                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

            Appeals of Garen                    }
                                                }
                                                      Docket Nos. 42-3-01 Vtec and
                                                }
                                                      218-9-00 Vtec
                                                }
                                                }

                                         Decision and Order

Appellants David and June Garen appealed from two decisions of the Development Review
Board (DRB) of the City of Burlington granting preliminary plat approval (Docket No. 218-9-00
Vtec) and final plat approval (Docket No. 42-3-01 Vtec) to Appellee-Applicants Green Mountain
Habitat for Humanity, Inc. and Burlington Housing Authority (BHA) for an eight-unit planned
residential development. The two appeals were consolidated, and Appellants recognized that the
preliminary plat appeal was essentially moot and that the matter was to proceed as an appeal of
the final plat approval. The original appellants withdrew and, after appeal to the Supreme Court,
the Intervenors Katherine W. Desautels (formerly Gluck) and John Desautels were allowed to
continue with the appeal, but only on the issues timely raised by the original appellants. By
agreement of the parties, the matter has remained with the original caption.

Appellee-Applicants are represented by Neil H. Mickenberg, Esq.; the City is represented by
Kimberlee J. Sturtevant, Esq.; Intervenors Katherine W. Desautels and John E. Desautels are
represented by Michael J. Straub, Esq. By entry order dated September 10, 2002, the Court
changed the party status of two other individuals (Lorraine Gorton and Jeffrey Landa) who had
originally entered their appearance as interested persons but who had not appeared at pretrial
conferences nor otherwise participated, so that they would receive notices for their information
but would not be expected otherwise to participate.

The Court issued an order disposing of certain issues in the appeal and addressing the scope of
the appeal on November 7, 2002. An evidentiary hearing was held in this matter before Merideth
Wright, Environmental Judge. The parties were given the opportunity to submit written requests
for findings and memoranda of law. Upon consideration of the evidence and the written
memoranda and proposed findings, the Court finds and concludes as follows.

Appellee-Applicants propose to construct an eight-unit planned residential development (PRD),
consisting of four single-family houses and two side-by-side duplex houses, to be operated as a
condominium. The residential portion of the project is to be constructed on a portion of a parcel of
land owned by BHA in the City= s residential low density zoning district. A PRD is a permitted use
in this zoning district. The plans for the proposed PRD were admitted in evidence and Appellee-
Applicants propose to incorporate the conditions imposed by the DRB within their application as
made to the Court in this proceeding.

                                     1
BHA owns a 16.2-acre parcel of land , with frontage on North Avenue and Venus Avenue. Of this
16.2-acre parcel, the westerly 6.4 acres has been developed for a housing project called Franklin
Square, which has access by a loop roadway from North Avenue. Of that 6.4 acres, 2.5 acres has
been or is proposed to be deeded to the City as the right-of-way underlying the Franklin Square
roadway, with BHA retaining ownership of the rest of the parcel. Directly to the east of the
Franklin Square project lands is a .9-acre sub-parcel of land, labeled as A Lot 1B@ on the
property plat, that is undeveloped but is not proposed to be developed or managed in connection
with the Venus Avenue proposal now before the Court. That .9-acre sub-parcel, together with the
6.4-acres comprising the existing Franklin Square development, have not been presented as part
of the proposal before the Court and will not be further discussed.

To the east of the Franklin Square development, between it and the sub-parcel proposed for the
construction of the residences, is a 6.6-acre undeveloped sub-parcel, labeled as ALot 1E@ on
the property plat, to be subject to a conservation easement. Although it is owned by BHA, it has
been used over time by the public, without any management or supervision, including uses for
play, for the construction of tree houses, for walking, for birdwatching, and for dumping yard
waste and other waste. This decision will refer to this sub-parcel as the A 6.6-acre easement
parcel.@

To the east of undeveloped sub-parcel A1E@ is a 2.3-acre sub-parcel with frontage on Venus
Avenue, labeled as A Lot 2@ on the property plat. The southernmost segment of ALot 2@ is
shown as a 0.6-acre undeveloped sub-parcel, also to be subject to a conservation easement.
This decision will refer to this sub-parcel as the A 0.6-acre easement parcel.@ The two easement
parcels are proposed to be subject to a conservation easement to be deeded to the City= s
Department of Parks and Recreation and the Vermont Housing and Conservation Board,
protecting them from development and ensuring managed public access under a management
plan.

The remainder of A Lot 2@ consists of 1.2 acres on which the six residential buildings are
proposed to be constructed, and 0.5 acres of land lying under the proposed road right-of-way to
serve the development, which roadway is proposed to be deeded to the City. This decision will
                                                    2
refer to these 1.7 acres as the Adevelopment parcel .@ The development parcel is relatively flat
and wooded.

To the south of the 16.2-acre parcel discussed above, lie two other parcels of land which are
proposed to be managed as a condition of and in connection with the proposal before the Court.
The easternmost of these, adjacent and to the south of ALot 2@ and of a portion of ALot 1E,@ is
an undeveloped 3-acre parcel of land also owned by the Burlington Housing Authority. This
decision will refer to this parcel as the A 3-acre southern BHA parcel.@ To the west of this parcel,
                                                                                         3
also adjacent and to the south of a portion of ALot 1E,@ is an undeveloped 1.84-acre parcel
already owned by the City= s Department of Parks and Recreation. The 3-acre southern BHA
parcel is proposed to be deeded outright by BHA to the City= s Department of Parks and
Recreation. It, together with the adjacent 1.84-acre parcel already owned by the Department of
Parks and Recreation, and together with the two easement parcels described above, will remain
undeveloped and will be cleaned up and managed by the Department of Parks and Recreation
under a Management Plan. The Management Plan is subject to an independent public comment
and adoption process not before the Court in this proceeding; it will allow for public access and
recreational use, and monitoring by City employees, consistent with the natural characteristics
and constraints of the land.

The 6.6-acre easement parcel contains a Class II mapped wetland, which also extends onto the
1.84-acre parcel already owned by the Department of Parks and Recreation and the 3-acre
southern BHA parcel, which are proposed to be preserved in connection with the proposal before
the Court. On the 6.6-acre easement parcel, the boundaries of that wetland and its 50-foot buffer
                            4
zone have been delineated on the project plans in evidence. The boundary cuts across the
northeast corner of the 6.6-acre easement parcel, but does not extend onto either the
development parcel or the 0.6-acre easement parcel. The soils in the wetland are unusual in that
they are sandy, because sandy soils drain easily. The fact that in this case they support a
wetland, but well above the elevation of the Winooski River or Lake Champlain, suggests that an
impervious layer is located below the saturated zone as is shown on the groundwater hydrology
sheet of the project plans (Exhibit 8). The direction of groundwater flow is generally to the north-
northeast, from the area of the wetland towards and through the development parcel, also as
shown on the groundwater hydrology sheet of the project plans (Exhibit 8). Because of the
direction of groundwater flow, if groundwater were to become contaminated in the development
parcel, it would not affect the groundwater upgradient in the easement parcels or the other
parcels subject to the Management Plan.

The Class II wetland is locally known as the Mt. Calvary Red Maple Swamp. It qualifies not only
as a wetland but as a rare natural area, both because it contains some rare plants and because it
is a red maple/black gum swamp with wetland plant species and wetland hydrology, but located
on sandy soils. That is, it is rare because this plant community is rarely found in association with
these sandy soils, and because black gum is unusual in Vermont.

The development parcel consists of 1.7-acres of upland. Its trees of over 10" in diameter, as seen
on Exhibit 33, are predominantly maple and birch trees, with a scattering of aspen and poplar,
and only a few large oak and pine trees. In the past, before the residential neighborhoods to its
north and east were developed, it may once have been part of a pine/oak/heath sand plain
community, but it does not represent such a community now and does not qualify for protection
on that basis under the Burlington ordinances. Any remnants of pine/oak/heath sand plain
community existing in hummocks within the wetland or otherwise located within the conservation
areas or the two southerly parcels will be preserved by this proposal.

The neighborhood of the project is characterized by predominantly single-family homes on
modest lots; with some duplex buildings or private homes converted to multi-apartment use,
scattered throughout the neighborhood. Developments in which larger numbers of townhomes or
duplexes predominate, such as the Franklin Square development, are located farther away
following the City= s street system, although they are in the wider neighborhood.

Venus Avenue is a city street that has a paved width of 30 feet. It now ends at the project
boundary, shortly after its intersection with Meridian Street. Intervenors= home fronts on the
eastern side of this short dead-end segment of Venus Avenue; this area has been used informally
for years as a neighborhood play area, but is not developed as or denominated a municipal park
or playground.

The development parcel is wooded, and contains trees of over 10" in diameter; approximately 85
trees are proposed to be removed for the project. The trees to be removed include one very large
(36"-diameter) oak tree right on the project boundary and within the proposed extension of Venus
Avenue into the project. Because of its location in the roadway at the boundary, there is no way
that any residential use could be made of that parcel without removing that particular tree. On the
development parcel all the trees except those required to be removed within the house sites or
the roadway or for the construction envelope of the buildings are proposed to be retained.
Additional street trees and trees and shrubs are proposed to be planted as shown on the
landscaping plan. All the trees and vegetation in the two easement areas are proposed to be
undisturbed, including all the trees and vegetation within the rare natural area of the Mt. Calvary
Red Maple Swamp. The erosion control plans governing the site during construction are
adequate to avoid soil erosion and to protect the existing vegetation to be preserved.

The project proposes four single-family homes and two duplexes, designed facing an extension of
Venus Avenue onto the property and ending in a cul-de-sac. Two of the single-family homes are
located nearest to the adjoining homes in the adjacent neighborhood; the other two single-family
homes are located on the turnaround. The scale, design and placement of the buildings in
relation to the street echoes the size, scale and design of the homes in the nearby neighborhood.
The buildings have pitched roofs and clapboard-appearance siding consistent with modest
residential construction in the neighborhood. The proposed lighting, carports, and trees and
shrubs to be added for street trees and landscaping is consistent with the appearance and style
of the nearby residential neighborhoods.
The project site is designed to drain towards the roadway, which is designed with underdrains to
drain to the city stormwater drainage system. There is sufficient capacity in the stormwater
drainage system to handle the drainage from this project, so that the drainage from the project
will not adversely affect any adjacent properties. The buildings were originally proposed without
basements. However, now it appears from the project plans that at least the single family homes,
if not the duplexes, are proposed to have basements, with a foundation drain system to drain into
the drainage system for the project and into the city stormwater system. See Sheet R-3 of Exhibit
8, as compared with Sheets D1 and D2 of Exhibit 8; and see footing drain detail on Sheet 5 of
Exhibit 8. The A basement area@ is drawn on Sheet R-3 as a dashed line, which extends below
the finished floor elevation approximately 9 feet by scale. The footing drain detail shows the
footing drain extending into a drainage stone sub-base installed as much as 8 feet below the
finished grade, below the A basement slab.@ The footing or foundation drains are shown as
engineered on the project plans, but the basements are not shown as engineered on the building
elevations, but only as a suggested dashed line. The buildings are proposed to be served by
municipal water and sewer services.

The groundwater hydrology plan, sheet 6 of the project plans in Exhibit 8, shows the groundwater
level on the site at the roadway to be only 22 feet below the surface of the ground, and shows a A
barrier stratum@ or impervious layer that is located 8 feet below the surface. The information on
which that diagram is based came from the four monitoring wells installed on the development
parcel and the 0.6-acre easement parcel. The underdrains for the road are proposed to extend 5
feet below the surface (that is, 3 feet above the impervious layer), and to have a drawdown curve
or zone of influence that extends only 122 feet out from the underdrains (see Exhibit 14 and
diagram and calculation on sheet 6). The underdrains for the road therefore will not draw down or
influence the groundwater level flowing out of the wetland, which is more than 200 feet upgradient
of and away from the underdrains.

However, the foundation drains for the basements could potentially have a greater effect on the
groundwater than the underdrains for the roadways, both because they appear from the project
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plans and details to be much deeper, and because that effect has not been calculated in the
project proposal or in testimony during trial. Moreover, there is no indication whether the A barrier
stratum@ shown in the footing drain detail would be permitted to be breached during
construction, in order to install a deep enough basement, footings, or underdrain. A breach in the
barrier stratum could have a much more significant effect on the groundwater regime in the area,
on which the existence and preservation of the red maple/black gum wetland depends, than the
underdrain for the roadway which is located well above that barrier stratum. If the project is to be
approved, any approval will have to be conditioned on Appellee-Applicants= eliminating the
basements from the building design, so that any footing drains below the slabs extend no farther
below the surface than do the underdrains proposed for the roadway. In the alternative, in lieu of
eliminating the building basements, Appellee-Applicants of course would be free to apply to the
City for an amendment to this approved project, with supporting engineering and hydrology detail
regarding the radius of influence of the footing drains and regarding the relationship of the
basements to the barrier stratum, for approval of the design and installation of any building
basements.

We address the issues as restated in the Court= s November 7, 2002 order. All references to a
sections in the following format: e.g. A ' 11.1.1(c)@ refer to the Zoning Ordinance, while all
references to sections in the following format: e.g. A ' 28-7(a)(2)@ refer to the Subdivision
Ordinance.

Open Space, Scenic Beauty, and Landscape Preservation Requirements

The following questions are grouped under this heading: Does the project preserve the natural
and scenic qualities of open space? [' 11.1.1(c)]; Does the project preserve the landscape as
required by ' 6.1.10(b)?; Does the project provide for open space as required by ' 6.1.10(c)? Will
the project have an undue adverse effect on the scenic or natural beauty of the area, or on
aesthetics. [' 28-7(a)(1)(G)] Does the project plan as a whole preserve as many existing trees as
possible? [' 28-7(a)(1)(G)]

The project as proposed meets this group of requirements. Of the almost 12 acres of BHA= s
property comprising both easement parcels, the development parcel, and BHA= s southerly
parcel, all but 1.7 acres is being placed under protection and management to be cleaned up and
managed as open space, preserving its natural and scenic qualities. The six buildings proposed
for the development parcel are consistent with the appearance of the nearby neighborhoods and
will not have an undue adverse effect on the scenic or natural beauty of the area. The project
plan preserves as many existing trees as possible, including all the trees on the 10.3 acres being
preserved, and as many trees as possible on the development parcel.

Park and Recreation Requirements

The following questions are grouped under this heading: Does the project eliminate a play area at
the end of Venus Avenue and 1.84 acres of recreation space in the open space, and, if so, should
the project include a plan for replacing either or both of these areas.[' 28-7(a)(1)(K)]; and
therefore will the project have an undue adverse effect on the present and projected park and
recreation needs of the City? [' 28-7(a)(1)(K)].

The project as proposed meets this requirement. While it may eliminate a de facto play area at
the end of Venus Avenue, that play area is itself within the right-of-way of a city street, which was
extended to the neighboring undeveloped property under the City= s regulations to allow for
future development such as the present proposal. That area is not part of the project proposal,
will not be taken by the project proposal, and need not be replaced by the project proposal. In
addition, rather than eliminating any recreation space in the development parcel, the project will
actually dedicate and preserve for public recreational use some 10.3 acres of land formerly
privately held by BHA on which public access could have been prevented.

Design Quality and Neighborhood Pattern Requirements

The following questions are grouped under this heading: Does the project achieve a high level of
design quality and amenities? [' 11.1.1(f)] Does the project relate buildings to the environment as
required by ' 6.1.10(a)? Does the project protect Burlington= s heritage as required by ' 6.1.10(i)?
Does the project consider the microclimate as required by ' 6.1.10(j)?

Is the siting of two duplex units in direct conflict with the pattern of single-family residences along
Venus Avenue and Meridian Street. [' 28-7(a)(1)(G)]. Does the inclusion of duplex buildings
destroys rather than conserves the single-family nature of existing neighborhoods, contrary to the
City= s municipal development plan? [' 28-7(a)(1)(I)].

The project as proposed meets these requirements. The four single family and two duplex
buildings blend well with the existing pattern or rhythm of development. Both the single-family and
the duplex buildings are consistent with and in harmony with the use, scale and architecture of
the buildings in the adjacent residential neighborhood. They conserve the nature of the existing
neighborhoods and represent a harmonious extension of the Venus Avenue neighborhood. The
layout of the buildings in relation to the roadway and the cul-de-sac continue the neighborhood
pattern and relates harmoniously to the surrounding environment and to the nearby buildings and
residential streets. The project is sufficiently small and well landscaped with existing and added
trees so that it has considered the microclimate.

Landscaping and Screening Requirements
The following questions are grouped under this heading: Does the proposed amount of
landscaping and screening insure protection of and enhance the quality of the project and the
adjacent properties [' 7.1.6(c)] In connection with the proposed site improvements and
landscaping, should Appellee-Applicants be required to post a performance bond, letter of credit
or other security in an amount sufficient to cover the cost of installation of site improvements and
to guarantee landscaping and plant survival, as provided in ' 7.1.10 of the Zoning Ordinance, and,
if so, in what amount?

The project as proposed meets this requirement. The proposed landscaping and screening
enhances the quality of the project itself. The existing trees, vegetation and fence protects the
adjacent properties to the east. The existing fence, three trees over 10" in diameter, and existing
trees and brush to be preserved adjacent to Intervenors= and other properties on the north
adequately protects the adjacent properties. No bond is required at the present time to guarantee
completion of the project and maintenance of the landscaping, because the proposed conditions
require Appellee-Applicants to maintain the landscaping for three years after occupancy, and
provide for a bond or other surety to be required if, at a later time, occupancy is requested prior to
final completion.

Stormwater, Drainage and Hydrology Requirements, and Effect on Natural Areas

The following questions are grouped under this heading: Will the project have an undue adverse
effect on rare or irreplaceable natural areas. [' 28-7(a)(1)(G)]. Does the project include
development of a portion of a Class II wetlands/natural area? Is precise delineation of the
boundary of the wetlands/natural area required? If the project does not include the development
of a portion of a Class II wetland/natural area, will it have any negative impact on the wetland
area? In particular, will the hydrologic and storm water management plan and subsurface system
for storm water drainage adversely affect the wetland/natural area? [' 28-7(a)(1)(G)] Are
appropriate measures during construction proposed to avoid impact to the wetlands/natural area
and any threatened or rare plant species found on the project site? [' 28-7(a)(1)(G)] Are the
project= s hydrologic and storm water management plan and subsurface system for storm water
drainage satisfactory. [' 28-7(a)(2)]. Does the project eliminate or significantly impact natural
systems and resources, including water, soils, plant and animal life, and scenic areas, contrary to
the City= s municipal development plan? [' 28-7(a)(1)(I)] ; Does the project eliminates a 1.84-acre
natural area of local significance, contrary to the City= s municipal development plan, and is the
remaining portion thereof adequately protected [' 28-7(a)(1)(I)]

The project as proposed meets these requirements, with an additional condition. As discussed
above, the wetlands/natural area and its buffer zone is located entirely on the parcels to be
preserved under the management plan. The area of the development parcel is not a natural area
of local significance. The wetlands/natural area has been delineated as required, and is not
located on and will not be affected by the project on the development parcel, except for the lack
of calculation regarding the potential for an adverse effect on the hydrology of the wetlands from
the building basements. The stormwater system and road underdrains are adequate to provide
drainage for the project and to avoid any additional or adverse drainage onto any adjacent
property.

Due to the insufficient design and engineering support in evidence regarding the proposed
building basements and associated deep footing drains, in order to meet these criteria, approval
is hereby conditioned on Appellee-Applicants= either eliminating the basements from the building
design, so that any footing drains below the slabs extend no farther below the surface than do the
underdrains proposed for the roadway, or, in lieu of eliminating the building basements, Appellee-
Applicants may apply to the City for an amendment to this project, with supporting engineering
and hydrology detail, for design and approval of any building basements. Any such amendment
application would be an amendment to this project approval, would not be before the Court in the
present case, and any appeal from any action by the Zoning Administrator or DRB on such an
amendment application would be a new appeal and not a continuation or reopening of the
present appeals.

Accordingly, as discussed above, with the conditions imposed by the DRB and the additional
condition imposed in the preceding paragraph, the proposed project satisfies the contested
requirements of 1) the A intent@ criteria of ' 11.1.1 of the Zoning Ordinance; 2) the Design
Review Criteria of ' 6.1.10 of the Zoning Ordinance; 3)the site plan review criteria of ' 7.1.6 of the
Zoning Ordinance; 4) the performance bond provisions of ' 7.1.10 of the Zoning Ordinance; and
5) the Subdivision General Review Criteria of ' 28-7, found in ' 28-7(a) of the Subdivision
Ordinance. Based on the foregoing, it is hereby ORDERED and ADJUDGED that the project is
approved as designed, with the above conditions, and therefore that Appellee-Applicants=
application is GRANTED, with the above conditions.

                                st
Done at Barre, Vermont, this 1 day of August, 2003.




___________________
Merideth Wright
Environmental Judge




                                             Footnotes

1.
    This description and sub-parcel sizes are taken from the property plat in evidence; we note
that during the hearing the witnesses were not consistent as to their references to the sizes of the
various sub-parcels involved in this proposal, but that they all referred consistently to the various
sub-parcels as shown on the property plat and on Exhibit 8. Some of the imprecision in these
references may have stemmed from the inclusion or exclusion of the land lying under the road
rights-of-way, to be deeded to the City; and some may have stemmed from the parties’ treatment
of the already-developed Franklin Square development as beyond the scope of the present
proposal, even though it is shown on the property plat and the cover sheet of Exhibit 8.

2.
   The parties and witnesses loosely referred to either the 2.3-acre Lot 2 or the area on which
the road and buildings are proposed to be constructed as the "proposed PRD." This decision
avoids that usage because the proposed PRD includes not only the parcel proposed to contain
the residences, but also the preservation of the open land shown on other areas of the overall
land owned by BHA.

3.
   Both the BHA parcel just described and this parcel were loosely referred to in the evidence as
southerly parcels and as three-acre parcels; this measurement is taken by scale from the
property plat in evidence.

4.
   The fact that the parcels appear as ‘wetland’ on the City’s Open Space Inventory map only
signifies that they are likely to contain areas of wetland. For any development proposal, it is
necessary to have a site-specific delineation of the wetlands performed by a consultant to
determine the actual boundaries on the ground of the wetland and its required buffer zones.

5.
   Although Exhibit 14 refers to "calculations to determine the radius of the proposed road
underdrain and basement footing drains" the only calculation was performed for the proposed
road underdrain, using the depth of 5 feet (that is, a distance from the bottom of the drain to the
impermeable barrier of 3 feet), and not the proposed footing drains with a depth of approximately
8 or more feet.
