By Kara Herlihy

Proximity to a critical bear habitat and travel corridor was cited for the second time by the Town of Fayston in their denial of Robert Crean's proposed five-lot subdivision covering 16.5 acres off Slide Brook Road. 

The Fayston Development Review Board (DRB) reached a decision during a deliberative session held on November 13, issuing a written decision on November 29.

The notice of decision follows a previously denied application for an eight-lot subdivision and an appeal to the Vermont Environmental Court in May. Critical bear habitat was cited as the reason for the first application's denial, as well as the second.

Crean returned to the DRB with a new subdivision application (five lots) on July 17. The proposal was the result of court-ordered mediation sessions between representatives from the Town and Crean.

The DRB's ruling, dated November 28, reports that Crean's proposed subdivision did not meet the requirements of several sections of the Town of Fayston Land Use Regulations and that the proposed subdivision's impact on wildlife habitat and natural areas were both significant and adverse.

Article 2, section 2.4 of the land use regulation ordinance states, "The purpose of the Recreation District is to allow for a compact settlement pattern that minimizes the impact on sensitive lands...."

The DRB's ruling cites "significant negative impacts on sensitive lands, such as the critical bear habitat, critical deer winter habitat, and the bear travel corridor and does not adequately minimize or mitigate those impacts."

During the August 29 public hearing Crean was asked to indicate a quarter-mile buffer from Critical Bear Habitat #2 (CBH) but failed to do so because the report he received from wildlife biologist Jeffery Wallin did not indicate that the habitat was indeed "critical."

According to the DRB findings, "The applicant did not provide the buffer from CBH #2 and the deer yard identified by [wildlife biologist] Jeff Parsons, as requested by the DRB."

Section 6.3 (D) of the ordinance states, "Subdivision boundaries, lot layout and development envelopes shall be located and configured to minimize adverse impacts on critical wildlife habitat, including travel corridors, and natural areas identified in the Fayston Town Plan, by the Vermont Department of Fish and Wildlife, or through site investigation."

The findings report, "It is not possible to state that the proposed subdivision will not have an adverse impact on critical deer winter habitat because applicant did not conduct the necessary investigation of potential deer winter habitat on his property."

"We're missing some pieces here," commented DRB member David Cain at the final public hearing that took place October 16.  

Also present at the October 16 hearing were several members of the Fayston Planning Commission, who disputed the proposed subdivision based on its lack of compliance with the Town Plan. This included the maintenance and protection of bear habitats, as well as discouraging development on or near them.

The DRB also denied the application for a five-lot subdivision based on evidence of a bear travel corridor, presence of a deer wintering area, and lack of appropriate buffers as presented on the plat.

Section D of the ordinance states, "A buffer area of adequate size shall be established to ensure the protection of critical habitat."

The DRB findings continue, "The proposed access via the improvement of Slide Brook Road would be via a probable bear travel corridor. Furthermore, it is believed that this corridor is used by bears to travel between Slide Brook and the Howe Block of Camel's Hump State Forest," the ruling states.

The findings also cite the increased travel on Slide Brook Road, which would negatively impact the bear travel corridor, stating that the "the proposed upgrade/increased use of Slide Brook Road which would be used to access the proposed subdivision would adversely impact the bear travel corridor and there is no proposal to minimize this adverse impact."  

A building permit for one house has been approved by the town and a curb cut/access permit for that single family home was granted on November 12. In Vermont, building a single family home on a parcel of land is a use by right.

Crean submitted a letter and a photocopy of a pertinent section of the Fayston Town Plan to the select board January 8, stating that he was seeking to improve about quarter mile of the Class IV road to gain access to a single lot.

Select board member Bob Vasseur said the town needs to see documentation regarding storm water permits, as well as overload permits for trucks if Crean plans to log the property.

"A major concern is that the town only has so many of these Class IV roads...that are multi-use...we're not simply going to give those up in an upgrade without getting something in return," said select board member Jared Cadwell.

Officials also suggested Crean present a plan for a proposed recreation trail.

At an August 29 hearing, a representative for Sugarbush told the board that ski area officials will be following the Crean application closely. With property bordering the proposed subdivision, Jason Lisai, Sugarbush's vice-president of planning and development, said the resort wants to make sure its interests are protected.

The DRB findings list Lisai as an abutter on three sides citing, "The road access will have an impact on the operations of the resort," and, "Restrictions in the covenants created for this subdivision will affect Sugarbush operations."

Also abutting was neighbor Jean Towns, who was cited in the findings for her concerns about power line placement, trail maintenance for skiers from Mount Ellen, minimizing traffic and parking volume and the growth promotion in the conservation lot that has been cleared.  

Interested parties have 30 days to appeal the decision to the Vermont Environmental Court.