"Alice Worth" wrote in yesterday's listserv:
Watt: Perhaps you can cite the standard or concept in the zoning and subdivision regulations upon which the DRB denied the Simpson Development Corporation’s plan. This would be helpful to understanding the different interpretations (judge, Simpson, Development Review Board, Gateway comm.)
Alice, the DRB's 14-page written decision on the SDC proposal should be available from Phil Dechert, our Zoning Administrator. The primary factors are the Norwich Subdivision Regulations Section 3.3(I) "Scenic Resources" and 3.4 "District Settlement Pattern." The written decision is self-explanatory, but Phil can also provide copies of the relevant regulations as well.
"Alice Worth" wrote:
For a town to work collaboratively with a developer to act in the best interests of the town in upholding the town’s values is absolutely not illusory. It happens all the time. And this doesn’t mean to break the rules, show favoritism etc. It means working together to interpret the desires of the town vis a vis the town plans, charters etc. to “do the right thing”.
There is no questions towns can and do work collaboratively with developers in many municipalities. Philosophically, I agree that towns and developers collaborating along the lines you suggest would be a constructive and economical approach. In practice, however, there are some very basic problems with this approach.
First off, under Vermont law, development review boards apply regulations to applications. Under our regulations, the Norwich DRB has very limited discretion to weigh various criteria, let alone negotiate trade-offs with developers such as SDC. I think SDC was very frustrated with our DRB for just this reason. They wanted to negotiate waivers on certain criteria in exchange for certain benefits to the town.
Interesting idea, but our zoning and subdivision regulations don't confer anything like that authority to our DRB. This is a basic fact of law. In light of this, the earlier comment that the DRB should have done otherwise simply doesn't comport with reality.
Secondly, the idea of a "town" collaborating with a developer begs the question of who it is that represents the town in such negotiations. Would it be the Selectboard? The Town Manager? The Planning Commission? Should our regulations be redrafted to give that authority to the DRB?
I saw an recent email from someone on this list suggesting that the majority of Norwich residents want the Simpson property conserved and undeveloped. I received an email last week from our Zoning Administrator suggesting the majority of Norwich residents wouldn't really mind the SDC townhouses. Who decides? Who speaks for the town? What if they negotiate something a large portion of the town utterly reject?
None of this has arisen in a vacuum. One of the reasons the DRB has so little discretionary authority under our subdivision regulations is because a number of the people active in drafting those regulations felt that discretionary authority had been abused in the past. We've seen the Planning Commission striven to the point of paralysis by factional struggle these past six years. Is there really any representative in town who could act as a constructive negotiating partner with a
developer who wouldn't have to brave the slings and arrows of a tense and fragmented town?
My frustration with the earlier email -- perhaps intemperately expressed -- is rooted in the tendency to retrospectively determine that this mess could somehow have been averted. I disagree. Given the players and regulations in place, I can't see how it could have turned out any other way. If we want to avert a repeat performance, all of us have to work harder to learn from these mistakes and help fashion the town we want.
As importantly, we need to try harder to listen to divergent points of view to be sure we're hearing the potential flaws in our own opinions and the legitimate needs of others who may see things quite differently.
Recent changes to state law regarding the role of advisory committees in both planning and permitting offer what I believe might be practical and concrete alternatives to our current practice which could move us towards a more collaborative relationship to developers and divergent development interests. I've pointed out these changes and asked for a town committee to review them in letters to the Selectboard and Planning Commission, Norwich Happenings and Valley News over the past 18 months.
I've never received a single response from any of those letters. That is not an accusation of some conspiracy of silence, but rather a stark portrait of how little time and interest there is in town right now to ask the big questions about what's not working and what we might do better.
The supposition that this Simpson matter would have reached a positive result if the DRB hadn't screwed this up is one of those simple answers that ignore the tough questions. Until we start addressing those tough questions, and stop pointing fingers, it's all just idle chatter; guaranteeing the same results in the future and discouraging good people from putting themselves forward to try to make a difference.
Monday, December 4, 2006
Sunday, December 3, 2006
Warren Thayer and the Simpson development
Regarding Warren's statement (from yesterday's listserv posting):
"Just a minor point that was a big one to me for awhile, regarding the Simpson development, and trails through it - and why the Conservation Commission "didn't do anything" about it."
I certainly wasn't suggesting the Conservation Commission "didn't do anything" about the Simpson proposal nor that it should have done anything specific. I was simply pointing out that the permitting process suffers from the lack of formal procedures which would preview major projects for relevant town commissions such as Conservation and Corridor Enhancement. Without formal procedures of this kind the idea of collaborative development which coordinates a subdivision project with corridor enhancement and property conservation is a pipe dream.
Warren was an active participant in the early DRB hearings, but his individual participation is quite different than the Conservation Commission acting as an advisory committee with a formal role in development review. To that end,while a number of people have raised the idea that SDC will conserve part of the parcel in question and create a trail easement across that parcel, that has not yet been done, to my knowledge. It's important for those who want to see a trail easement in place to attend the remaining DRB hearings in this matter to make sure that becomes a condition of the final approval.
"Just a minor point that was a big one to me for awhile, regarding the Simpson development, and trails through it - and why the Conservation Commission "didn't do anything" about it."
I certainly wasn't suggesting the Conservation Commission "didn't do anything" about the Simpson proposal nor that it should have done anything specific. I was simply pointing out that the permitting process suffers from the lack of formal procedures which would preview major projects for relevant town commissions such as Conservation and Corridor Enhancement. Without formal procedures of this kind the idea of collaborative development which coordinates a subdivision project with corridor enhancement and property conservation is a pipe dream.
Warren was an active participant in the early DRB hearings, but his individual participation is quite different than the Conservation Commission acting as an advisory committee with a formal role in development review. To that end,while a number of people have raised the idea that SDC will conserve part of the parcel in question and create a trail easement across that parcel, that has not yet been done, to my knowledge. It's important for those who want to see a trail easement in place to attend the remaining DRB hearings in this matter to make sure that becomes a condition of the final approval.
Saturday, December 2, 2006
Land Swap Ideas
As a follow-up to the land swap post on teh listserv from earlier today, Alison May succinctly summarizes some of the practical obstacles developing the fire/police property would face:
"Unfortunately, even if fire/police could move to Agway (probable total cost would be c.$2.5 million vs c$2 million to stay where they are), the land on which they are now situated, and which the town owns, is only 1.33 acres. Septic capacity in that area is dicey at best - there are pretty wet portions of the land. Whether they qualify as true wetlands I don't know. There have been real problems with septic in the swale that goes over to Carpenter Street. So I rather doubt, even though it would be wonderful, if more than a couple of units could be built."
Alison is probably right about the limited development potential of the fire/police 1.33 acres alone. As discussed on a broad email list in October 2005 when this idea was first really bandied about, the potential to co-develop these 1.33 acres with the Norwich Senior Housing and possibly adjoining parcel currently for sale could create a significant combined parcel capable of much higher density development. All of these questions would need to be resolved through in-depth investigation, but should not themselves dissuade us, as a town, from considering relocating emergency services to the Agway parcel.
"Unfortunately, even if fire/police could move to Agway (probable total cost would be c.$2.5 million vs c$2 million to stay where they are), the land on which they are now situated, and which the town owns, is only 1.33 acres. Septic capacity in that area is dicey at best - there are pretty wet portions of the land. Whether they qualify as true wetlands I don't know. There have been real problems with septic in the swale that goes over to Carpenter Street. So I rather doubt, even though it would be wonderful, if more than a couple of units could be built."
Alison is probably right about the limited development potential of the fire/police 1.33 acres alone. As discussed on a broad email list in October 2005 when this idea was first really bandied about, the potential to co-develop these 1.33 acres with the Norwich Senior Housing and possibly adjoining parcel currently for sale could create a significant combined parcel capable of much higher density development. All of these questions would need to be resolved through in-depth investigation, but should not themselves dissuade us, as a town, from considering relocating emergency services to the Agway parcel.
Friday, December 1, 2006
The Beat Goes On . . .
It appears that Housing Vermont has pulled out of the contract to buy the Agway parcel and develop it for affordable housing due to contingency problems. This means the property is back on the market and the idea of a significant affordable housing development on that property is now effectively dead.
I was actually an opponent of the Agway project. For one, I think large residential developments of any kind belong nearer where there are services to support them. Otherwise, we're simply extending development sprawl and another isolated subdivision -- in this instance one with a defined income range. Similarly, I objected to the special amendment to our zoning regulations specifically permitting the Agway development as our existing zoning would not permit such a large evelopment in that area.
Instead, I argued for a land swap which would have seen the town's emergency services relocated to a new structure on the quasi-industrial Agway parcel and the vacated fire and police locations redeveloped -- together with Norwich Senior Housing -- into a more dense cluster of mixed-income and senior housing which would allow residents an easy walk to school and services in the village center -- placing dense development where our town plan and regulations say it belongs. The land swap idea never gained any traction.
The collapse of the Agway affordable housing effort and the recent discussions regarding new emergency services facilities would seem to provide an ideal opportunity to reopen this discussion and prompt people to begin researching our options. As a first step, I encourage you to contact the Selectboard, Planning Commission and Affordable Housing Committee asking them to investigate the idea of relocating the town's emergency facilities to the Agway parcel while there's still time to acquire that parcel.
I was actually an opponent of the Agway project. For one, I think large residential developments of any kind belong nearer where there are services to support them. Otherwise, we're simply extending development sprawl and another isolated subdivision -- in this instance one with a defined income range. Similarly, I objected to the special amendment to our zoning regulations specifically permitting the Agway development as our existing zoning would not permit such a large evelopment in that area.
Instead, I argued for a land swap which would have seen the town's emergency services relocated to a new structure on the quasi-industrial Agway parcel and the vacated fire and police locations redeveloped -- together with Norwich Senior Housing -- into a more dense cluster of mixed-income and senior housing which would allow residents an easy walk to school and services in the village center -- placing dense development where our town plan and regulations say it belongs. The land swap idea never gained any traction.
The collapse of the Agway affordable housing effort and the recent discussions regarding new emergency services facilities would seem to provide an ideal opportunity to reopen this discussion and prompt people to begin researching our options. As a first step, I encourage you to contact the Selectboard, Planning Commission and Affordable Housing Committee asking them to investigate the idea of relocating the town's emergency facilities to the Agway parcel while there's still time to acquire that parcel.
Thursday, November 2, 2006
Get Off Our Duff's Day (Valley News - Op-Ed)
To the Editor:
We hold to certain political myths despite all the evidence to the contrary. There’s the inevitable election cycle hand-wringing that the current election is somehow more negative than elections past. Or the idea that the votes of a plurality of a minority of eligible voters somehow constitutes a “mandate” to govern by the majority.
Nearer to home, much is made of “town meeting” as though it manifests a more pure, meaningful, and participatory method of self-government. However, anyone who regularly attends town meeting can tell you it is often less participatory democracy than a lecture hall informational session: Elected town officials explain to a minority of town voters what was decided in preceding months of budgetary meetings and why they should approve those decisions. The myth of town meeting is not necessarily a bad thing. Certainly, there’s something to be said for having the Selectboard and school board stand before the electorate to account for their respective budgets. However, our praise is misplaced when we focus on town meeting to the neglect of participatory town government.
Take an evening drive through any small Vermont or New Hampshire town and you’ll likely see lights burning in a few windows of town hall. Inside you’ll find local volunteers spending their evening slogging away at the real stuff of self-government, be they planning or conservation commissioners, permitting boards, or members of myriad ad-hoc town committees and commissions trying to work together to do what’s best for their town and fellow townspeople. They work without pay -- often without meaningful budgetary or staff support – taking time from their families and their leisure to make something more of the community they’ve inherited. They do it because they feel they owe something to their community or simply because they want to be involved and belong.
Unfortunately, in a society growing ever more complex, regulatory, and litigious, the disincentives to volunteer participation are also growing. As life feels busier, it’s easy to feel out-of-touch with “what’s going on” in town government. Finding the time to figure out what’s happening, let alone where one might want to put one’s efforts, slips down the list of priorities until it’s not much more than a dull guilty feeling that one isn’t more involved.
Here in Norwich, a small group of us have decided to do something about it. We’ve rented space in the local elementary school for the Saturday before Town Meeting to conduct a “Get Off Your Duff Day.” It is a day where townspeople can meet the people serving on the various volunteer boards in town, learn about what they do and hope to achieve, understand the time commitment involved, and enter the on-going debate of town government. The goal is to make “what’s going on” tangible for those who wish to know and break down the distance between those who are making it happen and those who would like to. We hope this will become an annual tradition in Norwich to accompany Town Meeting and wouldn’t mind at all if the idea spread to neighboring communities.
We hold to certain political myths despite all the evidence to the contrary. There’s the inevitable election cycle hand-wringing that the current election is somehow more negative than elections past. Or the idea that the votes of a plurality of a minority of eligible voters somehow constitutes a “mandate” to govern by the majority.
Nearer to home, much is made of “town meeting” as though it manifests a more pure, meaningful, and participatory method of self-government. However, anyone who regularly attends town meeting can tell you it is often less participatory democracy than a lecture hall informational session: Elected town officials explain to a minority of town voters what was decided in preceding months of budgetary meetings and why they should approve those decisions. The myth of town meeting is not necessarily a bad thing. Certainly, there’s something to be said for having the Selectboard and school board stand before the electorate to account for their respective budgets. However, our praise is misplaced when we focus on town meeting to the neglect of participatory town government.
Take an evening drive through any small Vermont or New Hampshire town and you’ll likely see lights burning in a few windows of town hall. Inside you’ll find local volunteers spending their evening slogging away at the real stuff of self-government, be they planning or conservation commissioners, permitting boards, or members of myriad ad-hoc town committees and commissions trying to work together to do what’s best for their town and fellow townspeople. They work without pay -- often without meaningful budgetary or staff support – taking time from their families and their leisure to make something more of the community they’ve inherited. They do it because they feel they owe something to their community or simply because they want to be involved and belong.
Unfortunately, in a society growing ever more complex, regulatory, and litigious, the disincentives to volunteer participation are also growing. As life feels busier, it’s easy to feel out-of-touch with “what’s going on” in town government. Finding the time to figure out what’s happening, let alone where one might want to put one’s efforts, slips down the list of priorities until it’s not much more than a dull guilty feeling that one isn’t more involved.
Here in Norwich, a small group of us have decided to do something about it. We’ve rented space in the local elementary school for the Saturday before Town Meeting to conduct a “Get Off Your Duff Day.” It is a day where townspeople can meet the people serving on the various volunteer boards in town, learn about what they do and hope to achieve, understand the time commitment involved, and enter the on-going debate of town government. The goal is to make “what’s going on” tangible for those who wish to know and break down the distance between those who are making it happen and those who would like to. We hope this will become an annual tradition in Norwich to accompany Town Meeting and wouldn’t mind at all if the idea spread to neighboring communities.
Tuesday, July 4, 2006
The Myth of Local Control (Valley News Op-Ed)
To the Editor:
As your readers may recall, sixteen months ago the Norwich Development Review Board denied Simpson Development Corporation's application to construct a five-unit townhouse complex on Main Street. Simpson appealed to the Vermont Environmental Court and this past week, Judge Thomas Durkin vacated the Norwich DRB decision, granting Simpson Development intermediate subdivision approval. As former Chair of the Norwich DRB, I am disappointed with Judge Durkin's decision, not because there was anything inherently disastrous with the Simpson Development plan, but rather for what Judge Durkin's decision says about the role of local planning and permitting boards, belying the myth of local citizen authority to shape future development in our communities.
The facts underlying the appeal are pretty straightforward. Simpson Development is entitled to a two-unit dwelling on the site in question under Norwich zoning regulations. However, they applied for a five-unit townhouse planned residential development which requires review under Norwich's recently updated subdivision regulations. After several public hearings, the Norwich DRB, in a unanimous thirteen-page decision, determined that the proposed five-unit townhouse ran afoul of certain aspects of our subdivision regulations and denied the application for the larger, five-unit, development. Simpson Development disagreed and appealed our decision to the Vermont Environmental Court.
Generally, a right to appeal an earlier decision is offered to provide an aggrieved party some recourse from errors or arbitrary decisions by lower courts or boards. Under Vermont law, appeals from local permitting boards are reviewed de novo, meaning the judge hears the appeal as though he or she were the local permitting board and without regard to the local board's earlier decision. Judge Durkin's decision clearly illustrates how de novo appeal from local permitting board decisions frustrates local community control over land use development and mocks the democratic process required to exercise that control.
Since the late 1960's, Vermont has pursued an admirable experiment in land use governance which delegates authority over land development to local communities emphasizing citizen participation in both planning and permitting. The values animating this effort are simple and uniquely American: The authority to govern reposes with the people. The authority to govern local land use development is best exercised by the local people. Because land use implicates the individual rights of individual citizens to use their land as they see fit, both planning and permitting decisions need to be open to public scrutiny and legal safeguards must be created to avoid arbitrary decisions. This tension between individual rights and community governance is best sorted out by requiring communities to adopt, and periodically revisit, local planning and permitting regulations through a series of mandated public hearings. There are no guarantees that the local people will always make the right decision, but there is some assurance the decisions will be made by the people who will have to live with the results.
As required by Vermont law, Norwich began a comprehensive revision of our town plan in the early 1990's. The town plan sets out broad development and land use governance goals for the town and was drafted through a long series of public meetings and subcommittee work. These revisions were adopted by the town in 1996. For the next five years, our Planning Commission revised our subdivision regulations to implement some of the specific development goals articulated in the town plan. Another series of public meetings ensued and the planning commission's draft was finally adopted by our Selectboard in 2002. On a parallel track, our Conservation Commission drafted an "Inventory of Scenic Resources" intended to guide future permitting decisions to preserve specific scenic areas within our community. The Planning Commission and Selectboard adopted this "Scenic Inventory" whole cloth into our current subdivision regulations, mandating that our Development Review Board ("DRB") review applications to avoid adverse impacts to those resources.
The rubber hits the road in the permitting process. Here, in a series of public hearings, the Norwich DRB reviewed Simpson Development's five-unit townhouse proposal according to the regulations drafted and adopted by our townspeople. Under the subdivision regulations, the proposed site for these townhouses is identified as a scenic resource, framing the "gateway to the village" for those entering Norwich from the Route 5/Interstate 91 intersections. Furthermore, our subdivision regulations explicitly require that subdivisions be designed to "reflect the desired settlement pattern" of the surrounding zoning district -- in this instance the Village Residential District and the gateway transition to that district. The Norwich DRB determined that the size and prominence of the proposed development would adversely impact the "gateway to the village" as described in the "Scenic Inventory." The DRB further determined that the prominence and placement of the proposed development would disrupt the "desired settlement pattern" of this "gateway" as described in the subdivision regulations and "Scenic Inventory."
It should be obvious to anyone -- as it was to the entire DRB membership at the time our decision was issued -- that questions of "adverse impact" to scenic resources and "desired settlement patterns" are highly subjective determinations. On appeal -- and de novo review -- Judge Durkin faced precisely the same subjective determinations and saw them differently. It is not Judge Durkin's fault, but a function of Vermont law, that he reviewed the appeal and made his findings without any knowledge of, or reference to, the DRB's detailed written decision. In this vacuum, he found that the size and prominence of the proposed development would indeed impact the scenic gateway to town, but felt that impact wouldn't be "adverse." On the contrary, he found that the proposed structure "will more clearly announce that a traveler is now entering the Village." Regarding the desired settlement pattern of the "gateway," Judge Durkin felt there was no disruption.
Judge Durkin's decision begs a question which goes to the heart of Vermont's land use planning and permitting regime: Why on earth are local permitting decisions reviewed de novo? Where, as here, highly subjective determinations are required to ascertain consistency with settlement patterns and the scale of impact upon scenic resources, shouldn't those determinations be made by local land owners who live in the town and will have to live with the results? Why are the subjective determinations of a unanimous seven-member local citizen board simply cast aside in favor of the subjective determinations of a single Vermont judge? What qualifies Judge Durkin to assess the quality of a "scenic resource" which Norwich townspeople democratically chose, identified, articulated, reviewed, and adopted as local land use law. One may question the aesthetic value of our "scenic gateway," but you can't question the fact we, as a town, chose it and adopted specific regulations meant to protect it. As has been said before, the people have the right to be wrong. Here, oddly, Vermont judges do too.
It is an anachronism of Vermont law that this local control is subverted entirely by de novo review upon appeal. There must be a right of appeal from local permitting decisions to protect individual land owners from arbitrary decisions, unfair proceedings, and legal errors, but the standard of review for those appeals should give deference to the factual findings of the local permitting board. Here, Simpson Development's appeal made no claim that their rights had been violated, their application unfairly treated, or that the DRB had exceeded its authority. Rather, they simply wanted a second chance at getting their project approved, this time by a judge instead of a citizen board. The law allows this type of appeal and, had I been their lawyer, I would have raised the idea with them myself. However, there is a real cost in terms of lawyers fees, court resources, and wasted effort by citizen volunteers which shouldn't be ignored.
There is much more at stake here than a mere legal point or a bunch of townhouses on Main Street, Norwich. Here, we have a clear example of local citizen authority to shape local development in our communities giving way to lawyers and well-funded, determined applicants. It is a mockery of the countless hundreds of hours spent by volunteers in a conscientious effort to shape the future of our towns that those efforts can so easily be cast aside and the ultimate decisions left to a bunch of lawyers in a courtroom somewhere else. The noble experiment of democratic, volunteer-based self-government still survives in the habits and expectations of small Vermont towns and the people who live here, but it's under assault daily by the litigiousness and regulatory complexity of our broader society. The fate of this experiment rests with us and our unwillingness to simply acquiesce. Please call your representative and state senators to discuss this issue; volunteer with your local planning and permitting boards; and say hello to Simpson Development's latest project, the new gateway to Norwich.
As your readers may recall, sixteen months ago the Norwich Development Review Board denied Simpson Development Corporation's application to construct a five-unit townhouse complex on Main Street. Simpson appealed to the Vermont Environmental Court and this past week, Judge Thomas Durkin vacated the Norwich DRB decision, granting Simpson Development intermediate subdivision approval. As former Chair of the Norwich DRB, I am disappointed with Judge Durkin's decision, not because there was anything inherently disastrous with the Simpson Development plan, but rather for what Judge Durkin's decision says about the role of local planning and permitting boards, belying the myth of local citizen authority to shape future development in our communities.
The facts underlying the appeal are pretty straightforward. Simpson Development is entitled to a two-unit dwelling on the site in question under Norwich zoning regulations. However, they applied for a five-unit townhouse planned residential development which requires review under Norwich's recently updated subdivision regulations. After several public hearings, the Norwich DRB, in a unanimous thirteen-page decision, determined that the proposed five-unit townhouse ran afoul of certain aspects of our subdivision regulations and denied the application for the larger, five-unit, development. Simpson Development disagreed and appealed our decision to the Vermont Environmental Court.
Generally, a right to appeal an earlier decision is offered to provide an aggrieved party some recourse from errors or arbitrary decisions by lower courts or boards. Under Vermont law, appeals from local permitting boards are reviewed de novo, meaning the judge hears the appeal as though he or she were the local permitting board and without regard to the local board's earlier decision. Judge Durkin's decision clearly illustrates how de novo appeal from local permitting board decisions frustrates local community control over land use development and mocks the democratic process required to exercise that control.
Since the late 1960's, Vermont has pursued an admirable experiment in land use governance which delegates authority over land development to local communities emphasizing citizen participation in both planning and permitting. The values animating this effort are simple and uniquely American: The authority to govern reposes with the people. The authority to govern local land use development is best exercised by the local people. Because land use implicates the individual rights of individual citizens to use their land as they see fit, both planning and permitting decisions need to be open to public scrutiny and legal safeguards must be created to avoid arbitrary decisions. This tension between individual rights and community governance is best sorted out by requiring communities to adopt, and periodically revisit, local planning and permitting regulations through a series of mandated public hearings. There are no guarantees that the local people will always make the right decision, but there is some assurance the decisions will be made by the people who will have to live with the results.
As required by Vermont law, Norwich began a comprehensive revision of our town plan in the early 1990's. The town plan sets out broad development and land use governance goals for the town and was drafted through a long series of public meetings and subcommittee work. These revisions were adopted by the town in 1996. For the next five years, our Planning Commission revised our subdivision regulations to implement some of the specific development goals articulated in the town plan. Another series of public meetings ensued and the planning commission's draft was finally adopted by our Selectboard in 2002. On a parallel track, our Conservation Commission drafted an "Inventory of Scenic Resources" intended to guide future permitting decisions to preserve specific scenic areas within our community. The Planning Commission and Selectboard adopted this "Scenic Inventory" whole cloth into our current subdivision regulations, mandating that our Development Review Board ("DRB") review applications to avoid adverse impacts to those resources.
The rubber hits the road in the permitting process. Here, in a series of public hearings, the Norwich DRB reviewed Simpson Development's five-unit townhouse proposal according to the regulations drafted and adopted by our townspeople. Under the subdivision regulations, the proposed site for these townhouses is identified as a scenic resource, framing the "gateway to the village" for those entering Norwich from the Route 5/Interstate 91 intersections. Furthermore, our subdivision regulations explicitly require that subdivisions be designed to "reflect the desired settlement pattern" of the surrounding zoning district -- in this instance the Village Residential District and the gateway transition to that district. The Norwich DRB determined that the size and prominence of the proposed development would adversely impact the "gateway to the village" as described in the "Scenic Inventory." The DRB further determined that the prominence and placement of the proposed development would disrupt the "desired settlement pattern" of this "gateway" as described in the subdivision regulations and "Scenic Inventory."
It should be obvious to anyone -- as it was to the entire DRB membership at the time our decision was issued -- that questions of "adverse impact" to scenic resources and "desired settlement patterns" are highly subjective determinations. On appeal -- and de novo review -- Judge Durkin faced precisely the same subjective determinations and saw them differently. It is not Judge Durkin's fault, but a function of Vermont law, that he reviewed the appeal and made his findings without any knowledge of, or reference to, the DRB's detailed written decision. In this vacuum, he found that the size and prominence of the proposed development would indeed impact the scenic gateway to town, but felt that impact wouldn't be "adverse." On the contrary, he found that the proposed structure "will more clearly announce that a traveler is now entering the Village." Regarding the desired settlement pattern of the "gateway," Judge Durkin felt there was no disruption.
Judge Durkin's decision begs a question which goes to the heart of Vermont's land use planning and permitting regime: Why on earth are local permitting decisions reviewed de novo? Where, as here, highly subjective determinations are required to ascertain consistency with settlement patterns and the scale of impact upon scenic resources, shouldn't those determinations be made by local land owners who live in the town and will have to live with the results? Why are the subjective determinations of a unanimous seven-member local citizen board simply cast aside in favor of the subjective determinations of a single Vermont judge? What qualifies Judge Durkin to assess the quality of a "scenic resource" which Norwich townspeople democratically chose, identified, articulated, reviewed, and adopted as local land use law. One may question the aesthetic value of our "scenic gateway," but you can't question the fact we, as a town, chose it and adopted specific regulations meant to protect it. As has been said before, the people have the right to be wrong. Here, oddly, Vermont judges do too.
It is an anachronism of Vermont law that this local control is subverted entirely by de novo review upon appeal. There must be a right of appeal from local permitting decisions to protect individual land owners from arbitrary decisions, unfair proceedings, and legal errors, but the standard of review for those appeals should give deference to the factual findings of the local permitting board. Here, Simpson Development's appeal made no claim that their rights had been violated, their application unfairly treated, or that the DRB had exceeded its authority. Rather, they simply wanted a second chance at getting their project approved, this time by a judge instead of a citizen board. The law allows this type of appeal and, had I been their lawyer, I would have raised the idea with them myself. However, there is a real cost in terms of lawyers fees, court resources, and wasted effort by citizen volunteers which shouldn't be ignored.
There is much more at stake here than a mere legal point or a bunch of townhouses on Main Street, Norwich. Here, we have a clear example of local citizen authority to shape local development in our communities giving way to lawyers and well-funded, determined applicants. It is a mockery of the countless hundreds of hours spent by volunteers in a conscientious effort to shape the future of our towns that those efforts can so easily be cast aside and the ultimate decisions left to a bunch of lawyers in a courtroom somewhere else. The noble experiment of democratic, volunteer-based self-government still survives in the habits and expectations of small Vermont towns and the people who live here, but it's under assault daily by the litigiousness and regulatory complexity of our broader society. The fate of this experiment rests with us and our unwillingness to simply acquiesce. Please call your representative and state senators to discuss this issue; volunteer with your local planning and permitting boards; and say hello to Simpson Development's latest project, the new gateway to Norwich.
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