Wind: 13 mph
At a public hearing in Waitsfield this week, Virginia Houston explained her version of her long history with the town of Waitsfield and her attempts to start a water business, and the town's attempts to obtain a source for a municipal water supply.
The two versions of events differ significantly.
The Valley Reporter has researched the town's long history with Houston and reviewed all files related to her project and the town's efforts. In the early 1990s Houston tapped into a large aquifer on land near the Reed Road. A few years later, Waitsfield began working on a plan for municipal water. What follows are Virginia Houston's assertions at a public hearing this week on the issuing of condemning 1.22 acres of her land near Reed Road (where the town drilled a well) and the data that can be found in town records.
"It was women's intuition that made me drill and I tapped into the largest source of spring water in New England. The conservative estimate was that it could produce 1,500 to 2,000 gallons a minute. I got state permits for withdrawing 600 gallons per minute. I came to the town and offered the town free water forever if they'd let me get into business. I went to the town and I was turned down. I went to the planning board and it took over a year and I was turned down because it was not something that they wanted or approved of."
Houston came to the town in 1991 with a request for a commercial water extraction business. The planning commission gave her an approval and the zoning board of adjustment denied her application, noting the fact that the town's zoning ordinance included no provisions for commercial water extraction. A legal review ensued with the town and Houston's engineers and attorneys and state agencies addressing the question of whether commercial water extraction could be considered an agricultural use.
In the meantime, zoning amendments were proposed that would add commercial water extraction to the town zoning amendment either as a conditional use (subject to review by the zoning board of adjustment) or as a use by right (as an agricultural use). There were three separate votes held on the issue - each one required to pass by a two-thirds supermajority. The ability of citizens to petition for zoning amendments to pass by a supermajority no longer exists in state statute, but it did in the early 1990s and was used each time.
In October 1992, Houston submitted an application for a pumphouse for commercial water extraction but withdrew it when the zoning amendment to allow it did not pass.
The first vote was November 3, 1992, and would have allowed commercial water extraction as a conditional use. It failed to receive two-thirds supermajority and failed to receive a simple majority with 461 no votes and 408 yes votes cast.
The second vote was May 24, 1994, and would have made commercial water extraction a use by right. It failed to receive the two-thirds supermajority and failed to receive a simple majority, with 295 no votes and 176 yes votes cast.
The third vote was held November 8, 1994, and again proposed making commercial water extraction a conditional use. That time it passed by a super and simple majority with 465 yes votes and 234 no votes.
"I started trucking and was told to stop. Then Waitsfield changed its Town Plan and brought the issue to voters as a use by right or conditional use (see above). Eventually I got a permit and a planning board member said that if I made him my partner I wouldn't have any trouble getting this through. The town sent letters to the townspeople that said I'd be drying up all the wells in the neighborhood if my project went through. They decided that six trucks per day wouldn't dry up the wells and had specific hours of the day when the trucks could drive, but not between noon and 1 p.m. and you can't get a truck to work like that. Before the hearing the town put up pamphlets urging people to come to the meeting to protest."
On September 25, 1996, Houston submitted an application for a commercial water extraction project which was approved on December 11, 1996. There are no letters from the select board to residents of the town regarding wells drying up although there are dozens of letters in the zoning file from residents concerned about the impact of Houston's trucks on the East and Long Roads. In the file is also a single-page poster that lists the names of Waitsfield's planning commissioners and select board members at the time and urges voters to call them to discuss the project. That poster states the name of its creator, Brooke Cunningham. The planners and select board members listed at the time include Russ Bennett, Bruce Wade, Dick Jamieson, Spence Gregory, Ted Joslin, Doreen Simko and Brian Shupe. Select board members at the time included Elwin Neill, Buz Brumbaugh, Roy Hadden, Charlie Hosford and Andreas Lehner.
When asked directly at the January 31 condemnation hearing, Houston stated that she would only reveal the name of the "planning board" member who offered to become her partner in exchange for getting the project permitted if asked that question under oath in court. In a February 2 phone interview, Houston said that the planning board member told her "all my troubles would go away in regard to this property" if she made him a partner and said that she'd reveal the identify if asked it in court.
The permit that Houston received permits six round-trip truck trips with 6,000-gallon tankers Monday through Friday between 8 a.m. and 3 p.m. There is no condition regarding the hours of noon through 1 p.m. The hearings on her permit application were extremely well attended with many residents of the roads where trucks would pass attending and speaking out in opposition to the project.
"Then I went to Northfield and they were interested in the jobs and plant but didn't want to have a fight with Waitsfield. I told Waitsfield about my plan to go to Northfield and Waitsfield then put in the 1,700-foot restriction on development and marketed it as protecting the ridge. The bulk of my property was then taken away from me. They are in effect, taking all of my property from me.
The issue of protective zoning for the Northfield Ridge was raised in the mid-1990s by professional planner Brian Shupe. The select board and planning commission held numerous public hearings and a great deal of debate was held on the issue of whether residential development was appropriate for the pristine headwaters and woods that were home to deep wood species. The discussion revolved around extension of roads and infrastructure and aesthetic impact of development high on the ridge. At the time of the discussion, there were 20 to 25 landowners affected by the proposed zoning. Like the earlier zoning amendment on commercial water extraction as a use by right versus a conditional use, the Northfield Ridge zoning required three votes. The first two failed to receive the supermajority and the third passed in 2001.
"The siting of the town's well impacts the use of my land because I have no other access to my property which I've been using for forest management and logging for 20 years. I've suffered a loss of business for 20 years and haven't been able to get the water out. I think I've been targeted. I own 1,543 acres and was denied permission to build one house. The board wouldn't come look at the site - they said the cutoff for building was 1,700 feet."
The protective ridgeline zoning that was passed, finally, prohibited residential development above 1,700 feet and made it a conditional use between 1,500 and 1,700 feet. Houston submitted three applications for a dwelling in the forest reserve district between May 24, 1999, and May 28, 1999, and all were denied. Interim zoning in effect prior to the passage of the final Northfield Ridge zoning amendment prohibits residential development above 1,700 feet. There are no records indicating that a site visit for an application was requested and denied.
"I've spent a very long time trying to go into the water business. I'd welcome a settlement with the town, but I will really fight this taking to the end. It's time the town negotiates."
The history of the town's attempts to negotiate with Houston for either water rights or access is long and involved. At one point the town offered to share a trench for dual pipelines, but the state rejected the idea of any other pipes sharing a trench with the pipes for a municipal water system.
The negotiation documents date back to 1998 when town officials met with Virginia Houston who owns a large tract of land off the Reed Road. At that time, Houston said she wanted to develop a water bottling business using water from an aquifer she tapped into on her land. She received town permits to truck water but not enough water, she said, to make the business viable. The town also pursued negotiations with the Jean Damon/Rowly Richards family whose land is also subject to the current condemnation proceedings.
"The select board is willing to offer the use of town highway rights of way for the installation of a water pipeline for your business. We have previously been advised that the town may legally allow private use of our public rights of way, provided we can show a public benefit accruing from such use. In turn, the town would seek water from you for a future municipal water system (this could be rights to a particular wellhead or volume of water, or an agreement for perpetual sale of water, etc.)," wrote Town Administrator Bill Bryant on behalf of the town select board on July 20, 1998.
The letter continues with an offer to share the costs of excavating and installing a pipeline for her business in the town-owned right of way when town pipelines are installed.
According to town documents, the negotiations with Houston continued off and on throughout the decade and touched on such options as tax abatement, purchase of land or purchase of water.
A July 2003 letter from Waitsfield to Houston reiterates the offer of access to the town rights of way and sharing the costs of pipeline installation and proposes a lump sum purchase of water rights and also offers to assist Houston in securing state financing and tax credits for her business. The board also offered to "support your application for local and state permits to build a bottling facility at a location such as Irasville or the Mad River Industrial Park."
While the town's negotiations with Houston did not involve specific sums of money, the town's negotiations with nearby landowner Rowland Richards (and his son Rowly Richards and Jean Damon Richards) got down to numbers.
In June 2003, the town began negotiations with the Richards family with preliminary discussions. In June 2004, the town proposed purchasing a five-acre parcel of land around a well on the Richards' property for $250,000 for the well site and an easement for a water line. The town also proposed tax abatement for the nine properties owned by the Richards.
As negotiations continued, the Richards asked to sell water at a per-gallon price, but the town could not meet the state's legal requirements for a public water system without owning the water source. In 2004, the Richards' nine parcels of land had an appraised value of $1,529,800 and a total tax bill of $16,077 (much of the land was enrolled in the state's Current Use tax abatement program).
In August 2004, the town proposed a variety of packages including compensation and tax abatement as well as an offer to cover any capital gains paid by the Richards and an offer to invest all or part of the purchase price and pay an annual annuity to the family that was equal to the tax bill. That letter offered a purchase price of $350,000.
An email from Bryant to the select board in August 2004 suggested that the board make an offer of a flat purchase price of $500,000, which board members in subsequent emails concurred on, and by August 31 board members were ready to schedule a public vote to obtain approval for such a purchase.
In September 2004, Richards countered with a request that the $500,000 to be before capital gains and also asked that the town cover legal and title work for the transaction as well as any costs associated with removing land from the Current Use program, all regulatory expenses and any other transaction costs. The town in October 2004 made the following offer:
"The select board is offering $500,000 for the purchase of the 5 acre well site as discussed and for a water line easement to go to towards the town's LeClair property, where the project's water storage tank will be located. The town is willing to cover the family's expenses such as Vermont property transfer tax, penalty fee for withdrawal of land from this Vermont Current Use program and the bulk of costs associated with development of this source including legal, engineering and survey work."
In April 2005, the town ceased negotiation with Houston and the Richards family and began pursuing the option it ultimately followed, which was to drill its own well what the town assumed was in the town-owned right of way off the Reed Road.