Woodstock Comm. Trust and Vermont Housing PUD ( 2011 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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In re Woodstock Community Trust }
and Housing Vermont PRD } Docket No. 203-10-09 Vtec
(Appeal of Roy, et al.) }
}
}
In re Woodstock Community Trust }
and Housing Vermont Act 250 Application } Docket No. 15-1-10 Vtec
(Appeal of Roy, et al.) }
}
Decision and Order
In Docket No. 203-10-09 Vtec, Appellants David and Mary Roy, Michael and
Tonia Hirschbuhl, Richard and Roberta Roy, Glenn and Charlotte Barr, Richard and
Shirley Burroughs, and Jay Smith appealed from a decision of the Development
Review Board (DRB) of the Town of Woodstock issued on October 5, 2009, granting
final approval to a Planned Residential Development (PRD) located at 473
Woodstock Road and now known generally as the “Grange Hill” project, proposed
by Appellee-Applicants Woodstock Community Trust, Inc. and Housing Vermont.1
In its Statement of Questions, the municipal appeal raised two preliminary issues
and thirty-two numbered questions, some having several sub-parts, on the merits of
whether the application meets the requirements for planned residential
1 This Court had issued a decision in 2008 on a prior application for a PRD on the
project property, determining that some aspects of the prior proposal met the
standards of the municipal ordinance, and that other aspects of the prior proposal
failed to meet those standards. In re Woodstock Community Trust and Housing
Vermont PRD, Nos. 126-6-07 Vtec and 263-11-06 Vtec (Vt. Envtl. Ct. Oct. 15, 2008)
(Wright, J.) (the 2008 Decision).
1
development, conditional use approval, and site plan approval, including issues in
specific subsections of §§ 313, 403, 523, 612, 709, and 710 of the Zoning Regulations.2
The municipal appeal was placed on inactive status while the District 3
Environmental Commission concluded its consideration of the same project.
In Docket No. 15-1-10 Vtec, Appellants David and Mary Roy, Michael and
Tonia Hirschbuhl, Richard and Roberta Roy, Glenn and Charlotte Barr, Richard and
Shirley Burroughs, Tod and Jen Menotti, Kedrick and Kathy Harriman, and Jay
Smith appealed from a decision of the District 3 Environmental Commission
granting an Act 250 Land Use Permit for the proposed project. The Act 250 appeal
also raised two preliminary issues, as well as raising issues as to whether the project
meets Act 250 Criteria 1(B) (Waste Disposal related to Stormwater), 1(D)
(Floodways), 1(E) (Streams), 1(G) (Wetlands), 3 (Existing Water Supply), 4 (Erosion),
5 (Traffic Safety and Congestion), and 8 (Aesthetics). 10 V.S.A. § 6086(a). For ease of
reference and to distinguish the questions in the Act 250 appeal from those in the
municipal appeal, this decision will refer to the Act 250 issues by their criterion
numbers rather than by a question number.
2
For ease of reference, this decision will refer to the thirty-two numbered questions
in Part III of the Statement of Questions in the municipal appeal by their respective
numbers and without including a Part III prefix. All references to section numbers
are to the Zoning Regulations unless otherwise noted. Municipal Questions 1
through 22 address the Planned Development standards of § 313 of the Zoning
Regulations. Municipal Questions 23 through 25 address § 403 protections of
wetlands and stream banks. Municipal Questions 24, 26, and 27 address the riparian
buffers and setbacks required by § 523. Municipal Questions 28 and 29 address the
access road requirements of § 612. Municipal Question 30 addresses six of the seven
requirements for site plan approval found in § 709(B). Municipal Question 31
addresses seven of the thirteen requirements for conditional use approval found in
§ 710(A). Municipal Questions 21 and 32 ask whether any additional conditions are
necessary in granting planned development approval or conditional use approval,
respectively.
2
Appellants in both appeals (Appellants) are represented by Kaveh S. Shahi,
Esq., and Appellee-Applicants in both appeals (Applicants) are represented by
Daniel C. Hershenson, Esq.3 In Docket No. 203-10-09 Vtec, the Town of Woodstock
is represented by Todd C. Steadman, Esq. but did not take an active role at trial or in
the briefing of the merits of these appeals. In Docket No. 15-1-10 Vtec, the Land Use
Panel of the Natural Resources Board and the Vermont Agency of Natural Resources
had informational status only and did not participate in the appeals.
In the municipal appeal, Docket No. 203-10-09 Vtec, the Court resolved
Question I of the Statement of Questions by summary judgment, concluding that it
was not an impermissible successive appeal, that is, that the application had been
redesigned or changed to address the concerns that had prevented approval of the
prior application. In the Act 250 appeal, Docket No. 15-1-10 Vtec, the Court
dismissed Question 1 of the Statement of Questions as calling for an improper
advisory opinion. The Court also denied Appellants’ request, stated as the second
question in the Statement of Questions in each appeal, to stay the appeals pending
the final outcome of their property rights dispute.
After resolution of the preliminary issues by motion, an evidentiary hearing
was held on the merits of these appeals over the course of five days before Merideth
3 The principal parties are also involved in litigation of several private property
issues in the Civil Division of the Superior Court, Windsor Unit, Roy, et al. v.
Woodstock Community Trust, No. 678-10-07 Wrcv, in which some claims were
resolved favorably to Defendant by motion, but in which the Court issued a
judgment order on July 20, 2011 in favor of Appellant Jay Smith, based on a jury
verdict, declaring that “the location of the defendant’s proposed development on the
Grange Hall lot unreasonably interferes with the plaintiff Jay Smith’s spring rights.”
This litigation has been appealed to the Vermont Supreme Court and has been
assigned Docket No. 2011-265, but has been remanded for the trial court to consider
motions to alter and amend, and to clarify, now scheduled for an additional
evidentiary hearing in the Civil Division on November 23, 2011.
3
Wright, Environmental Judge. In addition, the parties requested that the Court
consider the evidence taken over the course of the six-day trial of Docket Nos. 126-6-
07 Vtec and 263-11-06 Vtec, as well as the site visit of the property and the
surrounding area of West Woodstock taken with the parties and their
representatives in connection with those earlier appeals. The parties were given the
opportunity to submit written memoranda and requests for findings. Upon
consideration of the evidence as illustrated by the site visit, and of the written
memoranda and requests for findings filed by the parties, the Court finds and
concludes as follows.
The Parties and the Proposed Project
The proposed Grange Hill project is an affordable housing4 development of
36 dwelling units proposed for the hamlet of West Woodstock, in a Residential
Medium Density zoning district of the Town of Woodstock, in an area served by a
municipal sewer system and by a municipal or community water system operated
by the Woodstock Aqueduct Company. Applicants are two non-profit entities, each
organized for the purpose of increasing the availability of affordable housing.
Applicant Housing Vermont is a statewide non-profit corporation in
existence since 1988, whose purpose is to increase the stock of affordable housing
units throughout Vermont by developing and owning affordable rental housing. It
has developed more than 4,200 rental dwelling units, affordable to low and
moderate income residents, in 142 projects throughout Vermont. It proposes to
develop the Grange Hill project as the tax and finance general partner of a housing
limited partnership; its local managing general partner for this project will be the
4 The project falls within the definitions of affordable housing found at § 109 of the
Town of Woodstock Zoning Regulations and at 24 V.S.A. §§ 4303(1), (2).
4
Twin Pines Housing Trust, a non-profit affordable housing developer in the Upper
Valley region of Vermont, with approximately twenty years of experience in
developing and managing affordable housing units. Applicant Woodstock
Community Trust is a non-profit organization organized for the purpose of
providing affordable housing in the Town of Woodstock; it owns the project
property on both sides of Route 4.
The project is proposed for an 8.02-acre parcel of land on the northerly side of
Route 4,5 consisting of two tax parcels that have merged for the purposes of this
application: a half-acre parcel containing a former Grange building, with 70 feet of
frontage on Route 4, and a 7½-acre vacant parcel of land, with 22.88 feet of frontage
at the Route 4 end of the proposed access roadway. The former Grange parcel and
the 4.07-acre portion of the project property proposed for development with housing
units and associated infrastructure constitute the Development Area of the project
property, shown as outlined in red on Applicants’ Ex. E. Most of the Development
Area is located behind (northerly of) the properties of Appellants Hirschbuhl, David
and Mary Roy, Barr, and diagonally behind the property of Appellant Smith. All
four of these Appellants’ parcels have frontage and access directly onto Route 4.
Appellants Burroughs’ property is located adjacent to the northerly boundary of the
8-acre project property; the Burroughs water line traverses the project property to
connect to the water main in the Route 4 right-of-way. Appellants Robert and
Roberta Roy’s property is located adjacent to the westerly boundary of the project
property; the Roy water line traverses the project property westerly of the Grange
building to connect to the water main in the Route 4 right-of-way.
In addition to the 8-acre project property on the northerly side of Route 4, a
5 Although Route 4 actually runs from the northeast to the southwest in this
location, for simplicity of reference this decision will refer to the directions as if
Route 4 ran directly in an east-west direction.
5
stormwater detention pond and piping comprising the proposed stormwater
discharge system for the project are proposed to be located on a one-acre parcel of
land on the southerly side of Route 4, known as the former Fox parcel.
Twenty-eight of the proposed dwelling units are proposed to remain as rental
units to be rented at an affordable rate, while the remaining 8 dwelling units are
proposed to be sold to private owners. The project is designed as a common interest
community. Unit 1, to be owned by the housing limited partnership, will consist of
all of the land, common land, roads and other infrastructure, including the Fox
parcel, and the rental units; Units 2 through 9 will consist of the eight sale units and
will have a license to use all of the common area.
The 4-acre portion of the 8-acre project parcel proposed for the new
residential development consists largely of a relatively flat field that was formerly
used as a community playing field with associated gravel parking areas. Beyond the
four-acre Development Area, the remainder of the project property is proposed to be
maintained as private open space for the use of the project residents.6 The parcel
slopes beyond the field steeply upward towards the north and west. Much of the
steeply sloping hillside is wooded, as shown in dark green on Applicants’ Ex. E.
The central portion, shown in light green, is grass.
Absent any alteration of the natural drainage due to the project, the natural
drainage over the property is generally from its far northwestern corner towards the
south and east. Runoff that does not infiltrate into the relatively porous soils on the
lower portion of the property drains to the Ottauquechee River by several routes.
Only a small portion of the drainage from the property crosses Route 4 through a
culvert near the Grange building and reaches the Ottauquechee by way of the Fox
6 Although a representative of Applicants stated at trial that the project would be
“neighborly” about allowing the other hamlet residents to use the open space, such
permission is not explicit in the application documents.
6
parcel and Vondell Brook. Most of the drainage from the upland portion of the
property travels southeasterly across the Vytra and Smith properties and reaches the
Ottauquechee by way of Prosper Brook or by overland flow from Route 4. As more
fully described in the discussion of stormwater below, Vondell Brook drainage
reaches the Ottauquechee either by passing through culverts near the properties of
Appellants Menotti and Harriman, or via a bypass swale above the Menotti property
that conducts water southerly across the Woodstock Union High School property to
the Ottauquechee River. Applicants have obtained a stormwater easement over the
High School property for project stormwater.
The two-way access road for the project extends from Route 4 into the
Development Area, passing between the Hirschbuhl property and the David and
Mary Roy property. The entrance to the Woodstock middle school and high school
complex, which also includes a community facility known as the Union Arena, is
located about 550 feet farther to the west along Route 4 from the project access road,
on the opposite side of Route 4.
The project roadway forms a square or loop roadway within the property
with an extension towards the Grange building, ending in a parking lot northerly of
building 9B. Another parking lot is located on the easterly side of the loop road
between buildings 3A and 2C. Additional parking spaces are provided on the
streets, and in the driveways and garages associated with the residential buildings.
A total of 80 parking spaces are provided: 38 in the driveways, 23 in the parking lots,
15 along the streets, and 4 in building garages.
Unlike the loop roadway disapproved in the 2008 Decision, the interior
roadway is not located adjacent to Appellants’ back yards. Instead, Appellants’
back yards are insulated from the project roadway by four of the project buildings
and those buildings’ associated back yards, and, in Appellant Hirschbuhls’ case, by
a plot of community gardens as well as by new fencing. Landscaping with
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evergreen species (fir, spruce, and arborvitae) is proposed on the project property
adjacent to the Barr and the David Roy back yards.
Applicants propose to construct fourteen new residential duplex or triplex
buildings on approximately four acres of the vacant parcel (the Development Area),
facing onto the interior loop streets and clustered around a small central open green
space area. In addition, a small playground area is located in the northwest corner
of the proposed development, farthest from Route 4 and Appellants’ houses. All of
the new buildings are designed to reflect elements of traditional Vermont vernacular
architecture, with pitched roofs, dormers, porches, double-hung widows, clapboard
siding, corner boards and window trim. They are relatively small in scale, appearing
as 1½ to 2½ story residential buildings, some with the appearance of an addition,
and are compatible in style and appearance to the existing residential buildings in
the neighborhood along Route 4.
Ten of the new buildings are duplex buildings, in four different duplex
building designs. Duplex designs A and B each contain two 2-bedroom units, each
duplex design E contains two 3-bedroom units, and each duplex design F contains
one 2-bedroom unit and one 3-bedroom unit. The duplex design E and F buildings
are proposed as the units for sale. The other four new buildings are triplex
buildings, in two different triplex building designs. Each triplex design C contains
three 1-bedroom units; the ground floor unit is wheelchair accessible. Each triplex
design D contains one wheelchair-accessible 2-bedroom unit on the ground floor
and a 1-bedroom unit on each of the two upper floors.
Applicants propose to construct four dwelling units in the existing Grange
building, consisting of two 3-bedroom units and two 2-bedroom units. They propose
to restore the building to closer to its original 1914 appearance, having a front porch
with columns, and to install in it a laundry facility with four washers and four
dryers to serve the 28 affordable rental units proposed for the project as a whole.
8
The remaining eight units, which are proposed to be sold, each contain their own
washer and dryer facilities.
The project will have a total of 70 bedrooms in 36 units, including those in the
new buildings and the Grange building. Based on the estimated occupancy rate for
similar affordable housing projects in Vermont, experienced by Housing Vermont
over all its projects, the 70 bedrooms proposed by this project will generate a
population of approximately 75 individuals. Approximately eight of the individuals
are expected to be school-aged children, of whom approximately three can be
expected to be in grades 7 through 12 and would be expected to walk to the middle-
and-high school complex across Route 4 from the project property.
A drainage swale is designed to intercept stormwater coming from the
northwesterly portion of the upland project property to conduct it around the
Development Area. As redesigned, the site work necessary to install and maintain
the drainage swale will only require cutting of trees in a small portion of the forested
area, will disturb less of the slope and will not require the elaborate retaining wall
system of the prior design discussed in the 2008 Decision. Rather, the drainage
swale will be covered with gravel and will function as a pedestrian path or trail to
the upland open space area of the project parcel. As approved in the ANR
stormwater permit, the upland drainage is now designed to be conducted under
Route 4 and across the Fox parcel in pipes and to discharge directly by pipe into
Vondell Brook, a tributary of the Ottauquechee River.
Applicants have obtained a final state stormwater discharge permit #5685-
9015 from the Vermont Agency of Natural Resources (ANR), approving coverage of
the stormwater system under General Permit 3-9015, and authorizing the project to
discharge stormwater to Vondell Brook, a tributary of the Ottauquechee River.
Applicants have also obtained a final state stormwater construction permit # 5685-
9020 from the ANR approving the project’s stormwater management and erosion
9
control and authorizing the discharge of stormwater during the project’s
construction, under General Permit 3-9020. In addition, Applicants have obtained
approval from the U.S. Army Corps of Engineers (permit # NAE-2008-978) for work
in the Class III wetland on the Fox parcel during the construction of the stormwater
detention pond and its piping.
Adequacy of Application
Municipal Question 18
Section 313(C)(3) requires an applicant for planned development approval to
submit a sketch plan showing the elements listed in subsections (c) through (j),
which include, in subsection (d), “all existing rights-of-way and easements, whether
public or private.” Applicants have submitted an application, consisting of a set of
plans and drawings, and a project narrative, that is more than adequate to show all
but one of the elements required by § 313(C)(3). Appellants argue only that the
application fails to refer to or recognize the spring rights asserted by Appellant Jay
Smith. Those spring rights were found to exist by the Civil Division of the Superior
Court in the August 2011 judgment order referenced in note 3, above, but the Civil
Division case has not yet been concluded. Accordingly, to comply with
§ 313(C)(3)(d), it is necessary for Applicants to add the location of the Smith spring
rights to the appropriate existing conditions plan, together with any necessary note
regarding the pendency of litigation over the Smith spring rights or easement.
Municipal Question 19
Section 313(C)(4) requires phasing if a project will take more than 24 months
to complete. The evidence showed that the project is expected to take 9 to 14 months
to complete, therefore § 313(C)(4) does not require phasing and is resolved in favor
of Applicants.
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Municipal Question 22
The 20-foot perimeter setback or buffer zone required by § 313(F)(2) is
applicable only to Planned Unit Developments (PUDs), which have a mix of
residential and commercial uses, not to entirely residential PRDs. Therefore
Municipal Question 22 is inapplicable to this project and is resolved in favor of
Applicants.
Competence and Responsibility to Carry Out Project – Municipal Questions 2, 20, &
21(d)
Section 313(A)(5) states that it is the responsibility of the developer of a PRD
to install any necessary “community facilities” or infrastructure such as storm sewer
lines and water and sanitary sewer lines. Section 313(C)(5) requires the application
to contain evidence of Applicants’ competence to carry out the project plan, and
§ 313(E)(2)(g) allows approval of the project to be conditioned on “performance
guarantees assuring completion [or] compliance with the approved plan or
conditions of approval.”
Applicant Housing Vermont is an experienced developer of affordable
housing projects in Vermont and has demonstrated in its application its competence
to carry out this proposed project. It proposes to install all the necessary
infrastructure for the project, including its water lines, sewer lines, stormwater
system, roads, common areas, playground and lighting. No other sorts of
community facilities, such as meeting halls or day care facilities, are proposed for
the project, nor are they required by § 313(A)(5). Rather, that section simply requires
that any community elements of the project necessary for it to function are the
responsibility of the developer.
Appellants have not shown that any performance guarantees are required to
assure compliance with the approved plan or any conditions of approval. The
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application therefore meets §§ 313(A)(5) & (C)(5), and no additional performance
guarantees are required under § 313(E)(2)(g).
Provision of Municipal Services – Municipal Question 30 (as to § 709(B)(7))
Section 709(B) of the standards for site plan approval requires the Court, in
this de novo appeal, to review the application “taking into consideration” seven
listed objectives, including subsection (7) “the provision of municipal services.” The
project is adequately served by municipal sewer and by a municipal or community
water system. Only eight school-aged children are anticipated to reside at the
development; the municipal school system is able to handle this number of children
and, to the extent that this project succeeds in its intent of providing affordable
housing to residents of Woodstock, such children would already have been
attending Woodstock schools. Further, Applicants provided evidence that the
municipal police and fire services are also able to provide adequate service to the
project. As more fully discussed below with regard to access, fire trucks will be able
to turn into the project driveway and be able to negotiate the turns in the project’s
loop roadway as necessary to provide fire protection. The proposed project
therefore meets § 709(B)(7) of the standards for site plan approval.
Aesthetics & Design Issues, Including Density & Compatibility with Neighborhood
– Act 250 Criterion 8; Municipal Questions 1, 10, 11, 12, 13, 16, 17(b)&(d), 30
(as to § 709(B)(3)&(4)) & 31 (as to § 710(A)(2), (8), (10), & (11))
Act 250 Criterion 8, as to aesthetics, requires simply that the project will not
have an undue adverse effect on aesthetics. 10 V.S.A. § 6086(a)(8) (as to aesthetics).
The so-called Quechee test, named for a 1985 decision of the former Environmental
Board, In Re Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, Findings of
Fact, Conclusions of Law, and Order, at 17–20 (Vt. Envtl. Bd. Nov 4, 1985), provides
12
the methodology for analyzing whether a project will have an undue adverse effect
on aesthetics. As described by the Vermont Supreme Court in In re Times &
Seasons, LLC, 2008 VT 7, ¶ 8, 183 Vt. 336, the Court must take the following two-
pronged approach to determine if an application complies with Act 250 Criterion 8
as to aesthetics: first, to determine if the project will have an adverse aesthetic
impact, and, if so, to determine whether the adverse impact would be undue. With
respect to Criterion 8, the burden is on Appellants to show an unreasonable or
adverse effect. 10 V.S.A. § 6088(b).
Section 313(A)(1) requires planned developments to be designed “to create a
stable and desirable environment that is in harmony with the density and type of
adjacent land uses.” In addition to the other requirements for a planned
development, §§ 313(A)(14)(b)–(e) require the Court to “consider” the relationship
and compatibility of residential and non-residential uses, taking into consideration
the location, arrangement, and size of lots, recreation areas, school sites, and open
space; to consider the relationship of the proposed built development to the site’s
natural features; to consider the densities proposed for the entire area; and to
consider any other considerations that will contribute to the orderly and harmonious
development of the land.
For conditional use approval, § 710(A)(2) similarly requires that the proposed
project not adversely affect “the character of the area affected.” The statute
authorizing municipal conditional use regulations makes clear that the character of
the area is defined “by the purpose or purposes of the zoning district within which
the project is located, and [by the] specifically stated policies and standards of the
municipal plan.” 24 V.S.A. § 4414(3)(A)(ii).
Section 313(B)(2)(b) recommends that buildings should be located in wooded
areas or on field edges and not in sensitive areas such as wetlands, floodplains, or
steep slopes. Section 313(B)(4)(b) and (d) allow the Court to require the
13
“preservation, planting, and maintenance of trees, ground cover, or other
vegetation” to provide privacy screening, reduce noise and glare, or otherwise to
soften or reduce the visual impacts of development, and to establish a barrier
between incompatible land uses.
Section 709(B) of the standards for site plan approval requires the Court to
review the application “taking into consideration” seven listed objectives, including
subsections 3 and 4, relating to the adequacy of landscaping, screening, and setbacks
“in regard to achieving maximum compatibility and protection of adjacent
properties” and to the avoidance of glare. For conditional use approval,
§§ 710(A)(8), (10), and (11) also require the project to meet the specific standards of
the Zoning Regulations with respect to distances from adjacent or nearby uses,
landscaping and fencing, and the design and location of structures and service areas.
Both the Aesthetics criterion of Act 250 and this group of municipal criteria
address whether the project has been designed to fit well within its visual context or
the character of the neighboring area, and whether it is compatible with and
adequately protects neighboring properties such as those of the Appellants.
The neighborhood or visual context of the project is the hamlet or settlement
of West Woodstock. It is located in the valley of the Ottauquechee River, along the
Route 4 corridor. Most of the settlement is located close to and focused towards the
valley floor and Route 4, surrounded by predominantly wooded hillsides and open
fields, with views from the valley floor of the wooded hillsides and more distant
wooded hills. A large middle and high school complex with a community indoor
arena, and a cluster housing development of 33 units, are located southwesterly of
the project property on either side of Route 4. The character of the area, as defined
by the purpose of the zoning district, is an area compatible with medium density
residential development; that is, one in which duplexes as well as single-family
residences are permitted uses on a minimum of an 8,000 square foot lot, and in
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which multi-family dwellings are conditional uses requiring a minimum of 16,000
square feet for a three-unit building. The character of the area therefore not only
allows but promotes a density of development consistent with the design of this
project.
In the area of the proposed project, the hamlet of West Woodstock contains a
relatively dense group of residential or residential-style7 buildings on small lots, 1½
to 2½ stories in size, diverse but traditional in design, with characteristic gabled
roofs, porches, additions, and dormers. The proposed designs for the project
buildings are compatible in size and style with the existing properties in the area.
Although they are by definition all new, they have been designed with a diversity of
building types, roof forms, and architectural details, to reflect and be compatible
with the diverse elements of the neighboring vernacular architecture.
The project has been designed to cluster the new residential buildings on the
flatter portion of the site, and to preserve the upland fields and forested areas as
open space. The building locations therefore avoid steep slopes and wet areas. The
new residential buildings surround a small common area and face an inner loop
road, giving the project the appearance and functionality of a small neighborhood,
consistent with the neighborhood along Route 4. The project has been redesigned so
that the back yards of the new houses, and an area of community gardens, adjoin the
back yards of Appellants’ existing houses along Route 4, reinforcing the
neighborhood design. No service area and no dumpster is now proposed; each
building will be served by curbside garbage pick up.
The density of project buildings is consistent with the density of buildings in
the existing neighborhood. From Route 4, the upland hillside of the site will
7 Some of the older residential buildings are in commercial use or have been
converted to apartments.
15
continue to be visible to the traveling public, while the new residential buildings
will be partially blocked from visibility from the road by the existing houses along
Route 4.
Minimal lighting is proposed for the project: bollard lighting for pedestrian
use in the public areas, and downcast street lighting at the project’s entrance and
westerly parking lot. This lighting has been designed to avoid glare. The proposed
fencing on the northerly and easterly sides of the Hirschbuhl property, together with
the landscaping proposed for the project’s streets and adjacent to the Barr and the
David and Mary Roy back yards, is adequate to provide privacy screening and
reduce noise and glare, with the exception of the landscaping proposed in back of
the Roy back yard.
In this location, the easterly segment of the loop road is aligned with the
driveways serving buildings 1D and 11C, which in turn are aligned with the David
Roy house. No low fencing or dense shrubs are proposed at the head (southerly
end) of those driveways to prevent the headlights of cars using those driveways
from shining directly into the David and Mary Roy house and yard. In addition, the
apparent alignment of the two arbor vitae (marked as “L”) near their shed does not
appear to provide as much protection from the headlights travelling southerly along
the loop roadway as they would provide if offset from one another. Accordingly, to
achieve the maximum compatibility and protection of adjacent properties and avoid
glare, an additional condition is necessary requiring such fencing or shrubs at the
head of the two driveways, and requiring the two arbor vitae to be offset or
otherwise placed to achieve the maximum protection against headlight glare being
visible from the David and Mary Roy house. With such an additional condition, the
proposed project meets the requirements of §§ 313(A)(1), 313(A)(14)(b)–(e),
313(B)(2)(b), 313(B)(4)(b) and (d), 709(B), and 710(A)(2), (8), (10), and (11).
Applying the Quechee test for the purposes of the aesthetics component of
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Act 250 Criterion 8, the Court must first determine:
if the proposed project will have an adverse aesthetic impact, and, if
so, [must consider] whether the adverse impact would be undue. An
adverse impact is considered undue if any one of the three following
questions is answered in the affirmative: (1) does the project violate a
clear, written community standard intended to preserve the
aesthetics . . . of the area; (2) does the project offend the sensibilities of
the average person; and (3) has the applicant failed to take generally
available mitigating steps that a reasonable person would take to
improve the harmony of the proposed project with its surroundings.
Times & Seasons, 2008 VT 7, ¶ 8 (citations omitted).
From the point of view of the public, the aesthetic impact of this proposed
project is not adverse. The design of the project preserves the upland fields and
forested hillside of the site, which remain visible to the traveling public. To the
extent that the public will see the project buildings and neighborhood, their design
echoes the local vernacular architecture and should not be aesthetically displeasing,
especially after the landscaping grows in.
However, recognizing that at least Appellants Hirschbuhl, Barr, and David
and Mary Roy expect to experience an adverse aesthetic impact from the project, in
that they would prefer to see and experience the playing field behind their houses
rather than a whole new neighborhood, however well designed, the Court will
proceed to the second prong of the Criterion 8 analysis.
First, Appellants have not shown that the project violates any clear written
community standard intended to preserve the aesthetics of the area. Instead, to the
extent that there are any written community standards regarding this area, they
show an intent to concentrate residential development at a medium density such as
this in the valley floor of this area, and to preserve the views of the wooded hillsides
as this project does. Second, Appellants have not shown that this project offends the
sensibilities of the average person. Finally, Applicants have taken generally
17
available reasonable mitigating steps to improve the harmony of the proposed
project with its surroundings by designing the project to reflect the diversity of local
vernacular architecture, by landscaping the site and limiting the built area of the
project to the lower flat area and preserving the upland hillsides. Therefore, even if
the effect of the project is considered to be adverse as it affects Appellants, they have
not carried their burden under 10 V.S.A. § 6088(b) to show an undue adverse effect
with respect to the aesthetics component of Act 250 Criterion 8.
Open Space & Natural Features, Legal Mechanism for Preservation
Open Space & Natural Features (other than streams and wetlands) –
Municipal Questions 5, 6, 15, & 17(c)
Section 313(A)(9) requires a planned development to provide for preservation
of open space, forested areas, significant views, steep slopes, wet areas, soils
unsuitable for development, and other unique natural features, among other things.
Section 313(A)(10) requires that, for a planned development less than 50 acres in
size, at least 33% of the land be set aside as open space. The land set aside as open
space is required to be of a size, type, and location to meet its intended use.
§ 313(A)(10)(a). In addition, § 313(A)(10)(b) recommends that it should be
contiguous to other existing or potential open space areas, and § 313(B)(2)(a)
recommends that the open space should preserve agricultural, recreational, or
natural resources, and, where feasible, that it should serve to buffer adjoining land
uses. Section 313(B)(4)(c) allows the Court to require the “preservation, planting,
and maintenance of trees, ground cover, or other vegetation” in order to preserve
“existing specimen trees, tree lines, critical wildlife habitat or wooded areas of
particular natural or aesthetic value to the site.”
Approximately half of the 8-acre project property has been set aside as open
18
space, in the upland portion of the property, meeting the requirements of
§ 313(A)(1). It meets its intended use for recreation and for the drainage swale to
intercept stormwater from the western portion of the upland area of the site. it
preserves almost all of the existing forested cover on the property. The project
complies with the above municipal requirements as to open space.
Legal Protection Mechanism – Municipal Questions 4, 6(c), 7, & 8
For planned developments, § 313(A)(8) requires that the project plan shall be
binding on the project property and on successive owners, and requires, if there are
several owners, that an association be formed to assure adequate property
management and compliance with the project’s conditions of approval. It also
provides for the Court to require that a Declaration of Covenants be filed.
With respect to open space, § 313(A)(12) requires that land reserved as private
open space in a planned development be protected from future development and
environmental damage through an “appropriate legal mechanism” approved in
these proceedings. Section 313(A)(10)(c) recommends that the ownership of the
open space is consistent with the best means of maintaining the resources on site.
The legal mechanism required by § 313(A)(12) must restrict future building and
removal of soil, trees and other natural features, except as is consistent with
conservation, recreation or agricultural uses or with uses that are accessory to
permitted uses. The legal mechanism must also provide that residents have access
to the open space at all times, and must establish whether the open space is only for
the benefit of the residents or may be open to other residents of Woodstock.
The “Grange Hill Common Interest Community Declaration” (the
Declaration), in evidence as Applicants’ Ex. A2, provides that the Declarant only
reserves the development rights necessary to construct the project buildings and
other features of the proposed project. No other development is provided for in the
19
Declaration. Article IV provides that the unit owners, and their tenants and invitees,
have unrestricted access to all of the Common Elements of the project (other than the
Limited Common Elements assigned to each unit), which includes access to the open
space area. Article VIII provides for the maintenance of the Common Elements,
including the Limited Common Elements, and the Declaration includes a
mechanism for funding the expenses of that maintenance. The Declaration therefore
complies with §§ 313(A)(8) and 313(A)(10)(c)
The Declaration contains § 3.22, which describes the land reserved as private
open space outside of the red Development Area boundary as shown on Applicants’
Ex. E and requires it to be maintained as open space within the meaning of
§313(A)(9) of the Zoning Regulations. It provides that no structures shall be placed
in the restricted open space area and provides that the area may be used for
“recreation, gardening, harvesting hay, and cutting firewood, but may not be
developed or otherwise used.” It also requires the “unanimous consent of all of the
Unit Owners, Mortgagees, and the [DRB]” to alter that section of the Declaration.
In order for Declaration § 3.22 to comply with § 313(A)(12), however, two of
its elements must be amended. First, the project plan shows the forested areas of the
open space area that are intended to remain forested. Allowing the unrestricted
cutting of firewood in the common open space area is inconsistent with preserving
the forested upland slopes that are approved in the project plans to remain forested.
Second, a future DRB cannot enter into a private agreement with the future
unit owners and mortgagees to change the provisions of the Declaration as to the
open space approved for the project. Instead, if the future unit owners and
mortgagees wish to make such a change, they must submit it to the DRB for
approval of an amendment under the Zoning Regulations in effect at such future
time. With these amendments to Declaration § 3.22, the provisions of the
Declaration will also comply with § 313(A)(12).
20
Parking
Municipal Questions 14, 30 (as to § 709(B)(2)) & 31 (as to § 710(A)(9))
Section 313(B)(1)(b) requires that, in a planned development, areas for off-
street parking must be provided that are adequate for the proposed occupancy, and
at least equivalent to the requirements of § 520, which governs off-street parking.
Section 520(A)(1) defines a parking space as being 9 feet by 18 feet in size.
Section 520(B) requires two off-street parking spaces per residential unit.
Parking lots, contrasted with parking spaces, are required to provide a minimum of
250 square feet per car to allow for access to the spaces. § 520(A)(2).
Similarly § 709(B)(2) requires the Court to review the site plan application
“taking into consideration” the objective of “the adequacy and safety of . . . parking
facilities.” For conditional use approval, § 710(A)(9) requires the project to meet the
specific standards of the Zoning Regulations, that is, § 520, with respect to minimum
off-street parking facilities.
Section 520(B) requires 72 off-street parking spaces for the 36 residential units.
The project provides 80 spaces, which is more than sufficient to satisfy the
regulations assuming that parking along the project’s interior loop road qualifies as
“off-street” parking.8 However, 38 of those spaces are in driveways approximately
10 feet wide and 36 to 40 feet in length.
With respect to parking, Appellants argue only that the tandem driveway
parking should not be counted as two parking spaces, as the car nearest the street
must be moved in order for the other car to get out, and the spaces do not meet the
minimum size under the definition of parking lot. However, nothing in § 520 or
elsewhere in the Zoning Regulations precludes or prohibits tandem parking in a
private driveway that is 10’ x 36’ in size or longer from being counted as two
8 No party raised this issue and therefore the Court does not decide it.
21
parking spaces. Nor have Appellants shown that tandem parking will cause any
problems, in a village context on a small private roadway, as long as both tandem
spaces are assigned to a single residential unit.
Frontage, Access, Circulation, & Traffic
Frontage – Municipal Question 3
As the two tax parcels comprising the 8-acre parcel have merged, the
property as a whole has more than the 50 feet of frontage required by § 305(D)(2) in
the Residential Medium Density zoning district, as it has 70 feet of frontage near the
Grange building, as well as 22.88 feet of frontage between the Hirschbuhl and the
David and Mary Roy properties.
Access & Circulation – Municipal Questions 28, 29, 30 (as to § 709(B)(1)&(2))
& 31 (as to § 710(A)(13))
The issue of the adequacy of the access roadway onto the property is distinct
from that of the frontage of the property. The strip of project property running
between the Hirschbuhl and the David and Mary Roy properties tapers northwards
from 22.88 feet in width at Route 4 to only approximately 17½ or 18 feet in width (by
scale) at its northerly end. However, Applicants propose to use an additional
adjacent 28-foot width of right-of-way9 to obtain enough total width to install an
access driveway for the project, a sidewalk from the project’s sidewalk network to
Route 4, and landscaping with street trees. The proposed access road meets the state
highway B-71 standard at its outlet, and provides a 22-foot-wide roadway consisting
of a two-lane, 18-foot-wide traveled way, with a two-foot-wide shoulder on each
9 This right-of-way is also the subject of the private litigation between the parties.
See note 3, above.
22
side. The internal loop roadway and its extension within the project, and the two
parking lots, have been designed to allow the safe flow and maneuvering of the
traffic generated by the project within the project property. Sidewalks line all the
project roadways and provide access to the project’s open space area in two
locations: from the parking lot next to building 8D, and between the playground and
building 6E.
Section 612(A) prohibits land development on lots without frontage, but
allows the Planning Commission, and hence this Court, to approve access to a public
road by a permanent easement or right-of-way at least 20 feet in width. In the
present case, the project property technically has frontage. However, because the
strip of property at the location of the access roadway itself is less than 20 feet in
width at its inner end, and therefore the access roadway must utilize a right-of-way
at least in part, the access roadway must be reviewed according to the standards of
§ 612(B). Under § 612(B), Appellants raise the issues of whether the access road is
adequately designed for emergency vehicle access and whether it has adequate sight
distances where it intersects Route 4.
Similarly, site plan approval of the project is required to take into
consideration the objective of attaining “the maximum safety of vehicular and
pedestrian circulation between the site and street network and adjacent traffic
generators” and the objective of adequate and safe circulation facilities, that is, on-
site circulation. § 709(B)(1)&(2). For conditional use approval, § 710(A)(13) requires
that the project adequately meets the specific standards in the Zoning Regulations
with respect to access and circulation.
The turning radii established in the B-71 standard are sufficient for fire trucks
and delivery vehicles, as well as private automobiles, to turn safely into and out of
the project driveway onto and from Route 4. The project’s internal roadways have
also been designed so that the largest emergency vehicles in use in Woodstock will
23
be able to negotiate the turns in the project and reach each of the buildings in the
proposed development.
At the intersection with Route 4, the sight distance in both directions along
Route 4 is greater than 400 feet. At the 35-mile-an-hour speed limit posted for that
section of Route 4, the minimum stopping sight distance (required for a driver
proceeding on Route 4 to see someone pulling out and be able to slow down and
stop in time) is 250 feet, while the minimum corner sight distance (required for a
driver stopped at the intersection to be able to pull out safely into the stream of
traffic) is 390 feet. The location of the access roadway therefore meets the
requirements for adequate sight distances in both directions.
A pedestrian crosswalk and warning signs are in place at the project access
roadway, based on the use of the field as an athletic field. As an athletic field, the
property generated approximately 2,620 pedestrian crossings of Route 4 annually.
Pedestrian crossings by the approximately 4 or 5 middle- and high-school aged
children from the project property are calculated to result in not more than half that
number of pedestrian crossings at the crosswalk.
The on-site circulation of both vehicles and pedestrians is adequately
provided for by the design of the project’s streets and sidewalks. The fact that there
are no sidewalks along Route 4 for the project’s sidewalks to connect to is beyond
the control of Applicants.
Accordingly, the project meets the requirements of §§ 612, 709(B)(1)&(2), and
§ 710(A)(13), with respect to access and circulation.
Traffic – Act 250 Criterion 5; Municipal Questions 3 & 31 (as to § 710(A)(3))
Act 250 Criterion 5 (10 V.S.A. § 6086(a)(5)) requires that the proposed project
not cause unreasonable congestion or unsafe conditions with respect to the use of
the highways (and other means of transportation). With respect to Criterion 5, the
24
burden is on Appellants to show an unreasonable or adverse effect. 10 V.S.A.
§ 6088(b).
For conditional use approval the project similarly must not adversely affect
traffic on roads and highways in the vicinity. § 710(A)(3). To “assure that the
community is not unduly affected,” § 313(A)(6) allows the Court to subject the
project to requirements regarding traffic.
Route 4 is a heavily traveled east-west road across Vermont, considered to be
a major arterial road. In the vicinity of the project in West Woodstock, it carries an
average daily traffic of 7,800 vehicles per day. An analysis of accident reports for
this segment of Route 4 shows that such accidents were due to driver behavior or
inattention, and not to any issues to do with the design of the roadway or its volume
of traffic.
The entrance to the Woodstock middle school and high school complex,
which also includes a community facility known as the Union Arena, is located
about 550 feet farther to the west along Route 4 from the project access road, on the
opposite side of Route 4. A left-turn lane 175 feet in length, capable of
accommodating 7 cars, extends towards the east from the entrance to the school
complex. Within the hamlet of West Woodstock, between the intersection at Prosper
Road and the school/arena intersection, many individual driveways have direct
access onto Route 4, and the speed limit is 35 miles per hour.
Using standard traffic engineering methods, the project is estimated to
generate 23 vehicle trips (19 exiting and 4 entering) in the morning peak hour of
traffic on the adjacent roadway, which is 7:30 to 8:30 a.m. at this location, and to
generate 26 vehicle trips (17 entering and 9 exiting) in the afternoon peak hour,
which is 4:30 to 5:30 p.m. at this location. These additional vehicle trips will not
adversely affect traffic flow or safety on Route 4.
25
The Applicants’ traffic engineer also analyzed the levels of service projected
to be experienced at the project intersection and at the school/arena intersection for
turns onto Route 4, and determined that both intersections will operate at levels of
service A or B, which represent acceptable levels of little delay experienced by
drivers waiting at those intersections to turn onto Route 4, depending on the
direction of the turn.
However, Appellants report from their own observations that at times the
traffic flow on Route 4 westbound backs up to near the project access roadway.
Although this represents a queue of approximately 22 cars, for such a line of traffic
to develop it is not necessary for all 22 cars to be turning into the school/arena
entrance. Rather, it is only necessary for an eighth or ninth car to be waiting to turn
into the school/arena entrance to exceed the left turn stacking lane length of seven
cars, and therefore to impede any remaining cars from continuing westwards on
Route 4. Such conditions may occur from time to time for an evening event at the
arena, when many participants will seek to arrive at a given time, and may also
occur from time to time in the morning arrival period when school is in session.
However, such occasional queuing or backing up of traffic that already exists will
not be affected or exacerbated by the traffic generated by the project.
The project therefore will not cause unreasonable congestion or unsafe
conditions or adversely affect traffic on roads or highways in the vicinity, and
therefore no requirements regarding traffic are necessary to assure that the
community will not be unduly affected. Appellants have not carried their burden
under 10 V.S.A. § 6088(b) to show an unreasonable or adverse effect with respect to
Act 250 Criterion 5. The project meets Act 250 Criterion 5 and §§ 710(A)(3) and
313(A)(6) of the Zoning Regulations.
26
Wetlands and Streams - Act 250 Criteria 1(G) & 1(E), Municipal Questions 5, 16,
17(a), 23, 24, 25 & 2710
Act 250 Criterion 1(G) (10 V.S.A. § 6086(a)(1)(G)) provides that the applicant
must demonstrate that the project will not violate the Vermont Wetland Rules. Act
250 Criterion 1(E) (10 V.S.A. § 6086(a)(1)(E)) provides that the applicant must
demonstrate that development of lands “on or adjacent to the banks of a stream will,
whenever feasible, maintain the natural condition of the stream, and will not
endanger the health, safety or welfare of the public or of adjoining landowners.”
Section 313(A)(9) requires planned developments to provide for the
preservation of streams and stream banks, and of wet areas, among other things.
Section 313(B)(2)(b) states that building locations should not include sensitive areas
such as wetlands, floodplains, or steep slopes. Section 313(B)(4)(a) allows the Court
to require the preservation or installation of trees or ground cover to provide an
undisturbed vegetated buffer between developed and undeveloped portions of the
site to protect water quality or other natural features, and requires a fifty-foot buffer
from the mean water level of a stream and from “the delineated boundary of an
identified wetland.” Sections 403(A)(2), 403(D) and 523(A) similarly require a fifty-
foot vegetated buffer, respectively, from “an identified or functionally significant
wetland,” from the top of the bank of a stream, and from a stream bank or from “the
delineated boundary of an identified wetland.” Section 403(A)(1) requires
conditional use approval of any draining, filling, or alteration of lands identified as
10 Municipal Question 27 relates to § 523(C), which is only applicable where mature
forest cover exists along a stream, requiring it to be maintained along both sides of
the stream and its adjacent wetlands. In the present case, the only applicable stream
is Vondell Brook adjacent to the Fox parcel; in that location it has no mature riparian
forest cover. Therefore § 523(C) is inapplicable.
27
wetlands on the Town’s Critical Areas Analysis Map, and of hydric soils determined
to be functionally significant under Vermont’s Wetland Rules.
Two wet areas exist on the 8-acre project parcel; both were identified in the
2008 Decision. One wet area is located in the westerly portion of the upland area,
below an old wellhouse, near the 775-foot elevation line and within the forested
area. It will remain within the open space area and will not be disturbed by the
project. Another frequently wet area is located near the middle of the easterly side
of the property, northerly of building 4F. The project plans have been revised so
that this wet area will also remain in the open space area and will not be disturbed
by the project. Accordingly, the Plans provide for the preservation of the wet areas
on the 8-acre project parcel, as required by § 313(A)(9).
The remaining provisions of the Zoning Regulations use the term “wetland”
or “delineated” or “identified” wetland rather than “wet area.” No wetlands appear
on relevant federal, state or town wetland or critical area maps either on the 8-acre
project property or on the Fox parcel. In order to be delineated as a wetland under
the Vermont Wetland Rules, which refer to the U.S. Army Corps of Engineers
manual, an area must demonstrate all three of the characteristics of hydric soils,
wetland hydrology, and hydrophytic vegetation. The two “wet areas” on the 8-acre
project property contain hydrophytic vegetation, but do not otherwise qualify for
delineation as wetlands.
A small Class III wetland was delineated on the Fox parcel. As it does not
appear on the Vermont Significant Wetlands Inventory map and is not contiguous to
a Class II wetland, it is not subject to regulation under the Vermont Wetland Rules;
therefore, the project does not violate the Vermont Wetland Rules and hence
complies with Act 250 Criterion 1(G). 10 V.S.A. § 6086(a)(1)(G).
As well as not being regulated under the state wetland rules, the small
wetland on the Fox parcel also is not functionally significant; that is, it provides
28
minimal wetland functions. The installation of the stormwater detention pond and
its associated piping on the Fox parcel will temporarily affect 152 square feet of the
wetland due to grading, and 2,460 square feet of the wetland due to the installation
of the outlet piping through it. Although these impacts are smaller than that
required to obtain a permit from the U.S. Army Corps of Engineers, Applicants
obtained permit # NAE-2008-979, ruling that the activity will have “only minimal”
environmental impacts, and approving those wetland impacts. Applicants’ Ex. R1.
Regardless of the fact that it has been the practice of the DRB to interpret
§ 403(A)’s references to an “identified or functionally significant” wetland to mean
only those wetlands identified on the Town’s official maps, the wetland on the Fox
parcel is neither identified on a map nor functionally significant, and therefore
§ 403(A) does not apply. However, as a practical matter, the whole project requires
conditional use approval in these proceedings, including any aspects of the
stormwater detention pond that affect the wetland or its buffer. Moreover,
Applicants obtained Conservation Commission approval of the work, meeting the
requirements of § 403(A).
Vondell Brook is a tributary of the Ottauquechee River that runs adjacent to a
portion of the Fox parcel. In this area Vondell Brook is not in a natural state. From
at least the school/arena driveway to below the Fox parcel, both banks of Vondell
Brook have been raised by grassed berms.
The detention pond is located more than 50 feet from the top of the stream
bank, and the area between is vegetated, providing a 50-foot vegetated buffer for the
stream bank. Where it adjoins the Fox parcel, the banks of Vondell Brook have no
mature riparian trees; the bermed banks are protected by grasses in that location. At
the school/arena driveway, Vondell Brook runs in a 60”-diameter culvert; below the
Fox property, near the property of Menotti, Vondell Brook runs in a constricting 24”-
diameter culvert, which is meant to function in times of high flow or flooding in
29
Vondell Brook by backing up and diverting some of the flow southerly along a berm
on the high school property directly towards the Ottauquechee River.
The stormwater detention system is designed to conduct the runoff from the
Development Area of the 8-acre project parcel across Route 4 and into the detention
pond. Stormwater from the northwesterly upland portion of the 8-acre project
parcel, above the diversion ditch, is designed to run in a separate pipe across Route
4, bypassing the detention pond. The upland stormwater pipe and the outflow from
the detention pond are connected below the detention pond, and flow together to
Vondell Brook through a 24”-diameter pipe to be installed through the berm. The
overflow system is designed with a headwall and stone reinforcing above and
outside the ordinary high water mark, so that the stream bank will be protected
from erosion both during normal operation and high water flow conditions..
Nothing about the development on or adjacent to the banks of the stream will
endanger the health, safety or welfare of the public or of adjoining landowners.
Accordingly, the stormwater system design on the Fox parcel meets the
requirements of Act 250 Criterion 1(E) (10 V.S.A. § 6086(a)(1)(E)) and the municipal
requirements as to protection of the stream and stream bank.
Existing Water Supplies - Act 250 Criterion 3
Act 250 Criterion 3 (10 V.S.A. § 6086(a)(3)) requires that the proposed project
“not cause an unreasonable burden on an existing water supply, if one is to be
utilized.” The water supply for the project will be supplied by the Woodstock
Aqueduct Company from an existing water main in the Route 4 right-of-way; it has
allocated ample supplies to serve the project and Appellants do not challenge the
adequacy of the water supply for the project.
However, the Woodstock Aqueduct Company also currently provides the
water supplies for Appellants Burroughs and Appellants Richard and Roberta Roy
30
through existing water lines that cross the project property. Applicants propose to
relocate both water lines due to the construction of the project, at Applicants’
expense. Appellants challenge Applicants’ rights to relocate the water lines, both in
these proceedings and in the Civil Division of Superior Court. They presented
evidence at trial in support of their arguments that the relocation will unreasonably
burden Appellants Burroughs and Roy. In addition, by letter filed August 1, 2011,
Appellants suggest that, if the decision of the Superior Court Civil Division as to the
Smith spring rights becomes final, it should preclude this Court’s approval of the
application. However, this Court has already noted that any disputes among the
parties regarding the parties’ respective property rights, including Applicants’ rights
to relocate these water lines, must be resolved in the Civil Division of the Superior
Court and are not before this Court.
The existing Roy water line is plastic and was therefore difficult to locate
exactly. It runs generally westerly of the Grange building near the English property
line and extends onto and across the English property to the Richard and Roberta
Roy house. Applicants propose to provide Appellants Roy with a temporary water
line during construction, and to provide them with a replacement new copper water
line close to the current location of the existing water line. The replacement service
will provide water at at least the existing level of pressure, quantity and quality.
The existing Burroughs water line is metal and has been located; it runs
across the central area of the project property in approximately the locations of
buildings 6E, 7F, and 10C. Rather than connecting to the project’s water line,
Appellants Burroughs prefer to have and to maintain a separate connection to the
water main. Therefore, Applicants propose to run the new Burroughs water line
along the perimeter of the project property from Route 4 down the access driveway
right-of-way, along the landscaped area behind the David Roy and Barr properties,
along the easterly side of the project property adjacent to the Vytra property, and
31
northerly along the perimeter of the Development Area to connect with the existing
Burroughs water line. Applicants propose to install the new Burroughs water line at
the outset of the project to keep any disruption in service to a minimum of only a
few hours. The replacement service will provide water at at least the existing level of
pressure, quantity and quality.
However, in order to ensure that both replacement water lines will be able to
be maintained in the future, it will be necessary for the Declaration of Covenants or
other permanent easement document to contain a provision precluding planting
large species of trees or installing permanent structures over the location of each
water line that would prevent the maintenance of those water lines in the future.
This is especially important in relation to the Burroughs water line, as it passes
behind buildings 4F and 5E whose units are anticipated to be sold, and as the water
line appears to be located in a limited common area behind those buildings.
No evidence was provided that the Smith spring rights, see note 3 above, are
utilized as an existing water supply; therefore, by its terms Act 250 Criterion 3 is
inapplicable to the Smith spring rights.
Accordingly, as the replacement water service for both the Richard and
Roberta Roy water supply and the Burroughs water supply will minimize
disruption during the changeover, and will supply water from the same source at at
least the same levels of quantity, quality, and pressure, the proposed project will not
cause an unreasonable burden on an existing water supply, and therefore meets Act
250 Criterion 3.
Stormwater, Floodways, & Erosion
Act 250
Act 250 Criterion 1(B) (Waste Disposal related to Stormwater) (10 V.S.A.
§ 6086(a)(1)(B)), to the extent that Appellants claim it to be applicable to this project,
32
requires that the project comply with the ANR regulations and not involve the
injection of waste materials or harmful or toxic substances into groundwater or
wells.
Act 250 Criterion 1(D) (Floodways) (10 V.S.A. § 6086(a)(1)(D)) applies to the
development of lands within a floodway or floodway fringe and requires that the
development of such lands will not significantly increase the peak discharge of the
stream and endanger the health, safety or welfare of the public or of adjoining
landowners. None of the project parcels have been mapped or otherwise identified
as being located within a floodway or a floodway fringe as those terms are defined
in 10 V.S.A. §§ 6001(6) and (7).
Act 250 Criterion 4 (Erosion) (10 V.S.A. § 6086(a)(4)) requires that the project
not cause unreasonable soil erosion or a reduction in the capacity of the land to hold
water so that a dangerous or unhealthy condition may result.
Although the burden with respect to these criteria is on the applicant, 10
V.S.A. § 6088(a), 10 V.S.A. § 6086(d) and Act 250 Rule 19 provide that the relevant
ANR permits create a rebuttable presumption that the application meets the
respective Act 250 criterion and is not detrimental to the public health and welfare.
In addition, the technical determinations of the ANR in such approvals or permits
are to be accorded substantial deference by the District Commissions and hence by
this Court in Act 250 proceedings. 10 V.S.A. § 8504(i).
In the present case, Applicants have obtained ANR Stormwater permits for
the operation of the stormwater system for the project, and for the erosion
prevention and sediment control necessary during construction of the project, giving
them the benefit of the presumption as to these three Act 250 criteria. Appellants
have failed to come forward with expert evidence to rebut the presumptions or to
overcome the deference due to the technical determinations of the ANR permits.
Accordingly, the proposed project meets Act 250 Criteria 1(B), 1(D), and 4.
33
An analysis of the adequacy of the stormwater system must nevertheless be
made under the municipal criteria, which do not benefit from such a presumption.
Municipal Question 26
Section 523(B) requires that land uses and/or activities that “are designated”
as potential water pollution hazards must be set back at least 150 feet from the
stream. Leaving aside the question of who or by what standard what body is to do
the designating, cf. In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 17, 185 Vt. 201,
the project involves no land use or activity within 150 feet of Vondell Brook except
for the stormwater detention pond specifically allowed under the state stormwater
permit; that pond has not been “designated” as a potential water pollution hazard
and cannot reasonably be understood to be the type of hazard requiring such a
setback.
Municipal Question 30 as to § 709(B)(5)
Section 709(B) of the standards for site plan approval requires the Court to
review the application “taking into consideration” seven listed objectives, including
subsection (5) “the adequacy of surface drainage facilities.”
The undeveloped upland portion of the property consists of an easterly area,
easterly of the drainage swale and northerly of the Development Area boundary,
that will continue to drain generally easterly onto the Vytra parcel and towards
Prosper Brook. Westerly and northerly of the drainage swale, drainage from the
undeveloped upland portion of the property will be captured by the drainage swale
and conducted to a piping system to the Fox parcel below the detention pond, where
it will join the outflow from the detention pond and be discharged to Vondell Brook.
Drainage from the Development Area will be collected through a storm drain
system on the project property and be conducted by a piping system to the Fox
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parcel, where it will flow over a grassy swale into the detention pond. The
detention pond is sized and shaped adequately to handle the stormwater flow from
the Development Area of the project. Both the grassy swale and the detention pond
will provide treatment of the stormwater from the development area and will
provide storage capacity and slower release during times of high stormwater flow.
The system is designed to discharge through a pipe (under normal conditions) or
over an overflow headwall (under high water conditions) into Vondell Brook at the
Fox parcel.
Although the detention pond is designed to retain and release even the 100-
year flood collected from the development area, the Court must assess whether the
runoff from the upland area being diverted directly to Vondell Brook will cause any
increased flooding in Vondell Brook, as that is water which, absent the project,
would have reached the Ottauquechee by a different route. The state regulations
require that the post-development runoff will be no greater than the pre-
development runoff from a project property, but do not limit whether that runoff
can be directed to a different location than in the pre-development condition.
The water to be discharged from both the Development Area and the
westerly upland undeveloped area of the project represents only about 1.1% of the
total drainage area of Vondell Brook. Under non-flood conditions, Vondell Brook
can accept the additional water without any problem. Under flood conditions, and
regardless of which computer modeling program is used, and whether the model
accounts for ground infiltration or not, the additional water to be introduced to
Vondell Brook from both elements of the project’s stormwater system will have an
insignificant or unmeasurable effect on the amount of water in Vondell Brook. In a
storm event capable of causing the water level in Vondell Brook to rise by two feet,
the additional discharge from the project’s stormwater system would cause an
additional rise in Vondell Brook of from 1/14 of an inch, under one hypothetical, to
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about 5/8 of an inch, under another hypothetical. This rise in water level is
insignificant in the sense that it would not contribute to any additional adverse
effects during flooding conditions. That is, if there is serious flooding of Vondell
Brook near the Menotti and Harriman properties, the discharge of stormwater from
this project will not make it perceptibly worse than it would be without the project.
The drainage facilities for the project therefore are adequate as required by
§ 709(B)(5).
Appellants presented ample evidence regarding the tendency of Vondell
Brook to flood under spring thaw conditions when the ground is frozen. This
tendency is exacerbated by the fact that Vondell Brook flows through a large 60”
culvert at the school/arena, past the Fox parcel, and then through an intentionally
undersized 24” culvert below the Fox parcel near the Menotti residence, before
continuing on through a larger 50” culvert farther downstream. The constricting
culvert is designed so that when there is too large a volume of flow for the culvert to
accommodate, the excess water will be diverted southerly directly towards the
Ottauquechee River by a drainage swale and berm on the school/arena property.
The school/arena diversion swale did not function as designed for a time when it
was not being adequately mowed, but it has worked as designed since being
adequately mowed. Applicants have entered into a drainage easement agreement
with the high school for excess drainage from the project to flow to the
Ottauquechee River by way of the school/arena drainage swale, and for the
school/arena management to maintain the functionality of the swale by keeping it
mowed. In order to ensure that the school/arena diversion swale and the 24” culvert
continue to function as designed to handle the stormwater discharge from the
project, a condition must be imposed requiring Applicants to monitor their
condition as necessary.
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Compliance with Town Plan – Municipal Question 911
Section 313(A)(14)(a) requires that the DRB, and hence this Court in this
appeal, “consider” the objectives and policies set forth in the Town Plan when ruling
on whether to approve a planned development. The Zoning Regulations do not
otherwise make the provisions of the Town Plan mandatory. The applicable version
of the Town Plan is the 2007 Comprehensive Plan.
The Town Plan emphasizes, with regard to housing, that “affordable housing
for middle-income people is not available in Woodstock” and that the town “needs
additional affordable housing units for its current residents and employees in order
to maintain a broad social-economic base.” Town Plan, at 59. The Town Plan urges
the town to “strive to maintain the existing land use pattern of development” by
encouraging residential development contiguous to existing development, by
encouraging higher densities in the villages and hamlets, by allowing larger
structures to be converted to multi-family use, and by preserving scenic vistas and
open spaces on hills, among other things. Id.
The proposed project satisfies these elements of the Town Plan: it provides
new affordable housing units contiguous to existing development and by
conversion of an existing larger structure, while preserving open space on the
hillside behind the project and avoiding construction on the steep slopes and in wet
areas.
Appellants argue that the loss of the use of the field at the project property as
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This question only relates to the requirement for planned developments that the
Court consider the objectives and policies of the Town Plan. Appellants did not
qualify for party status in the Act 250 proceedings under Act 250 Criterion 10 (10
V.S.A. § 6086(a)(10)) regarding compliance of the project with the Town Plan, did
not appeal that party status determination, and therefore do not contest the District
Commission’s determination that the project complies with the Town Plan under
Act 250 Criterion 10.
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a playing field for the high school and middle school is contrary to Objective 4.1.1 of
the Town Plan, at 39, which recognizes that the town has an inadequate number of
recreational fields for athletic use and encourages the provision of an adequate
number of recreational fields and play areas in the Town. However, nothing in the
Town Plan suggests that playing fields should take precedence over affordable
housing. Nor does anything in the Zoning Regulations allow the Town to compel
the private owners of a field, who have volunteered the use of the field as a playing
field in the past, to keep their property limited to that volunteered use.
Appellants argue that the project will destroy the views, vistas, open space,
green space, and woodlands of the project property, contrary to the Historic
Preservation and Open Space elements of the Town Plan, will destroy the historic
significance of a nearby twin-cupola barn visible from the project property, and will
destroy the historic character of the hamlet of West Woodstock. As discussed above,
the project complies with the open space requirements of the Zoning Regulations
and thereby also complies with the Town Plan, by preserving the upland half of the
project property in its open condition of fields and forest cover. The project will not
alter the historic significance of the barn on the neighboring Vytra property—it
remains in place and capable of being visited or viewed. Nor will the project harm
the historic character of the hamlet of West Woodstock; it simply adds well-
designed, compatible new housing to the existing historic housing and other
features.
The Court has fully considered the objectives and policies set forth in the
Town Plan and concludes that, on balance, the proposed PRD should be approved
in view of those objectives and policies.
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Whether project should be conditioned – Municipal Questions 21(a)–(c) & 32
Section 313(E)(2) allows the Court to impose conditions for, among other
things, visual and acoustical screening, a schedule of construction, and the
protection of natural and/or historical resources, as well as to impose conditions
related to the developer’s ability to carry out the proposed project already addressed
above regarding § 313(E)(2)(d). In addition, in conducting conditional use approval,
§ 710(C) allows the Court to impose reasonable conditions and safeguards necessary
to carry out the statute and regulations. As discussed more fully above with respect
to each necessary additional condition, in this decision the Court has imposed five
additional conditions beyond those imposed by the DRB or the District 3
Environmental Commission. They are restated below for ease of reference.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
in the municipal appeal, Docket No. 203-10-09 Vtec, that planned residential
approval, site plan approval, and conditional use approval is GRANTED to
Appellee-Applicants’ application for the Grange Hill project, with the conditions as
imposed by the DRB and the additional conditions as stated in this decision. It is
hereby ORDERED and ADJUDGED in the Act 250 appeal, Docket No. 15-1-10 Vtec.
that approval is GRANTED to Appellee-Applicants’ application for the Grange Hill
project, with the conditions as imposed by the District 3 Environmental Commission
and the additional conditions as stated in this decision; the District 3 Environmental
Commission shall perform the ministerial task of producing a revised Act 250 Land
Use Permit reflecting the additional conditions.
The following additional conditions are imposed by this decision:
1) As to the Smith spring rights found to exist by the Civil Division of the
Superior Court as referenced in note 3, above, Appellee-Applicants shall
note the location of the spring rights on the appropriate existing
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conditions plan; they may note the pendency of the Civil Division
litigation or any pending appeals, as appropriate.
2) Applicants shall install additional fencing or shrubs at the head of the two
driveways serving buildings 1D and 11C, and shall offset or otherwise
place the two arbor vitae to be planted near the Roy shed, so as to achieve
the maximum protection against headlight glare being visible from the
David and Mary Roy house.
3) A provision shall be added to the Declaration of Covenants precluding
planting trees or installing structures within the path to be taken by each
water line that would prevent the maintenance of those water lines in the
future.
4) Section 3.22 of the Declaration of Covenants shall be amended to delete
the reference to the cutting of firewood and instead to provide that the
forested areas of the open space area shall remain forested, subject only to
professional forest management practices. Further, that section shall be
amended to state that if the future unit owners and mortgagees agree
among themselves to make a change to that section, they must then
submit it to the DRB for approval of an amendment under the Zoning
Regulations in effect at such future time.
5) Applicants shall monitor the mowed condition of the school/arena
diversion swale, and the condition of the 24” culvert that diverts water to
that swale, as necessary to determine that they will continue to function as
designed.
Done at Berlin, Vermont, this 14th day of October, 2011.
_________________________________________________
Merideth Wright
Environmental Judge
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