For the first time since the Environmental Court ruled the city’s Transfer Development Rights bylaw were inadequate, the planning commission is considering proposed amendments to the regulations. 

The use of Transfer Development Rights (TDRs) is 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 are currently only permitted within the Southeast Quadrant, which critics say contradict the Southeast Quadrant’s purpose in the Land Development Regulations to encourage “open space preservation, scenic view and natural resource protection, wildlife habitat preservation, continued agriculture, and well-planned residential use.” It also brings to light recent project proposals such as Dorset Meadows, a proposed 151-dwellling unit planned unit development on nearly 56 acres at the corner of Nowland Farm Road and Dorset Street. Opponents are concerned about conservation and effects on wildlife, among other issues. Dorset Meadows is requesting 67.4 TDR units. 

A TDR subcommittee is evaluating options under Interim Zoning, a bylaw passed in January that put a hold on all new development applications in the city for at least nine months in order to evaluate and update city land use regulations. 

The draft of amendments presented by deputy city attorney Amanda Lafferty at last week’s planning commission meeting is in response to a Feb. 28 Vermont Environmental Court decision. The court ruled that the city’s TDR bylaw is “unconstitutionally vague” and not in compliance with state law’s “transfer of development rights” bylaw section under Title 24: Municipal and County Government. The decision came down on the proposed Spear Meadows project off of Spear Street, which requested construction of 47 units on 26.15 acres with the help of 17 TDR units. The court ruled the project size down to a base density of 31 units.

The court ruled that the city’s TDR bylaw did not properly define the quantity of development rights that must be secured in order for TDRs to be used. The court also ruled that there is no guidance regarding what the DRB should consider when approving all or a portion of development rights.

The city council requested on March 18 that the TDR provisions be amended to correct the issues in the “Definitions” and “Southeast Quadrant” section of the Land Development Regulations. The amendments would be to only correct those deficiencies and not be a change in policy, as the long-term plans for the use of TDRs are being vetted by the TDR subcommittee.

Lafferty explained that Section 9.05 of the Land Development Regulations under Residential Density received the most substantial changes. The section defines assigned density based on the maximum residential build-out of the Southeast Quadrant District, specific allowable density increases with use of TDRs by Southeast Quadrant subdistricts, and a section clarifying the development rights necessary to obtain a density increase. 

“This is intended to only be foundational,” said planning commissioner Art Klugo. “The legality has to happen because of the court case. This isn’t necessarily where we’re going to end up once the TDR committee is done with their work.”

Commissioner Monica Ostby concurred.

“This can become the document that, even tomorrow, someone can go to council and say, ‘I know we’re in Interim Zoning, but here’s what I want to do,’ and the city council needs something to work on,” she said. “Right now, they don’t have it.”

“So, it’s interim but will be actionable,” she added. “... It’s clarifying the base. The bigger conversations are definitely to come.”

Clarifying language to the TDR provisions is just one of many Land Development Regulations amendments being analyzed at the commission level. Later in the meeting, city planner Cathyann LaRose shared approximately 20 amendments – including TDRs – that the commission will break into two rounds of potential changes to the regulations. 

Through the processes of amending the Land Development Regulations, the draft language would need to be publicly warned by the planning commission, then the city council would need to warn it and hold at least one public hearing. Regarding the case, Lafferty affirmed that the court has not scheduled its oral arguments, which would be no sooner than July.

With this timeline in mind, Bernie Gagnon, who acted as chair in Jessica Louisos’ absence, posed a question.

“Are the changes we’re making solid enough so that, regardless of how the court case transpires, we’re covered?” asked Gagnon, “are we in a position where we might have to do additional tweaks depending on the outcome?”

Lafferty confirmed that, depending on the outcome of the court decision, changes may need to be made.

Ostby offered that the changes were intended for clarification and worthy of pursuing regardless of the outcome. She also asked Lafferty to assess the use of the word “maximum” in terms of density and take into account the affordable housing density bonus.

Attorney Daniel Seff of MSK Attorneys was present. Seff brought the TDR challenge to the environmental court for Spear Meadows and is also representing residents in the Dorset Meadows project development.

“I’ve been sounding the alarm for 10 years that the bylaw is flawed,” he said. “We made six arguments as to why the bylaw was invalid in front of the Environmental Court. The Environmental Court agreed with us on three of those six and invalided the bylaw.”

Seff asserted that the city should pause all action to provision changes related to TDRs until the Vermont Supreme Court hands down a decision.

“It doesn’t address the arguments in our cross-appeal that the Supreme Court is currently considering,” he said.

The planning commission acknowledged Seff’s comments, which have also been heard by the TDR subcommittee, but said that this process will move forward.

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