Thursday July 27, 2017
The Development Review Board’s unanimous approval to close two final plat applications for subdivision in the Southeast Quadrant has set terms of a settlement agreement between the City of South Burlington and JAM Golf, LLC into motion.
One application was for the subdivision of Wheeler Nature Park into three lots—of which two parcels totaling 7.25 acres will be swapped to JAM Golf. The other was for the subdivision of the Vermont National Golf Club golf course land—21.88 acres of land along the east side of the golf course bordering Butler Farms and Oak Creek Village will be exchanged to the city and serve as a north-south wildlife corridor.
Another term of the agreement was to create a third party conservation easement to protect Wheeler Nature Park in perpetuity—in other words, forever, or for an indefinite period. A conservation easement would mean a restriction placed on the property to protect its associated resources, and the land owner would voluntarily donate or sell certain rights associated with the property. A private organization or public agency would then agree to bind and enforce the landowner’s promise not to exercise those rights.
By many, the Wheeler property is considered a South Burlington treasure. Located southeast of the intersection of Dorset and Swift streets, the 119 acre area is home to the historic Wheeler Homestead, community gardens, various non-profit activities, walking trails, forest, grasslands, shrublands, wetlands, and, of course, incredible scenic views. The city purchased the property in 1992.
To protect the land, city council formed a conservation easement task force and hired a consultant over a year ago to devise a final report for recommended procedures. The framework is complete and was presented last summer to the public, which leads to the next question: when will steps toward securing an easement take place?
In 2003, the City of South Burlington entered litigation with Highlands Development/ J. A. McDonald (JAM Golf) after the Development Review Board (DRB) denied portions of an amended master plan to build out residential neighborhoods and the Vermont National Country Club golf course on more than 400 acres of land. This triggered concern around the future of Wheeler Nature Park, its cherished amenities and views, the wildlife that lives in it, and the resources it holds.
In 2011, residents turned out at the polls to vote on whether a proposed land swap should be in the settlement agreement. Seventy percent of citizens who voted were in favor of authorizing city council to grant a portion of city-owned Wheeler Nature Park land to JAM Golf in exchange for golf course land to be absorbed by Wheeler Nature Park. A third party conservation easement on the entire park would also need to be secured. There have been a few amendments made and approved by city council since then.
Although the vote was not legally binding and only considered a “good faith” gesture on the part of the city (as explained by former City Attorney Jim Barlow at a December 15, 2015 council meeting), city council formed the Wheeler Nature Conservation Easement Task Force. The task force was created as an ad hoc group with representation from the South Burlington Land Trust, Recreation and Leisure Arts Committee, Bike and Pedestrian Committee, and the Natural Resources Committee.
With the help of SE Group and public feedback, the eight member committee defined allowable and disallowable uses to address conservation and public access needs, and executed it all in a final report with the following recommendations:
• Recognize that the diverse areas of Wheeler Nature Park—the Natural Area and the Homestead Area—have distinct characteristics and uses and should be managed and protected accordingly.
• The natural qualities of the park and the nature-based passive recreation it provides should be paramount for Wheeler Nature Park moving forward.
• An open, transparent, and thorough public process is needed to effectively manage Wheeler Nature Park for the benefit of all city residents.
• Incorporate the “leg” of Wheeler Nature Park into the conservation easement and management plan for the remainder of the Park.
• A local conservation partner is preferred to a more national organization (Land Trust and Vermont Housing and Conservation Board are listed as potential partners).
As for the land being swapped to JAM Golf, a new zoning district has also been created by a separate working group to resolve future zoning hiccups, as well. This would allow for planned development with housing types ranging from single family homes up to four dwelling units.
“As part of the settlement agreement, the city created a small working group of city folks and folks associated with JAM Golf to create a new zoning district that is similar to the current SEQ Neighborhood Residential District,” South Burlington Director of Planning and Zoning Paul Conner explained to the DRB. “It’s slightly different because the densities agreed upon are slightly different, and both parties agreed to establish some sensitives to the conditions there.”
At the most recent DRB meeting, David Marshall of Civil Engineering Associates, the civil engineer working with JAM Golf, also outlined some of the latest changes to be made with the subdivision.
In addition to creating a north-south corridor for wildlife, the swap, “also creates improved buffering that will be controlled by the city and between the residences [Oak Creek Village and Butler Farms],” he said.
Moreover, a small portion of the existing recreation path would be relocated about 50 feet to the east out of the golf course property and onto the subdivided land so that the city can control it.
A 20 foot storm drainage easement will remain to serve the City of South Burlington, and a 2.4 acre easement will remain on Parcel F1 (the newly subdivided land), which includes a stormwater pond and a storm drainage easement that will serve JAM Golf, LLC.
Even though the DRB has reviewed and made decisions on subdivision, the land exchange and other obligations must be completed to fulfill the terms of the settlement before moving forward.
Additionally, there are applications before the Act 250 District Commission. According to Conner, 3.5 acres of the 7.25 acres being swapped to JAM Golf consists of prime/statewide agricultural soils that will need to be offset. Under state law, loss of this resource will need to be mitigated at a ratio of 2:1 (seven acres). The settlement would allow the mitigation to take place on another portion of the property. An Act 250 permit requirement of those seven acres will keep the land open for potential future agricultural use.
Therefore, also in the agreement, JAM Golf/Highlands development will pay the city $7,861 in consideration of the city’s agreement to allow a portion of the Wheeler property to be used as mitigation for agricultural soil impacts.
Once these applications are cleared by Act 250, the city and JAM Golf, LLC will need to complete the land exchange. The city council will also need to officially adopt the Wheeler Nature Conservation Task Force Final Report.
The completed report was sent to city council via email in January 2017 by the task force chair, Donna Leban, but in order for it to be officially adopted, the task force will need to present the report and formally hand it over to council. According to Conner, the city and JAM Golf are still in litigation; CouncilChair, Helen Riehle, would like the litigation to be complete before going forth with the presentation.
When that is all said and done, what is the process of procuring a conservation easement?
There are typically at least four parties for every conservation easement transaction: the easement holder (land trust or conservation partner), the easement holder’s attorney, the landowner (City of South Burlington), and the landowner’s attorney. The city would need to clearly communicate its interest in conserving the property, the easement holder would need to express its mission and guiding principles regarding land conservation, and the attorneys would take all the information and draft it in accordance to state and federal laws applicable to conservation easements.
In the final report, the task force provides a conservation easement process chart for Wheeler Nature Park:
Conservation framework: the report provides a strategic conservation document outlining the city’ interest in the conservation easement as well as potential conservation partners. Council must review and finalize the city’s interests around the primary elements of a conservation easement.
• Choosing a partner
• Negotiating terms
• Drafting the easement
• Baseline assessment: the attorneys draft a baseline documentation report usually concurrently with the easement. This documents existing conditions and conservation values to be protected by the easement
• Formalizing the agreement
• Monitoring and enforcement
Furthermore, the task force recommended updating the Wheeler Nature Park Management Plan and to consider developing a Historic and Cultural Resource Task Force to work on protecting the historic Wheeler building.
The wheels can’t turn until the city is officially out of litigation and council receives the final report. The buzz around Wheeler, however, has never ceased. Jennifer Kochman, a member of the task force and chair of the Recreation and Parks Committee, remembers discussions of locating the police station and more recently, the library, at Wheeler.
“I hear from many people how much they enjoy the Wheeler Park as it is, and how much they appreciate the upgrades made possible by the half cent Conservation Fund. These thoughts were in the back of my mind as we worked on the framework,” she said.
Many residents echo these thoughts, hoping that the conservation easement will move forward and that Wheeler will be maintained, as is, in perpetuity.
For now, it’s a waiting game.
SOURCE: Miranda Jonswold, Correspondent