Monday, July 4, 2016

URGENT: Public Hearing Process for Zoning Change Riddled with Improprieties

The Planning Commission is being rushed into holding a Public Hearing on the massive zoning changes required for the Town Center to go forward on Wednesday, July 6th, before they are ready, without following the proper procedure, and recklessly ignoring serious legal questions. We are heading for an iceberg, but David White, director of Planning and Zoning, with Mayor Weinberger waiting safely at shore, must think that the town center project that is improperly entangled in this zoning change is too big to sink. He is ignoring the warnings of Planning Commissioners and citizens and is steering us as fast as possible into disaster. The zoning change does not conform to our comprehensive plan or Plan BTV in a number of important ways, thus raising the question of illegality.  But there are further problems. The improprieties as I understand them consist of the following:

1. The Planning Commission is required to prepare an official written report determining the conformance of any zoning amendment with our comprehensive plan PRIOR to any warned public hearing. This has not been done. Since even David White could not rush the Planning Commission into being any more prepared than they are now, two meetings are being squished into one. One to review and approve the Planning Commission's decision (even though they will likely not have come to any conclusion by Wednesday nigh). And another to serve as a public hearing. If there is a conclusion drawn, it will only be ready minutes before the public hearing commences. But the law states that such a written report need be submitted to a number of officials 15 days before a public hearing. The packet does contain such a report, buried deep within its 60+ pages, but this report was not written by the Planning commission and not discussed or approved by them. Further, it has only just appeared in the public domain, thus does not fulfil the 15 day warning requirement. Who wrote it? Further, the steering of the Planning Commission in terms of their duties and the proper process in regard to this important zoning change has been very murky. David White  never gave a straight answer to Andy Montroll's question about whether or not it was acceptable to just provide comments and no specific approval or disapproval, giving the impression that White planned all along to cajole the Commission into an approval. White drafted a letter to the City Council in the name of Planning Commissioners (included in the agenda packet), and postdated it, assuming that the Planning Commission could be cajoled into voting for approval despite much evidence to the contrary. White put this letter, stating that the Planning Commission approves the amendment and believes it is in compliance with Plan BTV(and even necessary for compliance) in this public packet without clearly noting that it was provisional, as if the planning commission were already prepared to present or had already voted on such a statement. This is grossly misleading, and part of a larger pattern of falsification and misrepresentation on Mr. White's part.  As the director of Planning and Zoning it should have been Mr. White's job to steer the commission through proper process. What has gone wrong here?

2. Two packets providing information made up by David White have included multiple instances of inaccurate information, misrepresenting the City Council and the members of the Planning Commission. In both cases this is a matter of swaying a body toward a particular opinion by claiming expert support for a position which does not exist. Both of these packets may be connected to the 15-day warning and, thus, are required to be correct for the Public Hearing to be considered valid. The first packet gave the impression to the Planning Commission that the City Council strongly recommended the amendments under discussion. Councilor Bushor corrected this misrepresentation. The packet created for the Public Hearing gives the impression to the public and to the City Council that the Planning Commission strongly approved the amendments. The summary of Planning Commissioner comments on the overlay district includes frequent falsifications. In section 3, it states that the commission understands the limitations of bonuses and the rationale for moving away from them in the overlay district. This has certainly not been agreed upon and some members are clearly against this "by right" removal of public benefits. In section 4, Mr. White has repeated his constant inaccuracy regarding the height allowance in the downtown, stating it is 105, not 65, despite the fact that he has been corrected numerous times. In his communications with the Planning Commission, the public, and the City Council, Mr. White has also misrepresented Public Opinion, by claiming that the public input meetings on the mall justified a height increase (the minutes of these meetings do not support this claim).

3. Discussions in meetings and in the summary of Planning Commissioner and Staff comments inappropriately conflate the town center project with the amendment for the overlay district. Spot Zoning. In multiple meetings of the Planning Commission the two questions have been intertwined, giving the impression that the zoning change is being made to accommodate a particular project. Although this has been duly noted by citizens and Planning Commissioners, the official draft of comments for the public hearing includes multiple references to whether or not the proposed zoning overlay would fulfill the terms of the Pre-Development Agreement (PDA) for the Town Center. There should be no mention of this PDA in this or any other documents pertaining to the overlay district. Any trace of such a connection would seem to be grounds for an accusation of spot zoning. That two members of the Planning Commission and two members of the City Council have been meeting with paid consultants of the town center project simultaneous to the discussion of the zoning change further aggravates the appearance of improper conflation. Most glaringly, when Planning Commissioners (Lee Buffinton during Planning Commission meetings and Jennifer Wallace-Brodeur during meetings of the DAPAC, a smaller committee on the town center) have raised concerns about the legality of this action, Mr. White has brushed them away without providing evidence of a clear legal opinion on spot zoning. 

4. Neglecting to officially discuss or vote upon the central questions upon which the amendments are based. Does this zoning change conform to our zoning? If not, approving it would be illegal. Specifics of the overlay district and the town center project have been discussed, but the general questions of A) whether the overlay district corresponds to Plan BTV and our comprehensive plan, has not been raised by Mr. White for discussion or approval. B) whether the goals of Plan BTV can or cannot be fulfilled without this zoning amendment, a claim that Mr. White makes in his letter to the City Council. Neither of these questions have been put to formal discussion or vote. Insofar as the non-compliance of any new zoning change to a city's comprehensive plan and Plan BTV is illegal, this omission is exceedingly improper.
5. Change of Use to allow a non-taxable university in the downtown? Many people, citizens and Planning Commissioners and City Councilors, have asked whether the height increase conforms to PlanBTV and our Comprehensive Plan. There has also been considerable discussion of the non-compliance of allowing above-ground parking (A no-no in our plans).  But what people are not talking about is whether a change of use amendment is in compliance. This amendment, which has no basis in our city plans,  could allow the downtown overlay district to be given over to a university or college for its sole use. David White neglected to discuss the change of use question until the very last meeting when it was brought up by Commissioner Buffinton.  All present commissioners agreed that this change should not be accepted. The important question of whether it is advisable to allow a change of use for higher educational uses in the downtown has been ignored by staff in a way that is either neglect or conscious repression of details. What is going on with this? Why did David White appear to want to sneak in this allowance that is not in compliance with our city plans?

6. Apparent Conflict of Interest of Yves Bradley, chair of Planning Commission. Chapter 2 of the City's Zoning ordinance states that there shall be no conflict of interest or even appearance or reasonable public perception of a conflict of interest among members of the Planning Commission in relation to a particular project. Three community members testified to Mr. Bradley's conflict of interest at the last Planning Commission meeting. As a commercial real estate broker, actively seeking office and commercial space, Mr. Bradley stands to benefit financially from this project. Not only should he recuse himself from further discussions, but the proceedings have already been compromised by his participation in discussions and his leadership in assembling the committee of Sinex's consultants, Planning Commissioners and City Councilors. 

Please write to your Planning Commissioners and City Councilors and ask them to uphold the law and to insure that any zoning amendments be in compliance with our city plans and that they are approved according to proper process under due scrutiny and diligence! And come to the Public Hearing on July 6th at 6:30 in Contois Auditorium, 7 P.M. Public Comment. Let's not let the Director of Planning and Zoning steer us into an iceberg in the middle of the summer!!

1 comment:

  1. I wrote to both entities and send your last sentence to them.