Developer files appeal with Vermont Environmental Court (8/20/09)

Aug. 20, 2009

Wetlands, affordable housing at issue

By Tim Simard

Observer staff

The developer of a proposed subdivision off North Williston Road has filed an appeal after a Development Review Board decision on the project.

Jeff Atwood, along with fellow applicants Dana and Brenda Hood, have appealed the conditions of approval that went along with a discretionary permit granted by the board in late April. The lawyer for the applicants filed the appeal before Vermont’s Environmental Court late last month. The Environmental Court hears all appeals dealing with local development boards and can overturn decisions.

Atwood and the Hood’s lawyer, L. Randolph Amis, said his clients have taken issue with the town’s growth management system and stringent requirements in regards to wetlands.

“What the town requires… it just doesn’t make sense to us,” Amis said.

According to plans, the proposed nine-unit development will be located between North Williston Road and Lefebvre Lane. Plans include a triple-plex, two duplex homes, and a single-family home.

A separate project by Atwood on a different property along North Williston Road would transform an old carriage house into a dwelling unit. Atwood and his lawyer are also appealing the conditions of approval with that project.

The Atwood projects have caused strife with neighboring Lefebvre Lane residents over the past year. Both sides have charged the other with being unreasonable during the development’s planning.

Among the issues raised in the Environmental Court appeal is whether or not the town has the authority to require Atwood to build the subdivision as perpetually affordable housing. Atwood has argued before the board in the past that, while he wants to build an affordable housing development, it could prove impossible due to the town’s phasing requirements. Building affordable housing was one of the main reasons he wanted to develop the property, Atwood told the board at previous meetings.

During the town’s annual growth management allocation in March, the Atwood-Hood project was granted phasing for construction from 2011 through 2015. Only a certain number of units are available for allocation each year based on the growth district they are in and the town’s sewer capacity.

In the appeal written by Amis, he questions the town’s phasing decision. The appeal states construction would take place over too long a period of time for the development to be built as affordable housing “without undue financial sacrifice” by Atwood.

Amis said the most cost-effective approach would be for the nine units to be built at the same time. He argues the town is in conflict with its own Town Plan by encouraging affordable housing, but making the construction of such projects nearly impossible.

Planning Director Ken Belliveau said the Environmental Court has heard cases involving Williston’s growth management system.

“(Growth management) has been litigated in the past and I believe the courts have upheld the right for phasing,” Belliveau said.

Atwood is also appealing wetlands conditions on both of his projects. For his carriage house property, Atwood is appealing the town’s conditions that he move his driveway’s location due to a wetland buffer. The state has found the construction of the driveway to be permitted in class three wetlands, while the town does not. Amis has filed a similar appeal for the nine-unit subdivision’s access road, as well.

“We prefer to operate on the state’s permit,” Amis said. “If the state says we can, we can. The town can’t say ‘no’ when the state says ‘yes.’”

Amis said he expects the Environmental Court to hold its first hearing on the Atwood appeals either at the end of this month or early September. He said the appeal process could take a significant amount of time.