The push continues for Dorset Meadows, a proposed 151-dwelling planned unit development in the Southeast Quadrant, and 15 residents of the area and their attorney are pushing back.
The project team returned to the Development Review Board for round two of master plan and preliminary plat review on Jan. 29. As with previous meetings and public hearings, several residents attended in opposition and have outlined their concerns about the adverse effects density would have on wildlife, safety, traffic, and change of character of the area. There has also been an argument about how the proposed project allegedly violates the Land Development Regulations and alignment with the city’s Comprehensive Plan.
The project proposes to develop on two lots at the corner of Nowland Farm Drive and Dorset Street with a mix of single-family homes, two-family homes, multi-family homes, and one existing family home. The plan also proposes to conserve 15.8 acres on-site and approximately 55 acres off-site through the purchase of Transfer Development Rights (TDRs).
The use of TDRs is a mechanism in which certain areas of the Southeast Quadrant intended to be open in perpetuity (“sending districts”) have transfer development rights to send to other districts within the Southeast Quadrant that are planned for denser development (“receiving districts”). The base density in the Southeast Quadrant is 1.2 units per acre. Residents argue that use of the mechanism is at the board’s discretion and should not be used, while the developer and the developer’s legal counsel cite that the purpose of TDRs is to conserve contiguous open spaces.
The project has already gone through revisions, including a decrease in proposed dwelling units and the proposal to relocate a boundary line between the Southeast Quadrant - Neighborhood Residential District and the Southeast Quadrant - Natural Resource Protection district 50 feet to the west of the project, which is allowable under Section 15.03C of the Land Development Regulations. The proposed trade-off is to include conserved lands adjacent to the Natural Resource Protection district within the Southeast Quadrant -Neighborhood Residential District.
At the Dec. 18, 2018 hearing, attorney Daniel Seff – on behalf of his clients identified collectively as “Save Open Spaces South Burlington” – presented an argument to the board referencing specific areas of the Land Development Regulations and Comprehensive Plan that are in contradiction to what the project proposes.
In the introduction, Seff referenced the provisions for planned unit developments, and that they must “be consistent with the goals and objectives of the Comprehensive Plan for the affected district(s).”
Seff also presented the proposed Dorset Meadows Planned Unit Development overlaid on Map Seven of the Comprehensive Plan. Map Seven identifies primary conservation areas that, according to the Comprehensive Plan, should be conserved. Seff explained that a large portion of the proposed project sits on a “Riparian Connectivity” area. The argument concludes that the project is therefore inconsistent with the goals and objectives in the Comprehensive Plan.
Legal battle brings up potential precedent
Right out of the gate on Jan. 29, Robert Rushford, attorney at Gravel & Shea representing the applicant, made a case against what was brought up at the last hearing.
“I would ask the board to be careful not to take a general master plan provision to have a project be consistent with the Comprehensive Plan and turn that into giving the Comprehensive Plan every word in the Comprehensive Plan the effect of being an ordinance – because it’s not,” Rushford said.
He referenced two cases struck down by the Vermont Supreme Court that used, “both aspirational or nonregulatory language and vague provisions of a municipal plan,” he wrote in a memo. The first was the Molgano case in 1994, which involved the denial of a permit based on the provisions in “broad, nonregulatory language,” in a municipal plan. The Supreme Court overturned the decision, stating that “only those provisions incorporated in the (city) bylaws are legally enforceable.”
“The Molgano case makes it clear that a municipality does not have to adopt everything that’s in a Comprehensive Plan and that partial adoption of a Comprehensive Plan in a zoning ordinance is fairly typical,” Rushford added.
The second example he shared was the 2008 JAM Golf, LLC Vermont Supreme Court decision, which struck down a South Burlington zoning bylaw protecting an array of natural resource features including wildlife habitat on the basis that the bylaw did not specify sufficient conditions and safeguards to guide applicants and decision makers. The decision paved the way for an additional 10 building lots to be permitted in a woodland area at the Vermont National Country Club on Dorset Street, reversing an Environmental Court decision.
“They said, “You can’t reconcile these two. It’s ambiguous, and therefore they cannot be enforced to restrict,” Rushford said.
In response to the aforementioned Map Seven regarding the riparian connectivity area, the board must consider the source data, said Rushford and project engineer Paul O’Leary. The map, which is incorporated into the Comprehensive Plan, is sourced from the 2014 Open Space report.
“There’s a disclaimer on the bottom of the map that says that the map’s for reference use only –that the city doesn’t guarantee the accuracy of the map,” O’Leary said.
The data used for the map, originally on the Open Space report, came from the BioFinder mapping tool from the Agency of Natural Resources.
“The map should only be used to gain a general understanding of components likely to be in play. That’s the source of the data,” O’Leary continued. “You’ve got to field-verify all of the data.”
Field verification was conducted by Gilman Briggs Environmental, the State of Vermont and the Army Corps of Engineers.
Eventually, Seff was provided the opportunity to provide counterarguments.
“In the JAM Golf case, the Vermont Supreme Court struck down a land development regulation that wasn’t specific enough as to what natural resources were going to be protected,” Seff said. “The way the city responded to that was to create Maps Seven and Eight so that there would be no dispute, and to say, ‘these are the types of conservation areas and natural resources that we want to protect,’ and you can see them on the map.”
Regarding Transfer Development Rights, Seff explained that the “bylaw does not authorize development in protected conservation areas.”
The suggestion that because part of the Dorset Meadows site is a receiving district under the Transfer Development Rights bylaw means that there can be building in a protected conservation zone is, to be polite, prosperous.”
“If you have a parcel in a receiving zone with protected features on it, you can only develop around those protected features; you can’t develop in them. So, the whole argument that because it’s a TDR open receiving zone that it’s therefore open to development is specious.”
“We don’t disagree that there are resources on this site,” said Mike Buscher, a landscape architect at TJ Boyle Associates. “Not only have we delineated the wetlands, we’ve delineated the stream corridor and the buffer, the riparian corridor, is within the boundaries of wetlands. That’s the reality of it.”
After meeting with a representative of the River Corridor and Floodplain Protection Program in July in assessing a perennial stream, it was determined that a 50-foot riparian buffer would be included within the wetland buffer for the project.
“We feel like we’re meeting all of these requirements,” Buscher said.
The Dorset Meadows master plan and preliminary plat applications were continued to March 5 at city hall, 7 p.m. Comments submitted to Development Review Planner Marla Keene, firstname.lastname@example.org, will be reviewed by the board.