Tuesday, August 23, 2016


At last night's City Council Work session on the zoning rewrite for the Overlay district, councilors repeated many times how important it is to make the distinction between the zoning change and the particular project, so many times, in fact, that it seemed like special pleading. There is very little distinction to be made between the zoning re-write and the interests of the Sinex Town Center redevelopment, but to admit this puts the City in the Spot Zoning hot seat.

Over the last few sessions this predicament became even clearer: On Thursday evening, councilors put forth various proposals to shrink or expand the overlay district. Some suggested removing the Macy's parcel, the People's Bank parcel, the other bank parcel; Dave Hartnett suggested expanding the overlay district so that MORE buildings could go higher. Would removing this or that parcel make the zoning change spot zoning? No one was sure, but all were sure that the more parcels removed, the more danger there was. Still, the City Attorney persisted in affirming that there is no problem with the overlay as is being spot zoning. But last night the discussion about adding a section of Church Street not currently in the overlay district revealed that there may, indeed, be some anxiety about the culpability of the city. Why else add this section which is still under review by the Form Based Code committee, why else would David White be push, push,pushing the addition of this section (allowing Church Street heights to go up in a staggered set back fashion) when both the Planning Commission and the Ordinance Committee have CLEARLY recommended NOT to do this? Why else would David White feel it necessary to misrepresent the position of the Planning Commission last night (when their comments can be clearly verified on tapes of the meetings), by saying that there was "no opposition" on the part of the Planning Commission to making this change.

Over the last few meetings other questions of legality have arisen, particularly regarding the question of the binding nature of the Pre-Development Agreement approved in May by all City Councilors except Max Tracy and Chip Mason (the latter having recused himself due to conflicts of interest). Many councilors and the City staff assured the public that signing this agreement was not binding in any way, that it was really just a great way to finally get the information they needed to make an informed decision (guess what, much of that information has still not been provided and the model came too late for it to have any bearing on either the Planning Commission or Ordinance Committee discussion). Some said they would not sign the final agreement unless certain changes were made. But on Thursday, City Attorney warned the councilors that certain changes to the overlay district zoning change upon which the PDA is predicated would not only make the contract/agreement void, but might be actionable.

Suddenly we are told that to NOT change our city's zoning to cater to this one developer's wishes and the promise of one development might be illegal! When it is also probably illegal to do just that! 

Another sore point is the question of whether or not the new zoning ordinance is in compliance with our comprehensive plan and Plan BTV. The Planning Commission (as noted before in other posts and particularly by the letter co-written by Planning Commissioners, Emily Lee and Lee Buffinton, printed in full below) is required by Vermont Law to have filed a report 15 days before a public hearing on a zoning change that asserts that the change is in compliance with the city's comprehensive plan and that it fosters the creation of safe and affordable housing.

The Planning Commission never filed such a report. David White did so in their name, without their knowledge, and without consulting them on these questions. They never did come to a conclusion on these vital questions, even though (after Lee Buffinton recused herself) they did agree to move the ordinance packet with their comments on to the City Council.

Why did they not come to a conclusion about these questions? Possibly because they did not have time; probably because they could not in good conscience rule that the zoning change is in compliance with our comprehensive plan, which calls for human scale development , "within the permitted development envelope"  (meaning within our current zoning), which calls for underground parking, does not call for university uses or student housing downtown, which calls for the creation of affordable housing for families and middle-income residents. They probably could not in good conscience affirm that the zoning overlay, which does away with the leverage for requiring more affordable housing units and replaces it with a by right height allowance, fosters the availability of safe and affordable housing. The specific development associated with this overlay (which they should not be considering, but, hey, no one can forget it), offers 80 units of student housing (not a relief at all for the housing problem), only 54 units of affordable (if the zoning were as it is the city could ask for up to 20% more affordable units to just get the building up to 85 feet!), and the rest of the 274 (just one below the Act 250 threshold!) will be luxury units.

What most people do not seem to understand is that it is illegal for the city to pass a zoning change that is not in compliance with our comprehensive plan and does not foster the creation of safe and affordable housing. 

One supporter of the project accused the Coalition last night of misrepresentation because we are alleging that there may be illegal things happening. She said that the CITY ATTORNEY says everything is on the up an up, so how can we allege that it is illegal?! Well, legality is ironed out in court and is not a black and white question. We do not know what the final ruling on any of these questions would be, but we certainly think there is great cause for concern on many counts. Other lawyers not on the pay roll of the City agree with us. 

In any case, the laws are made for a reason, to protect certain things like due process, public input, consistency, to avoid special interests and corruption. Would it be something to crow about if the city was able to subtly and sleezily get around the law and not get in trouble? I am sure most of us demand much more from our public officials than the ability to work the system in the interest of a developer.

Next City Council Work Session is on Wednesday at 5 P.M. Come early to sign up for Public Comment time. The Council is expected to deliver its final vote on the Zoning Change by September 12th. Let the councilors know your concerns through email or phone if you cannot come to the meeting!

1 comment:

  1. Thank you for recap of the CC work sessions around this vast zoning change. While housing is an important need in Burlington, 54 units of "affordable housing" doesn't cut the mustard. A concern I have is, what if this small amount of affordable units don't even get built? Such as what happened with the WestLake Condos?

    When WestLake was being "developed", the West Lake project was granted extra height allowances in exchange for building affordable housing units adjacent. They built the luxury condos first, and then oops! found out they couldn't afford to develop the affordable housing. Thus, the Marriott Hotel went in where the housing was to be, and a "fine/fee" was paid to the city- and if I understand correctly, this fee goes to the non-profit, Champlain Housing Trust, towards affordable housing....elsewhere.

    Is there a connection between this and what's happening now- given that CHT has come out in vocal support of the Towers, albeit the majority of housing units aren't affordable. And, if the affordable units don't occur, will they get the "payment?" Also curious is that the most outspoken Planning Commissioner with important questions, was required to remove herself from the proceedings after CHT touted the project, since they are her employer. What no one expected, was for her to resign from the Planning Commission as well. hush hush.

    Regarding this important fact that you point out: "What most people do not seem to understand is that it is illegal for the city to pass a zoning change that is not in compliance with our comprehensive plan and does not foster the creation of safe and affordable housing," is that it has been my recent experience that the "city" does not concern itself with what is illegal or legal. Those are mere trivialities to be manipulated to fit their desires. Those with the shrewdest and most expensive lawyers wins, period.

    The City Attorney represents the city- i.e. - the administration's interests and not necessarily the citizens. We need a "citizen's attorney" that is paid from the public coffers for equal access to ordinance manipulation.

    While this project is being touted as the "only" way to save the mall off Church St, does it indeed need saving? Isn't the Mall "revolution" coming to an not University Mall in South Burlington in trouble as well?

    Why not forget the "mall schmall" and take it down, reopen the streets and create a pedestrain street similar to Church St, lined with diverse, human-scale housing options-the majority of which will be affordable, small pocket parks/community gardens, a community center, a pre-k center, and retail/office spaces that all are a good fit for Burlington.

    Should not taller buidlings go up higher on the natural sloping hill that is so iconic in Burlington? and the height allowances decrease as you get closer to the lake for all to enjoy this amazing natural treasure? There are some open lots in the "Hill Section" - why not build there? These too would be closer to UVM and Champlain College...

    I think we need to have some "solution generating" workshops with all concerned-a neutral facilitator - clear answers to important questions, to come up with some beautiful, pragmatic and reasonable plans that can be vetted by the Planning Commission without the plagarism of the Dept of Planning and Zoning. The Commission is in place to assure the public's concerns/needs are represented. Since they did not even write their own report, I think someone may need a time out...

    Time to press "redo." At least the Planning Commission isn't completely in the Mayor's pocket, just unable to stand up to the powers that be. While they are an advisory body, we need to really be weary of the DRB- Development Review Board, which has legal authority in Burlington and is most definitely in the mayor's pocket overall.