HomeMy WebLinkAbout2020-01-22 drbagenda
AGENDA
South Burlington Development Review Board
575 Dorset Street, South Burlington, VT
Wednesday, January 22, 2020
7:00 p.m.
1. Directions on emergency evacuation procedures from conference room.
2. Additions, deletions, or changes in order of agenda items.
3. Comments and questions from the public not related to the agenda.
4. Announcements
5. Continued Final plat application #SD‐19‐31 of R. L. Vallee, Inc. to consolidate two lots of 0.36 acres
and 0.59 acres into one lot for the purpose of constructing an expanded service station and retail
sales and restaurant building, 793 and 907 Shelburne Road.
Applicant has requested continuation to February 4, 2020
6. Continued Site plan application #SP‐19‐39 of R. L. Vallee, Inc. to demolish the existing structures at
907 Shelburne Road and a portion of an existing service station at 793 Shelburne Road and construct
an expanded service station with two additional fueling positions for a total of ten and an associated
4,265 square foot retail sales and restaurant building, 793 and 907 Shelburne Road.
Applicant has requested continuation to February 4, 2020
7. Reopening of final plat application #SD‐19‐27 of Dorset Meadows Associates LLC for a planned unit
development on two lots developed with one (1) single family dwelling. The planned unit
development is to consist of 94 single family homes, 24 dwelling units in two‐family homes, 35
dwelling units in multi‐family homes, one existing single family home, conservation of 15.80 acres
on‐site and conservation of approximately 55 acres off‐site through the purchase of 71 Transferable
Development Rights. The Development Review Board reopened to take additional testimony
limited to defining riparian areas as they relate to LDR 9.06B(3) and Comprehensive Plan Map 7,
1505 Dorset Street.
8. Sketch plan application #SD‐20‐01 of Blackrock Construction for a planned unit development on an
existing undeveloped 6.91 acre parcel. The planned unit development consists of two lots
containing 22 dwelling units in two‐family homes and 10 units in single family homes, 550 Park
Road.
9. Continued miscellaneous application #MS‐19‐03 of South Village Communities, LLC for approval of
an overall affordability plan for a previous‐approved multi‐phase 334 unit planned unit
development, 1840 Spear Street.
10. Minutes of January 29, February 19, December 17, and January 7, 2020
11. Other business
Respectfully Submitted,
Marla Keene
Development Review Planner
Copies of the applications are available for public inspection at the South Burlington City Hall.
Participation in the local proceeding is a prerequisite to the right to take any subsequent appeal.
South Burlington Development Review Board Meeting Participation Guidelines
The Development Review Board (DRB) presents these guidelines for the public attending Development Review Board meetings to
ensure that everyone has a chance to speak and that meetings proceed smoothly.
The DRB is a Quasi-Judicial Board that oversees the adjudication of development projects within the City. It is made up of citizens
appointed by the City Council. The role of the DRB is to hear and review applications for development under the applicable
regulations. The DRB can only approve applications that comply with the applicable bylaw or state law, and the board can only levy
conditions that are permitted under the bylaw. By the same token, if a project meets the applicable bylaw criteria, the DRB is bound
by law to grant the approval.
1. The Board asks that all participants at meetings be respectful of Board members, staff, applicants and other members of the
public present at the meeting.
2. Initial discussion on an agenda item will generally be conducted by the Board and the applicant. As this is our opportunity to
engage with the subject, we would like to hear from all Board members first. After the Board members have discussed an
item, the Chair will open up the floor for public comment. Please raise your hand to be recognized to speak and the Chair
will try to call on each participant in sequence.
3. Once recognized by the Chair, please identify yourself to the Board.
4. If the Board suggests time limits, please respect them. Time limits will be used when they can aid in making sure everyone is
heard and sufficient time is available for Board to hear all items on the agenda.
5. Side conversations between audience members should be kept to an absolute minimum. The hallway outside the
Community Room is available should people wish to chat more fully.
6. Please address the Chair. Please do not address other audience members or staff or presenters and please do not interrupt
others when they are speaking. The Chair will direct responses from applicable people as needed.
7. Make every effort not to repeat the points made by others and keep your comments germane to the issue before the board.
8. The Chair will make reasonable efforts to allow everyone who is interested in participating to speak once before speakers
address the Board for a second time.
9. Comments may be submitted before or during the course of a single or multi-meeting public hearing to the Planning and
Zoning Department. All comments should identify what application the correspondence is in reference to. All written
comments will be circulated to the DRB and kept as part of the official records of meetings. Comments must include your
first and last name and a contact (e-mail, phone, address) to be included in the record.
10. Please note that once a public hearing has been closed by the DRB, no further comments can be accepted, in accordance
with state law.
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
TO: South Burlington Development Review Board
FROM: Marla Keene, Development Review Planner
SUBJECT: SD‐19‐27 1505 Dorset Street
DATE: January 22, 2020 Development Review Board meeting
Dorset Meadows Associates, LLC has submitted final plat application #SP‐19‐27 for a planned unit development
on two lots developed with one (1) single family dwelling. The planned unit development is to consist of 94
single family homes, 24 dwelling units in two‐family homes, 35 dwelling units in multi‐family homes, one
existing single family home, conservation of 15.80 acres on‐site and conservation of approximately 55 acres off‐
site through the purchase of 71 Transferable Development Rights, 1505 Dorset Street.
The application was heard and closed by the Board on November 5, 2019. After deliberations, participating
members of the Board voted on December 17, 2019 to reopen the final plat application hearing for the purpose of
defining riparian areas as they relate to LDR 9.06B(3) and Comprehensive Plan Map 7 and scheduled the reopened
hearing for January 21, 2020.
Staff notified the applicant by email on December 18, 2019 of the reopening. At the time of packet publication,
the applicant has not provided additional written testimony.
One additional public comment was received after the Board reopened the hearing. Staff has included this
comment in the packet for the Board.
275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM
January 6, 2020
VIA ELECTRONIC MAIL
Mr. Matt Cota, Chair
South Burlington Development Review Board
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
Email: mcota@sburl.com
Re: 1505 Dorset Street, Final Plat Application No. SD-19-27
Dear Chairperson Cota and members of the South Burlington DRB:
I serve as counsel for 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 Final Plat Application (collectively, “Save Open Spaces South
Burlington” or “SOS South Burlington”). This letter and Exhibits 1, 2 and 3 hereto concern
1505 Dorset Street, Final Plat Application No. SD-19-27 (the “Final Plat Application”).
I am writing to bring to the DRB’s attention an important new E-Court decision that has a
direct impact on the Final Plat Application.
In Section I of my October 10, 2019 letter to the DRB (a copy of which is attached hereto
as Exhibit 1), I explained that the Final Plat Application is moot and should be dismissed
because it is dependent on 68 transferable development rights (“TDRs”) under the City’s former
2006 TDR Bylaw (“2006 TDR Bylaw”) to reach its proposed density of 154 dwelling units. The
E-Court invalidated the 2006 TDR Bylaw in the February 28, 2019 Snyder Group I decision,
which remains the controlling law while Snyder Group I is on appeal to the Vermont Supreme
Court. See Snyder Group Inc. PUD Final Plat, Dkt. No. 114-8-17 Vtec, 2019 WL 1428677 (Vt.
Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.), appeal docketed, No. 2019-122 (Vt. Apr. 5,
2019) (“Snyder Group I”). A copy of Snyder Group I is attached hereto as Exhibit 2.1
1 As detailed in Section II of my October 2019 letter (Exhibit 1 hereto), the developer and the
DRB cannot apply the City’s new 2019 TDR Bylaw to the Final Plat Application. Vermont law is clear
that a municipality may not apply to a submitted permit application a zoning ordinance adopted after the
filing of the application. Rather, the zoning regulations in effect when an application was filed govern the
application, not subsequently enacted amendments. See Exhibit 1 hereto, at pages 3-4 and the case law
there cited.
Letter to DRB Chairperson Matt Cota
January 6, 2020
Page 2 of 3
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
On December 24, 2019, the E-Court handed down a new decision in the Snyder Group
litigation concerning the developer’s Act 250 permit that confirms that the City’s 2006 TDR
Bylaw is invalid and unconstitutional presently. In Snyder Group II, the E-Court held that:
Generally, “a judgment of an adjudicative body remains valid until
reversed or annulled.” In re Ashline, 2003 VT 30, ¶ 9, 175 Vt. 203
(citing Davidson v. Davidson, 111 Vt. 24, 29 (1939). It therefore
follows that this Court’s February 28, 2019 Decision [in Snyder
Group I] presently has a preclusive effect. As such, the City of
South Burlington’s TDR Bylaw is currently considered invalid
and unconstitutional, subject to the pending Vermont Supreme
Court determination.
Snyder Group Inc. Act 250 Appeal, Dkt. No. 107-10-18 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl.
Div. Dec. 24, 2019) (Durkin, J.) (bold emphasis added) (“Snyder Group II”). A copy of Snyder
Group II is attached hereto as Exhibit 3.
In Snyder Group II, the E-Court reconsidered and granted the Appellants/Neighbors’
Motion to Stay their appeal of an Act 250 permit for the proposed “Spear Meadows”
development while Snyder Group I remains on appeal to the Vermont Supreme Court. The E-
Court stayed the Snyder Group Act 250 litigation “in the interest of avoiding conflicting
judgments, until the Supreme Court renders its determinations in the pending Municipal
Appeal.” Snyder Group II, slip op. at 5.
In the instant matter, the current controlling law announced in Snyder Group I and
confirmed in Snyder Group II is that the City’s 2006 TDR Bylaw is invalid and unconstitutional.
The “preclusive effect” of Snyder Group I means that the Dorset Meadows developer’s Final
Plat Application, which is dependent on 68 TDRs under the 2006 TDR Bylaw, is moot and
should be dismissed.
Thank you for your attention to this important and time-sensitive matter.
Respectfully submitted,
/s/ Daniel A. Seff
Daniel A. Seff
Attachments (3)
Letter to DRB Chairperson Matt Cota
January 6, 2020
Page 3 of 3
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
cc: Mr. Paul Conner, Planning and Zoning Director (via e-mail w/Attachments)
Ms. Dalila Hall, Zoning Administrative Officer (via e-mail w/Attachments)
Ms. Marla Keene, Development Review Planner (via e-mail w/Attachments)
Amanda S. E. Lafferty, Esq., Deputy City Attorney (via e-mail w/Attachments)
Matthew B. Byrne, Esq. (via e-mail w/Attachments)
Robert H. Rushford, Esq. (via e-mail w/Attachments)
Save Open Spaces South Burlington (via e-mail w/Attachments)
Exhibit 1
275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM
October 10, 2019
VIA ELECTRONIC MAIL
Mr. Matt Cota, Chair
South Burlington Development Review Board
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
Email: mcota@sburl.com
Re: 1505 Dorset Street, Final Plat Application No. SD-19-27
Dear Chairperson Cota and members of the South Burlington DRB:
I serve as counsel for 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 Final Plat Application (collectively, “Save Open Spaces South
Burlington” or “SOS South Burlington”). This letter and Attachments A to E hereto concern
1505 Dorset Street, Final Plat Application No. SD-19-27.
As explained below in Section I, the Final Plat Application is moot and should be
dismissed because it is dependent on 68 transferable development rights (“TDRs”) under the
City’s former 2006 TDR Bylaw (“2006 TDR Bylaw”) to reach its proposed density of 154
dwelling units. The E-Court invalidated the 2006 TDR Bylaw in the February 28, 2019 Snyder
Group decision, which remains the controlling law while Snyder Group is on appeal to the
Vermont Supreme Court.
Moreover, as explained below in Section II, the developer and the DRB cannot apply the
City’s new 2019 TDR Bylaw (which the City Council approved on September 16, 2019) to the
Final Plat Application. Vermont law is clear that a municipality may not apply to a submitted
permit application a zoning ordinance adopted after the filing of the application. Rather, the
zoning regulations in effect when an application was filed govern the application, not
subsequently enacted amendments.
Finally, as explained below in Section III, even if the 2006 TDR Bylaw still existed
(which it does not), or even if the 2019 TDR Bylaw applied to the Final Plat Application (which
it does not), the Final Plat Application is fatally flawed and must be rejected because the
developer proposes to build in a Primary Conservation Area that is off-limits to development and
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 2 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
which the South Burlington Land Development Regulations (“SBLDR”) mandate “shall be
protected through the development plan.” SBLDR § 9.06(B)(3).
I. The Final Plat Application is Moot and Should Be Dismissed Because it is
Dependent on 68 TDRs Under the City’s 2006 TDR Bylaw and that Bylaw
was Invalidated on February 28, 2019 in the E-Court’s Controlling Snyder
Group Decision.
On February 28, 2019, the Vermont Superior Court’s Environmental Division handed
down a controlling decision invalidating the City’s 2006 TDR Bylaw for failure to comply with
the State enabling statute, 24 V.S.A. § 4423(a), and because the Bylaw is unconstitutionally void
for vagueness on its face. See In re Snyder Group Inc. PUD Final Plat, Dkt. No. 114-8-17 Vtec,
2019 WL 1428677 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.), appeal docketed, No.
2019-122 (Vt. Apr. 5, 2019) (hereafter cited as “Snyder Group”).
On April 5, 2019, the Snyder Group, Inc. appealed Snyder Group to the Vermont
Supreme Court (the City did not appeal or cross-appeal). On September 17, 2019, the Vermont
Supreme Court held oral argument in Snyder Group. The Vermont Supreme Court’s decision
could come down at any time. In the meantime, the E-Court’s Snyder Group February 28, 2019
decision remains the controlling law.
As such, the 2006 TDR Bylaw remains invalid, and neither the developer nor the DRB
can rely on the former Bylaw to increase the base density of the proposed Dorset Meadows PUD.
See generally In re Ashline, 2003 VT 30, ¶ 9, 175 Vt. 203, 824 A.2d 579 (“In Vermont, a
judgment of an adjudicative body remains valid until reversed or annulled”) (emphasis
added), citing Davidson v. Davidson, 111 Vt. 24, 29, 9 A.2d 114, 116 (1939). In Davidson, the
Court explained that “the judgment of a trial court in an action at law is not vacated by the
allowance and filing of a bill of exceptions, but it still remains valid until reversed or annulled.”
Id. at 29, 9 A.2d at 116. See also In re Hale Mountain Fish & Game Club, Nos. 149-8-04 Vtec &
259-12-05 Vtec, 2008 WL 7242611, slip op. at 11 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J.)
(holding that “Vermont [trial court] judgments are final unless appellate review of that judgment
involves a trial de novo” and noting that “[t]his approach is in accord with the federal approach
to finality”) (citing cases).1
1 A “trial de novo” is not the same thing as review de novo. See Luck Bros. v. Agency of
Transp., 2014 VT 59, ¶ 27, 196 Vt. 584, 99 A.3d 997 (citing cases); see also Stein’s, Inc. v. Blumenthal,
649 F.2d 463, 466 (7th Cir. 1980) (distinguishing between “trial de novo” and “de novo review”).
Situations in which an “appeal” involves a “full trial de novo” are “virtually nonexistent.” 18A EDWARD
H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4433 (3d ed.) (emphasis added),
Westlaw FPP § 4433 (database updated Aug. 2019).
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 3 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
The long-standing Vermont rule that court decisions remain valid until reversed or
annulled is consistent with the rule in the federal courts that “the preclusive effects of a lower
court judgment cannot be suspended simply by taking an appeal that remains undecided.”
18A EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4433 (3d ed.)
(emphasis added), Westlaw FPP § 4433 (database updated Aug. 2019). As the authors of a
leading federal procedure treatise have explained:
The bare act of taking an appeal is no more effective to defeat
preclusion than a failure to appeal. The Supreme Court long ago
seemed to establish the rule that a final judgment retains all of its
res judicata consequences pending decision of the appeal, apart
from the virtually nonexistent situation in which the “appeal”
actually involves a full trial de novo. The lower courts have taken
the rule as settled ever since.
Id. § 4433 (emphasis added) (footnotes omitted) (citing extensive case law). See generally
Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (“a judgment’s preclusive effect is generally
immediate, notwithstanding any appeal”); Palmer-Williams v. United States, 699 F. App’x 1, 3
(2d Cir. 2017) (“the law is well-settled that the preclusive effect of a judgment is immediate,
notwithstanding a pending appeal”); and Burke v. Vermont Dep’t of Corr., No. 5:14-CV-00272,
2015 WL 1954268, at *3 n.3 (D. Vt. Apr. 29, 2015) (“Res judicata and collateral estoppel apply
once a final judgment is entered in a case, even while an appeal from that judgment is pending.”)
(internal quotes and brackets omitted).
In the instant matter, the current controlling law announced in Snyder Group is that the
City’s 2006 TDR Bylaw is invalid and unconstitutional. The practical effect of this is that the
Dorset Meadows developer’s Final Plat Application, which is dependent on 68 TDRs under
the 2006 TDR Bylaw, is moot and should be dismissed.
II. The City’s New 2019 TDR Bylaw Does Not Apply to the Final Plat
Application.
In an apparent reaction to the E-Court’s February 28, 2019 Snyder Group decision
invalidating the 2006 TDR Bylaw, the City Council adopted a new TDR bylaw on September 16,
2019 (“2019 TDR Bylaw”). The developer and the DRB cannot apply the new 2019 TDR
Bylaw to the Final Plat Application. Vermont law is clear that a municipality may not apply to a
submitted permit application a zoning ordinance adopted after the application is filed. See
generally Gould v. Town of Monkton, 2016 VT 84, ¶ 28, 202 Vt. 535, 150 A.3d 1084 (“a permit
application cannot prospectively vest a right in future regulations”); In re Times & Seasons,
LLC, 2011 VT 76, ¶ 16, 190 Vt. 163, 27 A.3d 323 (to “take advantage” of a post-application
“favorable change in the law,” an applicant must begin the “permit process anew”); In re Paynter
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 4 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
2-Lot Subdivision, 2010 VT 28, ¶ 9, 187 Vt. 637, 996 A.2d 219 (mem.) (explaining that a town
may not apply to a submitted permit application a zoning ordinance adopted after the filing of the
application); and Smith v. Winhall Planning Comm’n, 140 Vt. 178, 181-82, 436 A.2d 760, 761-
62 (1981) (holding that zoning regulations in effect when application was filed govern
application, not subsequently enacted amendments).
In short, if the Dorset Meadows developer wishes to hitch its wagon to the 2019 TDR
Bylaw, it must begin the “permit process anew,” i.e., file a new sketch plan application. Times
& Seasons, 2011 VT 76, ¶ 16.
III. Dorset Meadows Cannot Be Constructed in a Primary Conservation Area.
SBLDR Section 9.06(B)(3) states that “existing natural resources shall be protected
through the development plan, including (but not limited to) primary natural communities,
streams, wetlands, floodplains, [and] conservation areas shown in the Comprehensive
Plan. . . .” SBLDR § 9.06(B)(3) (emphasis added).
The City’s Comprehensive Plan identifies “primary conservation areas” on Map 7
(Attachment A hereto), and the Comprehensive Plan states (at page 2-103) that “[p]rimary
conservation areas (Map 7) include environmentally sensitive and hazardous areas that are off
limits to development, regardless of their setting or context. . . .” (emphasis added). Much of
the proposed “Dorset Meadows” development is located on a riparian connectivity area that the
Comprehensive Plan designates as a Primary Conservation (Attachment B) and as off limits to
development. For this reason alone, the Final Plat Application must be rejected.
Former DRB member Frank Kochman voted against granting preliminary plat and master
plan approval to Dorset Meadows for this very reason. See the DRB’s June 28, 2019 Findings of
Fact and Decision approving the developer’s Preliminary Plat Application #SD-18-29A, at 25
n.3 (“Mr. Kochman would deny the application for failure of the development plan to protect the
full applicable conservation area as shown on Map 7 of the Comprehensive Plan in violation of
the applicable goal and objective of the Comprehensive Plan.”); and the DRB’s June 28, 2019
Findings of Fact and Decision approving Master Plan Application #MP-18-01A, at 12 n.4
(same).
Moreover, a planned unit development (“PUD”) must be “consistent with the goals and
objectives of the Comprehensive Plan for the affected district(s).” SBLDR § 15.18(A)(10). One
of the Comprehensive Plan’s goals for the City, including the Southeast Quadrant (“SEQ”), is
“conservation of identified important natural areas” (Comp. Plan, p. 1-1 (emphasis added)).
And one of the objectives for the SEQ is prioritizing and conserving existing contiguous and
interconnected open space areas (see Comp. Plan, p. 3-38, Objective 60). The Comprehensive
Plan has identified important natural areas on Map 7. Development in these important natural
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 5 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
areas is inconsistent “with the goals and objectives of the Comprehensive Plan,” SBLDR §
15.18(A)(10), and as such the Final Plat Application must be rejected.
It is no accident that the City designated these riparian connectivity areas as off-limits to
development, as the State of Vermont has similarly designated these same areas as requiring the
“highest priority” of protection. Attached hereto as Attachment C is a screen shot from the
BioFinder tool produced by the Vermont Agency of Natural Resources (“ANR”). The image
shows (in dark blue) the highest priority “surface water and riparian areas” that exist on the
proposed Dorset Meadows development.
Surface Waters and Riparian Areas include not only rivers, streams, lake, ponds and
wetlands but also the floodplain and land surrounding these water bodies that are impacted by
the waterways. See “ANR Fish & Wildlife Department, Mapping Vermont’s Natural Heritage:
A Mapping and Conservation Guide for Municipal and Regional Planners in Vermont,” 2018, at
48, available at:
https://vtfishandwildlife.com/sites/fishandwildlife/files/documents/Get%20Involved/Partner%20i
n%20Conservation/MVNH-web.pdf (last visited Oct. 10, 2019) (hereafter, “ANR Guide”)
(“Surface Waters and Riparian Areas maps the entire area impacted by these waterways,
including not only the water itself but also the surrounding land. This surrounding area is
referred to as the riparian area.”).
The area that ANR designated as highest priority for protection is practically identical to
the primary conservation area identified by the City. The ANR explains that the BioFinder maps
“outline the areas of land that need to remain healthy and intact if we want to provide plants,
animals, and natural resources the best chance of survival over time.” ANR Guide, supra, at 78.
The ANR has instructed as follows:
Maintaining a vegetated riparian area may be the single most
effective way to protect a community’s natural heritage. The
riparian area provides high quality habitat for a great diversity of
both aquatic and terrestrial species. . . . Terrestrial animals use
riparian areas as travel corridors, while many plant and tree seeds
float downstream to disperse. Streamside vegetation helps to
control flooding, and it is crucial in filtering overland runoff –
which protects water quality – and stabilizing stream banks, which
prevents excessive streambank erosion and sediment buildup.
What’s more, maintaining the riparian area is one of the most cost-
effective ways to provide resilience for a changing climate.
ANR Guide, supra, at 49 (emphasis added). The ANR goes on to state:
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 6 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
Not sure where to begin conserving your community’s natural
heritage? Consider starting with riparian habitat. Among
conservation actions taken at the community level, maintaining
riparian habitat has one of the greatest impacts for wildlife.
It’s also an area of great benefit for a community, since conserving
the riparian area not only protects wildlife habitat but also
maintains water quality, reduces erosion, provides flood resilience,
and can support recreational opportunities.
Id. at 32 (emphasis added).
Experts commissioned by the City specifically identified these same areas as areas that
“should remain as unfragmented as possible.” In particular, in 2004 Arrowwood Environmental,
LLC produced the “Wildlife and Natural Communities Assessment of the South East Quadrant,
South Burlington Vermont” (the “Arrowwood Assessment”). The Arrowwood Assessment
states:
The Great Swamp, and the upland forest and shrubby fields that
surround it, comprise a 400-500 acre cluster of contiguous and
varied wildlife habitat. It is the anchor, the source habitat for the
western SEQ, and must remain un-fragmented if the level of
current wildlife array is to be maintained in the SEQ.
Arrowhead Assessment § 7.1.1, at 13 (July 13, 2004), available at:
http://www.southburlingtonvt.gov/document_center/committees%20boards/Arrowwood%20Ecol
ogical%20Assessment%202004.doc (last visited Oct. 10, 2019).
A map of the “Great Swamp appears in the June 2004 “Study of Breeding Birds in the
Southeast Quadrant” by Wings Environmental, available at:
http://southburlingtonvt.gov/2004%20SEQ%20Bird%20Habitat%20Evaluation.pdf, Figure 1 at
page 4 (last visited Oct. 10, 2019). A copy of this map included herewith as Attachment D.
The Arrowwood Assessment goes states that “adjacent open spaces, including the large
fields west of Dorset Street, should remain as unfragmented as possible.” Arrowhead
Assessment § 7.1.1(5), at 13. See Attachment D hereto and note that the area west of Dorset
Street. This is the exact area on which the developer proposes to build 153 dwelling units.
Observations of the area confirm the experts’ assessments. Abundant wildlife exists
throughout the site. Residents have reported observing mink, great blue heron, green heron,
bitterns, bobcat, fox, deer, coyotes, squirrels, owls and hawks. Beaver activity can be readily
observed on the neighboring property just downstream of the proposed development.
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 7 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
In its June 28, 2019 Findings of Fact and Decisions approving the developer’s
Preliminary Plat Application #SD-18-29A (at page 7) and Master Plan Application #MP-18-01A
(at page 8), the DRB found that:
(a) A letter provided by the applicant’s engineer field-delineates areas that the
Comprehensive Plan designated as requiring protection;
(b) This field delineation has been confirmed by State Agencies; and
(c) Map 7 may not be relied on because it includes the following disclaimer: “Maps
and GPS data (“material”) made available by the City of South Burlington are for
reference purposes only. The City does not guarantee accuracy.”
These findings are incorrect. First, there is nothing that requires that riparian areas be
field-delineated and, even if there were, the developer never field-delineated the riparian areas.
Rather, the developer field-delineated the wetlands. Wetlands and riparian areas are distinct and
vitally different natural resources. This is evident by comparing the wetlands layer with the
riparian connectivity layer on Attachment A, and by comparing Attachments A and E.2
Indeed, the SBLDR contains a separate Wetlands Map (Attachment E hereto) which
identifies the wetland areas throughout the City that are subject to the restrictions in SBLDR
Article 12. The SBLDR specifically allows an applicant to use wetlands information from the
field, rather than the information on the Wetlands Map:
The boundaries of wetlands shall be as shown on the Official
Wetlands Map unless alternative information is submitted and
reviewed pursuant to the standards and procedures for review set
forth in Article 12, Section 12.02(C) and (D) of these Regulations.
SBLDR § 3.03(D). In this case, the developer chose to field-delineate the wetlands rather than
rely on the Wetlands Map. But this has nothing to do with riparian areas.
Second, the State never confirmed that riparian areas had been field-delineated. In
connection with its Preliminary Plat and Master Plan Applications, the developer submitted an
email message from Rebecca Pfeiffer, CFM of the State’s Watershed Management Division
2 The ANR defines wetlands as “the vegetated, shallow-margins of lakes and ponds [and] the
seasonally flooded borders of rivers and streams. . . .” ANR Guide, supra, at 51. Technically, wetlands
“all are inundated by or saturated with water for at least two weeks during the growing season” and
“contain wet (hydric) soils, which develop in saturated conditions and lack oxygen and other gases” and
are “dominated by plant species known to be adapted to these saturated soils.” Id.
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 8 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
dated July 16, 2018 (10:50 AM). Ms. Pfeiffer’s email message has nothing to do with riparian
areas or wildlife habitat. Rather, her email message is concerned solely with flooding and
erosion.
Ms. Pfeiffer’s email message states in part: “the project would appear to meet the
Agency’s Procedure under [Act 250 Criterion] 1(D)” and she refers to the “Flood Hazard Area &
River Corridor Protection Procedure[s]” as the guidance implementing Criterion 1(D). The
Procedures document Ms. Pfeiffer cites in her July 16, 2018 email message is concerned with
protecting against flooding and erosion. The Procedures document provides that its purpose is to
explain how the State Department of Environmental Conservation “defines and maps flood
hazard areas and river corridors for the purposes of Act 250 (10 V.S.A. § 6001 et seq.), Section
248 (30 V.S.A. §§ 248 and 248a), administering the state Flood Hazard Area and River Corridor
Rule (adopted October 24, 2014), and the regulation of berming (10 V.S.A. § 1021). . . .”
Vermont DEC Flood Hazard Area and River Corridor Protection Procedures § 1.0(a)(1), at 3
(Sept. 7, 2017), http://dec.vermont.gov/sites/dec/files/documents/DEC_FHARCP_Procedure.pdf
(last visited Oct. 10, 2019).3
Third, the fact that Comprehensive Plan Map 7 includes a disclaimer that the City “does
not guarantee accuracy” could not be a basis for disregarding the Map. Obviously, the
disclaimer does not mean that Map 7 cannot be relied upon for the very purpose for which the
Map was created, namely identifying protected primary conservation areas. Rather, if the
disclaimer means anything, it can only be read to mean that Map 7 cannot be relied on for
purposes for which it was not created – for example, for the exact location of a road, or the exact
contours of a shore line. This conclusion becomes inescapable by examining the SBLDR
Wetlands Map. That Map has a similar disclaimer, yet it is binding on applicants that do not
field-delineate the wetlands. It would make no sense for the disclaimer to render invalid for
mapping wetlands the very Map that the SBLDR includes to identify the wetlands. Similarly, it
would make no sense for the Map 7 disclaimer to render the Map invalid for the purpose for
which it was created.
3 “Flood Hazard Areas” are defined as “areas of the floodplain that may be inundated by a range
of flood frequencies up to and including the one percent annual chance flood. . . .” Vermont DEC Flood
Hazard Area and River Corridor Protection Procedures § 4.0(a)(1), at 7 (Sept. 7, 2017). “River
Corridors” are defined as the “area around and adjacent to the present channel where fluvial erosion,
channel evolution and down-valley meander migration are most likely to occur. River corridor widths are
calculated to represent the narrowest band of valley bottom and riparian land necessary to accommodate
the least erosive channel and floodplain geometry. . . .” Id. § 4.0(a)(2), at 7. In the case of Dorset
Meadows, it was determined that a 50-foot setback would be adequate to protect against flooding and
erosion. The 50-foot buffer did not take into account – and was not determined on the basis of –
protecting the surrounding riparian areas.
Letter to DRB Chairperson Matt Cota
October 10, 2019
Page 9 of 9
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
IV. Summary and Recommendation: For the Sake of the Environment and the
Law, Please Reject the Dorset Meadows Final Plat Application.
The Final Plat Application is fatally flawed and moot because it depends on TDR density
that is not available under the applicable law. On top of that, the developer proposes to build in a
Primary Conservation Area that the City has made clear is off-limits to development and that
needs to be protected if South Burlington is to fulfill its commitment to protect its natural
heritage. If ever there were a proposed development that deserves to be rejected, Dorset
Meadows is it.
In sum, SOS South Burlington is committed to opposing the legally untenable ecological
outlaw that is Dorset Meadows. SOS South Burlington hopes the DRB will do its duty and reject
this ill-conceived project. Thank you for your attention to this important and time-sensitive
matter.
Respectfully submitted,
/s/ Daniel A. Seff
Daniel A. Seff
Attachments (5)
cc: Mr. Paul Conner, Planning and Zoning Director (via e-mail w/Attachments)
Ms. Dalila Hall, Zoning Administrative Officer (via e-mail w/Attachments)
Ms. Marla Keene, Development Review Planner (via e-mail w/Attachments)
Amanda S. E. Lafferty, Esq., Deputy City Attorney (via e-mail w/Attachments)
Matthew B. Byrne, Esq. (via e-mail w/Attachments)
Robert H. Rushford, Esq. (via e-mail w/Attachments)
Save Open Spaces South Burlington (via e-mail w/Attachments)
Attachment A: Comprehensive Plan, Map 7 (“Primary Conservation Areas”)
Attachment B: Overlay of Primary Conservation Areas on proposed “Dorset
Meadows” Development
Attachment C: Bio‐Finder Inventory Map of the Proposed Dorset Meadows Development Site
Darker blue: Highest priority surface water and riparian areas
Light, speckled blue: Wetlands
Reddish‐brown: Clayplain Forest natural community
Orange: Habitat Block
Green line: Level 4 wildlife linkage
Yellow line: Level 3 wildlife linkage
Attachment D: Map of the Great Swamp
Attachment D:Map of the Great Swamp
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South Burlington Land [leve.pproent Regulations Effective April 11,2016
Exhibit 2
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
Exhibit 3
Snyder Group, Inc. Act 250 Appeal
ENTRY REGARDING MOTION
Title: Motion for Reconsideration (Motion 5)
Filer: Appellants Michael and Mary Scollins, Robert and Marley Skiff, and the Pinnacle
at Spear Homeowners Association
Attorney: Daniel A. Seff
Filed Date: September 6, 2019
Response filed on 09/09/2019 by Attorney Evan P. Meenan for the
Vermont Natural Resources Board
Response in Opposition filed on 09/19/2019 by Attorney Celeste E. Laramie for
The Snyder Group, Inc.
Reply filed on 09/22/2019 by Attorney Daniel A. Seff for Appellants
The motion is GRANTED.
The District # 4 Environmental Commission (“District Commission”) approved and issued
an Act 250 permit to Snyder Group, Inc.; Spears Meadows, Inc.; 1350 Spear, LLC.; and Gary Farrell
(“Snyder Group”) for the development of land located at 1302 and 1350 Spear Street in South
Burlington, Vermont. Snyder Group proposed to develop 47 new dwelling units, with associated
infrastructure improvements, to subdivide, and to demolish an existing structure (“the Project”).1
A group of neighboring property owners (“Appellants”) oppose the Act 250 permit.2 Presently
before the Court is Appellants’ motion to reconsider this Court’s August 14, 2019 Entry Order
denying Appellants’ July 17, 2019 Motion to Stay this appeal pending the Supreme Court’s
1 The Project has been referred to as a 48-unit development throughout its lifecycle because, in addition
to the 47 new units, an existing residence will remain at 1350 Spear Street.
2 Appellants are Michael Scollins, Mary Scollins, Robert Skiff, Marley Skiff, and the Pinnacle at Spear
Homeowners Association. We resolved certain questions relating to their party status under Criterion 9(B) in a May
22, 2019 decision. See In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec (Vt. Super. Ct. Envtl. Div. May 22, 2019)
(Durkin, J.).
STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 107-10-18 Vtec
In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 2 of 5
decision in a companion appeal related to Snyder Group’s application for a municipal zoning
permit for the Project (“Municipal Appeal”).3
Appellants raise a concern that this Court’s August 14, 2019 Entry Order (“August 14 Entry
Order”) did not consider Appellants’ August 10, 2019 Reply Memorandum in Support of their
motion to stay (“Reply Memorandum”) and August 14, 2019 Supplemental Memorandum in
support of their motion to stay (“Supplemental Memorandum”). Appellants urge the Court to
reconsider the issues raised in these memoranda concerning whether (1) the “hardship or
inequity” standard is applicable;4 (2) ruling on a “potential future reduction” in the Project’s
number of units would amount to a substantial change constitutes an improper advisory
opinion;5 and (3) a continuance would delay this matter for an unspecified period of time. Snyder
Group contends Appellants do not meet the standard required for a motion to reconsider
because there is no evidence that the Court did not consider the Reply Memorandum prior to
issuing our Decision and Appellants are merely attempting to relitigate old matters.
Appellants’ motion is made pursuant to V.R.C.P. 59(e), which governs motions to alter or
amend a judgment.6 There are four principal reasons for granting a Rule 59(e) motion: “(1) to
correct manifest errors of law or fact upon which the judgment is based; (2) to allow a moving
party to present newly discovered or previously unavailable evidence; (3) to prevent manifest
injustice; and (4) to respond to an intervening change in the controlling law.” Old Lantern Non-
Conforming Use, No. 154-12-15 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sep. 13, 2017) (Durkin,
J.) (quotations omitted); In re Green Mountain Power Corp., 2012 VT 89, ¶ 50, 192 Vt. 429 (stating
that under Rule 56(e), “[t]he trial court enjoys considerable discretion in deciding whether to
grant such a motion to amend or alter”) (quoting In re SP Land Co., 2011 VT 104, ¶ 16, 190 Vt.
418).
3 The related appeal concerns the City of South Burlington Development Review Board’s municipal approval
for the Project. See In re Snyder Grp. Inc. PUD Final Plat, No. 114-8-17 Vtec, at 1–3 (Vt. Super. Ct. Envtl. Div. Feb. 28,
2019) (Durkin, J.). This Court decided, on cross-motions for summary judgment, that the Project exceeded the
municipality’s maximum density limit of 1.2 units per acre and that South Burlington’s “transferrable development
rights” regulation was unconstitutionally vague and failed to comply with its enabling statute, 24 V.S.A. § 4423(a).
Id. at 4–21.
4 This Court’s Decision stated that Appellants “must make out a clear case of hardship or inequity in being
required to go forward if there is a possibility that a stay will damage someone else.” In re Snyder Group, Inc. Act
250 Appeal, No. 107-10-18 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Aug, 14, 2019) (Durkin, J.) (citing In re
Woodstock Cmty. Tr. & Hous. Vt. PRD, 2012 VT 87, ¶ 36, 192 Vt. 474); see also In re Killington Resort Parking Project
Act 250 Permit Application, No. 173-12-13 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. May 13, 2015) (Durkin, J.).
5 In our August 14 Entry Order, this Court concluded that ruling on this question would constitute an
improper advisory opinion and the Court did not have sufficient information necessary to make such a
determination. In re Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 Vtec at 3 (Aug. 14, 2019) (citing In re Regan
Subdivision Permit, No. 188-9-09 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. June 18, 2013) (Durkin, J.)); see also In
re Appeal of 232511 Invs., Ltd., 2006 VT 27, ¶¶ 18-19, 179 Vt. 409) (declining to issue an advisory opinion); In re
Paynter 2-Lot Subdivision, No. 160-7-08 Vtec, slip op. at 9-10 (Vt. Envtl. Ct. May 1, 2009) (Wright, J.).
6 V.R.C.P. 59(e) gives the Court broad power to alter or amend a judgment “if necessary to relieve a party
against the unjust operation of the record resulting from the mistake or inadvertence of the court and not the fault
or neglect of a party.” Rubin v. Sterling Enter., Inc., 164 Vt. 582, 588 (1996); Reporter’s Notes, V.R.C.P. 59(e).
In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 3 of 5
The grant of a motion to reconsider, alter, or amend “a judgment after its entry is an
extraordinary remedy which should be used sparingly.” In re Zaremba Grp. Act 250 Permit, No.
36-3-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh, J) (quotation omitted);
see also State v. Tongue, 170 Vt. 409, 414 (2000), (quoting State v. Bruno, 157 Vt. 6, 8
(1991))(stating that “it is better practice for the court to reconsider a pretrial ruling ‘where
serious grounds arise as to the correctness of the . . . ruling’”). Rule 59(e) motions are “not
intended as a means to reargue or express dissatisfaction with the Court’s findings of fact and
conclusions of law” and cannot “merely repeat[] arguments that have already been raised and
rejected by the Court.” Town Clarendon v. Houlagans MC Corp. of VT., No. 131-10-17 Vtec, slip
op. at 1 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh, J.); Appeal of Van Nostrand, Nos. 209-
11-04 Vtec, 101-5-05 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Dec. 11, 2006) (Durkin, J.)
(quoting Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1) (internal
footnotes omitted) (stating that motions to reconsider should not be used to “relitigate old
matters”). Given this strict standard of review, motions to reconsider are rarely granted. In re
Martin & Perry, No. 20-10-18 Vtec, slip op. 2 (Vt. Super. Ct. Envtl. Div. Jan. 22, 2010) (Durkin, J.)
(citing In re Rivers Dev., LLC Appeals, Nos. 7-1-05 Vtec, 183-8-07 Vtec, 248-11-07 Vtec, & 157-7-
08 Vtec, slip op. at 5 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J.)).
As a preliminary matter, this Court notes that it both had access to and considered
Appellants’ Reply and Supplemental Memoranda. As noted by Appellants, this Court had access
to the Reply Memoranda and the absence of a filing indication in our August 14 Entry Order, for
both the Reply Memorandum and Supplemental Memorandum, was a mere technical error.7
This Court considered the Reply Memoranda and concluded that “Appellants have not shown the
type of one-sided, probable hardship and inequity our standards require.” In re Snyder Grp., Inc.
Act 250, No. 107-10-18 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Aug. 14, 2019) (Durkin, J.). This
is evidenced by the Entry Order’s discussion of the Court’s substantial discretion in considering a
motion to stay and holding that the applicable precedent instructs this Court to apply the
“hardship or inequity” test. Id. at 2–3 (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); State
v. Schreiner, 2007 VT 138, ¶ 14, 183 Vt. 42; In re Killington Resort Parking Project Act 250 Permit
Application, No. 173-12-13 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. May 13, 2015)
(Durkin, J.)). In addition, and as is evidenced by the Entry Order, this Court recognized and clearly
summarized the contentions that Appellants stated in their Reply Memorandum.8 See In re
Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 2 (Aug. 14, 2019). This Court also considered the
Vermont Supreme Court’s scheduling of oral argument for the Municipal Appeal and determined
that the scheduling did not supersede the weight given to an applicant’s perspective on how the
7 For clarification, this Court’s filing system develops templates that automate the input of responses and
replies filed by parties. In this instance, the lack of an indication on the August 14 Entry Order that the Reply and
Supplemental Memoranda had been received and considered was a technological error, caused by the fact that we
had begun (but not completed) the drafting of the Entry Order before those filings were received. This Court both
received and considered both Memoranda.
8 In our Decision, this Court noted that Appellants’ challenges, stated in their Reply Memoranda, that (1) a
reduction in units would be a substantial and material change; (2) proceeding would result in a waste of resources;
and (3) a stay is in the best interest of Snyder Group. In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 2 (Aug
14, 2019).
In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 4 of 5
permitting process would proceed best or provide a specific period of time for a continuance.9
Id. at 3 (citing In re Killington Vill. Act 250 Master Plan Application, No. 147-10-13 Vtec at 2 (May
13, 2015)); In re Wagner & Guay Permit, No. 150-10-14 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl.
Div. Mar. 27, 2015) (Walsh, J.). Therefore, this Court considered both Memoranda in its Entry
Order.
Appellants assert the basis for granting reconsideration in this case is to correct manifest
errors of law or fact upon which the judgment is based. Appellants assert that this Court
incorrectly applied the “hardship or inequity” standard. Appellants further argue in the
alternative that, should the “hardship and inequity” standard apply, this Court must acknowledge
a change in intervening law that occurred when this Court decided in the Municipal Appeal that
South Burlington’s TDR Bylaw was invalidated. In re Snyder Group Inc. PUD Appeal, No. 114-8-
17 Vtec, slip op. at 23 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019)(Durkin, J.). We address these two
arguments below, in that order.
First, Appellants assert this Court erred in applying the Woodstock “hardship or inequity”
standard. Appellants raised this issue in their Reply Memoranda and this Court clearly
determined that “precedent instructs” this Court to apply the hardship or inequity standard. In
re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 3 (Aug. 14, 2019) (citing In re Woodstock Cmty.
Tr. & Hous. Vt. PRD, 2012 VT 87, ¶ 36, 192 Vt. 474). In re Woodstock’s decision to apply the
“hardship inequity” standard is binding precedent on this Court. In re Woodstock, 2012 VT 87.
Moreover, we note that contrary to Appellants’ assertion, the Vermont Supreme Court in In re
Chaves merely noted that the Environmental Division has discretion in deciding continuances and
did not supplant the “hardship or inequity” standard. In re Chaves A250 Permit Reconsider, 2014
VT 5, ¶ 16, 195 Vt. 467, 475, abrogated by In re B & M Realty, LLC, 2016 VT 114, ¶ 16, 203 Vt.
438; see Dodge v. Precision Const. Prod., Inc., 2003 VT 11, ¶ 25, 175 Vt. 101 (citing Vt. Accident
Ins. Co. v. Howland, 160 Vt. 611, 612 (1993) (mem.)) (stating that the Supreme Court will “apply
a ruling prospectively only if (1) we overrule past precedent or decide an issue of first impression
whose resolution was not clearly foreshadowed”). Therefore, this Court did not make a manifest
error of law in our August 14 Entry Order.
Second, Appellants argue that even if the “hardship or inequity” standard does apply,
there has been a change in intervening law because this Court invalidated South Burlington’s
former TDR Bylaw, thereby expressly limiting the Project to a maximum of 31 dwelling units, in
its February 28, 2019 Decision in the Municipal Appeal. See In re Snyder Group Inc. PUD Final
Plat, No. 114-8-17 Vtec, slip op. at 23–24 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.). Our
August 14 Entry Order stated we could not presently decide “whether a potential future
reduction in the Project’s number of units would amount to a substantial change” as it would
9 Appellants note that their Supplemental Memorandum was filed seventeen minutes prior to issuance of
this Court’s Decision and infer that this Court lacked awareness of the filing. It is important to note that the Court
was aware and considered the one-page Supplemental Memorandum, which included a brief statement regarding
the scheduling of the oral argument in the Municipal Appeal and no additional legal challenges. Here, merely
scheduling a date for oral augment does not provide a specific time for a continuance. Id. at 3 (stating that “[a]
continuance would delay this matter for an unspecified period of time, while postponing progress on certain issues
that will need to be resolved in any case”).
In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 5 of 5
constitute an advisory opinion and we lack the information necessary to make such a
determination. In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 3 (Aug. 14, 2019).
Generally, “a judgment of an adjudicative body remains valid until reversed or annulled.” In re
Ashline, 2003 VT 30, ¶ 9, 175 Vt. 203 (citing Davidson v. Davidson, 111 Vt. 24, 29 (1939). It
therefore follows that this Court’s February 28, 2019 Decision presently has a preclusive effect.
As such, the City of South Burlington’s TDR Bylaw is currently considered invalid and
unconstitutional, subject to the pending Vermont Supreme Court determination.
However, upon further reflection of these matters and the nature of the impending
Supreme Court determination, this Court concludes that it should STAY this appeal, in the
interest of avoiding conflicting judgments, until the Supreme Court renders its determinations in
the pending Municipal Appeal.
For these reasons, we GRANT Appellants’ motion for reconsideration of our August 14,
2019 Entry Order denying Appellants’ July 17, 2019 Motion to Stay this appeal as Appellants have
presented adequate grounds to reconsider the Decision. We therefore conclude that this
pending appeal from the Act 250 determinations must be STAYED until the Supreme Court
renders its determinations in the Municipal Appeal.
So Ordered.
Electronically signed on December 24, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
Daniel A. Seff (ERN 1514), Attorney for Appellants Michael and Mary Scollins, Robert and Marley
Skiff, and the Pinnacle at Spear Homeowners Association
Evan P. Meenan (ERN 1632), Attorney for the Vermont Natural Resources Board
Matthew B. Byrne (ERN 2486), Attorney for Appellee The Snyder Group, Inc.
Robert H. Rushford (ERN 4714), Attorney for Appellee The Snyder Group, Inc.
Celeste E. Laramie (ERN 8852), Attorney for Appellee The Snyder Group, Inc.
Alison Milbury Stone (ERN 7087), Attorney for the Vermont Agency of Agriculture
svalcour
1
CITY OF SOUTH BURLINGTON
DEVELOPMENT REVIEW BOARD
SD‐20‐01_550 Park Rd_Blackrock Construction_SK_2020‐
01‐22.docx
DEPARTMENT OF PLANNING & ZONING
Report preparation date: January 15, 2020
Plans received: December 13, 2019
550 Park Road
Sketch Plan Application #SD‐20‐01
Meeting date: January 22, 2020
Owner
Highlands Development Company, LLC
P.O. Box 132
Lyndon Ctr., VT 05850‐0132
Engineer
O’Leary Burke Civil Associates
13 Corporate Drive
Essex Jct, VT 05452
Property Information
Tax Parcel 0570‐01100
Southeast Quadrant – Neighborhood Residential North
4.42 acres
Applicant
Blackrock Construction
68 Randall Street
South Burlington, VT 05403
Location Map
2
PROJECT DESCRPTION
Sketch plan application #SD‐20‐01 of Blackrock Construction for a planned unit development on an
existing undeveloped 6.91 acre parcel. The planned unit development consists of two lots containing 22
dwelling units in two‐family homes and 10 units in single family homes, 550 Park Road.
CONTEXT
The Applicant is proposing to subdivide one existing parcel into two lots in preparation for development
of 32 homes on one lot and construction of a public roadway on the other lot.
This 6.91 acre parcel is part of the 8/24/2015 “Amended Agreement Among the City of South Burlington,
Highlands Development Company, LLC and JAM Golf, LLC” (“Amended Agreement”). The parcel itself
was the subject of a land exchange between the City and these parties. The Amended Agreement
incorporates the 9/28/2015 “Amended Consent Order and Decree” (“Consent Order”), which approves
at the Master Plan level up to 32 dwelling units for this “Wheeler Parcel” lot in buildings consisting of
between one and four dwelling unit each. The Amended Agreement determined that the preliminary &
final plat reviews for the Wheeler Parcel would take place under an amended set of Land Development
Regulations, established through a collaborative process between the City and property owner.
“6. New Land Development Regulations for Wheeler Parcel Project Area.
a. A portion of the City Parcel, specifically the +/‐6.91 acres currently in the Wheeler Nature Park
east of Dorset Street and north of Park Road, being the lands labelled ‘6.91 Acres CITY of SOUTH
BURLINGTON to JAM GOLF, LLC’ on the survey incorporated herein as Exhibit A also referred to
as the Wheeler Parcel Project Area, is not presently in a zoning district that allows the use
contemplated by this Amended Agreement. The City agrees to amend its Land Development
Regulations, including necessary maps, to allow the Wheeler Parcel Project Area to be developed
with a maximum of 32 dwelling units in structures consisting of 1‐4 dwelling units within the
intent of this Amended Agreement. The City and Developers agree to cooperate and to work
together to ensure that the amendments contain provision that allow development of residential
structure consisting of 1‐4 dwelling units similar in type and size to those presently existing in the
Project, that include site and building design standards similar to those applicable to the
Southeast Quadrant, Neighborhood Residential Subdistrict version of the Land Development
Regulations that took effect on May 7, 2012, and that include site design standards that require
compatibility with adjacent natural areas. Applications for preliminary and final plat and site
plan approval for the Wheeler Parcel Project Area that be reviewed under the amended Land
Development contemplated by this Paragraph 6 (the ‘Amendments’).”
The amended Land Development Regulations contemplated in the paragraph above were adopted by
the City Council and took effect January 11, 2016, and were subsequently amended effective January 25,
2016 to correct an error in the included maps. The parties agreed that the January 25, 2016 regulations
would satisfy condition #6 of the Amended Agreement above.
The project is located along Dorset Street, across from an existing residential development on Nicklaus
Circle which consists of two‐family homes. It is served by an existing recreation path on Park Road and
Dorset Street and is in an area identified in the Comprehensive Plan as an area of very low intensity
development consisting principally of open space.
3
Staff has listed applicable subdivision and site plan standards from the June 19, 2017 LDR in order to
familiarize the Board with the applicable standards. Staff has not provided an exhaustive evaluation of
compliance with each of the presented standards at this sketch plan review. As is the case in the current
LDR, the June 19, 2017 LDR contains numerous sections outside of the specific subdivision and site plan
standards that describe how compliance with each specific standard is to be evaluated.
COMMENTS
Development Review Planner Marla Keene and Planning and Zoning Director Paul Conner, hereafter
referred to as Staff, have reviewed the plans submitted by the applicant and have the following
comments.
A) DIMENSIONAL STANDARDS
Within the applicable LDR, SEQ setbacks are 20 ft front, 10 ft side, and 30 ft rear. Along Dorset street,
there is a minimum 50‐foot setback. At this time, Staff does not believe the applicant’s proposal
requires any waivers. Should waivers become necessary, the 2017 LDR allowed the DRB the same
authority as today’s LDR under 15.02A(4) and 15.06B(2).
B) SUBDIVISION STANDARDS
The general standards applicable to this subdivision are as follows.
(1) Sufficient water supply and wastewater disposal capacity is available to meet the needs of the
project in conformance with applicable State and City requirements, as evidenced by a City
water allocation, City wastewater allocation, and/or Vermont Water and Wastewater Permit
from the Department of Environmental Conservation.
This Criterion was found met at a master plan level.
(2) Sufficient grading and erosion controls will be utilized during construction and after
construction to prevent soil erosion and runoff from creating unhealthy or dangerous
conditions on the subject property and adjacent properties. In making this finding, the DRB
may rely on evidence that the project will be covered under the General Permit for
Construction issued by the Vermont Department of Environmental Conservation.
This criterion was found at the master plan level to need further review under applications for
individual phases. Staff considers this criterion should be evaluated during preliminary and final
plat for this parcel.
(3) The project incorporates access, circulation and traffic management strategies sufficient to
prevent unreasonable congestion of adjacent roads. In making this finding the DRB may rely
on the findings of a traffic study submitted by the applicant, and the findings of any technical
review by City staff or consultants.
4
This criterion was found at the master plan level to need further review under applications for
individual phases. The applicant will be required to provide an estimate of vehicle trips at the
next stage of review.
1. Staff recommends the Board discuss whether to require the applicant to perform an
evaluation of delay/LOS at the adjacent Park Road/Dorset Street intersection as part of the
next application.
(4) The project's design respects and will provide suitable protection to wetlands, streams, wildlife
habitat as identified in the Open Space Strategy, and any unique natural features on the site.
In making this finding the DRB shall utilize the provisions of Article 12 of these Regulations
related to wetlands and stream buffers, and may seek comment from the Natural Resources
Committee with respect to the project's impact on natural resources.
(5) The project is designed to be visually compatible with the planned development patterns in
the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in
which it is located.
(6) Open space areas on the site have been located in such a way as to maximize opportunities for
creating contiguous open spaces between adjoining parcels and/or stream buffer areas.
These criteria were found to be met at master plan level but additional review at preliminary
plat approval was also required. There do not appear to be wetland impacts. The open space is
proposed to be located along the center of the development and consists of a community
recreation path and community garden.
Based on the provided information, Staff has no concerns with the Project’s potential for
compliance with these criteria.
(7) The layout of a subdivision or PUD has been reviewed by the Fire Chief or his designee to
insure that adequate fire protection can be provided, with the standards for approval
including, but not be limited to, minimum distance between structures, street width, vehicular
access from two directions where possible, looping of water lines, water flow and pressure,
and number and location of hydrants. All aspects of fire protection systems shall be designed
and installed in accordance with applicable codes in all areas served by municipal water.
This criterion was found at the master plan level to need further review under applications for
individual phases. Staff considers the applicant will need to submit additional dimensional and
utility information at the next stage of review in order to allow evaluation of this criterion.
(8) Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting
have been designed in a manner that is compatible with the extension of such services and
infrastructure to adjacent properties.
The sidewalk connections to the existing recreation path on Park Road create a pedestrian‐
oriented environment. The applicant is required to install a landscape buffer as shown, which is
discussed in more detail under SEQ standards below.
5
(9) Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is
consistent with City utility and roadway plans and maintenance standards, absent a specific
agreement with the applicant related to maintenance that has been approved by the City
Council.
This criterion was found at the master plan level to need further review under applications for
individual phases. Staff considers this criterion will need further review at the next stage of
review.
(10) The project is consistent with the goals and objectives of the Comprehensive Plan for
the affected district(s).
These criteria were found to be met at master plan level but additional review at preliminary
plat approval was also required. Based on the provided information, Staff has no concerns with
the Project’s potential for compliance with these criteria.
C) SOUTHEAST QUADRANT DISTRICT
The following general requirements are applicable to all sub‐districts.
(A) Height
The applicant appears to have met the relevant height requirements.
(B) Open Space and Resource Protection
A plan for open spaces and their ongoing management is required. The Board typically
implements this standard by requiring the applicant to provide an open space management
plan to be recorded as a notice of conditions. This standard also requires erosion control
measures and landscaping and fencing to protect natural resource areas. Staff considers the
specific standards applicable to the SEQ‐NRN address this element of the open space
standards.
(C) Agriculture
The master plan considered continuation of agriculture not an issue.
(D) Public Services and Facilities
These criteria are duplicates of the subdivision criteria above.
(E) Circulation
Staff considers these criteria will be addressed when the subdivision criteria above are
addressed.
The following additional standards apply in the SEQ‐NRN.
(A) Street, block and lot pattern
Development blocks should be between 300 and 500 linear feet. Where unavoidable,
blocks longer than 500 feet should include mid‐block public sidewalk or recreation path
connections. The applicant has described that the proposed road will be 1,020 ft long. It is
approximately bisected by a recreation path.
2. Staff recommends the Board review with the applicant how the proposed recreation path
will be demarcated to ensure it is perceived as open to the public.
Lots must have a minimum width to depth ratio of 1:2, with a ratio of 1:2.5 to 1:5
recommended.
6
3. Staff recommends the Board discuss with the applicant their planned distribution of land,
whether all units will be on common land or whether there will be individual lots.
(B) Street, Sidewalk and Parking Standards
Local streets should have a pavement width of 20 feet in the NRN if the Board finds that
sufficient off‐street parking is provided to accommodate the parking needs of the uses
adjacent to the street. The applicant is proposing 24‐feet of pavement width. 26 feet is the
minimum requirement considered able to accommodate on‐street parking.
4. Staff recommends the Board discuss with the applicant the need to either provide 26‐feet
of pavement or reduce the pavement width to 20 feet.
Sidewalks should be 5’ wide, which is met. Street trees must be planted no greater than 30’
on center. The applicant should demonstrate compliance with street tree requirements at
the next stage of review.
(C) Residential Design
Buildings must be oriented to the street, and should have 35% of translucent windows
oriented to the south. Building facades should appear unified but varied to avoid
monotony. Front porches, stoops and balconies are encouraged. Buildings with rear
facades oriented towards a public recreation path should employ rear porches, balconies or
other features to enhance their architectural detail. Buildings should be set back no more
than 25‐feet from the back of sidewalk, with porches, stoops and balconies projecting up to
8 feet into the front setback. Within the NRN, at least three housing styles and/or
affordability is required, and must be mixed. The applicant has provided footprint sketches
for the duplexes which may support these criteria, but has not yet provided sketches for the
single family homes.
5. Staff recommends the Board invite the applicant to describe how their elevations, which
will be required at the next stage of review, will meet these criteria.
6. Garages must be set back a minimum of eight feet behind the building line of the dwelling,
with some exceptions for side‐facing garages. This criterion does not appear to be met by
the provided sketches. Staff recommends the Board discuss this criterion with the applicant.
7. Staff recommends the Board discuss with the applicant the design of the homes on the
corner of Dorset Street and Park Road as they will be gateways to the neighborhood.
(D) Landscaping and Fence Buffer Standards
These standards are unique to the SEQ‐NRN, whose extent includes only the subject parcel.
Existing vegetation must be retained where it can serve as a landscape buffer, which
accommodating the permitted level of development. Additional landscape buffers as shown
in Table 9‐2Aand Figure 9‐2A are a required element. The applicant appears to be proposing
the required fencing and buffering in the required areas. The width of the required
buffering is described in Table 9‐2A, and varies depending on the location and the buffer
type. Specific standards for buffers are excerpted below for the Board’s benefit.
7
Landscape Buffer Types
(a) Type 0 – Low Height Vegetation. A Type 0 landscaping typically includes grass or
meadow area with foundation screening at the buildings. This type of buffer is intended
to provide separation between new buildings and the existing land uses.
(b) Type I ‐ Dense Plantings. A Type I landscaped buffer must be composed primarily of
continuous dense screening vegetation / hedge that will be at least five (5) feet in width
and grow to at least six (6) feet in height.
(c) Type II – Informal Plantings. A Type II landscaped buffer must be composed of a split
rail fence (or equivalent approved by the DRB), major trees, a partial understory of small
trees, and a berm with a mixture of shrub type plantings. The minimum amount of
planting per 100 horizontal feet of buffer shall be a full ground cover, two trees of at least
3” caliper, three ornamental or understory trees of at least 2” caliper, and any
combination of shrubbery that occupies at least 50% of the area at the time of planting,
all of which shall be distributed throughout the minimum buffer width described in Table
9‐2A. With approval of the City Council, up to 10 feet of the green space between a
recreation path and a property line may be used to enable the installation of the split rail
fence and a portion of a berm.
Table 9‐2A Supplemental landscape buffer and setback requirements, SEQ‐NRN sub‐district
Adjoining Use Minimum Buffer Widths Minimum setback (5)
Type 0 Type I (5) Type II
High Use Rec Path (1) n/a n/a 30' 50'
Lower Use Rec Path (2) 70' n/a 27' 30'
Resource Protection Area (3) 40' 5' 27' 35'
% Reduction for Use of Berm (4) 25% n/a 25% n/a'
(1) The section of recreation path running along the west side of the SEQ‐NRN sub‐district, as shown on Figure
9‐2A.
(2) The section of recreation path running along the south and east sides of the SEQ‐NRN sub‐district, as shown
on Figure 9‐2A.
(3) The area located at the north boundary line of the SEQ‐NRN sub‐district, as shown on Figure 9‐2A
(4) Plantings are to be placed on top of berm for added vertical screening effect. Reduction not applicable to
High Use Recreation Path.
(5) Setbacks apply to all principal structures.
The applicant may substitute an earthen berm for a portion of the required landscaping
height. It does not appear the applicant is proposing an earthen berm.
The applicant has elected to provide Type I plantings at 5‐feet wide along the east buffer,
and Type II plantings between 27 and 30 feet wide along the west and north buffer areas.
8. Staff recommends the Board discuss with the applicant whether the narrower, 27‐foot
option with a mixture of plantings, is preferred over the 70‐foot, less planted option along
the western buffer. Staff notes the requirements for the narrower option will more fully
screen the proposed development area from the future development area on the south side
of Park Road and may interrupt the cohesive neighborhood feel.
8
9. Staff recommends the Board discuss with the applicant the need to provide a specific
landscaping planting plan at the next stage of review.
D) SITE PLAN STANDARDS
General Site Plan Review Standards
A. Relationship of Proposed Development to the City of South Burlington Comprehensive Plan.
Due attention by the applicant should be given to the goals and objectives and the stated land
use policies for the City of South Burlington as set forth in the Comprehensive Plan.
The project is identified in the comprehensive plan as an area of very low intensity to lower
intensity land use. However, the above referenced settlement agreement resulted in this
property being approved for development of up to 32 units. Therefore Staff considers the Board
obligated to respect this agreement regardless of the land use policies of the comprehensive
plan assuming the land can carry the approved development density outside of protected areas.
B. Relationship of Proposed Structures to the Site.
(1) The site shall be planned to accomplish a desirable transition from structure to site, from
structure to structure, and to provide for adequate planting, safe pedestrian movement,
and adequate parking areas.
(2) Parking shall be located to the rear or sides of buildings to the greatest extent practicable.
(3) Without restricting the permissible limits of the applicable zoning district, the height and
scale of each building shall be compatible with its site and existing or anticipated
adjoining buildings.
(4) Newly installed utility services and service modifications necessitated by exterior
alterations or building expansion shall, to the extent feasible, be underground.
Based on the provided information, Staff has no concerns with the Project’s potential for
compliance with these criteria.
C. Relationship of Structures and Site to Adjoining Area.
(1) The Development Review Board shall encourage the use of a combination of common
materials and architectural characteristics (e.g., rhythm, color, texture, form or detailing),
landscaping, buffers, screens and visual interruptions to create attractive transitions
between buildings of different architectural styles.
(2) Proposed structures shall be related harmoniously to themselves, the terrain and to
existing buildings and roads in the vicinity that have a visual relationship to the proposed
structures.
As discussed above, the applicant has not provided much information about the proposed home
appearances therefore Staff considers these criteria cannot be evaluated at this time.
However, the SEQ standards, if met, should result in these criteria being met.
9
Specific Site Plan Review Standards
(A) Access to Abutting Properties. The reservation of land may be required on any lot for provision of
access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto
an arterial or collector street, to provide additional access for emergency or other purposes, or to
improve general access and circulation in the area.
Staff considers no such access is necessary for the subject property, as it is bounded on all sides not
facing a street by a public park.
(B) Utility Services. Electric, telephone and other wire‐served utility lines and service connections shall
be underground insofar as feasible and subject to state public utilities regulations. Any utility
installations remaining above ground shall be located so as to have a harmonious relation to
neighboring properties and to the site.
(C) Disposal of Wastes. All dumpsters and other facilities to handle solid waste, including compliance
with any recycling or other requirements, shall be accessible, secure and properly screened with
opaque fencing to ensure that trash and debris do not escape the enclosure(s). Small receptacles
intended for use by households or the public (ie, non‐dumpster, non‐large drum) shall not be
required to be fenced or screened.
Staff considers these criteria can be discussed at a later stage of review.
(D) Landscaping and Screening Requirements. See Article 13, Section 13.06 Landscaping, Screening,
and Street Trees.
Section 13.06 standards do not apply to single and two family homes on their own lots. However, if the
applicant is proposing shared lots, these standards do apply, including minimum landscape budget.
10. Staff recommends the Board discuss with the applicant the required minimum landscape budget, as
this may affect the applicant’s desired planting in compliance with requirements in 9.07 above.
E. Modification of Standards. Where the limitations of a site may cause unusual hardship in
complying with any of the standards above and waiver therefrom will not endanger the public
health, safety or welfare, the Development Review Board may modify such standards as long as
the general objectives of Article 14 and the City's Comprehensive Plan are met. However, with the
exception of side yard setbacks in the Central District 1, in no case shall the DRB permit the
location of a new structure less than five (5) feet from any property boundary and in no case shall
be the DRB allow land development creating a total site coverage exceeding the allowable limit
for the applicable zoning district in the case of new development, or increasing the coverage on
sites where the pre‐existing condition exceeds the applicable limit.
As discussed above, it does not appear the applicant will require any modification of standards at this
time.
RECOMMENDATION
Staff recommends that the Board discuss the project with the applicant and conclude the meeting.
10
Respectfully submitted,
Marla Keene, Development Review Planner
LOCATION MAPNOT TO SCALEACEHIGHLANDS DEVELOPMENTCO., LLCVERMONTNATIONALCOUNTRY CLUB1227 DORSET STREET SOUTH BURLINGTON,VERMONTSOUTH BURLINGTON,VERMONTRECEIVED FOR RECORDING IN THE LAND RECORDS OFTHE CITY OF SOUTH BURLINGTON, VERMONT, AT______________ O'CLOCK ON THE ______ DAY OF__________, 20_____.ATTEST: ____________________________, CITY CLERKAPPROVED BY RESOLUTION OF THE DEVELOPMENT REVIEWBOARD OF THE CITY OF SOUTH BURLINGTON, VERMONT,ON THE _____ DAY OF ________, 20____, SUBJECT TO THEREQUIREMENTS AND CONDITIONS OF SAID RESOLUTION.SIGNED THIS _____ DAY OF _________, 20______.BY ___________________________________, CHAIRPERSONORIGINAL INK on MYLAR - REDUCED for RECORDING
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575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
TO: South Burlington Development Review Board
FROM: Marla Keene, Development Review Planner
SUBJECT: MS‐19‐03 1840 Spear Street
DATE: January 22, 2020 Development Review Board meeting
South Village Communities, LLC has submitted miscellaneous application #MS‐19‐03 for approval of an overall
affordability plan for a previous‐approved multi‐phase 334 unit planned unit development, 1840 Spear Street.
At the December 17, 2019 hearing the Board continued the hearing to January 22, 2020 to allow the Board to
deliberate on the affordability plans presented. Additional application materials that were submitted after the
packet publication date for the December 17, 2019 hearing are included in the packet for the Board.
1. Email from applicant presenting Option 4 – 12/12/2019
2. Email from applicant summarizing thoughts after December 17 meeting – 1/7/2020
3. Revised Affordable Housing Plan Letter including images – undated, received 1/10/2020
4. Copies of layouts presented during December 17, 2019 meeting – undated, received 1/10/2020
Staff has also included the originally submitted Conceptual Affordable Allocation Plan (sheet DP 1) – 8/8/2019.
Other facts relevant to the application which may be helpful include the following:
Master Plan approved 334 units, including 269 units of base density, 34 below market rate units and 33
bonus market rate units.
A below market rate household is defined as one whose aggregate income does not exceed eighty
percent (80%) of the county median income, as defined by the HUD. The 2019 median family income is
$91,600.
Phase 1 currently has final plat approval for 116 dwelling units. The original master plan approval
included 156 units and a 100‐student school. Some of the master plan approved lots required separate
site plan approval.
Phase 2 currently has final plat approval for 91 dwelling units. The original master plan approval
included 99 units. As with Phase 1, some of the master plan approved lots required separate site plan
approval. The applicant indicated on December 17 they still intend to submit for site plan approval for
the remaining units in Phase 2.
Phase 3 currently has final plat approval for 60 dwelling units. The original master plan approval
included 79 units. An area containing 19 units was removed from the allowable development area
through an environmental court appeal, though approval to construct the units themselves was
retained in the master plan approval.
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South Village Affordable Housing Plan
South Village Communities (SVC) is pleased to present its Affordable Housing Plan. This plan will fulfill
the goal of the Founders Vision of a suburban subdivision that places emphasis on Environmental
Stewardship, a mix of housing types and prices, agriculture, and on-site opportunities for recreation,
pedestrian friendly designed environments that take up less space. Specifically, a mix of housing types
and prices are to be provided. By offering a wide variety of residential uses, including affordable
housing, South Village will be home to people of diverse incomes, ages, and backgrounds; creating a
diverse and distinctive community.
South Village was granted Density Bonus Units in its Master Plan, conditioning that for every unit to be
built over the threshold of 269, one affordable unit shall be constructed for every market rate unit
above the threshold. Thus, of the 65 units permitted over 269, 33 are to be affordable and 32 are to be
market rate, achieving the overall density of 334, per the Development Standards of the S. Burlington
Land Development Regulations.
Development Standards from the LDR’s excerpted;
a) Distribution. The affordable housing units shall be physically integrated into the design of the
development in a manner satisfactory to the Development Review Board and shall be distributed
among the housing types in the proposed development in the same proportion as all other unit in
the development, unless a different proportion is approved by the Development Review Board as
being better related to housing needs, current or projected, by the City of South Burlington.
b) Minimum Floor Area. Minimum gross floor area per affordable dwelling unit shall not be less
than comparable market-rate units in the housing development.
c) Plan for Continued Affordability. The standards for Section 18.01(D)(2) shall apply.
Housing Types. The dwelling units may at the discretion of the Development Review Board be of
varied types including one-family, two-family, or multi-family construction, and studio, one-
bedroom, two-bedroom, three bedroom and four-bedroom apartment construction.
SVC are enthused to bring to South Village both affordable homes and market rate homes to meet local
housing needs. *Important Note* This plan has an important distinction in that any and all units that
will have an ‘affordable’ covenant for affordability in perpetuity will be the same as market rate
offerings of the same or similar product-, units made ‘affordable’ will be subsidized by the Developer.
There were not be any product of ‘lesser quality, appearance, features or construction than market
rate units.
Single Family Challenge: The Developer has met with staff extensively to work through the nuances
facing affordable home construction and the challenges of meeting the affordable density requirement
on this project. It became clear at the onset of our work, that building single family homes at an
affordable rate was not possible due to land, labor & material costs, and further that the housing type
could prove to be a hardship financially for persons qualifying for the affordable condition. No builder,
and we approached many, could resource an affordable single-family plan. Both Staff and the developer
conceded that even if by some miracle you could build one, (and we have no such miracle) people with
earnings to qualify for the affordable product would not have the budget to maintain the ongoing cost
related to ownership of single-family home, taxes, insurance, maintenance, higher association dues, etc.
There are no single-family home plans proposed to meet the affordable condition for the reasons above,
The DRB are given the authority to authorize distribution to meet the communities needs and this is
being sought in this regard for the reasons given above.
Duplex Cottage Plan Units: The focus for affordable product evolved to focus on a Townhome product.
Association Dues, Real Estate Taxes and Insurance numbers fell more into line with the Townhome
product to bring about a complete package that would be affordable in perpetuity, not only to purchase
but to maintain. SVC is introducing a new duplex plan to be built and sold as both market rate units and
as affordable units. The ‘affordable’ edition of this product will be subsidized by the Developer to be
sold at an affordable rate. The market rate version will not be subsidized. The duplex townhome
design will provide each owner a home, with the added benefit of a small yard, garage, porch or deck,
i.e. all the same ‘frosting’ or amenities of market rate homes. These features are uncharacteristic of
most ‘affordable’ homes elsewhere in the City but will be standard on the SV Duplex units. Units will
meet all S. Village design review standards. A total of 42 of these new cottage designs are planned to be
constructed, with a distribution of affordable and market rate as approved by the DRB.
We are presenting options whereby the balance of distribution of affordable product, may be allocated
to some of the currently offered townhome/rowhouse style product. Six units are already designated in
Phase 3 in these styles, 4 in multifamily and 2 in townhome. It’s our belief that each of the products will
be meet the needs of a varied individuals and families. All designs will meet all the South Village design
review criteria and each home will be unique in appearance. Our planned allocation has the largest
allocation of unit’s distribution on the cottage plan as we believe this will meet greatest market demand
and be the most desirable to home buyers. It is the developer’s opinion, that a home with yard,
attached garage and porch, (priced within the means of our workforce) is not only the most desired, but
the most needed housing type in our city. We favor the largest distribution possible to be in this
category for this reason and encourage the DRB to take this into consideration.
Duplex Cottage, Townhome and Multi-family Units: All of the units will have identical comparable types
offered at market rate. Several Townhomes and Multi-family units offered at affordable rates have
already been built and conveyed at market rate. The duplex cottage, townhome units and multi-family
apartment units, being offered for affordable units will all meet the (b) minimum gross floor area
criteria.
We are proposing to locate many of the duplex units on Lot 11 in Phase 1, identified initially as a school
site. The site was planned early on to have a two-story school building for 100 students and
commensurate faculty, parking and a play area. The land is zone residential. To date this has not been a
viable location for a school. The land is slated for development and is an ideal location for homes.
There is no increase in density for the development proposed. The idea of a school has not been found
to be workable. Lot 11 provides ample space for homes to be built in keeping with the South Village
model of rear loaded homes on alleys facing either a street or a common element of a village green
space with each home having a small yard area, and front porch element connecting to a sidewalk.
Some of the units are proposed on Lot 48N in Phase 2, again with a split of both market and affordable
units. Phase 3 units are already allocated and approved by the DRB.
We have worked for a very long time on this concept. We have had many dialogues with Staff and our
builders to fully evaluate fully what is possible. The plan presented is the culmination of that effort and
it works. It is the only plan that works, maximizes density and delivers viable affordable homes. To
achieve the original planned for unit density and provide desirable affordable units has been a lengthy
and uphill challenge. We believe the mix of home designs, style and prices are what the original
Founders intended with diversity upheld as a model community ideal. We presented plans with less
density and less of the affordable product to Staff who were not supportive of the reduced density and
returned to the drawing board to produce the plan we have now. We have met with neighbors through
Open Houses for plans viewing at each step of the way, so neighbors are aware of the evolution of the
current plan. No less than forty plans have been reviewed and discussed since 2015 with both
neighbors and city staff and the planning commission. All but one, did have 334 units and did include
affordable housing per the requirements. There are neighbors more in favor of one less density plan
that was conceived at one time over the current plan. We are encouraged to hear residents say, “I
support affordable housing’ and we recognize there are a few NIMBY sentiments from some residents,
others have voiced support and do advocate for the plan presented, this is the feedback we have
received. Further, each resident has received a Declaration and Bylaws that disclose the 334 units
planning and the goals of diversified housing types including affordable product. All to be developed
land is also identified and all lands scheduled for conservation and agriculture remain untouched. The
Bylaws contain explicit reserved development rights for the completion of the development.
Notes*
1) The number of buildings proposed on Lot 11 is lesser, then the comparable ‘block of land and buildings
between S. Jefferson and Chipman. Which contains 18 buildings. Lot 11’s proposal is for 17. Lot 11’s overall
area is in fact in overall surface space.
2) Farm Impacts; Sweeping views of the Farm are visible from both Spear Street and Allen Rd East. Currently a
dirt pile blocks most of the view from Allen Rd E and Dewey Place, when Lot 11 is developed as planned, the
views of the farm will increase from this perspective. Homes alongside a farm are consistent with Vermont
development. The Farm will benefit from the current proposal from having a formal paved road to its
entrance, and a community feature alongside it, a permanent replacement for the current battered ‘tent’, a
pavilion is being proposed. NO CHANGE to the Farm, it’s boundary or any open/conservation land is proposed.
3) Added parking is planned to be addressed in a subdivision application which will benefit the neighborhood and
the Farm.
4) The 321 Plan is the same in appearance, as if, Lot 11 were to be developed as 11 single family homes. All
neighbors endorsed that plan when it was viewed. All homes will be in keeping with the S. Village vernacular in
appearance.
5) Post Consent Decree plans illustrate one less 12plex than were originally planned, for 12 less overall units.
Most displaced units were re-introduced from Ph 3 to Preserve Rd, the farm acres were reduced at that time.
334-12=322.
PROPOSED DUPLEX COTTAGE ELEVATIONS & STREETSCAPE
CURRENT SOUTH VILLAGE ELEVATIONS & STREETSCAPE;
STREETCity of So. BurlingtonTown of Shelburne"MIDLAND AVE."ALLEN ROADR. M. & D. M.V. 141 P. 6P. & J. CliffordVol. 165 Pg. 130Homeowners Assoc.Vol. 426 Pg. 101W. R. & G. S. LangVol. 131 Pg. 299D. V. DerridingerVol. 583 Pg. 137L. A. & J. G. DemersVol. 171 Pg. 286L. & C. LongVol. 411 Pg. 307L. & C. LongVol. 85 Pg. 67SPEAR n/fn/fn/fn/fn/fn/fn/fn/fDorset Farms Vol. 426 Pg. 101n/fValleeDorset Farms Homeowners Assoc.ALLEN RD. EASTN. JEFFERSON RD.S. JEFFERSON RD.S. JEFFERSON RD.PRESERV
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PRESERVE RD.PHASE 135.3± AcresCHIPMAN STREETMADISON LANECHIPMAN STREETS. JEFFERSON RD.AIKEN ST.PHASE 219.26± Acres11312510212312112412912812712611912011210811110710911011411511611811710510110410612211B1113567891012141316171518252627283433323130292435363738394041424443454647481921222320515253545657596061625A5B5C5D5E5F11A210A10B27A7A31A26A494B11A4A2A551N2N3N4N5N6N7N8N9N10N11N12N13N14N15N16N17N18N19N21N20N22N23N24N25N26N27N28N29N30N31N32N33N34N35N36N37N38N39N40N41N42N43N44N45N46N47N48aN49aN50N51N52N53N54N55N66N67N68N-79N80N-91N56N57N58N59N60N61N62N63N64N65NMIDLAND AVENUESTAFFOR
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48NS.F. (CARRIAGE LOTS)S.F. (CARRIAGE LOTS)S.F. (CARRIAGE LOTS)S.F. (CARRIAGE LOTS)S.F. (CARRIAGE LOTS)Not to Scale- Location Map -PROJECTLOCATIONSPEAR ST.ALLEN RD.BARSTOW RD.DORSET ST.City of So. BurlingtonTown of ShelburneSouth Village Communities, LLCSouth Burlington Vol. 801 Pg. 465CEA1" = 200'01243.16DP 1- Legend -Shelburne Vol. 348 Pg. 416Areas by SurveyAUGUST 8, 2019 223.14 acres (South Burlington) + 2.61 acres (Shelburne) 225.75 acres TotalSouth VillageConceptualAffordableAllocation PlanSouth Burlington, VermontTRCTRC#P:\AutoCADD Projects\2001\01243.16 - Master\1-CADD Files-\dwg\01243.16 Affortablility Distribution Plan.dwg, 9/10/2019 10:20:16 AM, mburke
DEVELOPMENT REVIEW BOARD 17 DECEMBER 2019
The South Burlington Development Review Board held a regular meeting on Tuesday, 17
December 2019, at 7:00 p.m. in the Conference Room, City Hall, 575 Dorset Street.
MEMBERS PRESENT: M. Cota, Chair; B. Sullivan, J. Wilking, M. Behr, D. Philibert, J. Langan, E.
Portman; J. Smith, alternate
ALSO PRESENT: D. Hall, Administrative Officer; M. Keene, Development Review Planner; B.
Bouchard, D. Crawford, P. DeMichele, S. Williams, J. Swope, R. Horn, N. Andrews, S. Darnell, B.
Bless, P. Ewing, H. Cochran, E. Keeton, B. Perrez, E. Hazelett, R. Depot, B. Denham, J. Owen, R.
Jeffords, P. Obrien, A. Solberg, S. Mowat, J. Boyd, K. & K. Clarke, M. & A. Thermanson, C. Pinto,
T. Maynard, D. Marshall, M. & G. Butie, S. Smets, M. Smiles
1. Directions on emergency evacuation procedures from conference room:
Mr. Cota provided directions on emergency evacuation procedures.
2. Additions, deletions, or changes in order of agenda items:
Mr. Cota noted a request to reopen SD‐19‐27 to address a challenge regarding defining riparian
areas.
Messrs. Wilking and Sullivan recused themselves during this discussion. Ms. Smith joined the
Board as an alternate to provide a quorum.
Mr. Cota moved to reopen SD‐19‐27 and to hold a hearing on 22 January 2020 to address a
challenge regarding definition of riparian areas. Ms. Philibert seconded. Motion passed 5‐0.
Messrs. Wilking and Sullivan rejoined the Board. Ms. Smith stepped down.
Mr. Cota also asked to move the Minutes to follow item #4, and other business to follow the
minutes.
3. Comments and questions from the public not related to the Agenda:
No issues were raised.
4. Announcements:
No announcements were made.
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 2
5. Minutes of 3 December 2019:
Mr. Cota moved to approve the Minutes of 3 December 2019 as written. Mr. Wilking
seconded. Motion passed unanimously.
6. Other Business:
Mr. Cota recused himself during this discussion. Mr. Behr presided. He noted that the
applicant for SD‐19‐31 and SP‐19‐39 had asked to change the hearing date from 22 January to 4
February 2020. Members informally agreed to this request.
Mr. Cota resumed the Chair.
7. Continued Miscellaneous Application #MS‐19‐03 of South Village Communities, LLC,
for approval of an overall affordability plan for a previously approved multi‐phase 334
unit planned unit development, 1840 Spear Street:
Ms. Jeffers showed the plan of the development. It is on a 220 acre site on Spear Street at the
top of Allen Road. Ms. Jeffers indicated the 12.5 acre farm in the center of the property and
the remainder of the conserved property. The development is designed for connectedness,
walkability, with sidewalks on both sides of the roads, front porches, etc.
The project is being built in 3 phases. Ms. Jeffers indicated these and noted which ones are
completed. Some affordable units will be built as part of Phase 3. Mr. Cota noted the applicant
received a density bonus for those affordable units.
Ms. Jeffers then explained the options for location of the remaining affordable units as follows:
Option #1: On lot #11, 17 of the 34 duplex units would be affordable; on lot 48n, 4 of the 8
duplex units would be affordable; 5 units would be assigned to pre‐existing buildings from
Phases 1 and 2 (these are currently rentals), and there would be 6 additional units in Phase 3 as
already approved.
Option #2: 26 of 34 units on lot #11 would be affordable and 6 more units in phase 3.
Option #3: All 32 units on lot #11 would be affordable.
Option #4: Instead of 34 units on Lot #11, there would be 22 units, 12 of which would be
affordable; on lot 48n, 4 of the 8 duplex units would be affordable; 4 units would be assigned to
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 3
other lots in Phases 1 and 2, and there would be 6 additional units in Phase 3 as already
approved. This would decrease the density and the number of affordable units.
The applicant then addressed staff comments as follows:
#1. There should be a community anchoring element on lot #11 to replace the originally
proposed school: Ms. Jeffers said they are considering a pavilion that would be available for
community events. She showed where this would be. Mr. O’Brien noted there would be views
to the west. He asked whether this would be only for South Village or for the whole
community. Members said it would be for South Village. They were OK with the pavilion as an
anchoring element.
#2. Discussion of options: Mr. Wilking rejected Option #3. Other members agreed as
they wanted the affordable units spread throughout the community. Mr. Behr noted this has
been discussed for several years. When the applicant asked for bonus density, there were no
affordable units brought forth. Now they are indicating they are only on multi‐family lots. He
wanted better disbursement. Mr. O’Brien said that if staff had told him earlier to build to 334
units, there would have been affordable units allocated from the beginning. Mr. Cota said that
without an affordability plan, certain lots can’t be built. Mr. O’Brien said they have started
Phase 3, 6 affordable units will be in it. He added that Champlain Housing Trust’s funding
mechanism is geared to 30‐40 unit buildings, and this doesn’t work for this project. He said
they are “self‐performing” the affordable units, some of which will be rentals in 4‐plex buildings
and some ownership in duplexes. Ms. Jeffers felt the duplexes offer the most desirable homes
with side windows, some yard space, etc. She said single family homes don’t work at all from a
financing point of view. Mr. O’Brien added that they have provided information to some
lenders to be sure the owned units would be salable from a secondary point of view.
#3. Demonstrate that the affordable criteria are met: Ms. Keene noted that the city or
its designee would determine that units remain affordable. CHT has said they would willing to
do this. This protects the privacy of who lives there. Mr. Cota noted that someone can’t rent a
unit and then sublet it at a higher rate. Mr. Behr stressed that the affordable units shouldn’t
stand out as “affordable.” Mr. O’Brien said that in Burlington you can’t tell which of their units
are affordable. Mr. Sullivan felt that Options 1‐3 appeared “segregating.” Mr. O’Brien said this
property isn’t “the other side of the tracks.” This is the nicest part of South Village, and the
units will be beautiful. Ms. Jeffers added that the homes will have porches, garages, etc.
Public comment was then received as follows:
Ms. Darnell: Was concerned with the impact of density on lot #11 from the point of view of
the farm and parking. She noted that South Village is an “agrihood,” and is the only
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 4
development in the city that has set aside so much open space. They also have more
infrastructure than other developments with double sidewalks, green spaces, roads, etc. She
felt the farm is very vulnerable, and the proposed units would block the view of the farm and
could put it out of business. She also was concerned with the added traffic becoming
unmanageable.
Ms. Denham: In the summer of 2018, there was a plan for 279 homes. She would favor that.
Ms. Keene noted that the applicant had withdrawn that plan. Ms. Denham noted the last of
the proposed driveways is 20 feet from the farm stand.
Mr. Andrews: He felt the proposed plan doesn’t adhere to the spirit of the Master Plan. He also
noted there still hasn’t been an affordable unit built in South Village. The developer hasn’t
been able to get builders to build affordable units because of the price of the lots. He was
concerned that quality would be sacrificed.
Ms. Boyd: She lives diagonally across from lot #11. Since construction on Phase 3 began, there
has been more construction traffic, and there will be a tremendous amount of traffic on East
Allen. She felt the road isn’t wide enough to park and drive. She felt affordable housing is an
option, not a mandate and that the 279 unit plan is preferable. She would support going back
to that plan.
Mr. Thermanson: Said the density proposed on lot #11 isn’t seen anywhere else in the
development. He asked to reduce the density requirement to 308.
Ms. Keene reviewed the history of density issues including an appeal to the Environmental
Court which reduced the number of units in Phase 3 to 60 units. Mr. Andrews said the Court
order eliminated 19 units and said the developer could move them to Phase 2. Mr. O’Brien
noted they are still working on the layout for Lot 48N in Phase 2 and had not removed and units
from Phase 2.
Mr. Burti noted he was the first resident in South Village. He isn’t opposed to affordable
housing but felt the proposed plan does not comply with how they were to be dispersed
throughout the development. At least half will be on lot #11, and the styles of these buildings
will be much different from anything else in South Village.
Ms. Clark: Serves on the Stewardship Committee. She noted a portion of every sale goes to the
Stewardship Fund to maintain the farm and common land. Homes were originally supposed to
be all owner‐occupied, but now there are 60 rental units, so the Fund can’t meet its goal. She
also noted that now more than half of the votes are cast by non‐residents.
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 5
Mr. Wilking said the DRB can’t determine which are rental or bought units.
Mr. Owen was concerned that the affordable units will be “obvious.”
Mr. Swope: Was concerned with compromising the integrity of the neighborhood. He was also
concerned that affordability wasn’t integrated effectively.
Ms. DeMichele: Serves on the Affordable Housing Committee. She asked the DRB to maintain
the affordable units. She stressed that those who will be living there are people earning
$70,000 to $150,000 a year. She cited the loss of families and noted that what is keeping the
High School going is the importing of students from the Champlain Islands. She also cited the
row of houses on Market Street and challenged anyone to say which of them are affordable.
Mr. O’Brien said the location of the units on lot #11 won’t impact the open space or the farm.
Ms. Jeffers said there will be sweeping view of the farm. She also noted that Option #4 would
have the same appearance as the 279 unit plan. She showed a picture of the proposed duplex
and said they would have the same vernacular as other buildings in South Village. She also
showed a streetscape of what is built in Burlington and said it is not different from what is
proposed in South Burlington. Mr. O’Brien noted that in Burlington, 15% of their units
(approximately 35) are inclusionary, either duplex or multi‐family. He felt they can work with
Option #4. He stressed that they are not asking for a waiver. He said the houses will be
different in size, but from a distance they will look to be the same size. And the units will not all
look the same.
Mr. Behr said he knew the applicant would build a quality project. The difference is that if the
affordable units were built throughout the project, they would “disappear.” Now it will be
known that 50% of the units in that area are affordable. He felt the DRB should have required
distribution from day one.
Mr. Cota suggested continuing the application to allow the Board to consider tonight’s
comments and possibly request they submit other plans.
Mr. Cota moved to continue MS‐19‐03 to 22 January 2020. Mr. Sullivan seconded. Motion
passed unanimously.
8. Continued Final Plat Application #SD‐19‐29 of South Village Communities, LLC, to
amend Phase IIIB of a previously approved multi‐phase 334 unit planned unit
development. The amendment consists of removing the master plan condition
requiring construction of a left hand turn lane at the southernmost entrance from
Spear Street onto South Jefferson Road, 1840 Spear Street:
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17 DECEMBER 2019
PAGE 6
Ms. Jeffers said the requirement was based on a traffic analysis from 2007. At that time there
was diversion due to construction on Route 7, causing traffic to divert to Spear Street. This
tripped the warrant for the left turn lane. That traffic study has now been updated. Ms. Jeffers
added that when they do Lot 11A (neighborhood commercial) a new traffic study may be
warranted. Lot 11A is scheduled to have a market and an office building. She added that the
school’s 200 proposed trips have been removed from the count.
Ms. Keene said the applicant has submitted 3 versions of the traffic study. The second version
shows the full build of Phases 1‐3. The third version reflects the connection to Midland Avenue.
Mr. Cota asked if this would be an amendment to the Master Plan. Ms. Keene wasn’t sure. Mr.
O’Brien said most importantly for them is to push the condition for a left turn lane out 6
months.
Ms. Boyd said she lives at the turn. In the past 7 years, there has been a dramatic increase in
traffic on Spear Street. Shelburne is adding a lot of new homes, some not built yet. She felt 2
left turn lanes are needed.
Mr. Mowat suggested delaying the decision until the development is completed so there can be
a correct measurement. He asked what happened to the left turn lane on Preserve Road. Mr.
O’Brien said it is still there.
Mr. Cota moved to close SD‐19‐29. Mr. Langan seconded. Motion passed unanimously.
9. Preliminary & Final Plat Application #SD‐19‐32 of Pizzagalli Properties, LLC, to
construct an approximately 2500 sq. ft. single story short order restaurant and retail
sales building on one acre and potentially construct traffic mitigation at Tilley Drive
and Hinesburg Road, 47 Tilley Drive:
Mr. Langan recused himself due to a potential conflict of interest.
Mr. Bouchard said the plan is the same as that seen at Sketch Plan Review. There are 30
parking spaces. They have submitted all the civil engineering and provided information in
response to the Fire Chief and some class 3 wetland impacts.
Mr. Bouchard showed an overhead of the site. They are replacing the building that was there
with a barn‐like building. It will serve Tilley Drive and employees in the development.
Staff comments were then reviewed as follows:
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 7
#1. Staff supports the front setback waiver. Mr. Bouchard said this was identified as a
gateway site to the city, and staff recommended moving the building forward.
#2. Approval needed for the shared driveway: Mr. Bouchard said it is actually a driveway
on the adjacent lot which will be used by the applicant. Ms. Keene suggested any approval
should not preclude the driveway being shared in the future.
#3. Mr. Cota noted this is a retail sales building with an embedded short order
restaurant use. Outdoor seating is OK. The applicant was OK with this.
#4. The applicant was OK with access from Tilley Drive.
#5. Mr. Bouchard noted they have submitted the report of the environmental engineer
and the State. They are impacting 1,811 sf of wetland impacts.
#6. Maximize the opportunity for open space: Staff was OK with this. Mr. Bouchard
showed a plan indicating the location of the previous barn. The new structure will be separated
from the major PUD by the wetland area.
#7. Mr. Bouchard said they have complied with the Fire Chief’s comments. He showed
traffic patterns for emergency vehicles and mountable curbs.
#8. DPW is requesting a 24‐foot road. Mr. Bouchard noted that across the road the 30‐
foot road narrows to 24 feet. This road has been designed to mimic that. He said they would be
happy to reduce the road to 24 feet if the Fire Chief is OK with it.
#9. They will maintain the stormwater system.
#10. All utilities will be underground. They are consulting with GMP now. Ms. Keene
said this can be a condition of approval.
#11. Update the value of landscaping to exclude what is on the applicant’s property.
Mr. Bouchard noted the neighbor wants 6 trees on their property. The applicant has requested
approval for ornamental grasses instead of counting those trees.
#12. Mr. Bouchard said they would be happy to put more trees (4) between Tilley Drive
and the parking lot, which is off their property.
#13‐15. The applicant was OK with requests regarding additional trees parking islands.
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 8
#16. Narrow the road to 24 feet.
#17. The applicant will remove all signs from the plan.
#18. Request for additional front yard landscaping on Hinesburg Rd. Mr. Bouchard said
the Rec Path is there, so it is tight. They also don’t want to hide a beautiful building.
#19. The applicant was OK with bike racks and storage.
Members agreed to close with the road at 24 feet.
Mr. Cota moved to close SD‐19‐32. Ms. Philibert seconded. Motion passed 6‐0.
10. Preliminary Plat Application #SD‐19‐34 of Tyler Maynard to subdivide an
approximately 67.3 acre parcel into three lots of 65.6 acres (Lot #1), 0.8 acres (Lot #2),
and 0.8 acres (Lot #3) for the purpose of constructing a single family home on each of
Lots 1, 2, and 3, conserving the unbuilt portion of Lot #1, and constructing a separate
private access road on the western portion of Lot #1, 47 Cheesefactory Road:
Mr. Langan was recused due to potential conflict of interest.
Mr. Maynard noted that Lot #1 will preserve over 60 acres of land. The project will also include
an access drive for a neighbor.
Staff comments were addressed as follows:
#1. Private road standards. The applicant was OK with this.
#2. Mr. Maynard advised that the maximum height for all the houses will be 28 feet.
Ms. Keene noted this needs to be shown in relation to pre‐construction grade.
#3. Conservation documents must be included with final plat. Mr. Bless said the Land
Trust is working on them. Ms. Keene noted that the easement has to be executed at least
concurrent with subdivision.
#4. Requires clarification of the “private access road” and how it results in greater
conservation. Mr. Ewing said that road is to access their property. It eliminates access off
Cheesefactory Lane and allows a house on Lot #1. Mr. Bless explained the complexity of the
efforts to conserve the land. Mr. Cota asked what happens to the approval of the original road.
Ms. Keene said there can be a condition that it has to be amended before they can build the
DEVELOPMENT REVIEW BOARD
17 DECEMBER 2019
PAGE 9
road now shown. She noted that this is a longer road with more wetland impact, but it may
conserve 45 acres in Shelburne. Mr. Bless said he assumes the previous road will be eliminated.
#5 and #6. The applicant was OK with these.
#7. The discrepancy of the wetland designation with the Lincoln Applied Geology Plan
must be explained. Mr. Maynard said Fitzgerald’s plan is correct. They will do a full plan in the
spring.
#8. Mr. Maynard said they will comply with erosion standards.
#9. The applicant will provide buffering/fencing to protect the wetland. Ms. Keene
noted the Ewing approval did not require additional buffering. She questioned whether that
also applies here. Members were OK without buffering because the area is so rural.
#10. Mr. Ewing said they will keep the electricity going from 133 Cheesefactory Lane.
#11. The road standards are met. The “private access road” will remain private.
#12‐14. The applicant was OK with these requirements.
#15. The DRB can waive the requirement to reduce the width of the lots to meet the
criteria because this is a PUD. Mr. Maynard said they can’t have the septic system closer to the
property line (25 feet is required). Mr. Bless said they also don’t want to lose more conserved
land. Members were OK with this.
#16. The additional homes, even those in Shelburne, need DRB approval. Mr. Bless said
they have no plans to add additional houses.
#17. Determination from the Agency of Natural Resources is needed at final plat.
#18‐19. The applicant will continue to work on the conservation options/plan at final
plat.
#20. The applicant will provide the final design of the stormwater system at final plat.
Mr. Solberg did not believe the private access road is a permitted use but should be conditional.
He didn’t feel conservation of land was a reason to break the rules. He was opposed to the
construction of that road as he wants the grassland to remain contiguous among lots. He felt
that was one of the objectives of the SEQ.
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17 DECEMBER 2019
PAGE 10
Mr. Ewing noted that without that road, everything changes for them. Mr. Cota felt that issue
should be discussed with staff.
Mr. Cota then moved to close SD‐19‐34. Ms. Philibert seconded. Motion passed 6‐0.
As there was no further business to come before the Board, the meeting was adjourned by
common consent at 10:45 p.m.
These minutes were approved by the Board on ______
DEVELOPMENT REVIEW BOARD 7 JANUARY 2020
The South Burlington Development Review Board held a regular meeting on Tuesday, 7
January 2020, at 7:00 p.m. in the Conference Room, City Hall, 575 Dorset Street.
MEMBERS PRESENT: M. Cota, Chair; B. Sullivan, M. Behr (via telephone), D. Philibert, J. Langan,
E. Portman
ALSO PRESENT: D. Hall, Administrative Officer; M. Keene, Development Review Planner; D.
Marshall, D. Kerwin, J. Larkin, S. McClellan, B. Shearer, T. Hess, j. Hodgson, D. Sherman, S.
McClellan, D. Grover, B. Nedde, J. Kirk, D. Kerwin, J. Baird, M. Dean, K. Easton, J. Findlay‐
Shiraras
1. Directions on emergency evacuation procedures from conference room:
Mr. Cota provided directions on emergency evacuation procedures.
2. Additions, deletions, or changes in order of agenda items:
No changes were made to the agenda.
3. Comments and questions from the public not related to the Agenda:
No issues were raised.
4. Announcements:
There were no announcements.
5. Final Plat Application #Sd‐19‐35 of Donald and Lois Kerwin to subdivide an existing 2
acre parcel developed with a single family home into two parcels of 1.2 acres (Lot #1)
and 0.8 acres (Lot #2) for the purpose of constructing a single family home on Lot #2,
1420 Hinesburg Road:
Mr. Marshall showed the existing home. He also indicated the line for the subdivision. He
noted that the plan that City Council approved the Interim Zoning Application was for a 4‐lot
subdivision, but at this time they are asking for only 2 lots because of the uncertainty of TDRs.
Staff comments were then addressed as follows:
1. 51,700 sq. ft. is the correct number.
DEVELOPMENT REVIEW BOARD
7 JANUARY 2020
Page 2
2. An updated chart was provided to staff. They have substituted the required
setback values with “N/A” and would like to consider this a subdivision
without a proposed home. Mr. Cota asked why this isn’t a simple subdivision
since there is no house being proposed for the second lot. Ms. Keene read
from the regulations that a PUD is required. She noted that the original
application showed a house on Lot. #2. This plan has removed that house.
Mr. Marshall noted that a PUD allows the Board to waive certain limitations
that would be appropriate for a large development instead of a small lot
having streets on both sides. He noted the Kerwins want to sell their home
and want to create the possibility of a home on the other lot when
subdivision occurs. Ms. Keene said they can do a 2‐lot subdivision with some
restrictions on Lot #2. This would be different from just a 2‐lot subdivision.
Mr. Marshall noted this is the first time they have ever been asked for
information on a single‐family home at the DRB. That is usually asked for
when they apply for a building permit. No home is currently being proposed
on the second lot. Ms. Keene said there is precedent for asking for specific
house information in a 2‐lot subdivision. Mr. Marshall said they have no
problem stipulating these things, but they want to demonstrate it when
there is an application for a building.
3. In the future, the building will have to comply with height restrictions.
4. Ms. Keene felt the proposal neither supports nor detracts from the
standards. Mr. Marshall said the standards are recommended, not required.
They will comply with what is required.
5. Addressed in #3.
6. Ms. Keene said the wastewater allocation has been received.
7. Mr. Marshall said the electrical service will come from Hinesburg Road.
8. The width/depth ratio is not met. Ms. Keene said this will have to be met or
have a waiver. Mr. Marshall said they prefer the latter. He cited the
challenges creating by the existing home. He also noted the applicant’s
desire to come back with the 4‐lot subdivision. Ms. Keene asked why they
don’t do that now. Mr. Marshall said they wanted this as “clean” as possible.
DEVELOPMENT REVIEW BOARD
7 JANUARY 2020
Page 3
Ms. Keene noted the regulations for TDRs have been revised to comply with
the Court decision.
Mr. Behr said he was hesitant to do this when it does not comply with what the
Council approved under Interim Zoning. There is a question as to whether the
Council would have signed off on a 2‐lot subdivision if they knew it didn’t meet
the width/depth ratio. Ms. Keene said that is not a criteria looked at under
Interim Zoning.
9. No house is planned.
10. Regarding the 20‐foot front yard setback, Mr. Marshall said there are 2
standards. The first imagines a sidewalk, and the house has to be within 25
feet of the back of the sidewalk (there is no sidewalk in this neighborhood).
The second says you can have stoops/porches, etc. inside the setback. The
challenge for them is if they apply the 25 feet, they would have a building on
the property with no ability for stoops, etc. Mr. Marshall showed the ditch
line (which will be reinforced for a culvert). It leaves limited room for a
sidewalk. They can set the building within 25 feet of the right‐of‐way line,
and they would be comfortable doing that. Ms. Keene said they could say
the front of the building (which would be stoop, porch, etc.) be within 5 feet
of the property line. Mr. Sullivan felt waiving the setback requirement makes
sense. Mr. Marshall said that would work for them.
11. They will later comply with the placement of a garage.
There was no public comment.
Ms. Keene noted comments regarding stormwater. Mr. Marshall said they have already made
those changes.
Mr. Cota moved to close SD‐19‐35. Ms. Philibert seconded. Motion passed 6‐0.
6. Master Plan sketch plan application #MP‐19‐01 of John Larkin, Inc., for an initial
master plan for an existing planned unit development consisting of 210 residential
units, a 60‐unit multi‐family building with 17,976 sq. ft. commercial space, a 20,000 sq.
ft. movie theater building (1000 seats), a 22,500 sq. ft. restaurant/medical office, a
3,500 sq. ft. restaurant with drive‐through services, a bank with drive‐through service
and a four‐story 47 unit residential building. The master plan consists of adding a 93‐
DEVELOPMENT REVIEW BOARD
7 JANUARY 2020
Page 4
room hotel, 134 units of multi‐family housing, 14,266 sq. ft. of mixed commercial uses
and an open space of passive recreation and dog park, Fayette Road:
Ms. Keene noted that a master plan is optional, and applicant is doing one to make things
easier in the future for them and for the City.
Mr. Larkin provided a brief “walk‐through” of the entire project for the benefit of new Board
members. He indicated the existing buildings including the strip mall with McDonald’s, the new
Larkin Terrace building, the movie theatre and recently purchased land which was added to the
PUD.
They are proposing a Marriott Inn which would have a pool, restaurant, surface and
underground parking. They have secured an egress from VTrans. Phase 3 and 4 will share a
large underground parking facility. It would be a mixed use development with fitness center,
restaurants, residential, etc. A pedestrian walkway will be terraced toward the lake with patios,
etc. Phase 5 will be a higher‐end residential building. An area of open space was indicated for
use by residents. It would include a dog run, paths, and a natural area. The hope is to
complete the 5 phases in 2030.
Mr. Larkin said the previously approved studio apartments will be completed before the hotel.
They are now trying to get the Williston Road project done first.
Staff notes were addressed as follows:
1. The applicant is OK with this.
2. Ms. Keene said the Board will have to consider the entire open spaces and
how they are accessed. The applicant was OK with this.
3. The existing buildings will strengthen the entire PUD so that all parts of the
PUD are interrelated.
4. Ms. Keene noted that Mr. McClellan has corrected the city’s map so there
are no zoning issues.
5. Regarding setback waivers, Mr. McClellan noted the road will one day be a
city street and they would want the same waivers for that road as for
Shelburne Road.
DEVELOPMENT REVIEW BOARD
7 JANUARY 2020
Page 5
Mr. Behr asked whether the public road goes out to Shelburne Rd. Mr.
McClellan said it does not. It goes straight to the south, to the next property.
The east‐west segment would remain private. Mr. McClellan said they would
also need a waiver for front setback coverage. The Larkin Terrace Building is
more than 30% front yard coverage.
6. The applicant will provide accurate calculations for each zoning district (e.g.,
area, number of units, etc.). Both C1Auto and C1‐R15 allow 15 units per
acre. Ms. Keene noted that typically you can’t move density from one zone
to another, but because the densities are the same, this may be possible in
this instance. Ms. Keene also noted a proposed amendment that will allow
density to be moved around as well as the possibility of allowing TDRs
outside of the Southeast Quadrant. Members were OK with allowing density
to shift between districts.
7. The applicant was OK with bringing any change in the collector road to the
DRB.
8. The applicant will identify the perimeter and size of the open space area at
the next review.
9. The applicant is requesting to use a portion of the landscape budget for
other amenities (e.g. benches). This was done for Larkin Terrace. Ms. Keene
said if it is in the Master Plan approval, the applicant won’t have to ask for
this at each stage. Members had no issue with this as long as the DRB gets to
see what is proposed and it is phased.
10. Ms. Keene noted the project will generate 542 trip ends with everything
built. But there is some uncertainty as to what could be built (e.g., art studio
or medical office?). The applicant wants to add a 70% contingency to the trip
budget. Mr. Grover noted that a lot of the 542 will be “building entering,”
with people walking from one building to another, and the actual vehicle
trips would be 268, with the 75% contingency added to that number. They
are concerned that different uses could have different trip generations. Mr.
Cota asked if there is a drawback to the 70%. Ms. Keene said there could be
too many lanes. The applicant said they don’t want to get there and just
want as little surface as possible.
11. The applicant is OK with this.
DEVELOPMENT REVIEW BOARD
7 JANUARY 2020
Page 6
12. Regarding elevations, the applicant noted the idea is to “step down” the
buildings as you go down the terraces. Buildings will all be 4‐story. This will
allow for views and will stay within the building codes.
13. The applicant is looking for a way to “lock in” a set of regulations to deal with
the possibility of changing regulations as the project proceeds which could
result in the loss of waivers, credits, etc.
14. They will show the limits of each phase.
15. Each phase will have communal elements.
Public Works comments were also addressed. Mr. McClellan said they have talked with Mr.
Rabidoux and explained how they could narrow the pedestrian crossing to address turning
radius issues. Mr. Rabidoux is OK with this. Mr. McClellan noted that the islands that appear to
be outside the parking lot are actually within the parking area.
Mr. Grover noted they’d like to be involved in the decision making for bike lanes on Fayette
Road because they’re interested in seeing on‐street parking retained.
Mr. Shearer said he supports the project 100% but is concerned with traffic. It is worse on
Fridays and terrible in the summer. Ms. Keene noted there will eventually be a connection to
the road at the Eagles Club. When the property to the south is developed, there will be a
requirement to connect there as well. Mr. Shearer noted he has been talking with the DMV
about changing the timing of the lights to address bottlenecks that prohibit people from getting
out of Holmes Road. He is particularly concerned with customers picking up cars are 5 p.m.
Mr. Hess noted a lot of jobs created by this development will be service jobs. He felt it would
be good to have some affordable housing so some of those employees won’t have to travel to
work.
7. Sketch Plan Application #SD‐19‐36 of John Larkin, Inc., to amend a planned unit
development consisting of 210 residential units, a 60‐unit multi‐family building with
17,976 sq. ft. commercial space, a 20,000 sq. ft. movie theater building (1000 seats), a
22,500 sq. ft. restaurant/medical office, a 3,500 sq. ft. restaurant with drive‐through
services, a bank with drive‐through service and a four‐story, 47‐unit residential
building. The amendment consists of constructing a 93‐room hotel, 1195 Shelburne
Rd.
DEVELOPMENT REVIEW BOARD
7 JANUARY 2020
Page 7
The applicant explained that the hotel will tie into Larkin Terrace for parking and circulation. It
will have the same elevation, façade and sidewalk as Larkin Terrace. A rendering was shown.
Staff comments were addressed as follows:
1. Members had no issue with waivers.
2. Staff suggests possibly connecting the 2‐way drive to the north to the parking
lot to the north. Mr. McClellan showed the area. He showed existing
connections and the route for entering the parking lot. Pavement will be
varied with pavers. Ms. Keene suggested talking to the Fire Chief as to how
he wants to access the building.
3. A traffic study will be provided at the next stage.
4. There will be a path for hotel guests to access the open space area.
Mr. McClellan noted that today the right‐of‐way for what is being called Reel Road is offset.
They are asking to align it properly. Members felt that makes sense.
There was no public comment.
8. Minutes:
No minutes were provided.
9. Other Business:
No other issues were raised.
As there was no further business to come before the Board, the meeting was adjourned by
common consent at 8:55 p.m.
These minutes were approved by the Board on ___.