July 28, 2014

Atwood-Hood’s future uncertain

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By Stephanie Choate

Observer staff

The future of a long-planned and sometimes contentious affordable housing project is uncertain, after the Williston Development Review Board rejected changes the developer has said are critical to the project’s survival.

Dana Hood asked the DRB earlier this month to reduce the number of perpetually affordable units from seven to three. The project, a partnership between developer Jeff Atwood and landowners Dana and Brenda Hood, received final site plan approval in April to build eight units on North Williston Road, seven of which would be perpetually affordable. But Hood said multiple factors combined to make seven affordable units financially unfeasible.

“It’s unfortunate that the project has come to this, as four families will not be living in four perpetually affordable homes, but the financial constraints put upon this project have been out of the control of Mr. Atwood for quite some time and every effort must be made to salvage at least three affordable units,” he told the board on June 11, as recorded by CCTV.

During the June 11 and 25 meetings, Hood contended that the changes should be allowed, since no physical attributes of the project would change and points awarded through the growth management system would have remained the same. Developers compete for building allocation through a point system known as growth management.

Planning and Zoning Director Ken Belliveau told the board on June 11 that a bylaw that could come into play—11.4.2.2—stated “all representations made by the applicant on the growth management questionnaire are binding.”

After the June 11 meeting, the DRB asked town attorney Paul Gillies to weigh in.

“The permit that was issued is a form of contract,” a June 19 letter states from Gillies. “Expectations and promises become binding conditions, and the decision of the DRB relies on what is proposed.”

Gillies cited a Vermont court case, known as the Stowe Club Highlands decision, which stated that for a board to review its decision, an applicant must show changes in critical regulatory or factual circumstances, foreseeability or changes in technology.

He also noted that perpetual affordability is “all Williston’s to regulate.”

Hood contended that there have been changes in factual circumstances and foreseeability. Growth management was allocated over four years rather than one, delaying construction, and federal funding dried up, he said.

On June 25, after an executive session, the DRB voted 4-0 to reject the changes.

In an email to the Observer Wednesday morning, Hood said Atwood now has three options: appeal the decision in environmental court; go back to square one with a new project; or drop the project altogether.

JUDGE TO LOOK AT APPEAL

The town also expects a judge to this summer consider an appeal filed by neighbors regarding the DRB’s November 2012 decision to approve changes to the Atwood-Hood project’s previously approved discretionary permit.

The DRB decided at the time that the changes, which affected less than 1,000 square feet when tallied together, were not “substantial” changes. That meant the changes could be made administratively, rather than restarting the review process.

Briant Hamrell and Igor Arsovsky filed an appeal to the decision at the end of 2012, according to court documents filed by Williston’s attorney Paul Gillies and L. Randolph Amis, attorney for Atwood and Dana and Brenda Hood.

A May 9 affidavit by Planning and Zoning Director Ken Belliveau states “These changes are not substantial, as defined in the Williston Unified Bylaws, Section 5.6.3. No changes are proposed for the use of the property; open spaces; the number of lots, units or bedrooms; or signage. The other changes are minor. In particular the reduction in the area of disturbance and impervious surfaces, in comparison to what is being proposed to be increased, results in a net decrease in impact.”

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