Despite warnings of it being a risk, plans for the controversial Dorset Meadows project will forge forward in the development process. The developer still intends to make use of Transfer Development Rights despite a recent Environmental Court decision that recognized flaws in the city’s bylaws.
Dorset Meadows history
The Dorset Meadows development was first introduced over a year ago as a 151-dwelling planned unit development on two lots at the corner of Nowland Farm Road and Dorset Street. The developer, Dorset Meadows LLC, proposes a mix of single-family homes, two-family homes, multi-family homes and one existing family home.
The developer also wishes to conserve 15.8 acres on-site and approximately 56 acres on-site through the purchase of 67.4 Transfer Development Rights (TDRs), a mechanism which allows a developer to purchase the development rights of another parcel and transfer it to a parcel that is planned for denser development – leaving the former parcel open in perpetuity.
TDRs have only been used within the southeast quadrant of the city, but an Interim Zoning TDR subcommittee is exploring potential options.
From its early stages, a consistent group of residents have been vehemently against the project, largely citing the need to conserve the land, protect wildlife and maintain the neighborhood character. There have been multiple recitals of lines in the Comprehensive Plan and Land Development Regulations that opponents argue are in contradiction to what is being proposed. Daniel Seff, attorney at MSK attorneys, has been representing a group of residents.
On Jan. 29, the development review board heard a preliminary plat and master plan. In February, the Environmental Court issued a judgment order on another project, Spear Meadows, which also requested use of TDRs. The judgment order concluded that “the TDR Bylaw is invalid, and it does not comply with 24. V.S.A. SS 4423,” and that “the TDR Bylaw is unconstitutionally vague.”
The developer, Spear Meadows LLC, has since appealed to the Vermont Supreme Court and may proceed at risk in presenting the project to the board for approval. If it is approved with TDRs, the use of TDRs may be overturned in court.
In light of this, in April, the Dorset Meadows team returned to the board and requested to change the phasing portion of the master plan that would maintain the requested density but leave the fifth and final phase as the units required for TDRs.
The project team has since abandoned that phasing proposal and elected to revert to the original plan presented in January with use of TDRs.
In addition to keeping an eye on the TDR developments, Seff filed an appeal on behalf of his clients regarding the board’s decision that applications MP-18-01 and SD 18-29 were complete on Sept. 26, 2018. The Environmental Court issued a judgment order on March 19 dismissing the appeal. Seff appealed the decision to the Supreme Court, which handed down a decision earlier this month that the appeal was “premature.”
With TDRs back on the table, the board heard from a handful of members of the public at the meeting last week.
Darrilyn Peters of Old Schoolhouse Road came forward and recalled when she first spoke to the board at the first Dorset Meadows hearing. She had asked about the role and purview of the board.
“You made explicitly clear that the role of the DRB is to enforce the rules,” she stated. “If you’re enforcing the rules, why are you entertaining a proposal that has TDRs because South Burlington doesn’t have TDRs right now? They were declared unconstitutional. I understand that’s under review, but why not wait and hear the result of that? It’s under appeal. Why would you entertain something that is blatantly against the rules when you were so clear with me that you couldn’t do that. I’m just mystified.”
Board member Frank Kochman agreed with Peters in that “the developer ought to consider what you are saying,” but that it was the board’s decision on how to proceed, and that decision is to follow the city’s regulations.
“It’s open to question whether we even have the discretion not to follow the regulations while the matter’s pending review. I realize it doesn’t feel gut-satisfying to hear that but I think that’s the legal situation and I think the premise in which the board is acting.”
Resident Claudia Miller approached the board next and cited the city’s Land Development Regulations: “‘...the existing natural resources on each site shall be protected through the development plan, including conservation areas shown In the Comprehensive Plan,’” she said. “I don’t understand why the DRB or the city staff don’t follow the rules that are put in place for this city.”
Ronald Schmucker stood up after Miller and declared that he had been a resident of 340 Dorset Heights since 1969. He said he was told years ago by a former city manager that the Southeast Quadrant would be used for large lot development only.
“I’ve got to tell you, it’s very disappointing to find a constant erosion of those land use promises that were made to us in the beginning,” he said. “Now that large lot development has gotten smaller over the years and has gotten more variety in it and definition in it … but it’s very disappointing to make a commitment to live some place because it’s being used for large lot and agricultural development and find that it’s constantly being eroded. You are sitting here listening now to a project that is the ultimate example of erosion.”
Rosanne Greco of Four Sisters Road briefly explained that there were several city-commissioned reports and studies highlighting the area as a primary natural community.
“We have regulations, we have done studies, we have used taxpayer dollars to prepare these reports. They all say the same thing: This is primary land that should be off limits to development. So, I encourage you to follow our city documents,” she said.
Seff, on behalf of his clients, claimed before the board that, “The city is bound by the Environmental Court decision, unless it’s reversed by the Vermont Supreme Court. I don’t believe, with the utmost respect, that this board has the power to grant an application with TDRs when there are no such thing as TDRs in the city. That would be what’s called ‘ultra vires,’ which just basically means, in English, the board acting beyond its power.”
“Why take a chance and render a decision that includes TDRs when there are no TDRs and just gives the neighbors an appealable issue which is that the board acted out of its power by using a bylaw that doesn’t exist?”
Seff also referenced “Map 7” in the city’s Comprehensive Plan as the “elephant in the room.” Map 7 identifies primary conservation areas that, according to the Comprehensive Plan, should be conserved. A large portion of the proposed project sits on a “Riparian Connectivity” area. The planned unit development section of the Land Development Regulations reads that it must “be consistent with the goals and objectives of the Comprehensive Plan for the affected district(s).”
Paul O’Leary, principal of O’Leary Burke Associates and Dorset Meadows’ project manager, has mentioned the disclaimer on the map that mentions it is for reference-use only. The data used from the map, originally in the Open Space report, came from the BioFinder mapping tool from the Agency of Natural Resources. The project team field-verified all the data, which was conducted by Gilman Briggs Environmental, the state of Vermont and the Army Corps of Engineers.
“To me, we need to redraw Map 7A every time you have a development,” said Chair Bill Miller. Miller stepped down as chair for this application, and vice chair, Matt Cota, has chaired the past couple of hearings.
“Map 7 is a 30,000-foot view, and we rely on field mapping for developments when we talk about primary conservation areas or wetlands. I don’t know how you would buy a home without relying on field-mapping because you can’t see the lot lines. I think we explained to the developer that there’s a significant risk given the issues surrounding TDRs and given the issues brought up by the very-able attorney Mr. Seff, but I think it’s clear we need to close preliminary plat,” Cota said.
With that, the board voted 5-0 to close the master plan and preliminary plat applications. A decision to move the application to final plat has not yet been made. Kochman, Cota, Miller and Jennifer Smith were present for the vote, Mark Behr voted via phone conference, Brian Sullivan was not present, however he and John Wilking have both recused themselves due to a conflict of interest.