Thursday, June 30, 2016

Lee Buffinton's Letter to her Fellow Planning Commissioners about the Proposed Zoning Change

From: Lee Buffinton <>
Date: June 29, 2016 at 9:36:08 AM EDT
To: Meagan Tuttle <>, "David E. White" <>, Yves Bradley <>, "" <>, "" <>, Emily Lee <>, "Jennifer Wallace-Brodeur (" <>, Harris Roen <>
Subject: Communication for discussion at June 29th meeting and for the record
To my fellow Planning Commissioners,

Vermont Law is very clear-  Local zoning regulations must conform to the municipal plan.  For Downtown Burlington that municipal plan is planBTV Downtown & Waterfront adopted after extensive public involvement.  Our planning packet materials for the various zoning amendments before us emphasize that it's important to "comply with the Pre-Development Agreement" for the mall project, but what is far more imperative and required by law is that we comply with our municipal plan.

Clearly plan BTV and all of us on the Planning Commission support a vibrant, mixed-use, mall redevelopment with a healthy mix of retail, commercial, and diverse residential spaces to meet the needs of the city.  The City and the developer deserve credit for working so hard together toward this vision and, in particular, the effort to re-open St. Paul Street and Pine Street as complete, public streets. While these efforts are exactly what plan BTV envisioned, some of the specific zoning amendments as proposed are not consistent with plan BTV and, therefore, should be reconsidered and reconfigured in order to meet the legal requirement, avoid legal wrangling over potential spot zoning, and facilitate redevelopment.

3 areas of concern:

Proposed zoning amendment to allow post secondary schools and community colleges as a permitted use-  
Under this proposal the entire mall could be turned into a college or university campus, exempt from Inclusionary Zoning requirements and without the conditional use review that is currently mandated.  Nowhere in planBTV does it suggest that we put a college campus downtown!  A college campus does not align with plan BTV's call for mixed use retail, commercial and diverse residential uses at the mall site.  Nor would a college campus address the goal of creating more affordable and moderately priced housing downtown essential for workforce housing, seniors, and others, as prioritized in plan BTV.  It's essential to retain conditional use review of any proposed secondary school/college at this site.

Proposed zoning amendment to raise building height limits from the current 65' by right to 160' (14 stories) by right with no provision for requiring additional public benefits such as affordable or senior housing.  
This proposal represents a dramatic increase in building height and a major change in policy that has little basis in the adopted plan BTV or the draft Form Based Code.  

While Plan BTV wisely calls for "larger residential, mixed-use buildings" at the current one-story mall site as well as strategic infill and liner buildings, the plan does not suggest the need for any increase in our current height limits and says; "While allowing for even taller isn't necessarily the answer, efforts to encourage development that more fully utilizes the permitted development envelope need to be supported".  Plan BTV seems to be responding to public sentiment and cites its public survey that found only a very small percentage of respondents who were dissatisfied with the scale of buildings downtown. Even the plan's graphic images of what a redeveloped mall site could look like show new buildings no taller than 6 to 8 stories in keeping with our current height limits. 

Furthermore, 14-story buildings towering over historic Bank Street, Cherry Street and the new sections of St. Paul and Pine Streets could block sunlight and increase and alter wind currents and downdrafts at these locations, potentially diminishing the positive pedestrian experience that plan BTV envisions.  In addition such heights would seem to be at odds with Section 6 of our current Comprehensive Zoning Ordinance that emphasizes the importance of maintaining neighborhood proportions of scale and mass and sensitive transitions between new buildings and existing neighborhoods.

Under this proposed zoning amendment to allow 14-story buildings by right a developer could put in the bare minimum number of inclusionary zoning units (15-25%) and all of the remaining units (75 to 85%) could be luxury apartments.  This fundamental policy shift would be counter to plan BTV's strong emphasis on creating a variety of housing options:  "more choices, more types, more affordable, more diversity".  Plan BTV calls on us as a city to use "a number of strategies that can and should be employed to encourage the creation of significantly more housing- particularly affordable and affordable market-rate units".  Specifically cited in plan BTV's vision for the mall are "downtown workers, young professionals, and empty nesters" who need affordable and moderately priced housing downtown.  By adopting a massive height increase with no incentives attached we could lose on an opportunity to get the housing variety that our city needs.

Proposed zoning amendments that would allow for surface parking lots and a parking garage to be built to the perimeter of a building at any floor except the first floor.
Surface parking lots, whether on the ground or on the top deck of a parking garage, are completely at odds with 21st century planning and the green roofs and stormwater management called for in plan BTV.  

In regard to parking, plan BTV emphasizes underground or wrapped parking where needed, stating:  "In all cases, any new facilities should be wrapped with mixed-use buildings to screen the parking and activate the street."  Our plan does not say that this only applies at the ground floor level.  Lastly, plan BTV emphasizes the need for the city to "work closely with developers to manage their parking needs" and consider alternatives to building conventional parking garages.  I urge that we delete the amendment allowing for surface parking and make the parking garage section more consistent with plan BTV objectives.

In conclusion:
We as a Planning Commission have been urged to 
adopt, in their entirety, the zoning amendments to enable the mall redevelopment as proposed.  However, we would not be performing our due diligence or meeting our legal obligations if we passed the particular zoning amendments cited above as written.  I'm no lawyer, but it seems to me that we need to avoid the potential lengthy legal mess associated with accusations of "spot zoning" by making absolutely sure that any zoning amendments comply with the goals of our publicly supported plan BTV.

Until we go through the public process of changing it, plan BTV is our guide for Burlington's future.  The city supports and wants plan BTV.  Developers want certainty.  We can have both.  

I respectfully request of my fellow planning commissioners that we reshape proposed zoning amendments as needed to keep us on solid legal ground and to better reflect the vision and values of Plan BTV and the citizens of Burlington.

Thank you.

Lee Buffinton


  1. Please remember to let members of the Board know that you appreciate their hard work and efforts to ensure due diligence - they are under a lot of pressure both from other committee members and other departments to come to a decision post haste, and to make the decision favored by the administration. There seemed to me to be a great deal of condescension, deliberate obtuseness, and outright rudeness from some board members.

    Kind words of support, appreciation, and recognition can go a long way.

  2. Indeed, we can't thank Lee and other commission members enough for their time and passion in defense of our city. They are all volunteers and devote enormous amounts of time. This is a particularly difficult situation, because the staff is pushing so hard for one outcome. I would like to thank Lee Buffinton especially for her very hard work and diligence, but most other members of the commission are also working overtime on this very rushed proposal. Thanks is due to all who take this process seriously, no matter what their personal opinions are...just as long as they take care to represent the people whom they serve.