Oct. 1, 2009
By Tim Simard
Williston property owners looking to build on their land had better do so within the time specified in their permit of approval.
That’s the message the Development Review Board expressed at its meeting last week, and even asking for an extension after the permitted construction time has expired is unlikely to yield results.
The board decided on Sept. 22 to not allow a construction phasing extension on two projects, one of which entered the permitting process 11 years ago.
“We did not want to set a precedent,” board Chairman Kevin McDermott said after the meeting.
The board’s decision would most likely have long-ranging effects on any developer looking to extend phasing, Planning Director Ken Belliveau said. This was the first time the board revisited projects introduced before 2005 for phasing extensions, he added.
“It was an unusual night in that regard,” McDermott said.
Brian Brewster, who owns a lot on Boulder Drive near Walker Hill Road, and Burlington real estate broker Sandy Wynne, sought extensions at Tuesday’s meeting. Wynne represented the owners of a two-lot subdivision on Lincoln Road who were hoping for an extension, as well.
Both projects received phasing under different rules than what is in place today. Phasing extensions were allowed more often under old growth management rules, but the board said whatever applies today must stand.
Paul Gillies, the town’s lawyer, essentially said the same thing in a letter to Belliveau.
“If the time just ran out, and the delay was caused by mere inactivity, then I think it’s appropriate to treat the new ordinance as applying to the project,” Gillies wrote.
“If the rules change, that doesn’t mean you’re vested,” Belliveau said, interpreting the letter to the board. “The town would likely prevail in a lawsuit.”
Brewster’s property hails back to developer Bill LaCasse’s project from 1998. Originally, LaCasse planned for a 21-lot subdivision, but the project was eventually pared down to nine lots, Wynne explained. Four of the nine lots have been developed, she said.
Brewster told the board a number of personal issues kept him from being able to build a house on his property. He bought the land in 2003 from LaCasse, who passed away recently.
“Basically, we’re trying to get rid of our property — we just can’t keep it anymore,” Brewster said.
He said he wanted an extension so he could sell the property to an owner who could easily get a building permit without going through the growth management process. It would make for a more viable sale, Brewster argued.
On Lincoln Road, the Tangalo family was looking to extend its phasing since no one has bought the wooded lot yet, said Wynne. She said the family has had difficulty selling the property due to many factors, including the economic recession.
“The only way you’re going to move land in this market is to drop the price substantially,” Wynne said.
Belliveau said the Tangelo project was unique because the family could have had an extension under its conditions of approval. The property owners had until July 1, 2009 to send a formal extension request, he said. Instead, a request came in August, after the deadline. Belliveau added that he has granted phasing extensions in the past to projects that turned in a formal request on time.
“The board’s view was, it doesn’t matter if you’ve missed the deadline by a month or missed it by a day,” Belliveau said after the meeting.
For the two projects to achieve phasing again, the developers would again have to go through the growth management process. They would have to compete with other developments vying for a limited number of construction units. Williston allows a finite amount of growth per year within each of three different districts.
“I believe the board’s feeling was that (the developers) had a certain amount of time to act and they didn’t do anything,” Belliveau said.