Lawyer: latest VANR study satisfies deer issue
June 30, 2011By Adam White
Changing times are making it harder for a longtime Williston family to support itself solely through farming. Changes in the habitat of local deer may help clear a long-standing hurdle for that family’s Plan B.
Mike and Dan Fontaine have spent roughly six years trying to get a proposed housing project on their 300-acre family farm off the ground, having encountered resistance from environmental agencies in regard to deer wintering habitat. The latest round of debate over the Settlers Village project took place in a courtroom on June 16, when the Fontaines argued that an Act 250 permit condition from 1991 should no longer apply to the proposed development area.
The area in question is currently an active sand pit, the restoration of which is required under its current Act 250 permit once its use ceases. The Vermont Fish and Wildlife Department has argued that the proposed housing project would compromise that restoration process through its effect on the wintering habits of the local deer population.
In its annual report to the governor in February, the Vermont Natural Resources Board stated, “the owners have other alternative locations on the subject property to locate housing, and the placement of the homes where owners propose would create a bottleneck in the deeryard and unduly impact Act 250 Criterion 8(A).”
The Fontaines’ attorney, John O’Donnell, said that the latest versions of deer wintering habitat maps released by the Vermont Agency of Natural Resources in April indicate a change in the deer’s habitat that renders the condition moot.
“We argued that the condition should no longer apply because this land is no longer within the boundaries of the deer wintering area,” O’Donnell said.
Mike Fontaine said that while the proposed project calls for 30 acres to be utilized for housing, more than 200 acres would be dedicated to conservation at no cost to the state or town. O’Donnell said that the conservation area includes approximately 99 acres of deer wintering area that would be held in perpetuity.
Mike Fontaine said that town officials have been strongly supportive of the project, largely because of the scope of land it seeks to conserve.
“There are some elements of the town plan and zoning bylaw that strongly encourage the kind of project the Fontaines have proposed with Settlers Village,” Williston senior planner Matt Boulanger said. Boulanger said that the zoning bylaw requires a minimum of 75 percent of a development parcel within the town’s agricultural/rural zone to be designated as protected, open space – a condition satisfied within the Fontaines’ plan.
The project calls for the two segments of housing comprising 34 total units, with a portion being designated as affordable. The sand pit has been mined for approximately 20 years, providing revenue that has been used to pay property taxes according to Dan Fontaine.
“The sand is going to run out in probably two years, he said. “Once that happens, we won’t have the revenue to pay the taxes.”
Mike Fontaine said that the family’s farm produces vegetables, beef and replacement heifers, though not at enough of a volume to pay the “close to $20,000” in annual taxes on their property. The Settlers Village project was conceived as a way to utilize their land in a profitable way while also providing needed housing for the community.
“Years ago, they said (farmers) had to diversify – and that’s what we’re trying to do,” Dan Fontaine said. “This could save us.”
The debate over deer wintering habitat brought the development to a halt. The Fontaines insist that the development won’t impact deer wintering grounds; in fact, Dan Fontaine said that he walked the area with a biologist and found evidence bringing the scale of the animals’ presence in the area into question.
“(The biologist) showed me hemlock saplings, and said that if this was a deer habitat, those would all be gone – because the deer would have eaten them,” he said.
Mike Fontaine joked that “the deer aren’t going to pay the taxes” on the property, but the reality is that he and his family have invested a sizable amount of money and time into the planning, design and permitting process for Settlers Village.
“Since we got into it, it has snowballed,” he said. “At this point, we’re hoping to get our money back, maybe with interest. But we’re not going to get rich off it, that’s for sure – we have too much invested in it right now.”
O’Donnell said that the Act 250 permit is set to expire in 2016, due to its classification as an earth extraction permit. He and his clients aren’t expecting a ruling on the deer issue until “the end of the summer.”
“It’s been a frustrating and puzzling process,” O’Donnell said. “Act 250 is supposed to promote responsible development, not stop all development.”