Council Votes Down June 17th Interim Zoning By-Law

The South Burlington City Council has approved an Interim Zoning bylaw following a public hearing on the issue, but included land that will be exempt from the pause on development, including the recently conserved Auclair property.

The council voted 4-1 to approve the temporary halt on land development with some amendments, with Councilor Tom Chittenden dissenting.

The council heard three hours of input from residents and developers alike at the Nov. 13 public hearing at city hall attended by roughly 70 people. In the end, the council approved the Interim Zoning bylaw with language to be clarified by city attorneys that would exempt some property from a citywide halt on development for at least at nine months, with the possibility of extending the interim zoning bylaw in three month increments beyond that, up to the maximum of two years.

The property that is exempt from the halt on new construction includes: land within the Transit Overlay District, the Meadowlands Industrial Park, the Ethan Allen Industrial Park, the airport, Shelburne Road, and the Auclair property in the Southeast Quadrant. The council also added three small areas just outside the Transit Overlay District, including a small carveout of property belonging to the O’Brien family.

The council also approved an amendment to the definition of “principal buildings” contained in the original Interim Zoning bylaw language. The definition now excludes “structures that are part of an approval by the Development Review Board.” That amendment came after concerns were raised by developers and property owners who already have DRB approval to build but would be unable to once Interim Zoning went into effect.

It should be noted that all of the amended language approved by the council on Nov. 13 is pending finalization by city attorneys. City Manager Kevin Dorn said that as of Monday, that language has not yet been finalized. That said, the Interim Zoning bylaw is now officially in effect until at least July 2019.

Having interim zoning bylaws in place will not affect current plans for development that have already come before the Development Review Board and received plat approval, such as the proposed Dorset Meadows project, which proposes a 164-unit planned unit development on 72 acres in the city’s Southeast Quadrant south of Nowland Farm Drive off Dorset Street. This is the heart of the city’s Southeast Quadrant, which features open fields, views of the Green Mountains, and agricultural land.

It was the location and size of the Dorset Meadows project, unveiled at a July 26 Development Review Board meeting, that alarmed many residents and underlined for some a disconnect between the city’s Comprehensive Plan and Land Development Regulations. The Dorset Meadows project is in compliance with both. The public outcry led to the council considering Interim Zoning, to the dismay of developers and other landowners who want to develop their property.

The goal of the Interim Zoning bylaw is to give the Planning Commission time to finish an ongoing update of the Planned Unit Development, or subdivision, regulations. The Planning Commission will also review the Transfer Development Rights program, a kind of “Cap and Trade” program that allows a developer to buy the development rights of another parcel and transfer it to a parcel that is planned for denser development, thus leaving the former parcel open in perpetuity.

The final piece of the Interim Zoning bylaw is a cost-benefit analysis to gauge the costs and benefits of developing the remaining open land in the city.

The results of those studies will be applied to an update of the city’s Comprehensive Plan.

The Auclair Exemption

The comments of one particular resident at the public hearing last week led the council to include the Auclair property on the list of areas exempt from the temporary halt on development in the city

Jen Morway is a member of the Auclair family. She approached the council at the public hearing to say she believed the Interim Zoning bylaw would jeopardize her family’s ability to develop their own 15-acre parcel within the Auclair land conservation agreement.

“We just went through a pretty long process to try and conserve the land in South Burlington,” Morway said. “We could have sold it to a developer. We didn’t because we love the property and were able to work something out to conserve it. With that being said, your interim zoning might mess that up. That’s not fair.”

Morway went on to say that as part of the Auclair land conservation agreement, the family secured 15 acres

The Auclair lands comprise the largest piece of conserved land the city has ever secured, 375 acres owned by the Auclair family. The multi-party agreement included the city government, Vermont Land Trust, Dirt Capital Partners, and Bread and Butter Farm. The deal, which closed on Oct. 11, conserves three parcels of Auclair-owned land near the intersection of Hinesburg Road and Cheesefactory Road. The goal of the deal is to make the land available for farming, and avoid development that would strain city services.

The entire parcel contains land in South Burlington and borders Shelburne and Williston.

The city paid $605,967 out of its Open Space Fund toward the purchase, leaving $61,981 in the fund. The five-year agreement includes a guaranteed option to conserve what is currently valued at approximately 35 percent of the total development potential on the property with no fewer than 40 acres on the lot at the time the option is exercised. The city would work to secure the entirety of the property with agricultural and perpetual conservation easements designed to maintain the forest block on the westerly side of the lot, provide a future public parking area for access, obtain and provide public trail access across Lot A to Lot B and across Lot B to the city-owned “Scott” parcel, and maintain a vegetative buffer along Muddy Brook.

Morway told the council at the hearing that by implementing the short-term halt to development in the Southeast Quadrant, the city is jeopardizing her family’s right to build on their own land.

“We continue to hold on to property so we can personally, our family, can build later on,” Morway told the council, “and we did that so we could conserve the rest of the land in order to make it fair with the developers that were coming through, and now, who knows when that will occur. It’s almost like by agreeing to conserve part of it, now we’re told the rest we might not be able to do… and I find that unfair, personally.”

Morway said that although the family’s 15 acres is zoned for up to 60 dwellings under the current Land Development Regulations, that kind of development is not in the family’s plans.

“We would never put the 60 units on it that it can have,” Morway said. “We just would never do that, and I think the proof in the pudding is that we just sold it for conservation, or with the hopes to conserve, but we don’t even know if we can put a house on it.”

Councilor Chittenden added another wrinkle to the issue, saying that he had been contacted by a number of concerned landowners with plans to develop their own parcels and with concerns about the Auclair land agreement.

One of the parties to the agreement, Dirt Capital Partners, has a five-year option within the agreement to give the organization time to secure funding from various partners to complete the conservation of the property.

“Dirt Capital’s investment up front is a short-term action to allow these funds to be sought and applied to the full conservation,” City Director of Planning and Zoning Paul Conner said of the agreement last month. “That’s an important piece of this puzzle and why Dirt Capital is involved. They were able to provide the funds necessary in the short term to acquire the properties from the Auclair family, understanding that conservation funds from state and federal partners is typically programmed out some time into the future (sometimes several years). And so part of Dirt Capital’s mission is to be able to provide the short-term funds needed in a faster time frame when a property goes up for sale.”

Chittenden’s point at the Nov. 13 public hearing was that a clause in the Auclair land agreement states that the city will not make any changes to land use regulations during the five-year option term.

“If we adjust the Land Development Rights, it could, it could affect different agreements that already exist between the city,” Chittenden said, “especially regarding this Auclair property, which means we might not have the option to conserve the property if the grant money is not raised.”

In its motion prior to approving the Interim Zoning bylaw language, the council approved an amendment to the list of lands exempted from the halt to development to include “all of the properties of the Auclair lands.” That motion passed, 5-0.

SOURCE: Lee Kahrs, The Other Paper

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