Shires Housing PUD Amendment/Shires Housing Inc. Act 250 ( 2017 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Shires Housing PRD Amendment No. 171-12-14 Vtec
************************************************ ******************************************
Shires Housing Inc. Act 250 No. 42-4-16 Vtec
DECISION ON THE MERITS
These coordinated appeals relate to amendments to a municipal approval and an Act 250
permit granted to Shires Housing, Inc. (Shires Housing or Applicant) for a planned residential
development (PRD).1 The proposed development involves the construction of 24 apartment
units in seven buildings on a 2.7-acre parcel known as Lot #3, along with vehicular access, utilities,
and infrastructure (the Project). The address is generally known as Eden Way, which is between
South Street and Silver Street in Bennington, Vermont.
In Docket No. 171-12-14 Vtec, a group of neighbors2 challenge the Town of Bennington
Development Review Board’s (DRB) decision to issue an amended PRD permit. In Docket No. 42-
4-16 Vtec, a different group of neighbors3 challenge the District #8 Environmental Commission’s
(District Commission) decision to issue an amended Act 250 permit.4 The Neighbors’ primary
concern is that the Project will have an undue adverse effect on their homes and neighborhood.
Shires Housing cross-appeals certain conditions of the amended Act 250 permit.
1
Appleridge Development LLC was listed as co-permittee as the owner of the land. Shires Housing intended
to purchase the land.
2
Appellants are David Fredrickson, Victor Milani, Kevin Callanan, Rose Wolfe, April Bernard, Daniel
Amadon, Jerry Amadon, Judith Fellows-Miller, Fronia W. Simpson, Dorothy Roy, and Peter Cross. Other neighbors
are interested persons in the matter: Donald R. Miller, William T. Holmes, Jeanne McKenna, Mary A. Morrissey, and
Kathleen Hoisington.
3
Appellants are David and Lorraine Fredrickson, Fronia Simpson, Marc Simpson, Jeanne McKenna, Judith
Fellows-Miller, Donald Miller, Mary Morrissey, Gerald Amadon, Daniel Amadon, Dorothy Roy, William Wolfe, Rose
Wolfe, Bonnie Callanan, Kevin Callanan, Vic Milani, Kathleen Milani, Margaret Fletcher, Malcolm Crosland for Royda
Crosland, William Holmes, Madeleine Holmes, Peter Cross, Frederick Kennedy, and Healthy Neighborhoods MBE (by
David Fredrickson, spokesperson).
4
Although the list of Appellants are not identical in the two appeals, they pursued the appeals through the
same attorney and relied on similar legal arguments. We refer to them collectively as either Appellants or Neighbors.
-1-
Robert M. Fisher, Esq. represents the Neighbors and Mark Hall, Esq. represents Shires
Housing. Gregory J. Boulbol, Esq. represents the NRB; however, the NRB did not take an active
role at trial. Robert E. Woolmington, Esq. represents the Town of Bennington; however, the
Town did not attend or participate at trial.
A two-day trial was held on these coordinated appeals on November 14–15, 2016 in the
Bennington District Court of the Vermont Superior Court in Bennington, Vermont. Before the
trial, the Court conducted a site visit at the subject property and surrounding neighborhood.
While the observations and statements made during the site visit were not received as evidence,
the site visit provided helpful context for the evidence that was presented at trial. The parties
were permitted to file pre- and post-trial memoranda, proposed findings of fact and conclusions
of law.
Based upon the evidence presented, the Court renders the following Findings of Fact and
Conclusions of Law. A Judgment Order accompanies this Merits Decision.
Findings of Fact
1. Shires Housing, a regional affordable housing agency located in Bennington, Vermont,
proposes a 24-unit apartment complex in seven buildings on 2.7 acres on Eden Way between
Silver Street and South Street in Bennington, Vermont (the Project).
2. The Project includes five duplexes on land adjacent to Silver Street, and two apartment
buildings of six and eight units located at the interior of the site west of the duplexes on the
proposed extension of Eden Way.
3. The size of the Project’s lot is 2.7 acres, or 117,612 square feet.
4. The Project, referred to as Mountain View Apartments in the siting plans and documents,
received Land Use Permit #8B0573-3—the Act 250 Permit—from the District Commission
on August 24, 2016. The permit was approved with conditions.
5. The Project received PRD and zoning approval with conditions as Permit #14-141 from
the DRB on November 5, 2014.
6. The Project is a revised version of the original plan for the property proposed by
Appleridge Development, LLC (Appleridge) and Hawk’s Associates, LLP for 53 units on 4.4 acres.
-2-
7. The District Commission approved the original proposal on September 27, 2005, and
issued Land Use Permit #8B0573 to renovate an existing house into three condominium units and
build 12 new buildings with up to five units in each. The plan also received PRD and zoning permit
approval from the DRB on August 2, 2005.
8. In 2006, Appleridge sought and received amendments to its PRD and zoning permit, and
its Act 250 permit, to downsize its proposal from 53 units to 42 units in duplexes only. The DRB
issued Permit # 06-113 for the revised plan on June 6, 2006, and the District Commission issued
Permit #8B0573-1 on July 17, 2006.
9. Appleridge built only 15 of the proposed 42 condominium units, with 12 units in 6
duplexes and 3 units in a renovated historic home. Appleridge then sought to sell the remaining
2.7 acres of the property.
10. The Project is designed to accommodate access by fire and rescue vehicles.
11. The Bennington Town Manager certified that the Town has the capacity to provide fire
protection, police protection, road maintenance, and solid waste disposal services without
unreasonable burdens. Municipal Impact Questionnaire, Applicant Ex. 23.
12. The Project is conservatively expected to provide housing for as many as 12 school-aged
children. Letter from Superintendent James R. Culkeen to DRB Chairman Charles Copp and
Planning Director Daniel Monks, Applicant Ex. 19; see also MSK Engineering and Design, Inc.
Letter to DRB, Applicant Ex. 20.
13. The children are likely to be concentrated in kindergarten through fifth grades. Letter
from Superintendent James R. Culkeen to DRB Chairman Charles Copp and Planning Director
Daniel Monks, Applicant Ex. 19. The additional students can be absorbed by the school district
with little measurable impact. Id.
14. The Project is located in the Mixed Residential (MR) District. The stated purpose of the
MR District in the Town of Bennington Land Use & Development (Regulations) “is to provide
suitable locations for apartment buildings, row houses and similar group housing, and planned
development projects with integrated design, in order to promote the most appropriate use of
land, to ensure economical provision of streets and utilities, and to secure the best possible
environment for these types of dwellings.” Regulations 49, Applicant Ex. 29.
-3-
15. The Project is located two blocks south of downtown Bennington and is considered infill
development.
16. The lots on Grandview Street are small, each averaging about a quarter-acre. The lots
along Silver Street are up to a half-acre or slightly larger.
17. Most of the Project is interior to a block bounded by South Street, Grandview Street, Silver
Street and Prospect Street. Within that block, the Project’s density—measured by the number
of kitchens per acre—is about average compared to the surrounding lots. See Applicant’s Ex. 17.
18. The surrounding neighborhood contains a mixture of single-family homes, as well as
multi-unit and duplex condominium developments, and commercial uses.
19. Nathaniel Court, a 42-unit condominium complex on a site smaller than the project site
proposed here, is on South Street, just south of the Project. The 15-unit Appleridge condominium
development is immediately adjacent to the project site.
20. Much of the Project will not be visible from the surrounding streets—Silver, South, and
Grandview Streets. The two multi-unit buildings are in the interior of the original lot.
21. The Project’s buildings are intended to blend in with the neighborhood: the architectural
style is similar to that of the area.
22. As proposed, the buildings have gabled or pitched roofs, dormers, and covered porches
with a building height of 25 feet.
23. The Project lot has no historic sites or places, but the surrounding neighborhood includes
historic 19th and early 20th century homes and outbuildings.
24. Silver and Grandview Streets have been listed on the State Register of Historic Places since
November 19, 1997. VDHP State Historic Preservation Officer Laura V. Trieschmann Letter to
District Commission Acting Chairman John S. Liccardi (Dec. 10, 2015), Applicant Ex. 24. The
Bennington Downtown Historic District is listed on the National Register of Historic Places. Id.
25. The original proposal from Appleridge and Hawk’s Associates was approved with curb
cuts on South Street and Silver Street. The South Street curb cut was completed during the
original phase of construction, and is the only access point for the existing 15-unit development
on Eden Way. Shires Housing proposes to construct the Silver Street curb cut for the Project,
which would provide a second access point for the Project and existing development.
-4-
26. The Project is expected to generate an additional 15 vehicle trips during the weekday AM
peak hour and 18 trips during the PM peak hour. Creighton Manning Letter to MSK Engineering
and Design 1, Applicant Ex. 18.
27. The anticipated volume of new trips is considered low and below the 100-trip threshold
for consideration of potential traffic impacts.
28. With the addition of the Silver Street curb cut, the increase in traffic on Silver Street
attributable to the Project is expected to be one additional vehicle every five to ten minutes.
29. Because Eden Way is a narrow street with several curves, traffic is not expected to use it
as a cut-through between South Street and Silver Street.
30. The Project traffic is not expected to have a significant impact on the surrounding
neighborhood. Id. at 1-2.
31. The minimum stopping distance for a road like Silver Street is 200 feet.
32. The sight distance for drivers exiting Eden Way onto Silver Street is 337 feet looking
south and 343 feet looking north.
33. There are no wetlands in the Project area.
34. The Project is not located in a floodway or in a Flood Erosion Hazard area as determined
by the Agency of Natural Resources.
35. The Project is not located in, nor does it have a potential to impact, a headwaters area.
36. There are no streams on or adjacent to the Project.
37. The Project site is a partially constructed development with no natural features
remaining. The site has been leveled and excavated, a roadway has been roughed in, and utilities
have been installed underground.
38. The Project site does not contain historic or cultural resources.
39. The Project site is unlikely to yield archaeological resources.
40. The project has the following minimum setback distances:
a. Front yard setback from Silver Street of 25 feet.
b. Side yard setback from Eden Way for duplex units of 15 feet.
c. Side yard setbacks for multi-units of 20 feet.
41. The Project site is considered one lot, which fronts on Silver Street.
-5-
42. The six-unit apartment building and four of the five duplexes faces Eden Way. The fifth
duplex is on the corner of Eden Way and Silver Street and faces Silver Street.
43. The eight-unit apartment building faces a parking lot, which connects to Eden Way.
44. Each duplex building has a small yard serving as open space. The amount of open space
is small; however, it contributes to the overall design of the Project.
45. The open space to the east of the two multi-unit buildings is a common area that may be
accessed either directly from the apartment buildings or by a gravel path for residents who live
in the duplexes.
46. The Project has less overall building coverage than the original project and the first
revision to the project, and therefore, there is an increase in the amount of open space. The
Project’s setbacks are identical to those approved in the prior two proposals.
47. As proposed, Eden Way will be lined with sidewalks and trees within the Project. The plans
include 2.5-inch caliper deciduous trees lining Eden Way, and a concrete walk—or sidewalk—in
front of the duplexes and apartment buildings.
48. A five-foot wide walking path made of bark chips and mulch is proposed to connect the
Project’s parking lot at the end of Eden Way to Grandview Street.
49. The Project is expected to generate $24,000 in property taxes annually.
50. The Project will not create an undue financial burden on the Town’s fire protection, police
protection, road maintenance, and solid waste disposal services.
51. Some amount of blasting may be needed to build the eight-unit building and Duplex #3.
52. The sizes of the areas that may require blasting are relatively small.
53. The eight-unit building is within approximately 105 feet of the closest single-family home,
which is on Grandview Street, and within 90 feet of the closest existing duplex on Eden Way,
which was constructed as part of the original project.
54. Proposed Duplex #3, located west of the proposed duplex facing Silver Street, is within 75
feet of the closest single-family home, which is also on Silver Street.
55. Blasting has the potential to result in damage to nearby properties.
56. Two neighbors’ homes may have been damaged by blasting during construction of the
original Appleridge condominiums. The blasting may have caused damage in the basement of
one home, and cracked the plaster walls in the other.
-6-
57. One of the conditions in the 2005 PRD and zoning permit was that Appleridge was
required to give a copy of a pre-blast video of neighboring properties “to each such property
owner prior to any blasting.”
58. A condition in the 2006 permit amendment required that any blasting would occur within
one year after construction commenced.
59. The current Town approval, issued in 2014, requires Shires Housing to submit a detailed
blasting plan acceptable to the Town of Bennington before starting any blasting. If the Town so
requires, Shires Housing would need to pay the Town the costs incurred to retain an expert to
review and approve the plan. The plan must include pre- and post-blasting inspections, the
results of which are to be filed with the Town. Additionally, the plan must include a claims review
process by a neutral third party, with the costs of the third party paid by Shires Housing. Shires
Housing must also pay for any damage due to blasting determined by the third party. Finally,
prior to commencing construction, Shires Housing must file a $1 million Letter of Credit or other
surety with the Town to secure its obligations regarding blasting and its obligation to complete
construction within two years.
60. Shires Housing offered the following blasting protocol:5
a. A seismic survey or blasting firm shall be employed by Shires Housing to
perform and monitor the explosive work. The firm(s) shall have a minimum of
five years of experience in similar rock work, show proof of license to handle
explosives, and show proof of adequate liability insurance.
b. The seismic or blasting firm(s) shall conduct a pre-blast survey of all buildings
or water supplies within 500 feet of the work area. The survey shall include,
but not necessarily be limited to, videotapes, pictures, and notes which
identify the existing condition of all structures and portions thereof. A post-
blast survey, including the same review as the pre-blast survey, shall be
conducted to determine the condition of all structures and portions thereof
after blasting.
5
Shires Housing Exhibits numbers 26 and 27 contain these procedures.
-7-
c. All work shall conform to all applicable codes for explosive handling and use
including, but not limited to, NFPA 495;6 all local, state and federal regulations;
and the procedures outlined in the “Blasters Handbook” by the Dupont
Company.
d. The company employed by Shires Housing to perform any blasting work shall
follow the State of Vermont’s Best Management Practices for Blasting to Avoid
Environmental Contamination.
e. The drilling and/or seismic survey firm(s) shall notify all abutting property
owners and residents seven days in advance of any drilling or blasting
activities. The local police and fire departments shall be notified 24 hours in
advance of any blasting. Signs shall be posted at all entrances at least 500 feet
from the work area advising of blasting and describing the warning whistle
before a blast. Drilling and blasting shall not commence until a pre-blast
survey is complete.
f. Drilling operations shall be conducted Monday through Friday 7:00 a.m. to
5:00 p.m. Explosive detonations shall be limited to 9:00 a.m. to 4:00 p.m.
Monday through Friday.
g. The blasting and/or seismic survey firm(s) shall maintain two continuous
recording seismographs on site during explosive detonation. The seismic
record shall be reviewed by an Engineer qualified to assess accelerations
produced by explosive shock waves.
h. No blasting of any kind will be conducted without appropriately sized blast
mats or adequate backfill to prevent fly rock of any kind.
i. The blasting firm shall keep daily records of hole location, depth, explosive
load, weight per delay per hole, the type of subsurface materials and any
unusual event during an explosive detonation.
j. There shall be no overnight storage of explosive material on the site except in
containers which conform to NFPA 495.
6
NFPA 495 is a code adopted by the National Fire Protection Association that identifies reasonable levels
of safety for the manufacture, transportation, storage, sale, and use of explosive materials.
-8-
k. The determination of maximum charge weight per delay shall be generally
based on the formula proposed by the American Insurance Association or
current regulations.
61. Pre-blast and post-blast surveys will document any change in or damage to nearby
structures.
62. Radon levels in structures can change daily, weekly and seasonally due to a variety of
factors.
63. Fractures in bedrock are an interconnected network of planar features in the subsurface
and exact locations and intersections in the sub-surface are generally difficult to predict.
64. Radon measurements in a dwelling may vary over time and it is difficult to prove that any
change in radon concentrations is due to nearby blasting.
65. Obtaining pre-blast and post-blast radon gas measurements will indicate whether
additional radon gas is infiltrating into neighboring residences, but it would be difficult to
attribute any change to nearby blasting given that radon levels vary over time in a dwelling.
Agency of Natural Resources Response to 11/12/15 Hearing Recess Order Request, Applicant Ex.
22.
66. Controlled blasting and an adequate blasting plan and implementation from a reputable
drilling and blasting company will mitigate the risks of opening fractures in bedrock off site or
damaging nearby homes. Id.
67. The Act 250 permit amendment approved by the District Commission included two
conditions related to blasting. First, Shires Housing must hire a trained, certified and licensed
blasting and drilling contractor to provide a comprehensive blasting plan to prevent damaging
nearby historic homes. Second, Shires Housing must retain an independent third party for
survey, inspection, monitoring, damage assessment, and reparation.
68. The Project’s proposed buildings will include radon gas collection and testing equipment
with fans to control radon gas concentrations inside the building units.
69. The Act 250 permit amendment approved by the District Commission includes a condition
(#14) that requires Shires Housing to use wood siding and wood trim, to be compatible with the
historic architectural character of the South Street Historic District, as well as adjacent homes on
Grandview and Silver Streets.
-9-
70. Shires Housing prefers to use composite materials rather than wood for the horizontal
clapboard siding and trim on the Project’s multi-unit buildings and duplexes.
71. Composite materials hold paint better and longer and are more resistant to rot than
wood.
72. The proposed composite materials are not vinyl siding, but a type of cement board.
73. The aesthetic differences between the composite materials and wood are slight. From
the sidewalk or the street, a passerby would have great difficulty in distinguishing the two
materials.
74. The initial expense of the composite materials could be higher than wood, but the
maintenance costs would be lower.
75. The Project has 46 proposed parking spaces.
Conclusions of Law
Our review of both permits on appeal is de novo. 24 V.S.A. § 4472(a); 10 V.S.A. § 8504(h.
In a de novo hearing before the Environmental Division, “all questions of law or fact as to which
review is available shall be tried to the court, which shall apply the substantive standards that
were applicable before the tribunal appealed from.” V.R.E.C.P. 5(g). As with all matters heard
on appeal before this Court, our review is limited to those issues raised in the Statements of
Questions. V.R.E.C.P. 5(f).
Before addressing the merits of the permit applications, we begin with a threshold issue
regarding the scope of our review. The parties disagree as to whether the permit applications
should be reviewed as amendments to existing permits, or as new, standalone permit
applications. Shires Housing argues, based on “common sense and precedent,” that this Court’s
review of the two matters on appeal is limited to the impacts of the changes resulting from the
applications to amend the permits. Shires Housing further asserts that unaffected findings may
not be reopened. The Neighbors countered at trial that both permits had expired, and therefore
Shires Housing’s applications should be considered anew.
The parties’ statements of questions do not, either expressly or by implication, raise the
issue of whether any of the original permits had expired, or whether the applications before the
-10-
Court are new or amended applications. Nor were these matters raised in pretrial pleadings. We
must address this question, however, because it affects the scope of our review.
When a permit applicant seeks an amendment rather than authority to develop a new
project, the scope of review for both municipal and state permits, including Act 250, is often
narrowed. See In re Taft Corners Assoc., Inc., 160 Vt. 583, 593 (1993) (finding that the
Environmental Board7 had no authority to reopen an umbrella Act 250 permit once it became a
final permit); Village of Woodstock v. Bahramian, 160 Vt. 417, 424 (1993) (holding that in an
appeal from municipal panel’s denial of an application for permit amendments, parties could not
challenge the underlying permit or other amendments that had been approved and had not been
appealed); In re Route 103 Quarry, No. 205-10-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Nov. 22, 2007)
(Durkin, J.) (explaining that the scope of criteria is narrowed when an Act 250 permit applicant
requests an amendment because the pre-existing permit is not subject to attack in a subsequent
proceeding). The Court may not reopen the original application to address the criteria on which
the amended application has no substantial impact. Taft Corners, 160 Vt. at 592. The policy
reasons for this are two-fold. First, the property owner is entitled to rely on vested rights. Route
103 Quarry, No. 205-10-05 Vtec at 6 (Nov. 22, 2006). Second, the orderly governance of
development and a reasonable reliance on the process demand certainty. Taft Corners, 160 Vt.
at 593. Both principals would be undermined if a party is allowed to collaterally attack a pre-
existing approval through the amendment process.
Conversely, if the municipal or Act 250 approvals and the subsequent amended approvals
expired, Shires Housing’s application would need to run the full gauntlet of review. See 10 V.S.A.
§ 6091(a) (“At the expiration of each permit, it may be renewed under the same procedures
herein specified for an original application.”); In re Wood NOV & Permit Application, 2013 VT 40,
¶ 39, 194 Vt. 190 (finding that a permit to redevelop a commercial building had expired along
with any rights under it).
The evidence before the Court supports a conclusion that the municipal and Act 250
approvals have not expired. With respect to Act 250, pursuant to 10 V.S.A. § 6090 (b)(1), permits
7
The Environmental Board determined Act 250 cases prior to the establishment of the Environmental
Division of the Vermont Superior Court.
-11-
are issued for an indefinite term.8 Condition number 7 of LUP #8B0573-1 expressly states that
the approval is for an indefinite term. Furthermore, the Court finds it persuasive that the District
Commission treated Shires Housing’s application as an amendment to the original Act 250 land
use permit. In its August 24, 2016 approval, the District Commission referred to the permit as
“Land Use Permit Amendment #8B0573-3.”9 Applicant Ex. 3. In fact, the District Commission’s
Findings of Fact, Conclusions of Law, and Order associated with #8B0573-3 states that Act 250
jurisdiction attaches via a permit amendment.
Similarly, the evidence before the Court shows that the Town of Bennington’s PRD
approval has not expired. The Town’s 2006 amendment expressly states that, except as
modified, the conclusions and conditions set forth in the August 16, 2005 DRB decision remain
valid and in full force and effect. In November 2014, the DRB approved the modified PRD for
Shires Housing and Appleridge. The DRB’s 2014 Findings of Fact and Decision states that Shires
Housing is seeking approval of an amendment to the PRD development. The underlying
application for DRB review states “Reason for Application: Amendment of Existing Planned
Residential Development.”
Neighbors argue that the municipal approval has expired pursuant to Regulations Article
10, Section 10.3(C)(1) which states: “[p]ermits shall remain in effect for one year from the date
of issuance, unless the permit specifies otherwise. All development authorized by the zoning
permit and associated approvals shall be completed within this period, or the zoning permit shall
become null and void.” While Section 10.3(C)(1) can void the zoning permit for failure to timely
complete construction, it does not affect the underlying DRB approval; in this case the DRB’s
approval of the Development Plan and the Planned Residential Development plan approval. Levy
v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 143–44 (1989).
The Court concludes that neither the municipal nor Act 250 approvals of the prior
development plans or PRD approval have expired. We also conclude that both the DRB and the
District Commission treated the applications on appeal as amendments to prior approvals. We
agree with this approach. Within our de novo appeal process we undertake a review of the
8
Exceptions to this are permits for extraction of mineral resources, solid waste disposal facilities and logging
above 2,500 feet which are issued for a specified term.
9
The July 2006 amended permit was titled #8B0573-1. Presumably there was also a #8B0573-2, but that
amended permit was not offered into evidence.
-12-
pending applications as though we are the DRB or District Commission and we apply the same
substantive standards as applied below. V.R.E.C.P. 5(g). Therefore, we will review the legal issues
presented by the Statements of Questions with the understanding that the applications before
the Court are applications to amend the previous approvals. For each issue, organized by the
parties’ Statement of Questions, we conduct an abbreviated review of the permit applications as
the applications seek amendments to the Act 250 and municipal approvals. We will not disturb
the conclusions of the earlier reviews which are unaffected by the amendments. For some of the
questions before the Court, however, it is not apparent whether the issue is new to the
amendment or whether the issue has been reviewed previously. In these situations, we
conservatively conduct a more thorough review, similar to our review of applications for new
developments.
I. PRD Appeal
The Neighbors appeal the PRD permit amendment for the Project based on eight grounds
presented in their Statement of Questions.
a. The Project will not have an adverse impact on community facilities or services, the
character of the neighborhood, or traffic.
Question 1 of the Neighbors’ Statement of Questions asks whether the Project will result
in an adverse effect on the capacity of community facilities and services, the character of the
neighborhood, or traffic.
Under Regulations Section 6.3(A)(1)–(3), a zoning application may be approved only if the
proposed development will not result in an undue adverse effect on the capacity of existing or
planned community facilities or services; character of the neighborhood or area affected; and
traffic on roads and highways in the vicinity.
1. Impact on Community Facilities and Services
Appleridge received municipal permits to develop 53 units at this location in 2005, and
42 units in 2006. No evidence was presented to show a marked change in the Town’s community
facilities or its capacity to deliver services since that time. Because the current proposal would
bring the overall size of the Eden Way properties to 39 units—including the existing 15 units—
the impact of the proposal on community facilities and services is expected to be less than
-13-
originally approved since there will be fewer residents. Based on the credible evidence admitted
at trial, including information within a Municipal Impact Questionnaire and the evidence
provided by the Town Manager, the Court concludes that the Project will not unduly burden the
town’s fire protection, police protection, road maintenance, or solid waste disposal services.
Both parties presented evidence of the Project’s impact on local schools. The Neighbors
argue that the local elementary school today is already at or near capacity and is an under-
performing school with a majority of the children on free or reduced lunch. Neighbors contend
that adding more children would cause an undue adverse effect on the Bennington School
District. Shires Housing, however, provided more credible evidence from the school’s
superintendent. James R. Culkeen, Superintendent Southwest Vermont Supervisory Union,
anticipates 10 to 12 school-aged children will live in the Eden Way units based on the proposed
Project. Mr. Culkeen concludes that even if those children are concentrated in kindergarten
through fifth grades and attend Bennington Elementary School, the school district can absorb
them with little measurable impact. We agree with this conclusion.
The Court concludes the Project will not have an adverse impact on community facilities
or services.
2. Impact on Character of the Neighborhood
In reviewing a municipal permit application, the Court generally uses a two-prong test to
determine whether a development will have an “undue adverse effect” on the character of the
neighborhood or area affected. Rublee 246 White Birch Lane CU, No. 140-11-15 Vtec, slip op. at
10 (Vt. Super. Ct. Envtl. Div. Aug. 23, 2016) (Walsh, J.). First, the Court will determine whether
the proposed development is in harmony with the purpose statements in the Town’s plan and
bylaws. Id. Next, the Court considers whether the proposed development will have an undue
adverse effect on existing development. Id. (“Looking to existing uses in addition to purpose
statements . . . gives teeth to the character-of-the-area requirement, and it gives reviewing
tribunals—and applicants—concrete standards to measure proposed uses against.”).
The Regulations also require the two-part test. The DRB must consider the “design,
location, scale and intensity of the proposed development and/or use, relative to the character
of the adjoining properties . . . and . . . the proposed development’s compatibility with the
-14-
purpose and character of the affected zoning district . . . the town plan, and testimony as
provided as part of the public hearing process.” Regulations § 6.3 (A)(2), Applicant Ex. 29, 113.
We first consider the character of the area as defined in the Regulations and Town Plan.
The Bennington Town Plan calls for the Town to:
1. Improve the existing housing stock to provide a variety of opportunities for
rental and home ownership for people of all income levels.
2. Create infill housing opportunities . . . .
...
6. Recognize and address the housing needs of professionals relocating to the
area by supporting the renovation of existing dwellings and construction of new
dwellings to serve this population.
7. Recognize and address the housing needs of elderly and disabled persons with
limited mobility by working with local and state housing agencies and private
developers. Support renovation of existing housing and development of new
housing that meets the needs of these groups in and near the center of town.
...
9. Work with Shires Housing, other housing agencies, and private developers to
develop an adequate supply of affordable housing and develop programs that
encourage home ownership for people and families with incomes at or near the
town median. . . .
Bennington Town Plan Chapt. 5.5, Applicant Ex. 28, 58–59. We conclude that the Project
advances each of the enumerated housing policies. The Project is an infill development that was
designed by Shires Housing to provide new, affordable rental housing near the center of Town.
The Town Plan also describes the Mixed Residential (MR) District, where the Project is
located:
The Mixed Residential Districts are intended to provide for compact
residential development that may include one and two family dwellings as well as
apartments, row houses, and similar types of housing. Planned developments
with integrated designs are encouraged to promote the most appropriate use of
the land and to ensure the most efficient use of municipal services.
...
The scale, design, and orientation of new buildings in the Mixed Residential
Districts shall be consistent with historic structures and development patterns in
the surrounding area. Front yards are to be attractively landscaped and should
include appropriate pedestrian amenities. Whenever possible, neighborhoods
shall be linked by pathways and sidewalks.
Id. Chapt. 3.2, Applicant Ex. 28, 22.
-15-
The Regulations describe a similar purpose of the MR district and specifically call for
“planned development projects with integrated design, in order to promote the most
appropriate use of the land, to ensure economical provision of streets and utilities, and to secure
the best possible environment for those types of dwellings.” Regulations Table 3.11, Shires Ex.
29 49.
We conclude that the Project advances the purposes of the MR District. The Project
comports with the Town Plan’s description of the MR District, in that it is a planned development
with an integrated design that provides compact residential development in duplexes and small
apartment buildings. The design includes landscaped front yards as well as walking paths and
sidewalks that connect the Project to the surrounding neighborhood. As an infill, in town
development, the Project also promotes appropriate use of land and ensures efficient use of
municipal services. The Project would complete the development of a block that is just two
blocks south of downtown Bennington and within the Town’s Urban Growth Area, where the
Town encourages concentrated development to maintain sustainable levels of water and sewer
service.
The Project is also designed to aesthetically integrate into the adjacent historic
neighborhood, with an appealing street presence. The duplex closest to Silver Street orients
toward that street and is architecturally similar to nearby houses. The apartment buildings are
interior to the lot and mostly hidden from view of passersby on Silver Street. Considering the
various aspects of the Project’s design, the Court finds the Project is compatible with the purpose
and character of the MR District. Therefore, as described in the Town Plan and Regulations, we
conclude that the Project will not result in an undue adverse effect on the character of the
neighborhood.
We next consider the character of the area as it actually exists today. The Project is on a
2.7-acre lot within a block bordered by Silver, Grandview, South and Prospect Streets. The
density of the Project is about average compared with development on the rest of the block. See
Applicants’ Ex. 17. Silver and Grandview Streets are mostly lined with single-family Victorian
homes. Silver Street also contains a triplex and two duplexes in the same block as the Project.
Id. The lots on Grandview Street are small, each averaging about a quarter-acre. Id. The lots
-16-
along Silver Street are up to a half-acre or slightly larger. Id. Silver and Grandview Streets are
listed in the State Register of Historic Places.
In contrast, South Street is heavily populated by multi-unit buildings, including Nathaniel
Court where 42 units are clustered in four buildings on a lot smaller than the one Shires Housing
plans to develop. Multiple duplexes and triplexes stretch from Grandview to Prospect Streets.
The Project’s two largest buildings of six and eight units are located in the interior of the block,
farthest from passersby and largely blocked from view. Both buildings are two stories high, in
keeping with the surrounding properties. The Project’s duplexes will line Eden Way to Silver
Street. The Project’s architectural styles and color scheme will blend in with the neighborhood.
The Neighbors contend the Project is inconsistent with the character of the neighborhood
because the residents will be renters rather than owners, the duplexes and two larger multi-unit
buildings are not in keeping with the single-family homes lining Silver and Grandview Streets, and
the yard sizes are too small. They also argue that the Project violates the Regulations and
aesthetics of the neighborhood because either Eden Way is a driveway and only one of the
Project’s buildings orient toward a street as required, or Eden Way is a street and the setbacks
are insufficient.
As for the Neighbors’ issues of renting verses ownership, we note that the regulation of
land use based solely on the identity of the owner or user of the property is not within the
authority granted to a municipality under 24 V.S.A., Chapter 117. Vt. Baptist Convention v.
Burlington Zoning Bd., 159 Vt. 28, 30–31 (1992) (“A distinction based upon the identity of the
owner rather than the public health, safety, morals, or general welfare would be invalid.”)
(citation omitted). Additionally, because the Regulations do not differentiate between renters
and owners, we will not analyze those aspects of the Project and any alleged impacts.10
In reviewing this amended Project, we find that the changes proposed will not have an
undue adverse impact on the character of the area despite the Neighbors’ concerns. The Project
is a hybrid between the 2005 and 2006 proposals, with fewer units than either of them. It retains
the multi-unit buildings that were originally proposed, but with lower heights and fewer units,
10
A relevant regulation in the Town’s bylaws prohibits the exclusion of “low and moderate income housing.”
Regulations § 4.5(5), Applicant Ex. 29 73.
-17-
and provides more housing in duplexes, as in the 2006 application. Because the Project will result
in fewer housing units on Eden Way and more open space than either previous proposal, the
Project will have a lighter impact overall. Compare Applicant Ex. 5, with Applicant Exs. 32 and
33. Additionally, the architectural and aesthetic features of the Project are designed to blend in
with the existing neighborhood. The Project is weighted toward the interior of the block,
anchored by the two multi-unit buildings, and will be less visible from the surrounding streets.
The Project is also designed to transition down from the multi-unit buildings in the interior
of the block, to the duplexes as Eden Way reaches Silver Street. Where the Project touches Silver
Street, one duplex will sit on the corner of Silver Street and Eden Way, where it will blend in with
the neighborhood. See Applicant Ex. 9–12. The duplex has a 25-foot front yard setback in
conformity with the other houses on the street, and is architecturally and aesthetically designed
to fit in with the historic homes. Just two doors north on Silver Street is a triplex. Applicant Ex.
17. The rest of the Project is less visible from Silver Street, because Eden Way curves out of view
just past the first duplex and the multi-unit buildings sit in the middle of the block.
If Silver and Grandview Streets were the only streets in the Project’s neighborhood, the
Neighbors’ concerns would be considerably stronger. As it is, South and Prospect Streets also
surround the Project. South Street is populated with multi-unit housing, including the 42-unit
Nathaniel Court, which is adjacent to the Eden Way properties. Next door to Nathaniel Court is
a three-unit building at the corner of South and Prospect Streets. We therefore conclude that
the Project is consistent with the existing development in the neighborhood.
As the Neighbors correctly point out, the yards of the Project’s duplexes and the multi-
unit buildings are differently proportioned than those of the single-family homes in the
neighborhood, and the duplexes orient toward Eden Way rather than Silver Street, with the
exception of the duplex on the corner of Silver Street. The purpose of a PRD, however, is to
provide flexibility to promote efficient use of land. Regulations Section 9.1(B) (when approving
a PRD, “the Development Review Board may modify applicable general area and general
dimensional requirements required elsewhere in these regulations”). Furthermore, it would be
a poor design, and pointless, to orient the duplexes in a direction other than Eden Way, the access
the residents will use to enter and leave their homes either on foot or by car. Additionally, the
Project, as an amended proposal, provides the same setbacks and more green space than the
-18-
prior two iterations that were approved and not appealed. We do not find merit in the
Neighbors’ assessment of the Project’s impact on the neighborhood and we conclude that the
Project is consistent with the existing development in the neighborhood.
The Neighbors also provided testimony from a real estate professional who testified that
the Project had already adversely affected the neighborhood’s property values. This testimony
of impact to surrounding area property values is afforded limited weight as there are many
possible causes of decreased property values other than this Project.
Considering the design, location, scale and intensity of the Project, the Court finds that
the Project will be among similar housing immediately adjacent to it and in the area. It is a less
intense use of the land than originally approved, with less density, less height and less lot
coverage than the two previous approvals. The setbacks are the same as those approved by the
DRB in 2005 and 2006. As an amended Project, we conclude it is in harmony with the purpose
of the MR zoning district and fits with existing development in the neighborhood and will not
result in an undue adverse effect on the character of the neighborhood.
3. Impact on Traffic
The Regulations require the DRB to consider the projected impact of traffic on roads and
highways in the vicinity of the proposed development, relying on accepted transportation
standards. Regulations § 6.3(A)(3), Shires Ex. 29 113. The DRB should not approve a project if it
“would result in the creation of unsafe conditions for pedestrians or motorists or unacceptable
levels of service for local roads, highways and intersections,” unless the applicant can mitigate
the problems. Id.
In reviewing the traffic concerns for this amended Project, we start with the realization
that fewer units generally equate to fewer vehicles. The DRB previously permitted 53 and 42
units for this location; 39 units, including the 15 existing condominium units, will have less of an
impact on Bennington’s roads. Also, the Project’s layout is similar to the previous iterations in
that Eden Way will connect to Silver Street. Residents also will be able to enter or exit on South
Street, the existing access point for the 15 condominium units.
Shires Housing submitted a report from Creighton Manning Engineering which found the
Project will increase weekday traffic by 15 peak hour trips in the AM and 18 in the PM peak hour.
-19-
Applicant Ex. 18. The increased traffic on Silver Street is not expected to be significant, and may
result in one additional vehicle on the road every five to ten minutes. Id. Eden Way is not
expected to become a cut-through street for drivers, since Grandview and Prospect Streets
already provide a more direct east-west connection between Silver and South Streets. Id.
Residents also may choose to walk rather than drive two blocks to downtown Bennington. Id.
The Neighbors provided little evidence addressing their concerns with traffic other than
their lay opinions to suggest the Project would create unsafe conditions, particularly for
pedestrians. Shires Housing’s expert witness Jason M. Dolmetsch, a civil engineer, testified that
the minimum stopping sight distance for a road like Silver Street is 200 feet, based on the speed
limit. In other words, a driver should be able to stop within 200 feet of a safety concern, such as
a pedestrian in a crosswalk. Mr. Dolmetsch further testified that there are adequate stopping
sight distances for the proposed crosswalk on Silver Street, meaning that the crosswalk is visible
from at least 200 feet away. The Court finds Shires Housing’s evidence credible.
For drivers exiting Eden Way onto Silver Street, the sight distances are 337 feet looking
south and 343 feet looking north. These sight distances are adequate for drivers exiting Eden
Way, and for drivers on Silver Street who observe the exiting car.
The Court concludes that the Project will not create unsafe conditions for pedestrians or
motorists, nor increase traffic significantly, and the Project will not create an unacceptable level
of service.
b. In the judgment of the Court, the Project can be used for the intended purpose
without danger to public health or safety, the environment, neighboring
properties, the character of the area or district in which it is located.
Question 2 of the Neighbors’ Statement of Questions asks whether the Project, as a
subdivided property, will be used for its intended purposes “without danger to the public health
or safety, the environment, neighboring properties, the character of the area or district in which
it is located,” as required by the Regulations § 8.3(A).
The Regulations cited by the Neighbors are intended to protect natural and fragile
features of the landscape. Specifically, these are wetlands, floodplains and surface waters,
natural areas, historic and cultural resources, and steep slopes. As set forth in the above findings
of fact, none of these features are at issue in this case. The Project is on 2.7 acres of land that
-20-
was originally part of a 4.4-acre parcel intended for an approved 53-unit condominium complex
in 13 buildings. The Project will not have any impact on wetlands, floodplains and surface waters,
natural areas, historic and cultural resources, or steep slopes. Based upon the evidence before
the Court and our above Findings of Fact, we conclude that the land can be used for its intended
purposes without danger to the public health or safety, the environment, neighboring properties,
the character of the area or district in which it is located.
c. The Project is not consistent with the setback requirements in the MR District, but
as a PRD, is exempt from those requirements.
Question 3 of the Neighbors’ Statement of Questions asks whether the Project is
consistent with the letter and spirit of the front, side, and rear yard setback requirements
associated with the MR District. The Neighbors further ask how the setback requirements apply
to a PRD.
As discussed above, Shires Housing’s amended proposal does not change the setbacks
approved in the prior two iterations of this Project. Additionally, the setback requirements do
not rigidly apply to a PRD. The purpose of a PRD is to provide flexibility to promote efficient use
of land. Regulations Section 9.1(B) (when approving a PRD, “the Development Review Board may
modify applicable general area and general dimensional requirements required elsewhere in
these regulations . . . ”).
The project has the following minimum setback distances: front yard setback from Silver
Street of 25 feet, side yard setback from Eden Way for duplex units of 15 feet, and side yard
setbacks for multi-units of 20 feet. Normally in the MR District, residential buildings are required
to meet a 35-foot rear yard setback for single-family homes and duplexes, and a 40-foot rear yard
setback for multi-family dwellings. Side yard setbacks are 10 feet for single-family homes and 15
feet for duplexes. The front yard setback must be within 5 feet, greater or lesser, of the average
front setback of historic residential structures located on the street. PRDs are an exception to
these requirements. As explained in Article 4 of the Regulations, “[n]o lot, yard, court, or any
other open space shall be reduced in area, so that it cannot conform to minimum dimensional or
coverage requirements prescribed in these regulations, except as approved by the Development
Review Board for planned residential and planned unit developments.” Regulations § 4.8,
-21-
Applicant, Ex. 29, 74 (emphasis added). The Project meets the requirements under the
Regulations for a PRD. See Regulations Article 9. The hallmark of a PRD is flexibility in developing
a lot without the restrictions imposed on single-building developments, in part to “encourage
creative design and layout of development and an efficient use of land.” Regulations § 9.1(A)(6).
As a PRD, the Project is a type of development encouraged in the MR district to increase
density, cluster development, accommodate new development, provide opportunities for a
diversity of housing types, allow for compact and village-scaled mixed-use developments, and
encourage creative design and layout of development and efficient use of land. Regulations
§ 9.1. We conclude that the Project, as a PRD, is consistent with the letter and spirit of the front,
side, and rear yard setback requirements associated with the MR District.
d. The Project meets the minimum requirements for a PRD.
Question 4 of the Neighbors’ Statement of Questions asks whether the Project meets the
minimum requirements for a PRD. Specifically, the Neighbors ask if the Project complies with the
Regulations such that building envelopes front upon and are oriented toward roads or common
areas; the roads and driveways are laid out in a manner that reflects village-scale street design
characterized by narrow travel lanes and a well-defined streetscape comprised of street trees,
sidewalks and/or a consistent building setback; and adequate provision has been made for open
space and common areas which should serve as a central organizing feature within the PRD, such
as a green or a park. See Regulations § 9.3(E)(1)–(3).
Because the earlier versions of the Eden Way community were approved as PRDs, we first
consider whether the Project presents a material change that requires scrutiny. We find it does
not. The Project is in keeping with those prior plans, and with the 15-unit condominium
community built by Appleridge. The Project’s buildings are primarily oriented toward Eden Way.
The eight-unit apartment building is oriented toward the parking lot, which is situated where
Eden Way dead ends, and the duplex on Silver Street is oriented toward Silver Street. This is no
different than the orientation of the buildings permitted in 2005. It is somewhat different than
the 2006 permit, in that the 2006 permit envisioned only duplexes and did not include a large
parking lot, but did include a series of smaller parking areas next to the duplexes.
-22-
The site plans are either identical or similar in other ways as well, including street trees,
sidewalks, travel lanes, and building setbacks. Compare Applicant Ex. 5 with Ex. 32 and Ex. 33.
The Project provides more open space then previously permitted. The 2006 permit provided for
21 separate duplexes, with one of the duplexes located in what is now the open space. The 2005
permit provided for 13 buildings, including one large 10-unit apartment building that would have
filled much of the open space. Furthermore, as described in the Findings of Fact, the Project’s
features meet the minimum requirements of a PRD, as described below.
1. The buildings front upon and orient toward roads or common areas, and the
building setbacks are consistent.
The Neighbors claim the buildings in the Project either violate the Regulations because
they are not appropriately oriented to the street, or they violate the rear yard setbacks. Their
faulty argument hinges on an irrelevant issue: whether Eden Way is considered a street or a
driveway. If it is a street, they argue, then the buildings should orient toward it as they do, but
then must meet the required setbacks. If Eden Way is a driveway, then the buildings should
orient toward Silver Street. The Neighbors misapply the Regulations.
As explained above, a PRD is not required to meet minimum setback standards. The
DRB—or, on appeal, this Court—can modify general area and dimensional requirements.
Regulations § 9.1(B), Applicant Ex. 29, 143. In this case, Shires Housing, and Appleridge before it,
complied with the setbacks by treating the Project as one lot. From the one-lot perspective, the
Project fronts on Silver Street. Shires Housing then applied the front and side yard setbacks. The
yards on the south and north sides of the duplexes along Eden Way are considered the Project’s
side yards. Given that orientation, the Project consistently meets the minimum 15-foot side yard
setback for its duplexes and multi-unit buildings and in that way is no different from the projects
permitted for the site in 2005 and 2006. See Regulations Table 3.11, Applicant Ex. 29, 49; see
also Shires Ex. 5 (site plan showing the consistent 15-foot side yard setback for the duplexes on
the south side of the property; and a consistent 17-foot side yard setback for the duplexes on the
north side), Exs. 32 and 33 (showing the approved 2005 and 2006 site plans). This unconventional
development is permissible for a PRD.
-23-
The Neighbors also contend the multi-unit buildings orient toward the parking lot in
violation of Regulations Table 3.11. The Regulations state that multi-family structures “may
orient toward the street and internal parking lots and/or courts.” Regulations Table 3.11 (E)(4)(c).
In this case, the six-unit apartment building, like the duplexes, orients toward Eden Way. Eden
Way then continues, ending in a parking lot in front of the eight-unit apartment building. The
Project complies with the Regulations as there is no other street for the larger apartment building
to orient toward, and it orients toward the parking lot as required. We therefore conclude that
the Project’s building orientations comply with the regulations.
2. Eden Way is laid out in a manner that reflects a village-scale street design
characterized by narrow travel lanes and a well-defined streetscape comprised
of street trees, sidewalks and/or a consistent building setback.
Shires Housing’s site plan and photographic illustrations depict an attractive, well-
integrated community knit together along a narrow travel lane—Eden Way. See Shires Ex. 5–14.
The street is lined with sidewalks and trees, and a walking path connects the parking lot at the
end of Eden Way to Grandview Street. Id. The Project seamlessly connects to the existing
condominiums.
To be considered a “well-defined streetscape,” the Regulations require either street
trees, sidewalks, and/or consistent building setbacks. See Regulations § 9.3(E)(2). The Project
includes all three features. As previously described, the Project includes consistent building
setbacks of 17 feet on the north side and 15 feet on the south side of Eden Way, behind the
duplexes, and 15 feet behind the apartment buildings. Applicant Ex. 5. The plans also include
2.5-inch caliper deciduous trees lining Eden Way, and a concrete walk—or sidewalk—in front of
the duplexes and apartment buildings. Id. We conclude that the Project reflects a village-scale
street design because it is characterized by a narrow travel lane, and the well-defined streetscape
includes street trees, sidewalks, and consistent building setbacks.
-24-
3. The Project provides sufficient open space and common areas to serve as a
central organizing feature.
The Regulations require that “[a]dequate provision for open space and common areas
shall be included in the design of the PRD which should serve as a central organizing feature with
the PRD, such as a green or park.” Regulations § 9.3(E)(3).11
While the Project’s open space is not in the geographical center of the development, it
nevertheless serves as a “central organizing feature.” The open space to the east of the two
multi-unit buildings is a large common area that may be accessed either directly from the
apartment buildings or a gravel path for residents who live in the duplexes. Based on the
evidence before the Court and our above findings of fact, the Court concludes that the Project
makes adequate provision for open space and common areas serving as central organizing
features within the PRD.
We conclude that the Project complies with the Town’s PRD regulations. The DRB approved the
earlier plans as PRDs, concluding that they complied with the Regulations. The Court finds no
reason to disturb those unaffected conclusions. Based on our additional conclusions today, the
Project complies with the Regulations as building envelopes front upon and are oriented toward
roads or common areas; the roads and driveways are laid out in a manner that reflects village-
scale street design characterized by narrow travel lanes and a well-defined streetscape
comprised of street trees, sidewalks and/or a consistent building setback; and adequate
provision has been made for open space and common areas which should serve as a central
organizing feature within the PRD.
e. The Project will not create an undue burden on municipal facilities or create an
unreasonable demand for public services.
Question 5 of the Neighbors’ Statement of Questions asks whether the anticipated tax
returns from the Project will equal or exceed the cost of anticipated municipal services and
facilities directly attributable to the Project.
11
The Neighbors contend the open space behind the two multi-unit apartment buildings is not big enough
to site a baseball field. The Court is unaware of any requirement in the Regulations for PRDs that require such.
-25-
When a property is subdivided, as here, the DRB is required to consider whether the
subdivision will “create an undue burden on municipal facilities or create an unreasonable
demand for public services.” Regulations § 8.6(A). To make that determination, the DRB
considers whether the anticipated tax return from the proposed development is equal to or
exceeds the anticipated municipal costs associated with the subdivision, and whether the
subdivision will unduly burden the local government services. Id.
In reviewing the Project’s application as an amendment to an existing municipal approval,
the only two relevant changes the Court need consider are that 1) the Project will provide rental
apartments rather than owner occupied condominiums; and 2) the Project will likely house fewer
people than the 2006 permit would have allowed—and certainly less than the 2005 permit would
have allowed—which may decrease the impact of the use of municipal services.
The limited evidence before the Court shows that the Project will not unduly burden the
schools or any other municipal service or facility. See supra Part I. a(1). Shires Housing offered
evidence that the Project will generate $24,000 in property taxes annually and that this amount
is equal to or exceeds the anticipated municipal costs associated with the subdivision, and that
the subdivision will not unduly burden the local government services. The Court therefore
concludes that the Project’s anticipated tax returns will equal or exceed the cost of municipal
services and will not create an undue burden on municipal facilities or create an unreasonable
demand for public services.
f. The Court will not require Shires Housing to provide a fiscal impact analysis of the
Project.
Question 6 of the Neighbors’ Statement of Questions asks what the financial impact of
the Project will be on the Town of Bennington. The Regulations allow the DRB discretion to
require a subdivision developer to provide a fiscal impact analysis of the development.
Regulations § 8.6(A). The DRB may also require a developer to phase the development to accord
with the Town of Bennington’s capital budget and program.
Neither side presented evidence relevant to this question. The Court can find no reason,
based on the evidence before it, to require Shires Housing to either provide a fiscal impact
analysis of the Project or to phase-in the development.
-26-
g. Risks related to blasting and radon must be mitigated.
Question 7 of the Neighbors’ Statement of Questions raises several concerns. The
Question states that the DRB in its decision of November 4, 2014 found that “Blasting has the
potential to result in damage to nearby homes.” Question 7 then asks a series of questions
including: Won’t jack hammering potentially cause similar damage? Shouldn’t the DRB have
provided for potential damage to people? How will the damages be measured? Who will bear
the cost? Why shouldn’t the developer provide a bond to cover damages to property and
persons? How will the developer measure personal injury due to radon and how will the
potentially long tail of this liability be maintained to measure results?
Question 7 does not cite or refer in any way to the Regulations. The DRB’s decision below
does not cite any regulations governing these concerns. Furthermore, the testimony of all parties
does not point to specific or general provisions within the Regulations concerning these issues.
Shires Housing’s witness, Mr. Dolmetsch, testified that the Town regulates blasting
through its building permits that are reviewed and issued under its Building Code, which he said
references the Vermont Fire and Building Safety Code that in turn requires adherence to NFPA
495. A building permit is not before the Court and the Building Code was not offered into
evidence.12 According to Mr. Dolmetsch’s testimony, the Code requires pre- and post-blast
surveys, which are performed using photos, videos, and measurements of all structures within a
minimum of 500 feet from the blast site with the actual distance determined by the magnitude
of the blast. The Code also requires the blasting company to monitor the area during blasting
and to carry liability insurance.
The Court reviewed the Regulations trying to understand how the Question 7 issues might
be regulated. The only potential Regulation governing issues of blasting and jack hammering is
Section 4.11 Performance Standards. Pursuant to Section 4.11, all uses in all districts shall comply
with ten enumerated criteria. Only criteria 4 and 5 might potentially apply to blasting and jack
hammering and radon concerns. Criterion 4 requires that no use shall emit any noxious gases
which endanger the health, comfort, safety or welfare of any person, or which cause injury or
12
Mr. Dolmetsch testified further that the Town’s Building Code incorporates the 2012 Vermont Fire,
Building and Safety Code and the National Fire Protection Act. Neither of these regulatory documents were offered
into evidence.
-27-
damage to property, businesses, animal or vegetation. Criterion 5 requires that no use shall
cause a vibration which, when transmitted through structures or ground, is discernable at the
property line without the aid of instruments.
Taking a liberal view of Section 4.11, especially subsections 4 and 5, the regulations might
be broad enough to regulate blasting. We therefore consider the potential for blasting to
physically impact neighboring properties and the potential blasting impact on radon gas
exposure.
In response to the DRB finding that “[b]lasting has the potential to result in damage to
nearby properties,” the DRB imposed a condition—Condition 7—that requires Shires Housing to
submit a detailed blasting plan to the Town of Bennington if blasting is required. The plan must
be approved by the Town before blasting is allowed. Condition 7 also requires that the plan
include pre-blasting and post-blasting inspections, with the results filed with the Town; a claims
review process by a neutral third party, paid for by the applicant; and prompt payment by the
applicant to any claimant for the amount necessary to repair damage as determined by the third
party. Shires Housing challenges the validity of Condition 7.
In approving a permit application, a municipal panel, and this Court on appeal, “may
attach additional reasonable conditions and safeguards as it deems necessary to implement the
purposes of [Vermont’s municipal and regional land use statutes] and the pertinent bylaws and
the municipal plan then in effect.” 24 V.S.A. § 4464(b)(2). Permissible conditions include those
with prospective application that alleviate adverse impacts caused by a project. 2 Am. Law.
Zoning § 14:17 (5th ed.) Conditioning a permit on future approval of future submissions—as
Condition 7 would do here—constitutes a prohibited condition subsequent. Statutory due
process set forth in 24 V.S.A. § 4464 requires notice and opportunity to be heard.13 Condition 7
requires Shires Housing to file a blasting plan with the Town for approval without notice to and
opportunity to be heard for other interested parties in violation of due process protections.14 We
therefore VOID Condition 7 for this infirmity.
13
Due process rights are set by the Vermont statute as a balance to the interests of developers and the
environmental interests of adjoining landowners and localities since there is no “liberty” or “property” interest
involved that is protected by the Fourteenth Amendment. See In re Great Waters of America, Inc., 140 Vt. 105,
108—10 (1981).
14
There is an analogous prohibition against conditions subsequent within the Act 250 process. See Re:
Sherman Hollow, Inc., No. 4C0422-5-EB, Revised Decision, at 9 (Vt. Envtl. Bd. Feb. 17, 1989) (where un-submitted
-28-
As part of our de novo review, we consider blasting impacts. Based on our above findings
of fact, there is the potential for blasting to physically impact neighboring properties. Impacts
could include fractures to foundations or basements and walls. To reduce the potential of these
impacts occurring and to document whether in fact there are impacts, Shires Housing offers
specific blasting protocol as set forth in the above Finding of Fact number 60.
With respect to radon issues, ANR completed a review of blasting concerns and whether
blasting could cause changes in radon gas infiltrating into neighboring homes. Radon levels in
structures can change daily, weekly and seasonally due to a variety of factors. Fractures in
bedrock are an interconnected network of planar features in the subsurface and exact locations
and intersections in the sub-surface are generally difficult to predict. Thus, radon measurements
in a dwelling may vary over time and it is difficult to prove that any change in radon
concentrations is due to nearby blasting. Based on ANR’s credible evidence, we conclude that
requiring radon monitoring as part of the pre- and post-survey efforts is not warranted. ANR
further concluded (and the Court finds) that controlled blasting and an adequate blasting plan
and implementation from a reputable drilling and blasting company will provide adequate
protection for nearby homeowners.
To mitigate potential impact on neighboring structures from blasting, the Court imposes
as a condition the blasting protocol set forth in Finding of Fact number 60 as necessary conditions
of approval. Monitoring of radon is not included as part of this condition. The Court imposes the
additional requirement of providing copies of both the pre- and post-blast surveys to property
owners and the Town.
The Neighbors’ Question 7 also asks “won’t jack hammering potentially cause similar
damage?” The Court has limited evidence relating to this issue. Shires Housing offered into
evidence a December 10, 2015 letter from the Vermont Division of Historic Preservation (DHP).
In this letter, DHP states that blasting and/or heavy vibrational activity may impact historic
resources in the area. We address the concerns of blasting above. It is not clear to the Court
information might make a difference in the denial or approval of a permit, it would contradict the purpose of Act
250 to issue a conditional permit which would retain jurisdiction over a phased project with conditions requiring
certain information to be provided at a later date); see also, Re: Paul E. Blair Family, No. 4C0388-EB, Mem. of
Decision, at 6 (Vt. Envtl. Bd. June 16, 1980) (“Neither the Commission nor the Board is authorized to grant a permit
on the ‘condition’ that the criteria of the Act be satisfied at some unspecified future time.”).
-29-
that jack hammering is “heavy vibrational activity.” VHP did not participate at trial and the Court
could not therefore ask VHP any questions. No other party provided testimony or evidence to
assist the Court on the jack hammering issue. Lastly, the District commission did not address jack
hammering within its Findings of Fact, Conclusions of Law, and Order. We therefore are without
sufficient evidence to support a conclusion that jack hammering will cause damage.
We do not consider the Neighbors’ questions of potential damage to people (including a
personal injury claim based on exposure to radon gas), how to measure such, who should bear
the cost, and the need for the developer provide a bond to cover damages to property and
persons as we have no evidence supporting the Town’s authority to regulate these issues nor
that the Regulations speak to these issues. Furthermore, the Environmental Division is a Court
of limited jurisdiction. See 4 V.S.A. § 34 (defining the Court’s jurisdiction under state laws); 10
V.S.A. § 8504(h) and V.R.E.C.P. 5(g) (the Environmental Division applies the substantive standards
that were applicable before the tribunal appealed from). Although this Court must ensure
compliance with applicable regulations, we do not have jurisdiction to adjudicate private
property rights. See, e.g., In re Britting Wastewater/Water Supply Permit, No. 259-11-07 Vtec,
slip op. at 4 (Vt. Envtl. Ct. Apr. 7, 2008) (Wright, J.) (“This Court’s consideration of property-
related issues and rights is limited to issues within the scope of the regulations governing the
permit application.”). Private property rights, and for that matter, damages to persons, are
outside of our jurisdiction. LeGrand & Scata Variance Application, No. 110-8-14 Vtec, slip op. at
4 (Vt. Super. Ct. Envtl. Div. Nov. 12, 2015) (Durkin, J.) (explaining that the only proper forum for
resolving property disputes is the Civil Division of the Superior Court).
h. The site design does not lack continuity and does not create a dysfunctional layout.
Question 8 of the Neighbors’ Statement of Questions asks whether the Project lacks
continuity and creates a dysfunctional layout because rental apartments will be in close proximity
with owner-occupied units. The Regulations do not differentiate between renter-occupied and
owner-occupied housing.
Furthermore, as expressed above, the regulation of land use based solely on the identity
of the owner or user of the property is not within the authority granted to a municipality under
24 V.S.A., Chapter 117. Vt. Baptist Convention, 159 Vt. at 30–31. A relevant regulation in the
-30-
Town’s bylaws prohibits the exclusion of “low and moderate income housing.” Regulations §
4.5(5), Applicant Ex. 29 73. Because the Regulations do not differentiate between renters and
owners, we conclude that whether a unit is renter or owner occupied does not result in a
dysfunctional layout.
As to the other questions raised in Question 8, such as whether it is “OK” that the DRB
did not conduct a site visit to the Project, we note that our review of the applications is de novo.
When undertaking de novo review, “this Court does not consider any previous decisions or the
proceedings below; rather, we review the application anew as to the specific issues raised in the
statement of questions.” In re North East Materials Group, LLC, No. 143-10-12 Vtec slip op. at 4
(Vt. Super. Ct. Envtl. Div. May 9, 2013) (Walsh, J.) (quoting In re Whiteyville Props. LLC, No. 179-
12-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Dec. 13, 2012) (Durkin, J.) (internal quotations
omitted). Whether a lower adjudicative body conducted a site visit is irrelevant to our review.
This type of alleged error by the DRB below is cured by our de novo hearing in this Court. See In
re JLD Props. of St. Albans, LLC, 2011 VT 87, ¶ 12, 190 Vt. 259. The Court completed a site visit.
Lastly, the neighbors in Question 8 ask whether other reasonable alternatives exist for
affordable housing. The neighbors offer no evidence that the Regulations require consideration
of reasonable alternative locations for the siting of the Project. This Court’s consideration is
limited to issues within the scope of the regulations governing the permit application. See, e.g.,
In re Britting Wastewater/Water Supply Permit, No. 259-11-07 Vtec, slip op. at 4 (Vt. Envtl. Ct.
Apr. 7, 2008) (Wright, J.). The Court concludes such review is beyond our jurisdiction.
II. The Neighbors’ Act 250 Permit Appeal
The Neighbors and Shires Housing both appeal the Act 250 Permit. The Neighbors’
Statement of Questions contains 12 questions; Shires Housing includes three. As with the PRD
and zoning permit appeal, the Court will analyze the Act 250 permit application as an amendment
application. We begin with the Neighbors’ concerns.
a. The Project will not result in undue air pollution.
Before granting an Act 250 permit, we must find that the development will not result in
undue air pollution. 10 V.S.A. § 6086(a)(1). As with most Act 250 criteria, the applicant bears the
burden of proof. 10 V.S.A. § 6088(a).
-31-
Act 250 Criterion 1 requires applicants to show that their project will not cause “undue
water or air pollution.” 10 V.S.A. §6086(a)(1). Whether pollution is “undue” is highly fact-
specific; it depends on “the nature and amount of the pollution, the character of the surrounding
area, whether the pollutant complies with certain standards or recommended levels, and
whether effective measures will be taken to mitigate the pollution.” Id.
Questions 1 and 2 of the Neighbors’ Statement of Questions ask whether the Project will
cause an undue adverse effect on air quality in the surrounding neighborhood as a result of
blasting or the byproducts of blasting, given the proximity of the homes and the fact the homes
and the Project are located on the same rock ledge. Specifically, the Neighbors are concerned
about the release of radon through fissures in the rock caused by the blasting.
Blasting in the area of the Project could fracture the local bedrock and create a new
pathway for radon migration into area structures. As such, the Project’s blasting could cause
undue air pollution. Based upon ANR’s credible evidence, however, controlled blasting and an
adequate blasting plan and implementation from a reputable drilling and blasting company will
mitigate the opening of fractures in bedrock off site or in damage to adjacent homes. Applicant
Ex. 22. As discussed above in Part I. g., the Court sets conditions of approval by imposing a
blasting protocol. We apply these conditions in this Act 250 matter as well to address this
concern. With the added conditions, the Court concludes that the Project will not result in undue
air pollution and with these conditions we conclude that the Project complies with Criterion 1.
b. The Project will not cause unreasonable congestion or unsafe conditions with
respect to the use of the highways and other means of transportation.
Before issuing an Act 250 permit, we must find that a development will “not cause
unreasonable congestion or unsafe conditions with respect to the use of the highways . . . and
other means of transportation existing or proposed.” 10 V.S.A. § 6086(a)(5)(A). If the applicant
produces sufficient evidence to enable the Court to make a positive finding on this criterion, then
the opponent carries the burden of proving that a project does not conform to Criterion 5. 10
V.S.A. § 6088(b); see Hinesburg Hannaford Act 250 Permit, No. 113-8-14 Vtec, slip op. at 40 (Vt.
Super. Ct. Envtl. Div. July 7, 2016) (Walsh, J.).
-32-
Question 3 of the Neighbors’ Statement of Questions asks whether the Project would
cause unreasonable congestion or unsafe traffic conditions as the proposed transportation plan
provides only for “minimally acceptable site distances.” The Neighbors’ Question 4 asks whether
the Project will create unsafe traffic conditions and endanger area children and other residents
who would cross at the proposed crosswalk on Silver Street. We consider Questions 3 and 4
raising the aspect of compliance with Criterion 5.
At the outset, in reviewing the application as an amendment, the Court concludes any
traffic impact will be less than what was anticipated and approved in the 2005 and 2006 permits,
based on the relative number of units in each proposal.15
In further reviewing Criterion 5, Shires Housing submitted a report from Creighton
Manning Engineering which found the Project will increase weekday traffic by 15 peak hour trips
in the AM and 18 in the PM peak hour. Applicant Ex. 18. The increased traffic on Silver Street is
not expected to be significant, and may result in one additional vehicle on the road every five to
ten minutes. Id. Eden Way is not expected to become a cut-through street for drivers, since
Grandview and Prospect Streets already provide a more direct east-west connection between
Silver and South Streets. Id. Residents also may choose to walk rather than drive two blocks to
downtown Bennington. Id.
As described supra Part I. a(3), the minimum stopping distance for a road like Silver Street
is 200 feet, there are adequate stopping distances for the proposed crosswalk on Silver Street,
and the sight distances are adequate for drivers exiting Eden Way onto Silver Street.
David Frederickson, one of the Appellants, testified that he is concerned about the
proposed crosswalk on Silver Street because he says children blatantly walk across the street
assuming they are safe rather than looking both ways. He asserted that it is especially dangerous
in the winter because cars coming uphill when there is snow and ice on Silver Street try to get a
good head of steam and may have trouble stopping.
Shires Housing presented expert testimony that the sight distances for motorists at Eden
Way and Silver Street were adequate, including the Silver Street crosswalk. The Court finds the
evidence submitted by Shires Housing is credible and sufficient to enable the Court to make a
15
See supra Part I. a(3). for further discussion.
-33-
positive finding. The Neighbors’ lay opinion does not rebut this evidence. Based on our Findings
of Fact and Shires Housing’s credible evidence, we conclude that the Project will not create
unsafe traffic conditions and endanger area children and other residents who would cross at the
proposed crosswalk on Silver Street, nor create unsafe conditions for motorists in the area, nor
increase traffic significantly. Additionally, the Project will not create an unacceptable level of
service.
In a related question, Neighbor’s Question 5 asks whether the proposed development
would cause unsafe traffic conditions and fail to protect area children and other residents who
may cross at locations other than the proposed crosswalk at Silver Street. The Neighbors did not
provide evidence of a specific area of concern relating to pedestrian crossing Silver Street outside
of the crosswalk. When reviewing an application for land use development and considering
potential safety issues, the Court must presume that pedestrians will obey the law. Doing
otherwise could create endless review. Here, Shire’s Housing proposes an appropriate crosswalk,
and as we conclude immediately above, the Project will not create unsafe traffic conditions that
endanger area children and other residents who would cross at the proposed crosswalk on Silver
Street.
We therefore conclude that the Project complies with Criterion 5; 10 V.S. A. § 6085(a)(5).
c. The Project will not have an undue adverse impact on education.
Before issuing an Act 250 permit, the District Commission must find that the development
“[w]ill not cause an unreasonable burden on the ability of a municipality to provide educational
services.” 10 V.S.A. § 6086(a)(6).
Neighbors Question 6 asks whether the proposed development would have an undue
adverse impact on education with the addition of a significant number of students to the
neighborhood schools. As explained above, both parties presented evidence of the Project’s
impact on local schools. In considering this Act 250 permit application as an amendment, the
evidence is that the Project’s impact will be lighter than in the prior two proposals. With 39 units
on Eden Way, instead of the 53 originally proposed, it is likely that fewer children will live there
and the impact on the schools is therefore likely to be less. We turn to the testimony presented
concerning the current amendment, which was described above in Part I. a(1). The Neighbors
-34-
contend that adding more children will cause an undue adverse effect on the Bennington School
District because the local elementary school underperforms and is already at or near capacity.
Shires Housing offered the schools’ superintendent Mr. Culkeen, who testified that the school
district can absorb the additional children from the proposed Project with little measurable
impact. We find Shires Housing’s evidence credible, and conclude that the Project will not cause
an unreasonable burden on the ability of the municipality to provide educational services and
therefore complies with 10 V.S.A. § 6086(a)(6).
d. The Project’s multi-unit apartment buildings will not have an undue adverse effect
on the neighborhood’s aesthetics or historic sites.
Before issuing an Act 250 permit, we must find that a development “[w]ill not have an
undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites, or rare
and irreplaceable natural areas.” 10 V.S.A. § 6086(a)(8)(A). If the applicant satisfies the initial
burden of production, then the opponent carries the ultimate burden of proving that a project
does not conform to Criterion 8. Hinesburg Hannaford, No. 113-8-14 Vtec at 54 (July 7, 2016).
Question 7 of the Neighbor’s Statement of Questions asks whether the Project’s multi-
unit apartment buildings would be out of scale with, and cause an undue adverse effect upon,
the aesthetic and historic nature of the surrounding neighborhoods, which contain many 19th
century and early 20th century homes.16 The Court understands this question to limit our scope
of review under Criterion 8 to the Project’s impact on the aesthetics of the neighborhood and
the historic homes on Silver and Grandview Streets.
In reviewing Shires Housing’s application as an amendment, we find that the changes in
this iteration of the development compared with the originally permitted proposal serve to
reduce aesthetic impacts on the neighborhood. The original proposal called for an apartment
building with more units—10 instead of 8—and more stories—3 instead of 2. While the 2006
proposal called for only duplexes, less green space would have been available. The Project is a
16
This question is similar to the “character of the neighborhood” question posed by the Neighbors in their
municipal permit appeal, and discussed supra Part I. a(2).
-35-
hybrid between the 2005 and 2006 proposals and is well in line with those previously permitted
proposals.
In further reviewing the application under Criterion 8, the Court first considers whether
the Project will have an adverse effect. In judging the impact of a proposed project, the essential
question is, “will the proposed project be in harmony with its surroundings—will it ‘fit’ the
context within which it will be located?” Re: Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-
EB, Findings of Fact, Conclusions of Law, and Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985). Among
the factors to consider in answering this question are present land use, architectural
compatibility, the visibility of the project, and impact on open space. Id.
Since a general analysis of aesthetic impacts can be subjective, the Environmental Board
established the two-part “Queechee test” to evaluate a project under Criterion 8. Id. at 17
(quoting Re: Brattleboro Chalet Motor Lodge, Inc., No. 4C0581-EB, Findings of Fact, Conclusions
of Law, and Order (Vt. Envtl. Bd. Oct. 17, 1984)); In re Goddard College Act 250 and CU, Nos. 175-
12-11 Vtec and 173-12-12 Vtec, slip op. at 14 (Vt. Super. Ct. Envtl. Div. Jan. 6, 2014) (Walsh, J.).
First, we examine whether a proposed project may cause an adverse impact on the character of
the area. Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, at 17 (Nov. 4, 1985). If so, the
Court then determines whether that impact will be “undue.” Id. The Vermont Supreme Court
has approved the use of the Quechee test and we therefore employ it here. In re Rinkers, Inc.,
2011 VT 78, ¶ 9, 190 Vt. 567.
1. The Project will have an adverse impact on the neighborhood’s aesthetics and
nearby historic homes.
The Neighbors contend the Project alters the character of the neighborhood because it
stands out in contrast to the primarily single family residential neighborhood of Grandview and
Silver Streets. They claim the view from Silver Street will be of duplexes and the tops of the two
multi-unit apartment buildings, which is out of keeping with the streetscape along Silver Street.
Because of their historic 19th and early 20th century homes, both Silver and Grandview Street are
listed in the State Register of Historic Places.
The Vermont Division for Historic Preservation (VDHP), which is within the Agency of
Commerce and Community Development, determined the proposed Project will have an indirect
-36-
adverse effect on the neighborhood based on its appearance. VDHP State Historic Preservation
Officer Laura V. Trieschmann Letter to District #8 Environmental Commission Acting Chairman
John S. Liccardi (Dec. 10, 2015), Applicant Ex. 24. VDHP found the Project “will have a strong
visual presence, and become a significant non-contributing feature within the historic district and
amongst the other historic houses in the adjacent neighborhood.” Id. We agree with this analysis
and also conclude that the Project is out of scale with surrounding homes—and the historic
district along Silver and Grandview Streets—but we also conclude that the Project fits the context
of South Street.
Unlike 42-unit Nathaniel Court, which is accessed only by South Street, the Project comes
into direct contact with the historic homes on Silver Street via Eden Way. One of the Project’s
five duplexes will sit on the corner of Silver Street and Eden Way, facing Silver Street. From Silver
Street, while much of the Project will not be visible, a pedestrian or motorist may be able to look
up Eden Way into the interior of the block and perhaps see one or two other duplexes, and the
roofs of the two-story, multi-unit apartment buildings. Each apartment building will be 25 feet
high with pitched roofs and a mostly white or cream-colored exterior with some rust and gold
coloring. While the architectural design and paint scheme is intended to blend in with the
neighborhood, the “fit” is not perfect. A casual observer will be able to see the difference
between the Project, built along a narrow street, and the historic homes along Silver and
Grandview Streets. Based on the evidence, the Court finds that the Project will have an adverse
effect on the aesthetics of the neighborhood and the historic district.
2. The Project’s adverse impact on the character of the area is not undue.
The Supreme Court has found that a development will have an undue adverse effect on
aesthetics if: “(1) it violates a clear, written community standard intended to preserve the
aesthetics or scenic, natural beauty of the area; or (2) it offends the sensibilities of the average
person; or (3) the applicant has failed to take generally available mitigating steps that a
reasonable person would take to improve the harmony of the proposed project with its
surroundings.” In re UPC Vermont Wind, LLC, 2009 VT 19, ¶ 24, 185 Vt. 296 (citing In re Times &
Seasons, LLC, 2008 VT 7, ¶ 8, 183 Vt. 336).
-37-
The Neighbors claim the Project will have an undue adverse effect on aesthetics because
it violates the clear written community standards in the Regulations; is “offensive and shocking”
to the average person; and Shires Housing did not take steps to mitigate the appearance of the
Project to bring it more in line with the surrounding historic neighborhood. We disagree.
We conclude that there is no clear written community standard intended to preserve the
aesthetics of the Project’s neighborhood beyond the general goals in the Town Plan and
Performance Standards in the Regulations, which the Project satisfies as previously discussed,
supra Part I. a(2). The Neighbors contend the Project violates Regulation § 6.3(B)(1) which
provides, in part:
Conditions may be imposed with regard to siting, density, setbacks, height,
massing, materials and/or orientation, to ensure the following:
a. Buildings, and modifications to existing buildings, are designed in a manner
that is compatible with, and does not stand in contrast to, nearby historic
structures (and other existing structures, if applicable) with regard to building
scale, massing, materials, orientation and rhythm of openings (fenestration).
The Neighbors offer that this section requires that the project be compatible with the setting and
context of the neighborhood; meaning that the Project buildings not stand in contrast to nearby
historic structures with regard to scale, orientation and rhythm of openings. We conclude this
language to be too broad to effectively apply as a clear standard for aesthetics. An example of a
specific standard is requiring parking lots to be located behind buildings or requiring a minimum
number of trees or shrubs based on square footage of project buildings.
The neighbors also offer the PRD requirements in § 9.3 of the Regulations as a clear
community standard. Specifically, Neighbors assert that pursuant to § 9.3, a PRD must be an
“effective and unified treatment of the development possibilities of the site.” We again conclude
that this language is too broad to effectively apply as a clear standard for aesthetics. We
conclude that §§ 6.3(B)(1) and 9.3 do not set clear community standards for aesthetics.
The next issue is whether the Project is “offensive and shocking” to the average person.
The Neighbors offer that the Project is both offensive and shocking because a person passing by
Eden Way on Silver Street would expect to see another single-family home instead of an
“unnaturally small street with rows of duplexes.”
-38-
The standard we use to determine whether a Project’s impacts would be shocking or
offense is whether they would shock and offend an average person, not an individual Appellant.
Goddard College, Nos. 175-12-11 Vtec and 173-12-12 Vtec at 14 (Jan. 6, 2014) (finding that a
woodchip heating system on a rural college campus is similar in scale, material and form to
existing structures and the views from a state highway and surrounding residences would not
shock or offend the sensibilities of the average person).
In this case, the Neighbors exaggerate the Project’s impact. The Project has only five
duplexes along one street, with two on the north side and three on the south side. The average
passerby will see a duplex facing Silver Street at the corner of Eden Way. The duplex will blend
in with the architectural style and colors of the historic homes. Just two doors north is a triplex
on the same side of Silver Street. Next to the duplex will be the entrance to the Project and
another duplex set further into the block, across the street and facing Eden Way. While Eden
Way is narrower than Silver Street, the Regulations encourage “narrow travel lanes” for PRDs to
reflect a village-scale street design. See Regulations § 9.3(E)(2); see also discussion supra Part
I. d. Eden Way curves as it winds back into the Project, blocking most of the Project from view.
If the passerby looks up, above the treetops, he or she may also see the tops of the multi-unit
buildings in the interior of the block. The individual is just as likely to see the tops of the existing
duplexes.
Based on the evidence provided by both the Neighbors and Shires Housing, the Court
does not find a single feature of the Project, taken individually or together, that rises to the level
of “shocking” or “offensive” to an average person’s sensibilities.
The final issue is whether Shires Housing did enough to mitigate the negative aesthetic
impact of the Project. The Neighbors argue that Shires Housing could have built just one home
on Silver Street to make it look like the other houses, with the apartment buildings behind it. The
test, however, is not whether the applicant has done absolutely everything possible to mitigate
the development’s impact, but whether it has taken “generally available mitigating steps that a
reasonable person would take to improve the harmony of the proposed project with its
surroundings.” UPC Vermont Wind, 2009 VT 19, ¶24. Shires Housing has taken reasonable steps
to mitigate the Project’s impacts by using an architectural design that fits in with the
-39-
neighborhood and placing the more intense use—the two multi-unit apartment buildings—in the
interior of the block to minimize the visual impact.
The Court therefore finds that while the Project’s impacts on the aesthetics of the
neighborhood and the historic district are adverse, they are not unduly adverse. The Project
therefore complies with 10 V.S.A. § 6085(a)(8)(A).
e. The Project will not cause an unreasonable burden on the ability of the Town of
Bennington to provide educational services.
Question 8 of the Neighbors’ Statement of Questions ask whether the Project will cause
an undue adverse impact on the Town’s ability to provide essential educational services as a
result of the proposed number of residents and school-aged children. This question is nearly
identical to Question 6, which was previously discussed in Part II. c. We conclude that the Project
will not cause an unreasonable burden on the Bennington schools.
f. The Project will not cause an unreasonable burden on the ability of the local
government to provide municipal or governmental services.
Question 9 of the Neighbors’ Statement of Questions asks whether the Project will cause
an undue adverse impact on the Town’s ability to provide essential municipal services. At the
end of trial, the Court granted a verbal motion from Attorney Fisher for the Neighbors to
withdraw Question 9 and we therefore do not consider it here.
g. The Project will not significantly affect the Town of Bennington’s or the region’s
existing or potential financial capacity to accommodate the additional residents.
Question 10 of the Neighbors’ Statement of Questions asks whether the Project will place
an undue burden on the Town of Bennington’s tax base, given that four to five houses would
reap equivalent property taxes with fewer people. Given that Act 250 does not directly address
the comparison requested by the Neighbors, we interpret their question to raise Criterion 9(A)
issues.
Criterion 9(A) requires us to:
-40-
take into consideration the growth in population experienced by the town and
region in question and whether or not the proposed development would
significantly affect their existing and potential financial capacity to reasonably
accommodate both the total growth and the rate of growth otherwise expected
for the town and region and the total growth and rate of growth which would
result from the development if approved.
10 V.S.A. § 6086(a)(9)(A). The plain language of criterion 9(A) requires us “to consider the growth
caused by the project . . . , the anticipated costs to the town and region, and the financial capacity
of the town and region to accommodate the growth.” In re Wal-Mart Stores, Inc., 167 Vt. 75, 82
(1997). Under criterion 9(A), growth is interpreted to include economic growth as well as
population growth. Id. at 85. The statute also directs a district commission, and this Court
considering an appeal, in approving a permit, to ensure that there is no “undue burden upon the
town and region in accommodating growth caused by the proposed development or
subdivision.” 10 V.S.A. § 6086(a)(9)(A).
In reviewing this amendment application, the Court notes that the Project, with fewer
units than previously permitted, does not constitute a change that will significantly affect the
Town’s financial capacity to reasonably accommodate the additional residents.
Shires Housing provided both an estimate of the property taxes the Project will generate
($24,000), and the Town Manager’s assurance that the Town of Bennington has the capacity to
provide, without unreasonable burden, fire protection, police protection, road maintenance and
solid waste disposal to the Project. The Neighbors did not rebut this evidence. The Court
therefore concludes that the Project satisfies Criterion 9(A).
h. The Project is in conformance with the Bennington Town Plan.
Question 11 of the Neighbors’ Statement of Questions asks whether the Project’s density
is supported by and consistent with the Bennington Town Plan, even though the Plan does not
state a need for high-density housing as infill in historic neighborhoods. Question 12 asks
whether the Town Plan allows for placement of high-density housing as infill in a historic
neighborhood. These questions address Criterion 10, which asks whether a proposed project is
“in conformance with any duly adopted local or regional plan or capital program under 24 V.S.A.
chapter 117.” 10 V.S.A. § 6086(a)(10).
-41-
There are several “key principles” used to guide the determination of whether a project
complies with a local plan. In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520. First, a
determination of nonconformity must be “based upon a ’specific policy’ set forth in the plan.” Id.(quoting In Re Green Peak Estates, 154 Vt. 363, 369 (1990)). Second, the specific policy must be
stated “in language that ‘is clear and unqualified, and creates no ambiguity.’” Id. (quoting In re
MBL Assocs., 166 Vt. 606, 607 (1997)). Third, while “[b]road policy statements phrased as
‘nonregulatory abstractions’” . . . may not be given ’the legal force of zoning laws,’” Id. (quoting
In re Molgano, 163 Vt. 25, 31 (1994)), zoning bylaws are “designed to implement the town plan,
and may provide meaning where the plan is ambiguous.” In re Kisiel, 172 Vt. 124, 130 (2000).
Abstract policy statements in town plans that lack specific enforcement standards cannot
be enforced under Criterion 10. In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 18
(Vt. Super. Ct. Envtl. Div. July 2, 2010) (Durkin, J.). A project only conflicts with a plan when the
plan’s standards are stated in clear, unqualified language that creates no ambiguity. Id. “[B]road
policy statements and nonregulatory abstractions are not equivalent to enforceable restrictions.”
In re B & M Realty, LLC, 2016 VT 114, ¶ 35 (Vt. Oct. 21, 2016) (quoting In re Chaves A250 Permit,
2014 VT 5, ¶ 38, 195 Vt. 467)
The applicant provided evidence at trial that shows the Project is in conformance with the
Town Plan. For instance, the Project is located in the Town’s MR District. According to the Town
Plan, the MR District is intended to provide compact residential development and may include
“apartments, row houses, and similar types of housing.” Town Plan Chapt. 3.2, Applicant Ex. 28,
22. “Relatively high densities [are] allowed for development of multi-family housing.” Id. In the
Town Plan’s “Housing Policies and Recommendations” section, it encourages the creation of
“infill housing opportunities” that are “compatible with the character of the town.” Id. Chapt.
5.5, Applicant Ex. 28, 58–9. The Town Plan does not relegate infill housing to any specific district.
The Project complies with these Town Plan provisions even though they may be more aspirational
than mandatory.
The Neighbors offered testimony by Donald R. Miller, a homeowner on Grandview Street
who has served on planning and zoning commissions in Connecticut and Vermont and owns an
insurance agency in downtown Bennington. Mr. Miller focused the Court’s attention on several
sections of the Town Plan: Sections 3.3(1) and (3) (Land Use Policies and Recommendations);
-42-
5.5(1), (2) and (9) (Housing Policies and Recommendations); and 6.7 (6) (Transportation Policies
and Recommendations). None of these sections, however, state a specific policy or standard for
density in the Project area, the issue specifically raised in Neighbors’ Questions 11 and 12.
Section 3.3(1) comes closest, stating that “all development activity shall conform to the
requirements and restrictions on uses, densities, and dimensional, design, and special standards
as indicated” in the Regulations. Criterion 10, however, does not require us to determine
whether a project conforms with the detailed requirements of the Town’s Regulations. See
Horizon Development Corp., No. 4C0841-EB, Mem. of Decision, at 29 (Vt. Envtl. Bd. Aug. 21,
1992).
The Court concludes that Project conforms with the Town Plan. For a further discussion
of the Project’s compatibility with the character of the area, including the historic nature of the
area, see the discussion, supra Part I. a(2). We therefore conclude that the project complies with
Criterion 10.
III. Shires Housing’s Act 250 Permit Appeal
In its appeal of the District Commission’s Act 250 permit decision, the applicant asks three
questions in its Statement of Questions pertaining to the conditions attached to the permit.
a. Blasting Conditions
Question 1 asks what blasting conditions for construction are reasonable, ascertainable,
and consistent with industry standards and practice. With this question, Shires Housing appeals
Conditions 15 and 16 on its Act 250 permit, which require it to retain a trained, certified and
licensed blasting and drilling contractor to prepare a comprehensive blasting plan to “ensure
there will be no physical damage to any historic homes within or adjacent to the subject parcel;”
and retain an independent, third-party consultation for survey, inspection, monitoring, damage
assessment, and reparation.
Criterion 8 of Act 250 requires that a proposed development not have an undue adverse
effect on historic sites. 10 V.S.A. § 6086(a)(8). In its appeal of the Act 250 approval, Shires
Housing does not challenge the District Commissions conclusion of an adverse impact under
Criterion 8. Similarly, this Court’s above findings of fact show that the Project’s potential blasting
-43-
could have an adverse impact on neighboring historic homes by causing factures in foundations
or basements or walls. Our review of Shires Housing Question 1 therefore relates to whether
Shires Housing has offered a blasting plan or blasting procedures (Shires Exhibits 26 and 27) that
qualify as generally available mitigating steps which a reasonable person would take to eliminate
or reduce the adverse impacts to neighboring historic structures. Times & Seasons, 2008 VT 7, ¶
8 (explaining that if an adverse aesthetic impact is found, the impact may not be undue if the
applicant takes generally available mitigating steps which a reasonable person would take to
improve the harmony of the proposed project with its surroundings); see also, Re: Barre Granite
Quarries, LLC, No. 7C1079-Revised-EB, Findings of Fact, Conclusions of Law, and Order, at 89 (Vt.
Envtl. Bd. Dec. 8, 2000) (finding that detailed blasting procedures will safeguard against unduly
harmful impacts of a quarry on neighboring land uses).
Shires Housing offers a blasting protocol, set forth in Finding of Fact number 60, and
contends that the protocol satisfies Criterion 8’s mitigation requirement that adverse impacts
must be mitigated with generally available steps which a reasonable person would take. As such,
Shires Housing asserts that the District Commission does not have the authority to require an
independent third party to oversee damage claims and reparations. Shires Housing
acknowledges that if the pre- and post-surveys ascertain that damage to a neighboring structure
has occurred, it is the obligation of Shires Housing (and the blasting contractor) to cure the
damage.
The Court concludes that requiring an independent, third-party consultant to oversee
damage claims and reparations—in addition to a seismic survey or blasting firm to carry out the
blasting protocol—is beyond generally available mitigation which a reasonable person would
take. The neighbors testified that they wanted an independent third party to assist with the
potential damage to their homes caused by blasting. DHP’s December 10, 2015 offers that the
pre- and post-blasting surveys and monitoring should be managed by an independent third party
who would also assess damage and corrective action. No justification is provided as to why the
independent professional blasting firm is not qualified or appropriate to manage these issues.
The Court is without evidence supporting the need to have two layers of professional
independent consultants hired by the developer. Accordingly, the Court strikes conditions 15
and 16 of LUP #8B0573-3. The Court imposes as a condition of approval the blasting protocol
-44-
set forth at Finding of Fact number 60 above. The Court imposes the additional requirement of
providing copies of both the pre- and post-blast surveys to property owners. With these
conditions of approval, we conclude that the Project complies with 10 V.S.A. § 6086(a)(8).
b. Shires Housing may use composite materials instead of wood for the exterior siding
and trim on the Project’s duplexes and apartment buildings.
Question 2 asks whether composite materials instead of wood can be used for the
exterior siding and trim on its buildings.
Condition 14 of the Act 250 permit requires Shires Housing to use wood siding and wood
trim “in order to be compatible with the historic architectural character of the South Street
Historic District, as well as adjacent historic homes on Grandview and Silver Streets.” This
condition is imposed pursuant to Criterion 8, which requires that a proposed development not
have an undue adverse effect on the aesthetics and historic sites in the area. 10 V.S.A. §
6086(a)(8). VDHP, in a Dec. 10, 2015 Letter to District #8 Environmental Commission Acting
Chairman John S. Liccardi, recommended that wood siding and trim “are the appropriate
materials for significant new construction within the historic district in order to minimize these
aesthetic concerns.”
Shires Housing does not challenge the District Commission’s conclusion of an adverse
impact under Criterion 8 with respect to the Project’s compatibility with the historic architectural
character of the South Street Historic District. The question relates to generally available
mitigating steps which a reasonable person would take to improve the harmony of the proposed
project with its surroundings. Shires Housing offered testimony that the aesthetic differences
between wood and composite materials are nearly undetectable, while the maintenance costs
of composite materials are much lower. Shires Housing asserts that requiring wood siding and
trim is not reasonable mitigation. Little additional evidence was offered on this topic by other
parties. VDHP did not appear at or participate in trial, and therefore, did not offer additional
evidence. Because the aesthetic differences are nearly undetectable, we conclude that requiring
wood is not a generally available mitigating steps which a reasonable person would take to
eliminate adverse impacts. Rather, the critical mitigating requirement is ensuring that the
aesthetic appearance of the materials used look like the historic character of the area. Based
-45-
upon the evidence, Shires Housing’s use of composite materials is allowable. We therefore
modify Condition 14 of LUP #8B0573-3 by striking “wood siding and wood trim” and replacing it
with “composite material having the appearance of wood.”
c. The number of parking spaces permitted for the Project is 46.
The District Commission incorrectly identified the number of parking spaces the Project
will have. The number of parking spaces is 46.
Conclusion
In summary, in consideration of the Neighbors appeal of the municipal application, the
Court concludes that the Project will not have an adverse impact on community facilities or
services, the character of the neighborhood, or traffic. The Project can be used for its intended
purpose without danger to public health or safety, the environment, neighboring properties, the
character of the area or district in which it is located. The Project is not consistent with the Town
of Bennington’s setback requirements, but as a PRD, is exempt from those requirements. The
Project meets the minimum requirements for a PRD. The Project will not create an undue burden
on municipal facilities or create an unreasonable demand for public services. Shires Housing does
not need to provide a fiscal impact analysis of the Project. The site design does not lack continuity
and does not create a dysfunctional layout. Condition 7 requires Shires Housing to file a blasting
plan with the Town for approval without notice to and opportunity to be heard for other
interested parties in violation of due process protections. We therefore VOID Condition 7 within
the PRD and zoning approval #14-141 for this infirmity.
In consideration of the cross-appeals of the Act 250 application, the Court concludes that
the Project will not result in undue air pollution. The Project will not cause unreasonable
congestion or unsafe conditions with respect to the use of the highways and other means of
transportation. The Project’s multi-unit apartment buildings will not have an undue adverse
effect on the neighborhood’s aesthetics or historic sites. The Project will not have an undue
adverse impact on education or cause an unreasonable burden on the ability of the Town of
Bennington to provide essential educational services. The Project will not cause an unreasonable
burden on the ability of the local government to provide municipal or governmental services. The
-46-
Project will not place an undue burden on the Town’s tax base and will not significantly affect the
Town of Bennington’s or the region’s existing or potential financial capacity to accommodate the
additional residents. The Project conforms with the Bennington Town Plan. The Bennington Town
Plan allows for infill development and high-density housing at the Project’s site, which is in the
MR District. Shires Housing is required to follow the blasting protocol as described in the Findings
of Fact Number 60 and in these conclusions, and is not required to hire an independent, third-
party consultant; Condition 15 and 16 of LUP #8B0573-3 are VOIDED. Shires Housing may use
composite materials instead of wood for the exterior siding and trim on the Project’s duplexes
and apartment buildings. We MODIFY Condition 14 of LUP #8B0573-3 by striking “wood siding
and wood trim” and replacing it with “composite material having the appearance of wood.” The
number of parking spaces permitted for the Project is 46.
Because there is a potential for blasting to adversely impact neighboring properties,
Shires Housing’s municipal and Act 250 approvals are subject to the following conditions (Blasting
Protocol):
1. A seismic survey or blasting firm shall be employed by Shires Housing to perform and
monitor the explosive work. The firm(s) shall have a minimum of five years of
experience in similar rock work, show proof of license to handle explosives and show
proof of adequate liability insurance.
2. The seismic or blasting firm(s) shall conduct a pre-blast survey of all buildings or water
supplies within 500 feet of the work area. The survey shall include, but not be limited
to, video tapes, pictures and notes which identify the existing condition of all structures
and portions thereof. A post-blast survey shall be conducted to determine the condition
of all structures and portions thereof after blasting. Copies of the pre- and post-blast
surveys shall be provided to the owners of subject buildings and the Town Zoning
Administrator.17
3. All work shall conform to all applicable codes for explosive handling and use including,
but not limited to, NFPA 495; all local, state and federal regulations; and the procedures
outlined in the “Blasters Handbook” by the Dupont Company.
17
The Court imposes the additional requirement of providing copies of both the pre- and post-blast
surveys to property owners and the Town.
-47-
4. The drilling and/or seismic survey firm(s) shall notify all abutting property owners and
residents seven days in advance of any drilling or blasting activities. The local police and
fire departments shall be notified 24 hours in advance of any blasting. Signs shall be
posted at all entrances at least 500 feet from the work area advising of blasting and
describing the warning whistle before a blast. Drilling and blasting shall not commence
until a pre-blast survey is complete.
5. Drilling operations shall be conducted Monday through Friday 7 a.m. to 5 p.m. Explosive
detonations shall be limited to 9 a.m. to 4 p.m. Monday through Friday.
6. The blasting and/or seismic survey firm(s) shall maintain two continuous recording
seismographs on site during explosive detonation. The seismic record shall be reviewed
by an Engineer qualified to assess accelerations produced by explosive shock waves.
7. No blasting of any kind will be conducted without appropriately sized blast mats or
adequate backfill to prevent fly rock of any kind.
8. The blasting firm shall keep daily records of hole location, depth, explosive load, weight
per delay per hole, the type of subsurface materials and any unusual event during an
explosive detonation.
9. There shall be no overnight storage of explosive material on the site except in containers
which conform to NFPA 49518.
10. The determination of maximum charge weight per delay shall be generally based on the
formula proposed by the American Insurance Association or current regulations.
18
NFPA 495 is a code adopted by the National Fire Protection Association that identifies reasonable levels
of safety for the manufacture, transportation, storage, sale, and use of explosive materials.
-48-
11. The company employed by Shires Housing to perform any blasting work shall follow the
State of Vermont’s Best Management Practices for Blasting to Avoid Environmental
Contamination.
We remand these matters to the Town and the District Commission to perform the
ministerial act of issuing permits consistent with each decision below as modified by this decision.
This completes the matter before the Court. A Judgment Order is issued
contemporaneously with this decision.
Electronically signed on April 14, 2017 at 2:31 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
-49-