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HomeMy WebLinkAboutAgenda 8_PubComment_Seff 2019-04-15 275 COLLEGE STREET, PO BOX 4485 BURLINGTON, VT 05406-4485 PHONE 802 861-7000 FAX 861-7007 MSKVT.COM April 15, 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. The DRB is Divested of Jurisdiction During the Pendency of SOS South Burlington’s Supreme Court Appeal. I am writing to advise the South Burlington Development Review Board (“DRB”) that SOS South Burlington has appealed to the Vermont Supreme Court from the March 19, 2019 decision of the Vermont Superior Court’s Environmental Division dismissing SOS South Burlington’s appeal from the DRB’s December 5, 2018 Findings of Fact, Conclusions of Law and Decision of the City of South Burlington Development Review Board in the matter of Tom and Donna Anfuso, et al., 1505 Dorset Street/Dorset Meadows, Appeal #AO-18-01 (the “DRB Decision”). For present purposes, the critical significance of SOS South Burlington’s pending Vermont Supreme Court appeal (“Supreme Court Appeal”) is that the DRB is divested of jurisdiction to further consider Master Plan Application No. MP-18-01 and Preliminary Plat Application No. SD-18-29 while the Supreme Court Appeal is pending. Letter to DRB Chairperson Bill Miller April 15, 2019 Page 2 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com As E-Court Judge Thomas Walsh G. Walsh explained in his March 19th decision, the DRB is powerless to act on the Preliminary Plat and Master Plan applications while the December 5, 2019 DRB Decision is on appeal: While we ultimately conclude that this Court does not have subject matter jurisdiction, our conclusions do not in any way affect the rules surrounding divestiture of jurisdiction. See In re Freimour & Menard Conditional Use Permit, No. 59-4-11 Vtec, slip op. at 6-7 (Vt. Super. Ct. Envtl. Div. June 6, 2012) (Durkin, J.) (citations omitted) (discussing how an appeal to this Court divests the municipal panel below of its authority to decide on those aspects of the application involved in the appeal). Dorset argues that, despite the present appeal, the DRB retained its ability to decide on the Applications in the next phase of review. The DRB, however, did not have control over the reviewability of the [Dorset Meadows Preliminary Plat and Master Plan] Applications while this appeal was pending. The question of whether the DRB could properly proceed to the next stage of review was the basis of Neighbors appeal and constituted the matter before this Court. The DRB could not decide this question for themselves. Any steps taken by the DRB related to the [Dorset Meadows Preliminary Plat and Master Plan] Applications during the pendency of this appeal were carried out without the power to do so. See, e.g., Kotz v. Kotz, 134 Vt. 36 (1975) (vacating a trial court order that issued while the matter was on appeal to the Supreme Court). Dorset Meadows Associates LLC PUD, No. 2-1-19 Vtec, 2019 WL 1423064, at *3, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Feb. 26, 2019) (Walsh, J.) (footnote omitted) (bold emphasis added), appeal docketed, No. 2019-130 (Vt. Apr. 11, 2019). To summarize, the DRB “does not have control” of the Dorset Meadows Preliminary Plat and Master Plan Applications and the DRB is “without the power” to review those Applications during the pendency of SOS South Burlington’s Supreme Court Appeal. Id. (emphasis added). Any actions the DRB takes on these Applications while the Supreme Court Appeal remains pending would be null and void. See id. (citing Kotz v. Kotz, 134 Vt. 36 (1975), for the proposition that a lower tribunal’s order issued while the matter is on appeal will be vacated). In light of the above, SOS South Burlington requests that the DRB and the Dorset Meadows developer immediately suspend all DRB proceedings related to Dorset Meadows Letter to DRB Chairperson Bill Miller April 15, 2019 Page 3 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com including the DRB hearing scheduled for April 16th. This suspension will allow the Supreme Court Appeal to play out without the added time and expense of unauthorized and improper DRB proceedings. Such proceedings would result in an invalid decision which would be vacated on an appeal to the Environmental Division. See Dorset Meadows, 2019 WL 1423064, at *3, slip op. at 3 (citing Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882 (1975), with approval). II. Dorset Meadows Cannot Be Constructed in a Primary Conservation Area. The following discussion concerning Primary Conservation Areas, riparian connectivity, and related issues is provided out of abundance of caution just in case the DRB decides to ignore the controlling law of the case and proceed on Dorset Meadows despite the pending Supreme Court Appeal. The applicant, in defending its conclusion that it can ignore the riparian connectivity area designated as a Primary Conservation Area in the City’s Comprehensive Plan asserts the following: [T]he applicant is of the opinion that the neighbor’s interpretation of Map 7 is incorrect and the project does comply with the City’s Comprehensive Plan. The Primary Conservation areas shown on Map 7 come from the 2014 Open Space Report conducted by the City of South Burlington. In the report it states that these areas must be ‘confirmed through field verification.’ The wetland boundaries shown on Map 7 were not utilized for this project because they must be field verified. . . . The applicant also did not utilize the riparian boundary shown on Map 7 because it too required field verification. The applicant conducted a site visit with the State Rivers Program to verify the river corridor and floodplain for the project. The State verified the perennial stream had a watershed of less than 2 square miles and was subject to a 50’ wide river corridor buffer. According to the Agency of Natural Resources the river corridor includes the riparian functions of a stream. . . . Letter from Bryan Currier, PE to Marla Keene, PE, Jan. 18, 2019, at 1. This above statement is riddled with specious conclusions. First, the discussion of the wetlands study is – charitably – misleading. The wetlands study is irrelevant to the question at hand. Wetlands and riparian buffers are different natural resources with different functions and different boundaries. This is obvious from the various natural resource maps which separately Letter to DRB Chairperson Bill Miller April 15, 2019 Page 4 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com delineate wetlands and riparian areas. The ANR tools, documents and reports all treat wetlands and riparian areas separately. Second, the conclusion that a “river corridor” is sufficient to delineate a riparian area is flatly incorrect. The ANR describes the riparian area component as follows: This component includes all rivers, streams, lakes, and ponds – all aquatic habitats in Vermont. In addition, this component includes the valley bottoms in which rivers and streams flow. Specifically, the valley bottoms are the areas of alluvial soils (soils deposited by flowing water) through which rivers and streams migrate over time and where seasonal river or stream flooding is expected. Finally, this component includes a band of riparian habitat adjacent to all rivers, streams, lakes, and ponds or to the valley bottom. 2016 BioFinder Update Report, Vermont Agency of Natural Resources at page 25, available at https://anr.vermont.gov/sites/anr/files/maps/biofinder/2016%20BioFinder%20Update%20Report .pdf (“BioFinder Update Report”). The “river corridor” referred to by the applicant would seem to be referenced in the last sentence of the above description (“a band of riparian habitat adjacent to all rivers”). The valley bottoms that are a critical component of all riparian areas are not taken into account by a 50 foot buffer. The ANR goes on to describe why valley bottoms are included in this component: The ecological integrity of rivers, streams, lakes, and ponds is closely linked with the condition of their riparian areas and contributing watersheds. Naturally vegetated riparian areas provide many critical ecological functions, including stabilizing shoreline against erosion, storage of flood waters, filtration and assimilation of sediments and nutrients, shading of adjacent surface waters to help moderate water temperatures, and direct contribution of organic matter to the surface water as food and habitat structure. Riparian areas are also critical habitat for many species of wildlife that are closely associated with open waters, including mink, otter, beaver, northern oriole, kingfisher, spotted sandpiper, and wood turtle. In addition, the shorelines and riparian areas of rivers and lakes support floodplain forests, several rare and uncommon natural communities, and many species of rare plants and animals. . . . Letter to DRB Chairperson Bill Miller April 15, 2019 Page 5 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com Rivers and streams channels naturally migrate within their meander belt widths – the part of a valley bottom across which a stream shifts its channel from time to time in response to erosion and deposition. Meander belts are governed by landforms in the valley bottoms, surficial geology and soils, and other characteristics of the river channels and watersheds. . . . BioFinder Update Report at 25 (emphasis added). The applicant claims the riparian area designated by Map 7 can be ignored because it requires field verification. But, nothing in the Comprehensive Plan itself indicates that the boundaries designated by the City in Map 7 need be field verified. The City’s decision to include in the City’s Comprehensive Plan the boundaries based on the very best data available to it is fully within its discretion, and is perfectly appropriate based on the ANR’s conclusion that the layer “effectively captures” flat valley bottoms and associated alluvial soils. The ANR describes the valley bottom data as follows: The Valley Bottom LTA data provides a statewide modeled map of river and stream valley bottom that effectively captures flat valley bottoms and associated alluvial soils, wetlands, and floodplains without extending mapped areas beyond the valley floors. Although partially a GIS model, major portions of the Valley Bottom LTA are based on soil mapping by Natural Resources Conservation Service and wetland mapping by National Wetlands Inventory, for which there is relatively high confidence in the mapping accuracy. Valley bottom LTAs and riparian areas includes many of the ecological processes associated with these areas. BioFinder Update Report at 27 (emphasis added). The applicant further asserts that the disclaimer on Map 7 stating the “Maps and GPS data (‘material’) made available for the City of South Burlington are for reference purposes only” and that “[t]he City does not guarantee accuracy” somehow means that the entire Map 7 can be ignored. See the January 18, 2019 letter from Robert H. Rushford, Esq. to the DRB, at page nine. Is Map 7 accurate? Unquestionably yes. Image A is a modified version of the overlay we provided to the DRB previously. It shows Map 7 overlaid on the project plan most recently submitted by the applicant. (We note that the applicant has never challenged the accuracy of our original overlay.) Letter to DRB Chairperson Bill Miller April 15, 2019 Page 6 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com IMAGE A Overlay of the Riparian Connectivity layer from Map 7 on “Dorset Meadows” Letter to DRB Chairperson Bill Miller April 15, 2019 Page 7 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com Image B is the same area showing the “surface water and riparian areas”1 that exist on the site according to the ANR (the image is a screen capture from the ANR’s BioFinder mapping tool). The areas are identical. In short, Map 7 is a perfectly accurate representation of the best available statewide data. IMAGE B BioFinder Surface Water and Riparian Areas on “Dorset Meadows” 1 The Comprehensive uses the term “riparian connectivity” to refer to “surface water and riparian areas.” Letter to DRB Chairperson Bill Miller April 15, 2019 Page 8 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com What should be made of the disclaimer on Map 7? Does it render the Map irrelevant? Of course not. The disclaimer is boilerplate language contained on all maps in the Comprehensive Plan. It cannot be interpreted to mean that the very things that the City is trying to delineate cannot be relied upon. If so interpreted, what would be the point of the mapping exercise? Properly interpreted, the disclaimer means merely that Map 7 is not intended to be used for purposes for which it was not intended, for instance, the exact position of each road or house, or the exact contours of a shoreline. Not surprisingly, the applicant fails to bring to the DRB’s attention that this particular parcel is almost entirely designed by the ANR as “highest” priority for conservation. The ANR describes “highest” priority areas as: “of critical importance for water quality, flood attenuation, erosion prevention and wildlife movement. This is based on the very high value of this component in its contribution to biological diversity. . . .” BioFinder Update Report at 27 (emphasis added). Image C is the same area showing only the highest priority surface water and riparian areas. IMAGE C Highest Priority BioFinder Surface Water and Riparian Areas on “Dorset Meadows” Letter to DRB Chairperson Bill Miller April 15, 2019 Page 9 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com In sum, the DRB is divested of jurisdiction during the pendency of the SOS South Burlington Supreme Court Appeal. Therefore, SOS South Burlington requests that the DRB and the Dorset Meadows developer immediately suspend all DRB proceedings related to Dorset Meadows including the DRB hearing scheduled for April 16th. 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)