bylaws, and the City charter.
While it is true that these sources give the City authorization to regulate land use development, neither
address TDRs. The Legislature, however, has set forth specific requirements that municipalities must meet to enact
TDR programs. We are unconvinced that these broad grants of authorization somehow negate or supersede the
Legislature clear directives set forth in § 4423.
11
280 (1995). In construing statutory or ordinance language, our “paramount goal” is to implement
the intent of its drafters. Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61. We will therefore
“adopt a construction that implements the ordinance's legislative purpose and, in any event, will
apply common sense.” In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (quotations
omitted); see also In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 22 (quoting Lubinsky v. Fair
Haven Zoning Bd., 148 Vt. 47, 49 (1986)) (“Our goal in interpreting [a zoning regulation], like a
statute, ‘is to give effect to the legislative intent.’”).
We keep these principles of interpretation in mind as we address whether the TDR Bylaw
complies with each subsection of § 4423.
a. 24 V.S.A. § 4423(a)(1)
Section 4423(a)(1) requires that a TDR bylaw “[s]pecify one or more sending areas for
which development rights may be acquired.”
Snyder asserts that the Regulations comply with this subsection through § 9.13(C)(1)(a).
This section states that an applicant seeking to use TDRs:
[S]hall demonstrate that development rights have been secured and encumbered from
lands lying within the SEQ-NRP or SEQ-NRT sub-districts, or any adjacent lands on the
same tax parcel lying within any sub-district, or from lands acquired by the City or State
for the purpose of providing public parks in any sub-district.
Appellants disagree. They contend that § 9.13(C)(1)(a) does not comply with § 4423(a)(1)
because it does not define “development rights,” which the Court analyzes below, or “sending
area.” They assert that the closest the Regulations get to defining a sending area would be found
within § 9.04(C), stating: “Areas designated SEQ-NR, SEQ-NRT, SEQ-VR and SEQ-VC shall be
considered development areas. Areas designated SEQ-NRP are designated as conservation
areas.” They assert that conservation areas are not equivalent to “sending areas,” as used in
§ 4423(a)(1).
The Regulations do not define any area using the term “sending area” nor is the term
defined in its own right. However, § 4423(a)(1) does not require such rigidity in this respect.
Instead, it requires that a sending area be designated as a location where development rights
may be acquired. Here, the Regulations state that development rights must be secured within
the SEQ-NRP or SEQ-NRT sub-districts, or adjacent lands on the same tax parcel lying within any
12
sub-district, or from lands acquired by the City or State for the purpose of providing public parks
in any sub-district. Regulations § 9.13(C)(1)(a). It then goes on to call these lands “the sending
parcel.” Id.
We note that in § 9.04(C), SEQ-NRP is designated as a conservation area whereas SEQ-
NRT is designated as a development area. However, this section generally designates the SEQ
sub-districts. Section 9.13(C) is specific to TDRs and non-contiguous PUDs. It is in this section
that the Regulations specify certain areas as sending parcels. We do not conclude these different
designations, one not specific to the TDR program, results in the TDR Bylaw failing to comply with
§ 4423(a)(1).
Because we must begin our analysis with the presumption that zoning ordinances are
valid, and we must read them to effectuate the statute, we conclude that the Regulations comply
with § 4423(a)(1) as it identifies “sending parcels” in § 9.13(C)(1)(a).
b. 24 V.S.A. § 4423(a)(2)
Section 4423(a)(2) requires that a TDR bylaw “[s]pecify one or more receiving areas in
which those development rights may be used.”
The Regulations state that, should development rights be obtained within a sending
parcel, the DRB “may then approve the assignment (transfer) of all or a portion of the residential
development density calculated . . . to another parcel to satisfy the provisions of Section 9.05
above.” Regulations § 9.13(C)(2).
Snyder asserts that, because Chapter 9 of the Regulations is specific to the SEQ District,
and § 9.13(C)(2) identifies any other sub-district of the SEQ District as an area where
development rights may be transferred (i.e., a receiving area), the TDR Bylaw complies with
§ 4423(a)(2).
Appellants assert that the Regulations do not use the term “receiving area” and again
direct us to § 9.04(C), which states that “Areas designated SEQ-NR, SEQ-NRT, SEQ-VR and SEQ-
VC shall be considered development areas. Areas designated SEQ-NRP are designated as
conservation areas.” It states that the term “development area” does not mean “receiving area.”
They further note that § 9.05(b)(2) indicates the SEQ-NRT sub-district as an area at which density
13
may be increased under § 9.13, but also a “sending parcel” under § 9.13(C)(1), which they assert
is in violation of § 4423(a).
The Regulations do not define or use the term “receiving area.” However, similarly to our
above discussion, § 4423(a)(2) does not require such rigidity. Instead, it requires that the
Regulations designate a receiving area or areas as a location where development rights may be
used.
Here, the Regulation states that if rights are secured as set forth in § 9.13(C)(1), the DRB
may approve the transfer of all or some of those rights “to another parcel to satisfy the provisions
of Section 9.05.” Regulations § 9.13(C)(2). Regulations § 9.05(B) then states that densities may
be increased pursuant to § 9.13 in the SEQ-NRT, SEQ-NR, SEQ-NRN, SEQ-VR, and SEQ-VC sub-
districts.9
Further, we reach this conclusion despite the fact that the SEQ-NRT sub-district is
identified both as a sending area and a receiving area. The statute merely states that a bylaw
must identify area or areas as sending and receiving areas. We can find no prohibition that an
area may be designated both as a receiving and sending area, as Appellants suggest. We decline
to read such a prohibition into the statute.
While never specifically designated as “receiving areas” we conclude that the Regulations
satisfy § 4423(a)(2), in that the Regulations specify areas within which development rights may
be used.10
c. 24 V.S.A. §§ 4423(a)(3), 4423(a)(4)
Because of the interrelated nature of §§ 4423(a)(3) and (4) we combine our analysis of
the TDR Bylaw’s compliance with these sections.
Section 4423(a)(3) requires that TDR bylaws must “[d]efine the amount of the density
increase allowable in receiving areas, and the quantity of development rights necessary to obtain
those increases.”
9 The SEQ-NRP sub-district is subject to Regulations § 9.12.
10 We note that Appellants appear to concede this fact. See Appellants’ Motion for Summary Judgement,
p. 12 (“Section 9.05(B) . . . specifies the SEQ zones that can receive additional units per acre as part of the Section
9.13 TDR-based density increase (albeit without specifying the zones as ‘receiving areas’).”)
14
Section 4423(a)(4) requires that TDR bylaws must “[d]efine ‘density increase’ in terms of
an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ratio of
floor area to lot size, or any combination.”
Because the definition of “density increase” is fundamental to § 4423(a)(3), we begin our
analysis with whether the Regulations properly define “density increase.” The term “density
increase” is not expressly defined in the Regulations, nor is it used. Density in the SEQ district is
defined in terms of dwelling units per acre. See Regulations § 9.05.
Appellants assert that the TDR Bylaw does not comply with § 4423(a)(4) both because it
fails to mention the term “density increase” and because it does not speak in terms of “an
allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ration of
floor area to lot size, or any combination.”
Snyder asserts that density increase is defined in terms of building bulk or a combination
of the enumerated definitions and, as such, complies with § 4423(a)(4). Snyder points out, oddly
enough, the definition of the word “define.” “Define” means “(1) To state the precise meaning
of (e.g., a word or sense of a word), (2) To describe the nature or basic qualities of . . ., (3) To
delineate the outline or form of, (4) To specify or fix distinctly . . ., (5) To serve to distinguish.”
Webster’s II New College Dictionary, Define 302 (3rd Ed. 2005). It asserts that, while the
Regulations do not use the term density increase, it effectively defines the term.
Section 9.05(B) sets a base density in terms of dwelling units per acre. It then sets forth
the maximum density for a lot in an enumerated SEQ sub-districts in the same terms.
While we note that § 9.05(B) speaks in terms of dwelling units per acre, that term does
not exist in a vacuum. As a baseline, the Regulations note that, 1.2 dwelling units per acre are
permissible in the SEQ district. This is reflected in Regulations Table C-2, entitled Dimensional
Standards Applicable in All Districts. This table denotes minimum lot sizes for all of the SEQ sub-
districts. See Regulations Table C-2. It notes the minimum lot sizes, and also presents this size
in terms of maximum dwelling units per acre. Id. This is presented as 1.2 dwelling units per acre.
Id.
15
Table C-2 also sets forth maximum building heights and percentage of the site which may
be covered by buildings, both components of building bulk. See 3 Arden H. Rathkopf et al.,
Rathkopf’s The Law of Zoning and Planning § 54.2 (4th Ed.).
We conclude that the Regulations adequately define “density increase” in terms of
dwelling units per acre, since the definition includes both terms of lot size, as related to dwelling
units per acre, as well as terms of building bulk. Therefore, we conclude that the Regulations
comply with § 4423(a)(4).
We next turn to whether the Regulations comply with § 4423(a)(3) and “[d]efine the
amount of density increase allowable in receiving areas, and the quantity of development rights
necessary to obtain those increases.”
The Regulations give a base density, 1.2 dwelling units per acre, and a maximum allowable
density by use of TDRs, which ranges from 4 to 8 dwelling units per acre, depending on the
relevant SEQ sub-district that has been defined as a receiving area. See Regulations § 9.05(B).
As such, we conclude that the Regulations have effectively defined the amount of density
increase allowable in a receiving area, in compliance with § 4423(a)(3).
With respect to the second aspect of § 4423(a)(3), however, the Regulations provide no
guidance. Section 9.13(C)(1) states that an applicant “shall demonstrate that development rights
have been secured and encumbered” in a sending area. It notes that the parcel must be
“sufficiently encumbered against further land subdivision and development.” Regulations
§ 9.13(c)(1)(a). There is nothing in the Regulations regarding how much, either in terms of land
mass or parcel size, that would result in sufficient “development rights” to be regarded as an
allowable density increase.11 We therefore conclude that there is no definition of the quantity
of development rights necessary to obtain the density increases set forth in § 9.05(B).
For this reason, we conclude that the Regulations do not comply with § 4423(a)(3).
11 Snyder appears to argue that, by adequately describing how much density increase is allowable, the
Regulations have satisfied how much development rights must be secured to use TDRs. This argument fails to
address that development rights and density increase are two different statutory requirements. Snyder’s attempt
to conflate the two does not provide a sufficient explanation.
16
d. 24 V.S.A. § 4423(a)(5)12
Section 4423(a)(5) requires that a bylaw:
Define “development rights,” which at minimum shall include a conservation easement,
created by deed for a specified period of not less than 30 years, granted to the
municipality under 10 V.S.A. chapter 155, limiting land uses in the sending area solely to
specified purposes, but including, at a minimum, agriculture and forestry.
The term “development rights” is not defined by the Regulations. The Regulations require
that applicants “demonstrate that development rights have been secured and encumbered” in a
sending district. Regulations § 9.13(C)(1)(a). It then goes on to say that the parcel must be:
[S]ufficiently encumbered against further land subdivision and development through a
purchase or other agreement acceptable to the City Attorney to ensure conformance with
these Regulations [or . . .] [a]ll encumbered parcels not subject to a permanent conservation
easement or restriction of similar binding effect shall be reviewed as components of the PUD
and shall be subject to the provisions of this article.
Regulations § 9.13(C)(1)(a)—(b).
Snyder asserts that development rights are defined as “all or a portion of the residential
development density calculated for a noncontiguous encumbered parcel or another parcel to
satisfy the provisions of Section 9.05 above.” Regulations § 9.13(C)(2).13
Appellants argue that the Regulations do not formally define the term, nor do they
reference the minimum statutory definition set forth in § 4423(a)(5). Therefore, they assert the
Regulations fail to comply with the subsection.
We agree with Appellants; the Regulations are lacking in both respects. Section
9.13(C)(1)(a) states that encumberment could occur “through a purchase or other agreement
12 While we conclude that the Regulations fail to comply with § 4423(a)(3), we include an analysis of
compliance with § 4423(a)(5) pursuant to Appellants’ Question 1.8.
13 We note that Snyder additionally argues that defining “development rights” in terms of conservation
easements would be illogical. Citing Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 348 (2002) (stating
that the Court “will always avoid a statutory construction which leads to absurd or irrational results.”). It asserts
that, because conservation easements limit development, it cannot be included in a definition of “development
rights.”
This argument misses the purpose of the term “development rights” and the need for its definition in the
context of the § 4423 and TDR programs generally. Development rights are those rights to be secured in a place
designated for conservation or limited development, a sending area, and used in area designated for development,
a receiving area. As such, the statute directs that the definition set forth the encumberment to be secured in the
sending area, for use in the receiving area, at a minimum as including a conservation easement. This is neither
irrational or absurd in the context of a TDR program.
17
acceptable to the City Attorney.” There are no references to what type of encumberment would
be sufficient to satisfy the Regulations, nor an inclusion of the minimum definition as set forth in
the statute. While subsection (b) references a conservation easement, it also mentions
restrictions “of similar binding effect.” Such a fleeting mention does not remedy the fact that
they are patently lacking in this respect.
Snyder argues that we should look to the plain meaning of the words “development” and
“rights” pursuant to Regulations Article 2.01. While we could look to the plain meaning of the
words “development” and “rights,” such an exercise would not result in the Regulations meeting
the minimum statutory requirements. It would therefore be a fruitless endeavor.
We therefore conclude that the Regulations fail to comply with § 4423(a)(5). We next
turn to whether this and our above conclusions regarding §§ 4423(a)(3) and 4423(a)(5) must
result in the invalidation of the TDR Bylaw.
III. Whether the TDR Bylaw is invalid due to failure to comply with §§ 4423(a)(3)
and (5).
Snyder asserts that, even if the Court concludes the TDR Bylaw does not comply with
§ 4423, it is still valid. Citing In re Walker, 156 Vt. 639 (1991); and In re Duncan, 155 Vt. 402
(1990).
Both the Walker and Duncan decisions reference municipalities that failed to enunciate
mandatory statutory requirements regarding conditional use approval standards; specifically,
“that a proposed conditional use shall not adversely affect the utilization of renewable energy
resources.” Walker, 156 Vt. at 639 (citing 24 V.SA. § 4407(2) (repealed eff. July 1, 2004). In
Walker, the Court concluded that an “ordinance must be read to include the statutory
requirements [set forth in the conditional use statute], and those requirements will govern
whether or not they are expressly set forth in the ordinance.” Walker, 156 Vt. at 639.
Both cases are distinct from the present matter. Both matters reflected a failure to
include an explicit statutory standard, whereas here the statute requires the ordinance to define
terms, to which the statute provides varying degrees of direction. The Regulations at issue here
fail to provide the necessary direction; an implicit inclusion of a statutory reference does not in
this instance cure the omission.
18
We conclude the Regulations fail to comply with § 4423(a)(3) for failure to define the
quantity of development rights necessary to obtain increased development rights. Looking to
the statute, there is no definition therein, but only the requirement to define. The same is true
for § 44239(a)(5). Section 4423 does not lend itself to the same “gap filling” as proposed for the
conditional use approval standards examined in Walker and Duncan.
We therefore conclude the TDR Bylaw is invalid. Having reached this conclusion, we
address its impact on the pending application.
Regulations § 1.03 states that:
Should any section, sub-section, paragraph, sentence, clause, provision, or phrase of
these land development regulations be declared by any competent jurisdiction to be
unconstitutional or invalid, such decision shall not affect the validity of any other portion
of these land development regulations, except the section in question.
Here, we conclude that Regulations §§ 9.13(C)(1)(a), 9.13(C)(2), and 9.05(B)(2)—(6) do
not comply with § 4423 and are, therefore, invalid. Snyder asserts that this conclusion somehow
invalidates either the entirety of the Regulations or all density requirements therein. We
disagree. Nothing within this decision effects other aspects of the Regulations including, of
particular import here, § 9.05(A), which sets forth the maximum allowable density in the SEQ
district without the use of TDRs.
Having found no reason to disturb or invalidate § 9.05(A) or any other aspect of the
Regulations not above discussed, we conclude that the TDR Bylaw provision is severable from
the rest of the Regulations. Therefore, the Project is limited to 31 units.14
We next turn to Appellants’ constitutional challenges.
14 Snyder argues that, “because land-use regulations are in derogation of property rights, any uncertainty
in their meaning must be decided in favor of the property owner.” Citing Agency of Nat. Res. v. Weston, 2003 VT
58, ¶ 16, 175 Vt. 573. Under this tenant of statutory construction, Snyder reiterates its assertion that any
invalidation of the TDR Bylaw would eliminate density requirements in either South Burlington generally or the SEQ
district in particular, and that Snyder would therefore be permitted to construct the Project without limitation. This
argument lacks merit for two reasons. First, our above conclusions regarding the TDR Bylaw’s compliance with
§ 4423 is not based in any ambiguity or uncertainty in the Regulations overall meaning. Second, pursuant to the
Regulations severability clause, the purported destruction of the non-TDR related density requirements would be
improper.
19
IV. Whether the TDR Regulation is constitutional.
Appellants assert that the TDR Bylaw is unconstitutionally void for vagueness both on its
face and as applied.
When reviewing a municipal land use decision, we begin with the presumption that a
zoning regulation is constitutional. In re Highlands Dev. Co., LLC, No. 194-10-03 Vtec, slip op. at
13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.) (citing Hunter v. State, 2004 VT 108, ¶ 31, 177 Vt. 339).
Our approach to complaints of “standardless, arbitrary discretion focuses on the criteria for due
process and equal protection.” Pierce Subdivision, 2008 VT 100, ¶ 19 (citing In re Handy, 171 Vt.
336, 345-46 (2000).
We will consider two factors to determine whether a regulation is void for vagueness and
thus unconstitutional. First, we consider whether the regulation is “sufficiently precise that an
ordinary person using the means available and ordinary common sense can understand the
meaning and comply” and does not leave an applicant “uncertain as to what factors are to be
considered by the [municipal panel].” Rogers v. Watson, 156 Vt. 483, 491 (1991) (citing Brody v.
Barasch, 155 Vt. 103, 111 (1990); Town of Westford v. Kilburn, 131 Vt. 120, 124 (1973). Second,
we consider whether the regulation provides standards that sufficiently guide municipal
decisions and therefore do not allow for the “exercise of discretion in an arbitrary or
discriminatory fashion.” Pierce Subdivision, 2008 VT 100, ¶ 20 (quoting Kilburn, 131 Vt. at 124).
Additionally, a balance must be struck between the flexibility a municipal panel must have
in reviewing a specific development proposal and a landowner’s right to know what standards
govern an application. See Rogers, 156 Vt. at 491; see also Handy, 171 Vt. at 349; Kilburn, 131
Vt. 124 (“On one hand the standards governing the delegation of such authority should be
general enough to avoid inflexible results, yet on the other hand they should not leave the door
open to unbridled discrimination.”). Thus, while we must “invalidate ordinances that ‘fail to
provide adequate guidance” and allow for “ad-hoc decision making that is essentially arbitrary,”
we will uphold general standards “accompanied by some ability of landowners to predict how
discretion will be exercised.” Pierce Subdivision, 2008 VT 100, ¶ 20 (quoting Kilburn, 131 Vt. at
125); Handy, 171 Vt. at 349. For this reason, we consider regulations in the context of the entire
ordinance so that “even if some of the bylaws’ objectives are general,” it may be constitutional
20
“as long as other provisions impose specific limits to guide and check the [decisionmaker’s]
discretion.” Rogers, 156 Vt. at 491; Pierce Subdivision, 2008 VT 100, ¶ 24 (“By providing both
general and specific standards for [] review, the bylaw strikes an appropriate balance between
providing guidance to the Commission and avoiding inflexible requirements which would defeat
the creativity and flexibility required to effectuate the goals of the [bylaws].”)).
Appellants assert that the TDR Bylaw is unconstitutionally vague because it fails to provide
any standards for the DRB, or the Court on appeal, to apply when determining whether to
approve the transfer of all or some of the TDR-based density requested by an applicant. Further,
they assert the TDR Bylaw does not provide any standards for the City Attorney to apply when
determining whether a parcel is sufficiently encumbered under § 9.13(C)(1).
Snyder asserts that the TDR Bylaw is constitutional because it sets forth the limited range
within which a density can be approved when using TDRs. It also asserts that by providing that
the City Attorney must “ensure conformance” with the Regulations, the TDR Bylaw provides
sufficient guidance when determining whether encumberment is sufficient.
Section 9.13(C)(2) allows the DRB to “approve the assignment (transfer) of all or a portion
of the residential development density” when approving the use of TDRs. Section 9.05(A) sets
the maximum allowable density within the SEQ district and § 9.05(B) sets the maximum allowable
density through the use of TDRs within the various SEQ subdistricts. As discussed above, there is
no guidance on the quantity of development rights that must be secured in order for TDRs to be
utilized. Similarly, there is no guidance regarding what the DRB should consider when approving
the assignment of all or a portion of the development rights.
A mere maximum and minimum, in the absence of these important aspects of lawful TDR
programs, are not sufficiently precise such that an ordinary person could understand how the
TDR program works, specifically with respect to the transfer of development rights, and would
leave an applicant and those concerned by a proposed development uncertain as to what factors
are to be considered by the DRB when determining the transfer of development rights. See
Rogers, 156 Vt. at 491.
21
As the Regulations are, in effect, standardless regarding this issue, and lack sufficient
guidance for the DRB to employ when making determinations regarding the number of TDRs the
DRB will allow to be used in an area.
Therefore, we conclude that the TDR Bylaw is unconstitutionally vague on its face.15
V. Whether the proposed dead-end street is permissible.
When interpreting a zoning ordinance, we apply the familiar rules of statutory
construction. Trahan, 2008 VT 90, ¶ 19. A complete review of the legal standards we apply in
doing so is set forth above.
Of import to our present analysis is whether the Court affords deference to a
municipality’s interpretation of its ordinance. The parties both direct us to In re Confluence
Behavioral Health LLC CU. In that decision, we noted that:
The interpretation by an appropriate municipal panel of its own zoning regulations can
have some import in our analysis. In re Duncan, 155 Vt. 402, 408 (1990) (“we have
consistently held that ‘absent compelling indication of error, we will sustain the
interpretation of a statute by the administrative body responsible for its execution.’”)
(citation omitted). However, as noted above, municipal zoning decisions are appealed to
the Environmental Division de novo. 24 V.S.A. § 4472(a). We therefore do not defer to
the municipal panel’s interpretation of a zoning term when that determination is itself
the subject of an appeal. The exception to this rule is where the municipal panel has
established a pattern of consistent interpretation. In re Korbet, 2005 VT 7, ¶ 10, 178 Vt.
459; 38 Thasha Lane Dev. Water & Sewer Fees Denial, No. 136-9-14 Vtec, slip op. at 4—5
(Vt. Super. Ct. Envtl. Div. Aug. 28, 2015) (Walsh, J.).
No. 15-2-16 Vtec, slip op. at 11 (Vt. Super. Ct. Envtl. Div. Jan. 23, 2017) (Durkin, J.) aff’d by 2017
VT 112.
Section 9.08 sets forth “additional dimensional and design requirements” for the SEQ-NR,
SEQ-NRN, and SEQ-NRT sub-districts. Section § 9.08(A)(2)(b) states that “[d]ead end streets (e.g.
cul de sac or hammer-head) that are not constructed to an adjacent parcel to allow for future
connection are strongly discouraged. Such dead end streets shall not exceed 200 feet in length.”
Regulations § 9.08(A)(2)(b).
PUDs are:
15 Having reached this conclusion, we need not reach whether the TDR Bylaw is unconstitutional as applied.
We note that the impact of this conclusion on the application before the Court is identical to that in Section
III, above.
22
One or more parcels of land to be developed as a single entity, the plan for which may
propose any authorized combination of density or intensity transfers or increases, as well
as the mixing of land uses. This plan, as authorized, may deviate from bylaw requirements
that are otherwise applicable to the area in which it is located with respect to the area,
density or dimensional requirements or allowable number of structures and uses per lot
as established in any one or more districts created under the provisions of these
regulations. The specific requirements of a PUD and the area, density and dimensional
provisions that may be modified are defined in each district in which PUDs are allowed.
Regulations § 2.02 (emphasis added).
Snyder asserts that, because the Project is a PUD, the DRB and this Court on appeal may
deviate from dimensional requirements pursuant to the definition of PUDs. Therefore, it asserts
that the oversized road may be permitted. Additionally, and alternatively, it asserts that the
roadway standards are waivable pursuant to § 15.12(D)(5). Appellants disagree, arguing that
§ 9.08(A)(2)(b) is mandatory and non-waivable. Therefore, it asserts that Street A is
impermissible as proposed.
First, we address whether the Regulations permit deviations from § 9.08(A)(2)(b) when
permitting PUDs. PUDs, by their definition, permit the DRB, and this Court on appeal, flexibility
in imposing land use restrictions. Specifically, their definition states that “dimensional
requirements” may be deviated from. Section 9.08(A)(2)(b) is included as a dimensional and
design standard for the SEQ district. See Regulations § 9.08. Therefore, by the plain language of
the Regulations, § 9.08(A)(2)(b) is the type of requirement that the Regulations contemplated
PUDs deviating from in some instances. While § 9.08(A)(2)(b) provides clear requirements on
dead-end streets, there is nothing in the Regulations to show that this would not be subject to
the flexibility afforded to PUDs by their nature as set forth in Regulations § 2.02. Therefore, we
conclude that deviation from § 9.08(A)(2)(b) is permissible with respect to PUDs.
Second, we address whether the § 9.08(A)(2)(b) requirement is waivable.16 Section 15.12
governs standards for roadways, parking and circulation in PUDs generally. Included in this
section is the provision that “[n]othing in this section shall be construed to limit the authority of
the DRB to grant waivers of public roadway standards subject to the provisions of § 15.12(D)(4).”
16 Having reached the above conclusion, an analysis of whether § 9.08(A)(2)(b) is waivable is largely
unnecessary. However, we reach the issue as it is presented by Appellants’ Questions 5.4—5.10.
23
Regulations § 15.12(D)(5); see also Regulations § 15.12(D)(4) (provisions related to roadway
connections to adjacent parcels).
We must begin by noting that, while Appellants present a number of Questions related
to the issue of waiver, their briefs in large part do not address the issue. Appellants include the
bald assertion that § 9.08(A)(2)(b) is non-waivable, but this appears to be based solely on their
interpretation of § 9.08(A)(2)(b) and not how it interrelates with § 15.12(D)(5).
Section 15.12 sets for the “Standards for Roadways, Parking and Circulation” in
subdivisions and PUDs. Included in this are roadway criteria in § 15.12(D). Section 9.08,
however, sets forth specific dimensional and design requirements in the SEQ-NRT, SEQ-NR, and
SEQ-NRN sub-districts. Neither section reference one another, nor is § 9.08(A)(2)(b) identified
as a public roadway standard, but instead a component of street, block and lot patterns within
the enumerated sub-districts.17
Other than the fact that § 9.08(A)(2)(b) relates to roadways, we can find no interpretation
that supports the conclusion that it can be waived pursuant to § 15.12(D)(5). As such, we
conclude that § 9.08(A)(2)(b) cannot be waived. This conclusion, however, does not disturb our
above conclusion that the DRB may deviate from § 9.08(A)(2)(b) when permitting PUDs.
Conclusion
For the above stated reasons, we conclude that the TDR Bylaw is invalid as it does not
comply with 24 V.S.A. § 4423. We further conclude that the TDR Bylaw is unconstitutionally
vague. Finally, we conclude that the DRB, and this Court on appeal, may permit a roadway longer
than 200 feet in length in the context of a PUD application.
This concludes the matter before the Court. A Judgement Order accompanies this
Decision.
17 Snyder asserts that the Town’s conclusion that § 9.08(A)(2)(b) is waivable is entitled to some deference.
However, having received no indication of consistent application of this interpretation and the matter being the
subject of the present appeal, we afford this interpretation no deference. See Confluence Behavioral Health LLC CU,
No. 15-2-16 Vtec, slip op. at 11 (Jan. 23, 2017).
Further, to the extent Snyder asserts that other oversized dead end streets have been approved pursuant
to § 15.12(D)(4) for future interconnection, because we reach the above conclusion that the DRB may deviate from
§ 9.08(A)(2)(b), we conclude that an analysis of this issue is unnecessary.
24
Electronically signed on February 28, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
1
Marla Keene
From:Louise Hammond <karmakosmo7@aol.com>
Sent:Tuesday, January 29, 2019 11:30 PM
To:Dalila Hall
Cc:Marla Keene
Subject:Wildlife in South Burlington
Dahlia and Marla,
Please share the attached with members of the DRB Thank you.
I was in attendance at the meeting this evening, however like many I did not get a chance to speak ( same as last DRB
meeting…) I am headed out of town very early tomorrow until March 7th so I decided to share my thoughts this way.
A few weeks back the Planning Commission had Jens Hilke from Vermont Fish and Wildlife give a presentation. It was
excellent and very informative. He is an expert in planning for wildlife movement and management and is experienced
in providing technical assistant to Vermont Municipalities.
Jens Hilke made it very clear that the areas of wetlands, riparian and wildlife corridors, wildlife connectivity are all vitally
important to us and he few remaining open spaces we have left. Few as he mentioned makes them even more
important/valuable. I also heard him say that even developing around these areas will result in them losing their
intended function.
There are plenty of scientific studies informing us of the importance of keeping this riparian connectivity open.
The wildlife is very,very important!
I have photographed over 84 species of birds over the past 12 years and those are only the ones I have photographed. I
am sure there are many others that I have not seen but are out there. This is all in /near the same land as the Dorset
Meadow proposal.
Last week in FPF a neighbor in the Pinnacle/ Spear area wrote that woke up to adult fisher tracks on their back porch.
They stated they have seen red fox, bobcat, skunks, raccoons, squirrels, woodchuck, opossum and numerous mice voles
and moles. They also mentioned having several coyote tracks across their yard.
We are paving over their homes and they are running out of places to go! They don’t belong on our porches and in our
front yards. They belong in the wild… wildlife.
I too have seen the above mentioned wildlife as well as deer, rabbits, and last week a mink and several beaver.
In yesterdays Burlington Free Press the front page had an article about opossum. They eat ticks! Let’s not pave over
their home. We need them to eat the ticks. Ticks cause lyme disease.
We are knowingly shrinking their homes. Let’s be a voice for the voiceless. The animals need their homes, there is a
balance in life and they are a huge part of it. They benefit us on so many levels.
They don’t cost us anything and bring such joy! Ever notice how you feel when you see a bird, or a deer or and owl or
see a turtle in the road?
In making your decision I hope you will think about the wildlife and how we have already destroyed many of their
homes/ habitats.
Respectfully,
2
Louise Hammond
15 Shea Drive
1
Marla Keene
From:Duncan Murdoch <duncanhmurdoch@gmail.com>
Sent:Thursday, January 31, 2019 12:14 PM
To:Marla Keene; Dave Crawford
Subject:RE: NRC buffer recommendation for Dorset Meadows: Clarification
Hello DRB members,
I was asked if there was any scientific reasoning behind the NRC's recommendation of a larger than 50 ft buffer. I did
not thoroughly answer the question at the time. Here is my response in advocating a buffer of 100 feet:
“Streams and brooks within the City Owned Land should be protected by a naturally
vegetated 100‐foot riparian buffer zone.”
‐(pg. 13) 2004 Arrowwood Environmental, LLC report “Wildlife and Natural Communities Assessment of
the South East Quadrant, South Burlington Vermont”
This report was done at the local level. Please consider this report's recommendations as you consider development
around streams and brooks in South Burlington.
I am writing on behalf of the NRC.
Thank you,
Duncan Murdoch
Certified Nature & Forest Therapy Guide
www.natureconnectionguide.com
www.duncanmurdoch.com
m. 718.753.8443
1
Marla Keene
From:Ray Gonda <gonda05403@yahoo.com>
Sent:Sunday, February 3, 2019 1:21 PM
To:Marla Keene
Subject:native plants and pollinators commentary to DRB
Attachments:Proposed Dorset Meadows Testimony.docx
Hi Marla,
Here is an updated version of the "Native Plants" testimony I hurriedly wrote for the DRB Dorset
Meadows hearing.. This constitutes a replacement for the previous version.
This version corrects some unclear paragraphs in the previous version and some typos.
I would appreciate it if you would forward this to DRB members.
Best regards and thank you,
Ray
264-4886
Proposed Dorset Meadows:
Comments - Native Tree Planting
Submitted by: Ray Gonda, 27 Pinnacle Drive, S.B. 264-4886
To South Burlington: Development Review Board, Natural Resources
Committee, Parks and Recreation Committee 1/27/2019
I read in the South Burlington TOP that at Jan 2 meeting of the S. B. Natural Resources
Committee, committee member Duncan Murdock encouraged using native species for plantings
to which “veteran landscape architect” Mike Buscher with TJ Boyle Associates responded:
“that was ‘almost impossible’. There are about six or seven really native trees … half of those
aren’t suitable for streescape plantings” he said
An interesting statement since last year I made a catalog of about 72 native or “naturalized”
(naturalized meaning established long enough in Vermont in the wild to have some level of co-
evolvement with native insects) Vermont trees including the oaks and maples. There are at least
50 of those whose existence is not currently threatened by serious pests or other diseases such
as ash, hemlock, and beech.
Here is the result of research I have done on commercial availability of these “really native”
trees in Vermont. I selected species/cultivars conservatively. Among them are a sprinkling of
large shrubs that can be trained to be tree-like. Four Seasons said that additional species
beyond their catalog species could be sourced
B&B Nurseries, Morrisville, VT 8 species
E.C. Brown Nurseries, Thetford Center, VT 28 species
Four Seasons, Williston, VT 24 + species
Are the criteria used for Mr. Buscher to select his preferred trees include convenience of
purchase, low-maintenance trees, uniform growth among them, trees that don’t “drop” things
like acorns of apples or nuts, among other similar things? If so, perhaps the criteria used by Mr.
Buscher should be re-considered.
Here is why:
As a child I was fascinated by the many insects and moths, large and small, of various shapes
and sizes that would each summer night buzz and flutter around street lamps – seemingly in the
hundreds. Today I see little of this.
On other nights when sitting on the porch I would be enchanted by the chorus so many different
sounds –the sounds of so many insects - many identifiable – most not – just background “white”
noise. Today sitting out on the porch in S.B along Speer Street, I still hear these sounds of my
youth. But, what I hear are insects by the tens – not the hundreds or thousands.
In a protected forest in Germany, the results of a 27 years study, there has been a drop of 75%
of the original numbers of insect populations – without a specific cause being identified.
https://e360.yale.edu/features/insect_numbers_declining_why_it_matters
https://www.washingtonpost.com/science/2018/10/15/hyperalarming-study-shows-massive-
insect-loss/?noredirect=on&utm_term=.83bd1bcb2f09
Worldwide we are losing some 200 species of organisms per hour – extinctions. (The number of
mammals is today about 50% of the original populations).
There are many reasons for insect losses (as well as mammals) including pesticide and
excessive fertilizer uses, especially non-selective pesticides, deforestation, habitat
fragmentation and habitat loss, conversion of small farm fields separated by very diverse
fencerows, rock walls and hedgerows mixed with forest patches to large non-diverse continuous
plains of tilled soil, growing monoculture commodity plants and protecting them from insect
threats.
What is not appreciated is the contribution to these losses caused by our own private property
landscapes and the decisions we make regarding how and what we plant. From the original
habitat, we subtract the footprint of the buildings from the property acreage, subtract further
paved or side-walked sections of acreage, then plant mostly alien non-native grasses of little or
no benefit to wildlife along with keeping them cut too frequently and too short. Further planting
of foreign rather than native trees shrubs and flowers has an equivalent effect as habitat loss.
Native plants (trees shrubs, flowers, and grasses) provide many ecological services to domestic
wildlife (wildlife includes insects and perhaps microorganisms of the soil) that imports do not.
Insects have co-evolved with native plant species over thousands or millions of years to the
point of some being highly dependent on one or a few plant species only (while others utilize
several or more plant species). If that or those plant species are removed from a plant
community – then so are the insects that co-evolved with it.
And then there are the possible symbiotic ecosystem services that may be provided by specific
insect species, yet still be undiscovered, that is aptly illustrated by this non-insect example:
In the coniferous Douglas-fir and western hemlock forests of the Pacific Northwest lives the
northern spotted owl which preys on the northern flying squirrel as its staple diet. The flying
squirrels, in turn, depend on truffles, the below-ground fruiting bodies of certain mycorrhizal
fungi. (Mychorrizal denotes the obligatory symbiotic relationship between various fungi and plant
roots that is of nourishment benefit to both). Flying squirrels, having eaten truffles, defecate live
fungal spores elsewhere on the forest floor, which upon being washed into the soil by rain,
inoculate the roots of the sprouting forest trees with the needed fungi. Remove the squirrels,
and in the absence of other mitigating processes, truffles cease to be spread. Then the trees
diminish, reducing or eliminating nesting platforms for the owls. So the removal of the squirrels
potentially can cause the loss of the trees, owls and truffles.
Imported plants, even from other states, though they may provide nectar and pollen from
flowers and blossoms, fail to provide important insect lifecycle services outside of nectar season
such as plant material to eat, to lay eggs in, and to overwinter in. Thus introducing alien species
into one’s yard rather than native species is the equivalent of removing habitat.
We unwittingly are contributing to the worldwide loss of wildlife right in our own yards.
Remembering that insects are a major source of food for birds and many small mammals and
they in turn, are food for larger predator mammals, then, it becomes obvious that our native
plant communities are the fundamental base for our wildlife populations. Studies suggest that
North American bird species that depend on aerial insects for feeding themselves and their offspring have
suffered much more pronounced declines in recent years than other perching birds that largely feed on
seeds.
https://www.theglobeandmail.com/technology/science/report-finds-north-american-skies-quieter-by-15-
billion-fewer-birds/article31876053/
Why worry about the loss of a bunch of bugs?
Highest on the list of reasons for protecting and restoring insect populations is pollination. 75%
of all flowering plants need pollinators including many crops we depend on for food. If domestic
honeybees are used exclusively for pollination, which many large industrial farms use, then we
face the usual threat of disease spread in monocultures leading to catastrophic population
crashes. So we need the diversity inherent in wild pollinators which include many insect species
– albeit with declining populations. The most important of these are butterflies and moths, the
many wild bee species, beetles, wasps, and flies among many other contributing insect species.
So I think that Mr. Buschner should go back to the drawing board and maker wiser choices for
tree plantings.
Furthermore I recommend that the relevant city committees make it a policy to require native
“woody” tree plantings on any new development taking place in the city. Also the same
consideration should include “native” herbaceous plants rather than aliens in the same
landscape plans.
And furthermore, the city should make it a policy to actively encourage private landowners to
utilize native plants in their own yards.
A Few Resources for introduction and deeper understanding of this issue:
General Introduction: Bringing Nature Home - Douglas W. Tallamy
Native Plants: Native Plants of New England Gardens - Mark Richardson and Dan Jaffe
Essential Native Trees and Shrubs for the Eastern United States -
Tony Dove and Ginger Woolridge
Pollinators identified: Attracting Native Pollinators - The Xerces Society
Native Vermont Trees Commercially Available
(plus additional native species if out‐sourced)
Ray Gonda 1/27/2019
Acer Pennsylvania vanicum Striped maple
Acer Spicadeum Mountain Maple
Acer Rubrum Red Maple
Acer Saccharum Sugar Maple
Acer saccharum, “commemorutum” Sugar Maple
Acer Saccharum “Green Mountain” Sugar Maple
Acer Spicatum Mountain Maple
Albies balsamea Balsam Fir
Amelanchier canadensus Serviceberry / Shadberry / several cultivars
Betula lentra Sweet (Black) Birch
Betula papyrifera Paper Birch
Betula nigra River Birch (but not the “Heritage “ cultivar)
Carpus Caroliniana Musclewood (American Hornbeam)
Castanea dentata American Chestnut
Chionanthus virginiacus Fringetree
Cornus alternifolia Pagoda dogwood
Crataegus, spp Hawthorne cultivars
Divia paulustris Eastern Leatherwood
Juniperus virginiana Eastern Red Cedar
Larix laricina Eastern Larch, Tamarack
Linnera benzoin Spicebush
Ostrya virginiana Ironwood (American Hophornbeam)
Pinus strobus Eastern White Pine
Psyocarpus opulifolius Ninebark
Quercus alba White Oak
Quercus Bicolor Swamp White Oak
Quercus macrocarpa Burr Oak
Quercus palustris Pin Oak
Quercus rubra Northern Red Oak
Rhodendron, spp. Rhodendron and Cultivars
Robina psueacacia Black Locust
Thugis Occidentalis Eastern White Cedar
Tilia americana Redmond American Linden (Basswood)
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Native Vermont Flowers (Source: Pollinators of Native plants (Heather Holm))
This first list’s plants serve as Larval or specialist bees hosts as well as sources of nectar and pollen
Common name Latin Name
Prairie Plants
Butterfly Milkweed Asclepias tuberosa
Wild Lupine Lupinus Perennis
Wild Bergamot Monarda fistulosa
Spotted Bee Balm Monarda punctata
Black-Eyed Susan Rudbekia hirta
Golden Alexanders Ziza aurea
Woodland Edges
Wild Columbine Aquilegia canadensis
Large-Leaved Aster Eurybia macrophylla
Wild Germanium Aguilegia canadensis
Virginia Waterleaf Hydrophyllum virginianum
Bloodroot Sanguinaria Canadensis
Zig Zag Goldenrod Solidago flexicaulis
Wetland Edges
Swamp Milkweed Swamp Milkweed
White Turtlehead Chelone glabra
Canada Tick Trefoil Oesmodium canadense
Common Boneset Eupatorium perfoliatum
Spotted Joe Pye Weed Eurochium maculatum
Great St. John’s Wort Hypericium pyramididatum
New England Aster Symphyotrichum novae-angliae
Blue (Swamp) Vervain Verbena hastata
Culver’s Root Veronicastrum virginicum
This list is of native plants that provide only nectar and pollen.
Prairie
Harebell Campanula rotundafolia
Prarie (Tall) Cinquefol Potentilla arguta
Woodland Edges
White Baneberry Actaea pachypoda
Sharp-Lobed Hepatica Anemone acutilobayes
Dutchman’s Breeches Dicentra cucallaria
False Soloman’s Seal Maianthemum Virginianum
Bishop’s Cap ( Mitterwort) Mitella diphylla
Long-Styled Sweet Cicely Ozmorhiza longistylis
Smooth Soloman’s Seal Poilygonatum biflorum
Rue Anemone Thalictrum thalictroides
Large Flowered Bellwort Uvularia grandiflora
Downy Yellow Violet Viola pubuscens
Wetland Edges
Canada Anemone Anemone canadensis
Marsh Marigold Calthra palustris
Bottle Gentian Gentiana andrewii
Great Blue Lobelia Lobella siphilitica
Obedient Plant Physostegia virginiana
Virginia Mountain Mint Pycnanthemum virginianum
275 COLLEGE STREET, PO BOX 4485 BURLINGTON, VT 05406-4485 PHONE 802 861-7000 FAX 861-7007 MSKVT.COM
March 6, 2019
VIA ELECTRONIC MAIL
Mr. Bill Miller, Chair
South Burlington Development Review Board
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
C/o Mr. Paul Conner, Director of Planning & Zoning
Email: pconner@sburl.com
Re: 1505 Dorset Street, Master Plan Application No. MP-18-01 and Preliminary Plat
Application No. SD-18-29
Dear Chairperson Miller:
I serve as counsel for Tom and Donna Anfuso, 695 Nowland Farm Road; Robert
Brinckerhoff and Louise Hammond, 15 Shea Drive; Andrew Chalnick, 670 Nowland Farm
Road; Rosanne Greco and Higley Harmon, 63 Four Sisters Road; William and Kathy Hays, 51
Old Schoolhouse Road; Noah Hyman, 1575 Dorset Street; Claudia J. Miller, 48 Old Schoolhouse
Road; Steven and Dunia Partilo, 64 Shea Drive; and Darrilyn Peters, 37 Old Schoolhouse Road,
all of whom are South Burlington residents as well as persons interested in the above-referenced
Applications (collectively, “Save Open Spaces South Burlington” or “SOS South Burlington”).
I am writing to notify the DRB that on February 19, 2019, Judge Thomas G. Walsh of the
Vermont Superior Court – Environmental Division (the “E-Court”) issued a verbal directive in
In re Dorset Meadows Associates LLC PUD, Dkt. No. 2-1-19 Vtec (the “E-Court Appeal”) that
the DRB cannot take further action on Master Plan Application No. MP-18-01 or Preliminary
Plat Application No. SD-18-29 during the pendency of the E-Court Appeal. Judge Walsh’s
February 19th directive is reproduced on the second page of this letter.
I am writing to you to make sure the DRB is aware that Judge Walsh has directed that the
pending E-Court Appeal “divests the City from further considering” Master Plan Application
No. MP-18-01 or Preliminary Plat Application No. SD-18-29 “until this [E-Court] appeal is
resolved.” See Transcript of Feb. 19, 2019 Status Conference, at page 16, lines 10 to 22:
Letter to DRB Chairperson Bill Miller
March 6, 2019
Page 2 of 3
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
Transcript of Status Conference at 16, In re Dorset Meadows Associates LLC PUD, Dkt. No. 2-
1-19 Vtec (Feb. 19, 2019). On request, I can supply the DRB with a PDF version of the full 24-
page transcript.
SOS South Burlington trusts that the DRB will respect Judge Walsh’s February 19th
directive and cancel the March 19, 2019 DRB hearing concerning Dorset Meadows. In addition,
SOS South Burlington trusts that the DRB will not take any further action concerning the
proposed Dorset Meadows project during the pendency of the E-Court Appeal.1
For the record, if the DRB were to act on Dorset Meadows Associates LLC’s pending
Preliminary Plat and Master Plan Applications while the E-Court Appeal remains pending, SOS
South Burlington would maintain that any such action is null and void for lack of jurisdiction.
1 SOS South Burlington continues to maintain that the DRB lacks jurisdiction to consider Master
Plan Application No. MP-18-01 and Preliminary Plat Application No. SD-18-29 due to the DRB’s lack of
a final decision and vote on Sketch Plan Application No. SD-18-23. This issue is now the subject of the
pending E-Court Appeal.
Letter to DRB Chairperson Bill Miller
March 6, 2019
Page 3 of 3
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
On a related note, on March 5, 2019, I e-mailed attorneys Robert H. Rushford and
Matthew B. Byrne, who serve as counsel for Dorset Meadows Associates LLC, and asked
whether they plan to withdraw Master Plan Application No. MP-18-01 and Preliminary Plat
Application No. SD-18-29 in light of last Thursday’s E-Court Decision in In re Snyder Group
Inc. PUD Final Plat, Dkt. No. 114-8-17 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin,
J.), invalidating the City’s TDR Bylaw on State statutory and federal constitutional grounds. (On
request, I can supply the DRB with PDF version of the E-Court’s twenty-four page Snyder
Group decision and the accompanying one-page Judgment Order.)
Withdrawal of the Dorset Meadows Applications seems to make sense given that they are
predicated on sixty-seven (67) units of TDR-based density, and such density is no longer an
option after Snyder Group. If Dorset Meadows Associates LLC withdraws its Preliminary Plat
and Master Plan Applications, the DRB, could, in my view, take whatever actions are necessary
to remove those Applications from its docket without violating Judge Walsh’s above-quoted
February 19, 2019 directive.
Thank you for your attention to this important and time-sensitive matter.
Respectfully submitted,
/s/ Daniel A. Seff
Daniel A. Seff
cc: Mr. Paul Conner, Planning and Zoning Director (via e-mail)
Ms. Dalila Hall, Zoning Administrative Officer (via e-mail)
Ms. Marla Keene, Development Review Planner (via e-mail)
Amanda S.E. Lafferty, Esq., Deputy City Attorney (via e-mail)
Matthew B. Byrne, Esq. (via e-mail)
Robert H. Rushford, Esq. (via e-mail)
Save Open Spaces South Burlington (via e-mail)
1
Marla Keene
From:Daniel A. Seff <DSeff@mskvt.com>
Sent:Friday, March 8, 2019 4:31 PM
To:Marla Keene
Cc:Amanda Lafferty; Dalila Hall; mbyrne@gravelshea.com; Robert Rushford; Paul Conner
Subject:RE: 1505 Dorset Street, Master Plan Application No. MP-18-01 and Preliminary Plat Application No.
SD-18-29
Attachments:In re Dorset Meadows Associates, LLC PUD, Transcript of Feb. 19, 2019 E-Court Telephone Status
Conference (00346494xA9531).PDF
Good afternoon, Marla. As requested in your e-mail message of this morning (below), attached
as a PDF file please find the 24-page transcript of the February 19, 2019 status conference in In
re Dorset Meadows Associates LLC PUD, Dkt. No. 2-1-19 Vtec (the “E-Court Appeal”).
In your e-mail message (below), you ask me to clarify what action I am asking the DRB to
take. Respectfully, it does not matter what I want the DRB to do. Rather, what matters is what
E-Court Judge Thomas G. Walsh expects the DRB not to do.
On the second page of my March 6, 2019 letter, I quote Judge Walsh’s statement as it appears
on page 16, lines 10 to 22, of the attached transcript. Judge Walsh is adamant:
“The fact that that the appeal is here [in the E-Court], divests the City from further
considering those [Dorset Meadows Preliminary Plat and Master Plan] applications until this
[E-Court] appeal is resolved.”
Judge Walsh “want[s] everybody to be clear” about the fact that the City “can’t touch” the
Dorset Meadows Preliminary Plat and Master Plan applications while the E-Court appeal is
pending. “So be aware of that,” Judge Walsh admonished the attorneys, including the City’s
attorney and the attorneys for Dorset Meadows Associates LLC.
As Judge Walsh explained, when the E-Court appeal is over, “jurisdiction goes back to the
City.” “But in the meantime, while the [E-Court] matter is pending, jurisdiction is with the
Environmental Division.”
If the Planning and Zoning Department learns between now and the March 19th DRB hearing
that the DRB intends to honor Judge Walsh’s February 19th directive and you could let me
know, that would be helpful. A lot of people will need to show up on March 19th [under
protest] if there is no advance confirmation that the scheduled Dorset Meadows hearing is off.
I think one way to save everybody a lot of time would be for Dorset Meadows Associates
LLC’s counsel to reply to this e-mail message and request that the March 19th DRB hearing be
called off. I have copied Gravel & Shea PC attorneys Robert Rushford and Matthew Byrne on
this e-mail message. Bob and Matt, what say you?
2
Finally, Marla, I would be grateful if you would please include a copy of this e-mail message in
the DRB packet along with the attached transcript.
Thanks, and have a nice weekend.
Best regards,
Daniel A. Seff
MSK Attorneys
275 College Street, P.O. Box 4485
Burlington, VT 05406-4485
Phone: (802) 861-7000 x119 | Fax: (802) 861-7007
dseff@mskvt.com | www.mskvt.com
This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged
information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all
copies or records of the original message.
From: Marla Keene [mailto:mkeene@sburl.com]
Sent: Friday, March 08, 2019 8:27 AM
To: Daniel A. Seff <DSeff@mskvt.com>; Paul Conner <pconner@sburl.com>
Cc: Amanda Lafferty <alafferty@sburl.com>; Dalila Hall <dhall@sburl.com>; mbyrne@gravelshea.com; Robert Rushford
<rrushford@gravelshea.com>
Subject: RE: 1505 Dorset Street, Master Plan Application No. MP‐18‐01 and Preliminary Plat Application No. SD‐18‐29
Good morning Daniel,
Thank you for your letter. It will be included with other public comments in the packet for the Board.
As offered, could you please forward the full transcript, which I will include as an attachment?
Finally, to cancel a hearing is not an action available to the Board. Could you please clarify what action you are
requesting the Board make? The available actions are to close or to continue a hearing, both which must be done in a
public setting.
Marla Keene, PE
Development Review Planner
City of South Burlington
(802) 846‐4106
From: Daniel A. Seff <DSeff@mskvt.com>
Sent: Wednesday, March 6, 2019 7:50 PM
To: Paul Conner <pconner@sburl.com>
Cc: Amanda Lafferty <alafferty@sburl.com>; Dalila Hall <dhall@sburl.com>; Marla Keene <mkeene@sburl.com>;
3
mbyrne@gravelshea.com; Robert Rushford <rrushford@gravelshea.com>
Subject: 1505 Dorset Street, Master Plan Application No. MP‐18‐01 and Preliminary Plat Application No. SD‐18‐29
Good evening, Paul. Attached as a three-page PDF file please find a March 6, 2019 letter from
me on behalf of SOS South Burlington to DRB Chairperson Bill Miller concerning the Dorset
Meadows matter.
I would be grateful if you would please forward the attached letter to the DRB membership at
your earliest convenience, as it concerns an important and time-sensitive matter.
Thanks very much.
Best regards,
Daniel A. Seff
MSK Attorneys
275 College Street, P.O. Box 4485
Burlington, VT 05406-4485
Phone: (802) 861-7000 x119 | Fax: (802) 861-7007
dseff@mskvt.com | www.mskvt.com
This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged
information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all
copies or records of the original message.