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Boards discuss strategy for sub regs and appeals process

11/15/2007

By Lisa Loomis

Meeting jointly, Waitsfield's governing/regulatory boards discussed why the town's proposed zoning regulations failed in a poorly attended town vote on October 23 and also discussed the appeals process when the select board steps in to mediate or facilitate.

At the Waitsfield Select Board's November 12 meeting, members of the Development Review Board and the Planning Commission were present for a semi-annual tete-a-tete of the boards. During a wide-ranging discussion, all present concurred that the new subdivision regulations were a much needed improvement over the old regs and made plans for a December 4 public hearing.

Waitsfield shifted all regulatory reviews to a newly created DRB this year and refocused its planning commission on planning rather than subdivision and site plan review.

Brian Shupe, DRB chair, told the select board that the new DRB was working well and was well able to handle the workload so far.

"We'd like to discuss how the town is dealing with appeals. They tend to go to Environmental Court which pushes for mediation at the town level. This is not a criticism, but we'd like the board to be aware that there's the perception that if you don't like your decision you can appeal it and go to the select board to cut a deal. We'd like to know what type of advice you seek from the DRB when there is an appeal and talk about the protocol," Shupe said.

On three occasions appeals from Waitsfield's regulatory bodies have been 'mediated' by the select board on behalf of the boards. In those cases, the mediation process is held behind closed doors as it is considered 'pending litigation,' one of the reasons for closed-door hearings allowed by Vermont law.  

Select board member Sal Spinosa told the collected boards that any misperceptions regarding 'go to the select board and get a better deal' were wrong.

"Maybe we have done enough in discussing what it is we're doing. It sometimes looks like you're getting a better deal, but that's not how it's done," Spinosa said.

"Two years ago at Town Meeting, someone suggested that the town look at the cost of appeals. I thought that it made sense to try and get a feel for the legislation right at the front end. What we're doing at a select board level is not to try and give anyone a better deal but to see if there's somewhere we can add an ingredient to resolve the issue. It's not our intent to undermine the board but to see if there's something we can add to the decision," he continued.

Board members discussed whether this practice constituted a 'slippery slope' of applicants going to the select board to 'make a deal'; whether there was adequate transparency and opportunities for the public to see its government actions; whether there are adequate protections for adjoiners and other interested parties who may not be aware that the permit condition might be changing during negotiations/mediations and might be closed out of the loop; whether the practice undermined the DRB's ability to enforce the rules and regulations of the town and other matters.

DRB member Mark Sinclair urged the select board and all members of both boards to be aware of the need for attracting, grooming and soliciting potential members for town boards.

"From my perspective, things are going well on the DRB. We have a good board right now but need to be looking for smart, involved, engaged people of differing backgrounds to serve on our boards," he said.

"What's also helpful is that we're going to try a new approach to issuing draft decisions when there are potential conflicts with conditions. We're going to try and write draft decisions so that applicants can give us new evidence if we've missed something or if we can resolve something before it goes to an appeal. We're committed to doing that, not in every case, but where there's a potential so that we can try and avoid an appeal," he said.

"Thirdly, I'll state this even though it may be overstepping my bounds. We think the subdivision regulations were very good and would have helped applicants in terms of clarity and in some ways, provided more flexibility and less restrictions than the old regs. It was a disappointment to me to see that the select board didn't make that point clear, either individually or as many of you as possible in making the public understand that there was a lot of misperception about what those regulations were doing and that the community would be better off with a modern, up-to-date set of regulations," Sinclair said.

"I'm hopeful that when you see these again, you'll step up. You are the leaders of the community and have much more of a platform than we do to make the case that these regulations are good for the community. I'd hope you'd take the extra effort this time," he continued.

"If there's a way we can collectively make that case to the public, I think it would improve our work and result in better satisfaction to the applicants and their understanding of what the rules are and that they are reasonable," Sinclair added.

Select board member Paul Hartshorn responded, telling the group that he felt the subdivision regulations were defeated because of two specific clauses, one calling for developers to consider how the road in one development can connect to the roads in adjoining developments, and a provision calling for preserving ag land.

"Most people I know who voted against them did so for two reasons, they were opposed to the road connectivity and the ag land," Hartshorn said.

"Even though the old regulations, which are now in effect, were stricter in those two areas?" asked planning commission chair Karl Klein. "Paul, 10 percent of the people voted. When there's a special vote like this, the people who vote are those who are most riled up. I'd love to hear how we can move these regulations forward."

"Right now you can build your house in a five-acre meadow. Those new regs were so strict that if you couldn't get a variance, you couldn't build. For road connectivity, it doesn't say there shall be connectivity in the old regs, but the town was practicing it anyway. If the town wants connectivity between parcels, the town has to pay for it," Hartshorn responded.

Shupe pointed out that that information was wrong, that anyone can build a home in a five-acre meadow as a use by right and will only need regulatory review if they want to subdivide the five-acre meadow.

"One of major things that caused downfall was the planning commission when they made decision over a year ago and people know that it damn near put me through bankruptcy. That's what happened. Everybody in The Valley knows that and that's probably why you lost that vote," he said.

Hartshorn received a subdivision permit from the planning commission for a nine-lot subdivision. A condition of that approval was that a right of way be identified showing where Hartshorn's subdivision roads could connect to the adjoining subdivision to the north. Hartshorn appealed that decision on the right of way/road connectivity issue and before the case was heard in Environmental Court, members of the select board negotiated an agreement whereby Hartshorn could put his appeal on hold and come back to apply for a four-lot subdivision. He did and received approval.

"What's going on in this room now is what needs to go on in the town. Before we revise the regulations, I think it's important to engage the community, specifically in talking about their understanding and perceptions of what the regs say and the actual reality of what the regs mean," said DRB member Hallie Tamez.

Planning commissioner Robin Morris said that the planning commission wanted to start that dialog with a public hearing on December 4 with a focus on bringing the regulations back before voters at Town Meeting in March. He said planners want to have town attorney Joe Maclean present to discuss the issue of whether road connectivity is tantamount to a taking and address other legal issues raised by opponents of the regulations.

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