By Lisa Loomis

The room was full and the discourse civil at a public hearing this week to discuss why voters turned down Waitsfield's proposed subdivision regulations.

"But why don't voters come to these meetings," asked town resident Delbert Palmer, who was one of the handful of citizens who attended the December 4 meeting. Filling the room were members of the town's regulatory boards, including members of the development review board and the select board.

The meeting was hosted by the planning commission, the board that created the new regulations. The regulations were adopted by the select board, but then voters petitioned for a town-wide vote on the regulations and they were voted down 115 to 70 on October 23.


In the aftermath, planning commissioners revisited the regulations (which replace 20 year old regulations that are more stringent and allow regulators little latitude on permitting) with the DRB and select board to discuss why and how misinformation about two provisions in the new regulations may have led to the defeat at the polls.

Planners warned the December 4 hearing to discuss those two provisions with the public. Those provisions have to do with road connectivity between subdivisions and how prime agricultural land is used or preserved.

Paul Hartshorn, a member of the select board, began by telling the planning commission that the new regulations would not allow someone with a five acre parcel of open land to subdivide it so that they could 'pay their taxes,' or 'supplement their social security.'


Planner and DRB member Brian Shupe, who worked with the planning commission to draft the regulations, told Hartshorn that that was not the case. He said that the regulations in fact may make it easier to develop some parcels of open land once the town identifies hamlets where development is more appropriate.

"I don't read the provision on the protection of farmland as that absolute Paul. It gives the DRB authority to waive, exempt and modify the regulations if there is a proposal for a planned residential development. This is not as absolute as you're reading it," Shupe said.

"My fear is that you're putting these decisions in the hands of seven people and my definition of cluster housing is that in a few years it's a slum," Hartshorn said.


Planning commissioner Russ Bennett said it was easy to invent hypothetical cases without specific pieces of land.

"If your five acre was in a hamlet or area designated for denser development, these regulations give the DRB the authority to allow more development and more leniency," Bennett said.

Mark Sinclair, a member of the DRB said that the DRB has worked with the old and the new regulations and said the new regulations are much more clear and specific.

"The new regulations restrain the discretion of the board, limiting our ability to say no for any reason. They restrain our ability to be arbitrary or unreasonable and they represent our Town Plan," Sinclair said.


The regulations, he said, ask developers and the DRB to try to 'minimize the impacts of the development on farmland.'

Bennett said that as The Valley has developed, a lot of prime agriculture soils have been lost to farming as houses have been built. He said that the new model for farming is not a more land intensive dairy farm, but smaller agricultural operations such as Hadley Gaylord and David Hartshorns' small organic produce farms.

"The last crop you can grow on prime ag soils is a building. That's why we look at prime ag land differently in these regulations and recognize that it is a resource we need to feed ourselves and to keep small farms viable," Bennett said.


On the issue of whether the town can and should ask developers to identify a location for a right of way to connect one adjoining subdivision to the next, Hartshorn again opened the discussion, suggesting that asking for a right of way amounts to an uncompensated taking.

Town attorney Joe McClean was at the meeting to address the issue of taking and whether towns can or cannot request such right of ways. He said that in some towns, such as South Burlington, it is written into the town's zoning regulations that all new developments connect to existing developments at two points. He explained the legal criteria for a taking (including having stripped a parcel of land of all of its viable uses) and the said that the principles of connectivity are backed up by the idea that in the future the town will take over the roads involved and the public interest will be served by having a road network.


"There's a lot of angst over this provision in the new regulations," said Mark Sinclair.

'I think we run the risk of throwing the baby out with the bath water if we don't solve the issue of connectivity. I think the clause in the regulations that says 'the DRB shall' consider road connectivity between developments should be modified to read 'the DRB may' require road connectivity," Sinclair continued.

"I think there should be flexibility for the DRB to look at the facts of the particular development. There are two issues here, first, should there be a new town road system developed? I think there's some public concern that the planning commission and now the DRB is fulfilling some unspecific plan. We had an issue with Paul Hartshorn's subdivision because it adjoined 18 lots. It was site specific and we needed to address underlying road and traffic safety issues," said Jamey Fidel, a member of the DRB and former member of the planning commission.


"The second issue is the matter of a road network for the town. The town should engage with the public on the process. There needs to be some authority for the DRB to look at developments site specifically. I think the use of the word 'may' rather than 'shall' would help," he continued.

The issue of road connectivity was the subject of a lawsuit between the town and Paul Hartshorn, a member of the select board. Hartshorn applied for a nine lot subdivision shortly after the planning commission had approved the nine-lot Koepel subdivision (on land north of Hartshorn's property on the west side of Route 100) and while the commission was reviewing an application for a 24-unit PUD on land north of Koepel.