                                  STATE OF VERMONT

                                ENVIRONMENTAL COURT

                                    }
In re: Appeal of                    }
 Wilson, et al.                     }    Docket No. 170-9-99 Vtec
                                    }
                                    }


                                    }
In re: Appeal of                    }
 Burlington Bikeways, Inc.          }    Docket No.45-2-00 Vtec
 (Murray, et al., cross-appellants) }
                                    }

                                  DECISION and ORDER

       In Docket No. 170-9-99 Vtec, Appellants appealed from a decision of the Zoning
Board of Adjustment (ZBA) of the Town of Colchester, granting conditional use approval to
the Winooski Valley Park District (WVPD) and the Town of Colchester for the
improvements related to the operation of a seasonal bicycle ferry across the mouth of the
Winooski River at Delta Park.       In Docket No.45-2-00 Vtec, Appellants and Cross-
Appellants appealed from a decision of the Planning Commission of the Town of
Colchester, granting site plan approval to Burlington Bikeways, Inc., the Winooski Valley
Park District, and the Town of Colchester for the bicycle ferry and other improvements in
Delta Park and signage and bicycle path improvements1 on Windemere Way, Biscayne
Heights, Buckingham Drive and Airport Road (shown as Colchester Point Road on Exhibit
18-2). WVPD seeks approval for the boardwalk, fencing, overlook and informational and
educational signage within Delta Park, regardless of whether approval is granted for the

   1
     It is not clear to the Court whether or on what basis the improvements within the
street right-of-way come within the zoning regulations and hence come before this
Court.




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operation of the bicycle ferry.
       The Appellants in Docket No. 170-9-99 Vtec and the Cross-Appellants in Docket No.
45-2-00 Vtec are represented by Paul S. Gillies, Esq.; the Winooski Valley Park District is
represented by Jennifer Ely, who is not an attorney; Burlington Bikeways, Inc. is
represented by Gary W. Lange, Esq.; the Town of Colchester is represented by Richard C.
Whittlesey, Esq.; and the City of Burlington is represented by Jessica Oski, Esq.
       An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge, who also took a site visit alone, by agreement of the parties. The
parties were given the opportunity to submit written requests for findings and memoranda
of law. Upon consideration of the evidence, the site visit, and the written memoranda and
proposed findings, the Court finds and concludes as follows.
       The Winooski Valley Park District (WVPD) is a regional land trust established to
acquire and manage parks and natural areas in its seven member municipalities, including
the 33-acre Delta Park at the mouth of the Winooski River in Colchester. Delta Park
consists of extensive wetlands area and limited wooded and sandy raised areas (including
the former railroad bed) containing the present foot trails. It provides an unusually rich
habitat for wildlife close to the Burlington urban area. WVPD holds a conditional use
permit issued in 1985 to operate Delta Park as a Apublic recreation park area and wildlife
habitat with a three-car parking area.@ The 1985 permit limited vehicles to the three-car
parking area, established a gate for the management of access to the park=s trails, and
provided that park management would be Asubject to Zoning Board of Adjustment referral2
based on complaints by the neighbors or the Town of Colchester.@




   2
      It is not clear from that permit whether the condition alludes to referral for
enforcement proceedings, or to referral to reopen the permit proceedings to impose
additional conditions.




                                            2
       Applicants propose to operate the ferry from sunrise to dusk, from as early in the
spring as conditions permit (estimated to be June 1) to the end of October.       Applicants
propose to have a ferry captain and one crew member. None of the applicants proposes to
provide staff to stay on the Delta Park shore during the ferry=s operation, but they do
propose that the ferry staff will patrol the Park at the close of operations and pick up any
trash left by the users of the park and the ferry. The capacity of the ferry is six bicycles,
making four round-trips per hour, for a maximum of 24 bicycles traveling in each direction
             3
in each hour . During several weekends of trial usage of a bicycle ferry at this location in
the 1999 season, two-thirds of the traffic traveled by bicycle on the ferry from Burlington to
Colchester, and only one-third from Colchester to Burlington. The causeway to South Hero
is more of a destination for bicyclists from Burlington than is Delta Park.




   3
     While the capacity of the ferry operation has been characterized by both parties as
48 vehicle trips, only half of these trips can go in each direction, given the capacity of
the boat and the Coast Guard regulations.




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       Until this proposal, bicycles had not been permitted on the trails in Delta Park,
although no evidence was presented of enforcement of this prohibition. Several areas of
the Park=s existing trails have become damaged due to foot traffic and the nature of the
sandy soils. Several areas of the Park near the existing trails provide habitat for turtles and
for characteristic lakeshore shrub vegetation which should be protected from bicycle traffic
or excessive foot traffic. The improvements proposed within the park are to construct a
wooden ferry landing dock, to allow bicycles to pass along the trails from the ferry landing
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to Windemere Way, to construct three segments of wooden boardwalk covering the path
in areas subject to erosion or damage from bicycle and pedestrian traffic, to erect low
fences to prevent bicycle traffic beyond the permitted paths and to redirect usage from
several segments of the existing paths to the new paths, to erect signs to direct pedestrian
and bicycle traffic away from fragile areas, and to direct use of the boardwalk and the paths
especially in certain areas, including the turtle nesting areas, and to construct an additional
eight-foot-square Aoverlook@ structure.
       The boardwalk segments are proposed to be raised six inches from the surface of
the ground, and to be constructed in six-foot-square5 sections to be fastened together by a
cable system, without any curbing or railing. The six-inch height is sufficient for most
turtles to pass under the boardwalk; turtles will be more likely to pass under a boardwalk if
slight gaps between the boards allow for the passage of light and air under the structure.

   4
      Although the proposed plans show boardwalk segments in only three limited
portions of the trail, WVPD has stated that it seeks approval to construct a boardwalk
the entire length of the park from the ferry landing to Windemere Way if it wishes to do
so in the future. However, Applicants have not presented evidence to allow such
approval in the present appeal, especially as to the effect of a continuous boardwalk on
the passage of turtles and other wildlife from one side of the path to the other. WVPD
is free to apply in the future for a permit amendment to allow additional boardwalk
segments or a continuous boardwalk, and to support that application with additional
evidence.
   5
     The boardwalk from the ferry landing up to the path is proposed to be six feet
wide, as its users will be walking their bicycles, but the boardwalk on the path is
proposed to be eight feet wide, to allow bicyclists and pedestrians to pass each other.
No evidence was presented as to whether the path segments would be eight-foot-
square, rather than six.

                                              4
Turtles will also seek to pass around the boardwalk segments. The boards are proposed
to be placed with small gaps between them to allow light, air and drainage to reach the
areas beneath them. The evidence characterized the boardwalks as Abicycle-friendly,@
which suggests that the boards would be placed across rather than along the line of
direction, to avoid bicycle tires being caught in the gaps between the boards.
       Adjacent to Delta Park within the first bend of the Winooski River is a state fishing
access, providing parking for 65 vehicles with boat trailers. This access is used most
heavily in the early summer and in the early fall into the fall, and is very heavily used on
weekends of fishing derbies in Lake Champlain. This access is used less in mid-summer,
as the water level in the river is not always sufficient for the larger boats to pass into Lake
Champlain. On weekends of heavy use, overflow parking from the state fishing access will
park along the streets in the adjacent residential neighborhood, especially on the Horizon
Way loop and on lower Windemere Way.
       Vehicles trailing boats to the state fishing access tend to travel along Airport Road to
Windemere Way, and then to travel to the fishing access along Windemere Way.
Windemere Way slopes downhill towards the lake, and has several bends in it. Sight
distances are adequate at the posted speed limit, but the posted speed limit of 25 miles per
hour is frequently exceeded by both local and fishing access traffic. A three-way stop sign
recently has been installed at the intersection of Biscayne Heights and Windemere Way, to
slow traffic in the area of the state fishing access and in anticipation of the proposed
bicycle path. Because it is a recent change in the signage and because there is little
warning of the upcoming stop sign for vehicles on either of these streets, vehicles have
been observed to go through the stop sign without stopping.
       The rights-of-way for Windemere Way, Biscayne Heights, and Buckingham Drive
are sixty feet wide. All of the proposed bicycle path improvements and signage fall within
the street right-of-way. On Biscayne Heights and on the segment of Buckingham Drive
between Biscayne Heights and Airport Road, the existing paved width is 28 feet wide.
Applicants propose to allocate the outside four feet of pavement on each side for bicycle
path use, set off by striped markings, leaving a twenty-foot width of pavement for two-way
vehicular traffic on the street. Applicants propose a single lane southbound bicycle

                                              5
crossing of Buckingham Drive at the intersection with Windemere Way, and two single lane
bicycle crossings at Airport Road.
       On Windemere Way below the intersection with Biscayne Heights, the existing
paved width is twenty feet wide. The proposal will not reduce the width of paved area
available for vehicular traffic. Applicants propose to add an eight-foot-wide paved and
slightly raised two-lane bicycle path to one side of the vehicular pavement. Between the
state fishing access and Delta Park, that bicycle lane is proposed to be added on the
southeast side of the existing pavement, running along the fishing access property. At the
first bend in the road, shown as location 1B on Exhibit 18-2, Applicants propose to add a
diagonal bicycle crossing of Windemere Way. From that point to the intersection with
Biscayne Heights, Applicants propose to place the additional bicycle lane on the northwest
side of the existing pavement. In this area, placing the bicycle path within the right-of-way
will cause it to pass within eighteen feet of one resident=s house. At Biscayne Heights, the
bicycle path will split into two lanes, and a single lane bicycle crossing is proposed so that
the northwest-bound bicycles can cross to the single lane on the opposite side of Biscayne
Heights.
       Traffic generated by the residences in the area of the proposed bicycle path on
Windemere Way below Biscayne Heights is 23 vehicles per hour in the peak hour, with an
average daily volume of 230 vehicles per day. Traffic generated by the residences in the
area of the proposed bicycle path on Biscayne Heights between Windemere Way and
Buckingham Drive is 20 vehicles per hour in the peak hour, with an average daily volume of
200 vehicles per day. The primary existing traffic problem in the neighborhood consists of
vehicles trailing boats to and from the state fishing access, especially on weekends in two
peak periods of the year: spring to early summer, and late summer to fall. The problems
generated by the state fishing access traffic will not be alleviated nor exacerbated by this
proposal. Based on the capacity of the state fishing access parking lot, and assuming a
turnover of spaces two times per day, that traffic is estimated at 30 to 40 vehicles per hour
in the peak early summer weekend hour, and 260 vehicles per day. The combined
residential and fishing access traffic is estimated at 490 vehicles on lower Windemere Way
in the peak early summer weekend day, and 63 vehicles in the peak early summer

                                              6
weekend hour. Based on the evidence of local residents that users of the fishing access
park on the street when the lot is full, the fishing access traffic is probably somewhat
greater than the estimates. This traffic is within the capacity of the local street system, but
is experienced by the residents as excessive, especially on lower Windemere Way and on
the Horizon Way loop, and especially with regard to overflow parking from the fishing
access.
        The character of the neighborhood is residential, including areas in which children
play in the streets. The residential character of the area includes local bicycle traffic, but
with proximity to a natural area of regional importance, and with proximity to the existing
state fishing access which generates substantial seasonal traffic.             The proposed
improvements to the park and the proposed addition of up to 48 bicycles per hour passing
through the local streets along a separated bicycle path, will not adversely affect the
essential character of the neighborhood.
        Bicycles are permitted on the local streets under existing conditions, and the current
width of Biscayne Heights is ample to provide for safe passage of both vehicular and
bicycle traffic. If the signage is installed requiring bicycle path/ bicycle ferry vehicular
parking in Airport Park only, and if that requirement is enforced, the proposed bicycle
ferry, proposed improvements in Delta Park, and proposed bicycle path would not increase
vehicular traffic on lower Windemere Way or along the route of the proposed bicycle path,
and would not cause congestion or unsafe conditions on the roads and highways in the
vicinity.


        With the conditions imposed by this order, the operation of the proposed bicycle
ferry, the proposed improvements within Delta Park, and the proposed bicycle path meet
the conditional use criteria in '1804 of the Zoning Regulations, and meet the site plan
approval criteria in '1803 of the Zoning Regulations, as follows:
        The proposed project will not adversely affect the capacity of existing or planned
community facilities. Delta Park can accommodate the addition of up to 48 bicycles per
hour using the ferry, as can the proposed bicycle path. '1804.1(a).
        The proposed project will not adversely affect the character of the area affected

                                              7
('1804.1(b) and '1803.2(k)), or the essential character of the neighborhood and district in
which the property is located('1804.1(e)). That character will remain residential, but
recognizing that it also remains adjacent to a park of regional importance and adjacent to
the state fishing access with seasonal traffic congestion.
       The proposed project will not adversely affect the Town=s Municipal Development
Plan and all bylaws in effect. '1804.1(d). Rather, the Town Plan encourages public
access to the shoreline and both it and regional plans identify as a goal a bicycle path
extension from the Burlington bicycle path through this area towards the causeway. While
the Town Plan had identified the route only in general as a Class I bicycle path (separated
from the street network), the Court cannot find from the evidence that a separated path is
feasible in this area, given the current residential development pattern of the area.
       The proposed project will not substantially or permanently impair the appropriate
use o[r] development of adjacent property. '1804.1(e). Owners of properties adjacent to
the street rights-of-way have not demonstrated a basis to prevent municipal use or
improvement of the street right-of-way.
       The proposed project will have no effect on the utilization of renewable energy
resources; '1804.1(f) is inapplicable.
       The proposed project will not result in undue water or air pollution ('1803.2(a)) or be
detrimental to the public welfare ('1804.1(e)). It will not contribute to air pollution as it will
not add internal combustion engines to the streets of Colchester. It will not result in water
pollution or a public nuisance detrimental to the public welfare if adequate provision is
made for toilet facilities and trash receptacles for users of Delta Park and the bicycle ferry
within Delta Park or at the state fishing access. It will not be detrimental to the safety of the
bicyclists if adequate consideration is given in the design of the boardwalk segments to
provide curbing to minimize the likelihood of a bicycle or pedestrian accidentally going over
the edge of the boardwalk.
       The proposed project will not require a water source; '1803.2(b) is inapplicable.
       The proposed project will not cause unreasonable soil erosion or reduction in the
capacity of the land to hold water. '1803.2(c). In fact, the boardwalk segments are
designed to reduce the likelihood of soil erosion from the existing use of the park paths, as

                                                8
well as from the use of the park by bicycles.
       The proposed project does not propose traffic circulation or parking on the site of
Delta Park. The proposed project will provide for safe and adequate traffic and pedestrian
circulation between the site and adjacent streets, '1803.2(d), will not adversely affect traffic
on roads and highways in the vicinity ('1804.1(c)), and will not cause unreasonable
highway congestion or unsafe conditions with respect to use of the existing highways.
'1803.2(e).       While existing traffic using the state fishing access may itself cause
congestion or unsafe conditions, the proposed improvements for the present project to
separate bicycle lanes from vehicular lanes, and to provide a three-way stop at the most
congested of the bicycle crossings, will provide for safe and adequate circulation and traffic
movement due to the proposed project. Parking for the proposed project is proposed to be
at Airport Park, which has ample capacity. Of course, enforcement of the parking, speed
limit, and stop sign requirements will be key to meeting this criterion of the Zoning
Regulations. No new highways are proposed.
       The landscaping, screening and setbacks of the park are adequate with respect to
adjacent properties. '1803.2(f). Landscaping, screening and setback requirements have
not been argued to apply to improvements to the public streets within the street right-of-
way.
       The proposed project will not have an undue adverse effect on rare and
irreplaceable natural areas. '1803.2(g). Delta Park as a whole is a rare and irreplaceable
natural area. The project is designed not to have any adverse effect on Delta Park.
Enforcement of the use of the ferry, path and boardwalk within the Park will be key to
meeting this criterion of the Zoning Regulations. The additional safeguards imposed by the
Court in this order are designed to determine if the operation of the Park as designed with
the bicycle ferry has any adverse effect on Delta Park, and, if so, to bring the project back
for review to the Planning Commission under this criterion. The project will not affect any
historic sites.
       The proposed project will not have an undue adverse effect on the scenic or natural
beauty of the area or on aesthetics. '1803.2(h). Rather, it is designed to preserve the
scenic and natural beauty of the area within the park and to promote public appreciation of

                                               9
that scenic and natural beauty.
         The proposed project will not affect the efficiency of allocation and distribution of
street and public facility installation, construction, and maintenance; '1803.2(i) is not
applicable.
         The proposed project will not place a burden on the ability of the local government to
provide municipal or governmental services and facilities. '1803.2(j)


         Based on the foregoing, it is hereby ORDERED and ADJUDGED that the
conditional use approval and site plan approval are hereby GRANTED to the proposed
bicycle ferry, the proposed improvements within Delta Park, and the proposed bicycle path,
with the following necessary conditions and safeguards:


1.       After the initial two seasons6 of operation of the bicycle ferry, park improvements
and bicycle path, any party may request ZBA or Planning Commission review of the project
under any criterion, to determine whether the project as implemented adequately meets
that criterion or whether additional conditions may be necessary to assure that the criterion
is met or will continue to be met.


2.       Before the bicycle ferry may be placed into operation, all the signage required for
the bicycle path within the neighborhood shall be installed, and a traffic enforcement plan
shall be proposed by the Town. A revised signage plan, including the enforcement plan,
shall be presented to and approved by the Planning Commission. At a minimum, that
revised signage plan shall include:


     6
     This period is anticipated to be the year 2000 and 2001 seasons, ending
approximately November 1, 2001. However, if the commencement of the use of these
improvements is delayed into the 2000 season, the period will be measured as two
years from the commencement of use of the completed improvements.




                                               10
         (A) a sign on the bicycle path at the intersection of Windemere and Biscayne, to the
effect that all through bicycle traffic must use the bicycle path, turning on Biscayne and not
proceeding up Windemere;
         (B) signs on Airport Road in at least the following three locations, one to the east of
the Windemere Way intersection and one to the east of the Buckingham Drive intersection,
for traffic traveling in a westbound direction, and one to the west of the Buckingham Drive
intersection for traffic traveling in an eastbound direction, and stating to the effect of: ABike
Path parking at Airport Park lot ONLY;@
         (C) signs at Delta Park and at fishing access stating ANo Parking for Bike Path -
Use Airport Park@ with some statement about the potential fine and some map or directions
to the Airport Park lot; and
         (D) a yellow blinking light operable sunrise to dusk7 at or near location 7 on Exhibit
18-2, warning of the stop sign ahead, and a red blinking light operable sunrise to dusk at
location 6 on Exhibit 18-2 (at the three-way stop sign intersection).


3.       By November 1, 2000, the Town of Colchester shall develop, and shall discuss with
the residents in at least one neighborhood meeting, a plan for a residential on-street
parking permit program for the residents on Horizon Way, on Biscayne Heights, and on
Windemere Way to some distance above the point marked as 9 on Exhibit 18-2, during the
months in which the bicycle ferry and state fishing access are in use, to prohibit and
enforce the prohibition of parking on the residential streets by other than the residents and
their guests. Implementation of any such program is beyond the scope of this Order, but
may be the subject of action by any party, including the Town, under Condition #1 of this


     7
     Note that this proposes a light in operation in the daytime and not at night. This
proposed daytime operation would provide the additional warning to traffic when the
bicycle ferry and state fishing access are in operation, without creating the visual
nuisance of a light blinking all night long for the neighboring residents.




                                               11
Order.


4.       Before installing the boardwalk segments authorized by this decision, WVPD shall
consult with experts in the field of bicycle boardwalk design, to determine whether a raised
edging on the boardwalk segments would increase the safety of the users of the
boardwalk, and to determine the optimal direction of the planking boards on the boardwalk.
Before installing the boardwalk segments authorized by this decision, WVPD shall consult
with experts in the field of wildlife interaction with boardwalk installations, to determine the
optimal spacing of the boards to encourage wildlife passage beneath the boardwalks.


5. Before the bicycle ferry begins operation, the Applicants8 shall
         (A) arrange for the presence of an attendant, equipped with a cellular telephone or
other emergency communications device, to be present within Delta Park and to walk the
paths during all hours of operation of the bicycle ferry within the first year of operation. The
attendant=s duties shall include to patrol the park to ensure that the users are aware of the
restrictions on the passage of bicycles, to ensure that trash is placed in appropriate
receptacles, and to provide advice and emergency communication so that users of the
Park and the ferry do not seek such advice and telephone access from neighborhood
residents, and to observe frequency and patterns of usage of the Park and of the bicycle
ferry. After the first year of operation, Applicants may seek amendment of this condition to
have an attendant present during more limited hours, if warranted by the data collected in
the first year of operation.
         (B) install and arrange for the periodic maintenance of a covered trash receptacle
within the Park, designed to be protected from and not to attract wildlife;
         (C) either install and arrange for the periodic maintenance of a portable toilet within

     8
     That is, the Winooski Valley Park District, the Town of Colchester, and Burlington
Bikeways, Inc., who may allocate the responsibility for this condition among themselves
as appropriate.




                                               12
the Park or erect signs advising park users of the presence of such a facility at the state
fishing access.


         Nothing in this decision and order prevents any of the parties from contracting or
making any other arrangements with any of the other parties or with other persons or
institutions to allocate the responsibility for carrying out any conditions of this decision and
order.    The parties to these appeals also may wish to explore a memorandum of
understanding between the state and the Town to alleviate some of the burdens on the
neighborhood caused by the state fishing access.
         Further, the Court encourages the parties to develop and place into operation a
committee to oversee the operation of Delta Park, the bicycle ferry and the bicycle path,
along the lines of the community committee in operation in Burlington regarding the
skateboard park. They may obtain information about that program and assistance in that
endeavor from the Environmental Mediation program coordinated by the Woodbury
Dispute Resolution Center (toll free number 1-800-820-0442).


         Dated at Barre, Vermont, this 3rd day of May, 2000.




                                    ______________________________________
                                    Merideth Wright
                                    Environmental Judge




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