08/27/2009

By Lisa Loomis

The question of whether worsening financial conditions meet the legal definition of change required to remove a subdivision permit was considered by the Waitsfield Development Review Board this week.

The board, at its August 26 meeting, held an informal discussion with Jim Hildebrand and Nancy Coombs who own a 16-acre property on the East Warren Road. There is one house on the property and the couple is interested in subdividing six acres from the larger parcel to build their own single-family home.

SUBDIVISION PERMIT

The lot is part of a subdivision that was created in 1992 and that subdivision included a prohibition on further subdivision of the parcel. In 2004, the late Joan Hildebrand and her son Jim Hildebrand came to the Waitsfield Planning Commission seeking to remove or amend that prohibitive permit condition so that six acres could be subdivided off and used for a single family home. At the time, the Hildebrands told the planning commission that times had changed and they wanted to amend the subdivision permit.

The planning commission denied their request to amend the permit, citing the circumstances that led to the condition in 1992, namely, the subdivision of the Neill farm for development and a desire to protect both the viewshed from the East Warren Road and the agricultural land on which the 16-acre parcel was located.

STOWE CLUB HIGHLANDS


The Hildebrands appealed that decision to Vermont Environmental Court and then to the Vermont Supreme Court which upheld the planning commission's decision not to amend the permit. The Supreme Court ruling relied heavily on a decision known as the Stowe Club Highlands decision which allows subdivision (and other permit) conditions to be amended or removed only when specific criteria have been met. Those criteria include showing that there are changes in factual or regulatory circumstances beyond the control of the permittee; changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the permit was issued; or changes in technology.

The 2006 Supreme Court decision affirmed the Environmental Court's discussion of the finality of permits, namely, that permit conditions are final unless the Stowe Club Highlands criteria can be met.

In addressing the DRB at this week's hearing, Jim Hildebrand explained the change that he felt met the Stowe Club Highlands criteria -- a deteriorating financial climate in Vermont and The Valley.

PROPERTY TAXES

He told the board that the cost of property taxes in Vermont due to Act 60 and 68 were so onerous that he and his wife wanted to downsize from their current house.

"Thanks to Vermont's tax policies we can't afford to sell our house and move into my mother's house. I believe there's been a shift in Vermont's tax policies to the extent that only the rich can afford to live here now. We are looking for your compassion to make this happen," Hildebrand said.

He said that he and his wife wanted to build a house at the back corner of the proposed six-acre parcel, up against the tree line, and said that the open agricultural field would remain open.

"The first time we were here, in 2004, we were shut down very quickly by the planning commission. They said that they had the power to amend the permit, but that they would not. That's why we appealed," Hildebrand said.

TOWN PLAN

Brian Shupe, chair of the DRB and a former member of the planning commission as well as former director of the Mad River Valley Planning District, commiserated with the couple about the cost of taxes and the state of the economy in Vermont but reminded them and the board about the history of that particular subdivision. He pointed out that the Town Plan called for protecting not just agricultural lands but viewsheds identified as important by townspeople, including the one from the East Warren Road.

"I have a real concern about this. You're looking at it as if it were only a 16-acre parcel. It was created as part of a subdivision of the Neill farm and it was a real compromise, at the time, to allow development in that meadow. That condition was very important to getting that project approved," Shupe said.

"We, the DRB, have now inherited all of the planning commission's previous decisions and our attorney has told us consistently that there needs to be a specific change in circumstances to amend a permit -- not because of one property owner but because of what it means for all existing permits," Shupe continued.

DO NOT HAVE AUTHORITY

"Having re-read the 2006 Supreme Court decision, I question whether we even have the authority to change or modify that condition without having met the Stowe Club Highlands criteria. If we do have the authority we have to identify the change in circumstances, and using the change in economic circumstances of a property owner would be a horrible standard for us to have to apply," Shupe said.

"Our point, about what has changed and is a change in circumstances, is the changed economic condition of Vermont," Hildebrand said.

"And why is our property treated differently from other parcels where people are building houses? If you own your own property, why can't you do a thing with it?" asked Coombs.

CONDITIONS EXISTED AT TIME OF PURCHASE

"Your property is part of a pre-existing subdivision that was approved with the conditions. Those conditions existed when your mother bought the property," explained board member Mike Kingsbury.

Shupe reiterated the need to show that something had changed since the 1992 subdivision and the 2006 Supreme Court decision.

"The economy is what has changed. If we keep going in this direction we're going to end up with a town we don't like, a place where only the wealthy can afford to live," Hildebrand said.

"I read the case as indicating that the planning commission or DRB has the authority to remove the condition if change can be shown," Hildebrand added.

Board member John Donaldson disagreed.

CAN'T SET ASIDE CONDITIONS

"I think the planning commission misspoke at the time. We can't set aside conditions absent change. The planning commission could have -- with the appropriate showing of change," Donaldson said.

"This board has been conscientious about not opening up prior decisions. The Village Grocery is a prime example. The former owner David Frank bought it with a permit condition requiring him to create a green space in front of the building and did not want to comply. He tried to amend the permit and fought the town legally on it, but nothing had changed to allow amending the permit. It's the same situation with your property. It came with these permit conditions and, absent change, they run with the property," Shupe added.

The DRB decided to review the 1992 subdivision permit, the 2004 planning commission denial and the Environmental Court and Supreme Court decisions and discuss the matter with the town's attorney.

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