                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT



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In re: Appeal of JAM Golf, LLC    }            Docket No. 69-3-02 Vtec
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                                  Decision and Order

      Appellant-Applicant JAM Golf, LLC (Applicant) appealed from a decision of the

Development Review Board (DRB) of the City of South Burlington regarding a

proposed ten-lot subdivision. Applicant is now represented by William A. Fead, Esq.;

the City of South Burlington is represented by Amanda Lafferty, Esq.; Interested

Persons James Marc Leas, Marie Ambusk, William Rozich, Elizabeth Rozich, John Kane,

Michael Provost, and Heather Provost have appeared and represent themselves. Only

Applicant and the City submitted supplemental memoranda on the issues remaining

after remand from the Vermont Supreme Court.



      This Court issued a Decision and Order in June 2006, denying the application on

the basis that the proposed project does not meet the requirements of two of the criteria

for a Planned Residential Development (PRD).            See South Burlington Zoning

Regulations § 26.151.1 On appeal, the Vermont Supreme Court reversed the denial,

holding that both of the criteria addressed in the 2006 Environmental Court decision

were unenforceable, and remanded for this Court to issue a decision under the

remaining sections of the zoning regulations at issue in this appeal. In re Appeal of

JAM Golf, LLC, 2008 VT 110.

1All citations to section numbers refer to sections of the South Burlington Zoning
Regulations, as last amended April 23, 2002, unless otherwise specifically noted.
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      Ten days of evidentiary hearing had been held in this matter before Merideth

Wright, Environmental Judge. A site visit was taken in advance of the hearing with the

parties and their representatives. The parties were given the opportunity to submit

written memoranda and requests for findings; they were also given an opportunity to

submit supplemental memoranda and requests for findings directed to the proceedings

after remand. Upon consideration of the evidence as illustrated by the site visit, and of

the written memoranda and requests for findings filed by the parties, the Court finds

and concludes as follows. Some findings in this decision are reiterated as necessary

from the 2006 decision, to avoid any need for cross-referencing the earlier decision

      The parties stipulated that only subsections (h) and (i) of § 26.151 remained at

issue in this appeal.    This Court issued a Decision and Order on June 12, 2009,

determining that § 26.151(i) is unenforceable and would not be further considered. That

decision determined that § 26.151(h) is not too vague to be enforceable, because it uses

identical language to the corresponding criterion in Act 250, and because the so-called

Quechee test used in Act 250 provides standards which can be applied to determine

whether a proposed project will have an “undue adverse effect on the scenic or natural

beauty of the area” and whether it is “aesthetically compatible with surrounding

developed properties.”



      Highlands Development Company and Applicant JAM Golf, LLC, both owned

by James A. McDonald, are the successor owners and developers of a 450-acre planned

residential development known as the Vermont National Country Club (VNCC), in the

Southeast Quadrant zoning district of the City of South Burlington.           The VNCC

development consists of an 18-hole golf course, with its associated clubhouse and other

facilities, and 296 residential housing units, some developed as town houses and some

as single-family homes.    Highlands owns the portions of the VNCC permitted for

residential development; Applicant owns the portions of the property used for the golf
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course. At the time of the application, R & L Taft Building, Inc. proposed to purchase

the parcel proposed for the subdivision at issue in the present appeal if permits are

issued for it; therefore, some of the evidence has referred to this project as “the Taft

subdivision.”

       The area at issue in the present application is an area of woodland occupying a

wooded knoll located to the east of Golf Course Road, six to seven acres in area,

bounded by the fairways for holes 11, 13 and 14. It is on a ridge or height of land

between Dorset Street and the eastern edge of the Butler Farm development, and

contains particularly mature and tall trees.      It is a distinct wooded feature in the

landscape, and appears in the skyline of the easterly half of the VNCC property.

       The project property was woodland when the surrounding area, now developed

as VNCC, was primarily farmland. The existing woodland associated with the project

proposal is roughly in the shape of a left-handed mitten, with the ‘thumb’ extending

between the 14th hole fairway and the 13th hole green.          It is a mature woodland,

containing a mix of evergreens and deciduous trees, including mature hickory,

butternut, beech, oak, hophornbeam, black cherry, and pine.            The wooded knoll

descends most steeply to a lower elevation on proposed lots 4, 3 and 10, while the

remaining lots contain more gentle slopes.          The project woodland also has an

undergrowth of dense shrubs and young saplings.             The “thumb” section of the

woodland contains shrubs and tall pine trees, although it has become thin in places due

to the loss of some tall pines in an ice storm several years before the application.

        A second densely wooded area (the East Woodland), containing both deciduous

and evergreen trees, is located on gentler slopes to the east of the 13th hole; it is not

proposed for any development in this application.

       In the present application, Applicant has applied for preliminary subdivision

approval and site plan approval of a ten-lot, single-family residential subdivision to be

served by a road to a cul-de-sac in the center of the wooded knoll, with a private drive
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extension to serve lots 4, 5 and 6 (the three most northerly lots). The lot lines for all ten

lots do not extend to the edges of the project property; that is, Applicant proposes to

retain the land at the outside edges of the project property. Applicant has performed a

thorough survey of the existing trees in the project area, and has identified their

individual species, sizes, and condition.

       Exhibits 21 and 45 through 49, together with the listing in Exhibit 53, show the

trees to be retained, the trees to be removed, and the planting plan for new trees and

shrubs. Exhibit 81 shows the overall area of existing trees and shrubs, and larger tree

canopy, to be retained, as well as showing the overall area of new trees and shrubs to be

naturalized.   As shown on Exhibit 53, approximately 231 trees will be removed in

connection with the proposal, while a total of 541 trees will be retained: 283 trees on the

proposed lots and 258 trees on the retained land beyond the lot boundaries.               In

addition, approximately 233 trees and 151 shrubs are scheduled to be planted in

connection with this proposal, mostly on the periphery of the house lots and in the area

of woodland extending to the east of Lot 9.

       Access to the proposed development from Golf Course Road is by a roadway to

run on land of Applicant between two existing lots (170 Golf Course Road (Lot #86) and

194 Golf Course Road (Lot #87).      The house sites on proposed Lot 1 and Lot 7 of the

development will be visible from Golf Course Road and from the existing adjacent lots

on Golf Course Road, each with a backdrop of the woodland that is proposed to remain.

New plantings are proposed that will eventually grow up, but even when mature they

will only partially screen the house sites on Lots 1 and 7.

       The easterly “thumb” portion of the project woodland is proposed to remain as

retained land, and is proposed to be planted primarily with evergreens and some

deciduous species to fill out the area damaged by the ice storm as the trees mature.

Southerly and easterly of proposed Lots 8, and 9, and easterly of proposed Lots 10, 4, 5,

and 6, a wide band of woodland will remain within Applicant’s control between those
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lots and the open space of the 13th and 14th holes of the golf course. Northerly of Lot 6, a

wide band of woodland will remain within Applicant’s control. Westerly of Lots 1 and

2, a band of woodland will remain within Applicant’s control. Westerly of Lots 3, 5,

and 6, however, the land that will remain within Applicant’s control is proposed to be

planted with trees and shrubs but is not at present heavily wooded.            Beyond the

woodland of the project property, views are open towards the west, over other

residential developments towards Lake Champlain.

       Within the proposed lots, each house site is shown as being located within

woodland that is proposed to remain. See Exhs. 21 and 45. The house sites have been

placed so as to minimize the number of healthy trees that will have to be removed.

However, it is expected that during development of the lots some field adjustments will

have to be made, although Applicant’s arborist testified that such adjustments could

result in saving trees shown on the plan as intended for removal, as well as the

possibility of having to remove trees scheduled for retention.            For this reason,

Applicant’s Exhibit 51 proposes that a consulting arborist must work with the

contractor during construction and that certain work such as pruning be performed by

a qualified arborist. Provision should be made for the City to be notified about any

field changes from the approved tree preservation plan before they are carried out.

       Applicant proposes to restrict the lot owners’ clearing of trees within the lots,

although the enforcement of such limitations may be difficult given the potential for

views to be achieved if more of the trees were cut. Beyond the proposed lots, on land to

be retained by Applicant, Applicant proposes only to cut dead or diseased trees as

necessary to prevent hazardous conditions.

       Applicant proposes that the lot owners will be restricted to only “hand pruning”

the wooded areas on their property, but that term is not defined. Exhibit 51 only

defines the respective responsibilities of the project’s consulting arborist and the

contractor during construction. Based on the testimony of the project’s arborist at trial,
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a similar handbook defining the allowed scope of removal of material in the wooded

areas must be prepared, so that compliance with it can be made a condition binding on

the lot owners. A copy of the portion of the tree retention and planting plan pertaining

to each lot, clearly showing the cutting limits and boundaries of each lot, must also be

prepared to accompany the handbook for each lot, to allow future enforcement of the

tree retention and cutting limits with respect to the lot purchasers. This is particularly

important so that any purchasers or prospective purchasers will understand that the

lots must remain wooded or become more wooded, and that they will not have the

option of clearing the lots to open up any views beyond what is allowed by the planting

plan.

        With the addition of lot specific handbooks to become binding on the individual

lot owners, Applicant’s tree preservation and planting plan provides an excellent level

of mitigation of the impact from the proposed clearing of trees for the project.



Section 26.151(h)

        The Quechee test is a two-part analysis to determine if a proposed project has an

“undue adverse effect on the scenic or natural beauty of the area,” the identical

consideration of the first clause of § 26.151(h). See In re Quechee Lakes Corp., Permit

Nos. 3W0411-EB & 3W0439-EB, Findings of Fact, Concl. of Law & Order, at 17–20 (Vt.

Envtl. Bd. Nov. 4, 1985).



        Adverse effect/aesthetic compatibility with surrounding developed properties

        The first determination is whether the proposed project will have any adverse

effect, made by analyzing whether it will be “in harmony with its surroundings.” This

consideration includes the project’s harmony or aesthetic compatibility with

surrounding developed properties. § 26.151(h) (second clause). This determination is

based on the following factors:
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       1) What is the nature of the project's surroundings? Is the project to be
          located in an urban, suburban, village, rural or recreational resort
          area? What land uses presently exist? What is the topography like?
          What structures exist in the area? What vegetation is prevalent? Does
          the area have particular scenic values?
       2) Is the project's design compatible with its surroundings? Is the
          architectural style of the buildings compatible with other buildings in
          the area? Is the scale of the project appropriate to its surroundings?
          Is the mass of structures proposed for the site consistent with land use
          and density patterns in the vicinity?
       3) Are the colors and materials selected for the project suitable for the
          context within which the project will be located?
       4) Where can the project be seen from? Will the project be in the
          viewer's foreground, middleground or background? Is the viewer
          likely to be stationary so that the view is of long duration, or will the
          viewer be moving quickly by the site so that the length of view is
          short?
       5) What is the project's impact on open space in the area? Will it
          maintain existing open areas, or will it contribute to a loss of open
          space?
In re Quechee Lakes Corp., Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fact,

Concl. of Law & Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985).

      As determined in the 2006 decision, the proposed project will thin the trees in the

area of the roadway and the house sites so that the woodland feature will be reduced in

importance as a natural feature in the landscape. This is an adverse effect on the scenic

appearance of the woodland as a natural feature in the landscape.

      The proposed project will also have an adverse effect on the view of the

woodland from neighboring properties and from persons walking along Golf Course

Drive in the area of Lots 7 and 1, as those houses will be visible where there is now a

view of the intact woodland.




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      In the longer term, the trees to be planted in connection with the proposed

project will have a positive effect on the view of or appearance of the “thumb” of

woodland damaged by the ice storm.

      The developed properties surrounding the proposed project are residential lots

in an open, suburban, golf course setting. After construction, the project will have the

appearance of residences in a wooded setting, similar to other developments in the

Southeast Quadrant. The house sites will be partially screened from view from the

exterior of the development; the screening effect will increase as the proposed plantings

mature. With the limitations on additional street lighting and the shielding of exterior

lighting requested by the City in its proposed conditions 6 and 7, the proposed project

will be is aesthetically compatible with surrounding developed properties, satisfying

the second clause of § 26.151(h).



      Whether any adverse effect is undue

      If a proposed project will have any adverse effect, the second step in the inquiry

is to determine whether the adverse effect is “undue,” by analyzing the following three

questions.   If any of the three questions is answered affirmatively, the effect is

considered “undue.”

       1) Does the project violate a clear, written community standard intended
          to preserve the aesthetics or scenic, natural beauty of the area? . . .
       2) Does the project offend the sensibilities of the average person? . . . It is
          not enough that we might prefer to see a different design or style of
          building, or that we might prefer a different type of land use, but that
          the project, when viewed as a whole, is offensive or shocking, because
          it is out of character with its surroundings, or significantly diminishes
          the scenic qualities of the area.
       3) Has the Applicant failed to take generally available mitigating steps
          which a reasonable person would take to improve the harmony of the
          proposed project with its surroundings? . . .


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In re Quechee Lakes Corp., Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fact,

Concl. of Law & Order, at 19–20 (Vt. Envtl. Bd. Nov. 4, 1985).



       The proposed project does not violate a clear written community standard

intended to preserve the aesthetics or scenic beauty of the area. As determined by the

Vermont Supreme Court, the elements of the municipal plan that might have preserved

this wooded knoll as an important natural scenic feature in the landscape (or as

necessary to wildlife connectivity) are not enforceable. In re Appeal of JAM Golf, LLC,

2008 VT 110, ¶¶ 18–19. The City has not pointed to any other sufficiently specific

element of the municipal plan that allows preservation of this woodland on the basis of

its aesthetics or scenic beauty.

       No evidence was presented to suggest that the proposed project offends the

sensibilities of the average person.       The project’s appearance is characteristic of

residences in a wooded setting, partially screened from view from the exterior of the

development. Even Lots 7 and 1 will have the appearance of houses set against a

wooded background, until the additional plantings mature. While some of the nearby

and adjoining landowners would reasonably prefer not to see another house where they

now see trees,     the appearance of the project will be consistent with that of the

surrounding residential development in the area, and will be better screened from its

neighbors than are many of the other residences built in the more open areas of the

surrounding golf course.

       Applicant has taken generally available mitigating steps to improve the harmony

of the project with its surroundings. The project proposes to retain as many of the trees

as possible on the project property, in particular on and near the height of land and on

the perimeter of the project, proposes to plant a large number of trees and shrubs,

largely on the perimeter of the project, and proposes to preclude the cutting of trees on

project lots adjacent to the perimeter of the project.
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      As none of the three criteria for determining that an adverse effect is “undue”

has been met, the proposed project will not have an “undue adverse effect on the scenic

or natural beauty of the area.”



Modifications of Area and Dimensional Requirements

      Applicant’s supplemental brief also requests the Court to approve four

modifications to the area and dimensional requirements that otherwise would be

applicable. These modifications are allowed in connection with the approval of a PRD,

and are not opposed by the City. The modifications requested are a reduction in lot

frontage for Lot 3, a reduction in the width of the street and private roadway, and a

reduction in the length of the sidewalk.        The requested modifications will enable

Applicant to cut fewer large trees than otherwise would occur, and will allow the full

extent of tree preservation proposed in this application. The requested modifications

are approved for that reason.



      Accordingly, with the following additional conditions, it is HEREBY ORDERED

and ADJUDGED that the proposed project meets § 26.151(h) and that preliminary plat

approval of the project is therefore GRANTED.

          •   Applicant shall provide a tree preservation handbook required to be

              followed by the lot owners, including definitions of all allowed activity on

              the lots and in the area of the project property beyond the lots, together

              with a copy of the segment of the planting plan pertinent to each lot

              owner’s lot and to the area of project property within the viewshed of that

              lot.

          •   Applicant shall provide the City with an annual certification from a

              qualified consulting arborist as to compliance with the tree retention plan


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              and the planting plan, on the lot owners’ lots as well as on the retained

              property, specifically listing any areas of noncompliance.

          •   No additional street lighting may be installed without an amendment to

              this approval.

          •   All lights on the exterior of any building shall be downcast, shielded

              fixtures.

      Applicant and the City shall prepare an agreed judgment order approved as to

form, or, if they cannot agree, may each prepare a proposed judgment order on or

before September 4, 2009.      The proposed judgment order shall provide for the

additional conditions, and for the four modifications of area and dimensional

requirements, discussed in this decision.


      Done at Berlin, Vermont, this 21st day of August, 2009.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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