Environmental Court rules city bylaw “unconstitutionally vague”

Following years of appearances before the development review board and an appeal from affected third parties, the Vermont Environmental Court handed down a decision on the Snyder Group Inc. planned unit development project on Spear Street known as Spear Meadows.

The verdict?

The city’s Transfer Development Rights bylaw is invalid as it does not comply with state statute, and it is “unconstitutionally vague,” the court ruled.

But in another part of the ruling, the court stated that if the developer chooses to bring a new plan before the development review board, it must do so with lowered density. The project proposed constructing 47 units, and the decision ruled that number down to 31 units, the base density for the project.

The project

For years, developer Chris Snyder and the project team have presented several versions of the project to the board regarding what development could take place on 26.15 acres in the Southeast Quadrant Neighborhood Residential Zoning District (SEQ-NR) off of Spear Street – adjacent to Vale Drive, Pinnacle Drive, Meadowood, and across from Stonehedge Drive.

Located at 1320, 1340, and 1350 Spear Street, the plan has historically shown higher density in a variety of housing types, such as single-family, triplexes, and duplexes. The plan has also dealt with the use of an accessible public park, future connections like Vale Drive, development of public and private roads, traffic, block lengths, sidewalks/driveways, orientation of units and garages, walkability, and discussion of dead ends. The application started with developer Eric Farrell before being handed to Chris Snyder.

Abutting residents have taken issue with several project elements, but density in particular has been identified as a major concern. The base density on the parcel is 31 units. The maximum amount, in accordance with the South Burlington Land Development Regulations (LDRs) and determined by the Neighborhood Residential sub-district under the Transfer Development Rights (TDR) program, is 103 units.

Snyder sought to increase the project’s density from the applicable maximum density limit for the zoning district from 31 units to 48 (47 new and one existing unit) by use of 17 TDRs, resulting in 1.85 units per acre. The development team noted that the project area is in a receiving parcel and the sending parcel would be the Bread and Butter Farm (formally known as the Leduc Farm) on Leduc Road.

The TDR program, which began in 2010, is a planning process used to control land use and ensure effective urban development and land conservation. To conserve some of the city’s open spaces, this program gives certain landowners the right to sell (transfer) their development rights (“sending districts”) to developers to work within “receiving districts,” or districts more appropriately designed for higher density development. This program is currently only permissible within the Southeast Quadrant. A TDR Interim Zoning Committee is currently assessing how TDRs could be used in the future. A TDR Expansion Subcommittee was also formed in 2012 exploring implications of expanding the TDR Program city-wide, but this was not implemented.

Since the TDR Program’s introduction, Daniel A. Seff, an attorney and South Burlington resident representing a group of residents in the Spear Meadows case, has urged the city to have the bylaw repealed and enact a new one that could withstand a constitutional challenge. He noted that there are no criteria for how much density the development review board can approve from 1.2 to 4 per acre. To the development review board, Seff has urged the board to not grant TDRs and extend beyond the zoning district’s baseline density for this reason.

Past plans for Spear Meadows have shown as many as over 90 units for the parcel, but after consistent pushback from abutting residents, Snyder whittled down the numbers. The board approved the development of 26.15 acres with two single family dwellings by razing one of the single family dwellings and constructing 18 single family dwellings, three three-unit multi-family dwellings and 10 two-family dwellings – resulting in 47 units to be constructed.

Another point of contention was Snyder’s proposal for a 320-foot private dead end street serving eight units off of Vale Drive. The road is in excess of 200-feet, which makes it not compliant under the city’s Land Development Regulations, Seff has argued.

However, the Land Development Regulations also state that the city should plan for future connectivity. The board has reasoned that the dead end, which falls short of connecting to resident Bill Gilbert’s property line, could be planned for future connectivity and serve as a temporary dead end in the interim.

The board closed the final plat application on June 20, 2017 and approved it on Aug. 1, 2017.

The appeal and decision

Property owners – seven individuals and the Pinnacle at Spear Homeowners Association – appealed the decision to the court and were represented by Seff. They asked the Environmental Court to assess whether the city’s TDR Bylaw is unconstitutional, enforceable, and if the proposed 320-foot dead-end street should be rejected and prohibited.

On the other side, Snyder’s counsel argued that the appellants lacked standing to raise their statutory and constitutional challenges to the TDR Bylaw. After vetting physical or environmental impacts that qualify the appellants as interested personas as well as statutory and constitutional arguments, it was ruled that the appellants could appeal the development review board’s decision to the court and that they had standing to raise all of their arguments.

After thorough dissection of the appeal, the court made the following conclusion 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.”

Therefore, the judgement was in favor of the appellants, the residents, and against Snyder Group Inc., thus voiding the development review board’s decision.

“Last week’s court decision presents an opportunity for the city to create a new TDR policy that, in addition to complying with the law, also makes good sense from a land-use planning perspective,” Seff told The Other Paper this week. “The 2006 TDR Bylaw simply shifted residential density from one remote open space with no pedestrian access to public transportation, schools, stores or services to a different remote open space with no pedestrian access to public transportation, schools, stores or services.”

He added, “Under the 2006 TDR Bylaw, people living in TDR ‘receiving’ areas would need to get in a car to go anywhere. The ill-conceived policy aspects of the 2006 TDR Bylaw played no role in the court’s decision to invalidate the bylaw, but hopefully the court’s February 28 ruling will inspire a new and more sensible TDR policy going forward.”

South Burlington Director of Planning and Zoning Paul Conner outlined next steps he sees as a result of the decision.

“We’ve read the Environmental Court’s decision and are communicating with the city’s boards and committees beginning this week,” he said. “The next step will be to see whether any of the interested parties appeal the decision to the Supreme Court. Once we know that, we’ll have a better understanding of the immediate impacts, if any, of the decision. Separately, in the next few weeks the city’s governing bodies will begin to examine what changes to the Land Development Regulations would be required to bring the city’s TDR program in compliance with state enabling laws, and how this relates to the current work of the city’s TDR Committee and its citywide evaluation of the program.”

Snyder could not be reached for comment.