(LONG) Open Letter to SB/PC re: Tuesday, January 8th @ 6:30pm

To the Norwich Selectboard:

I am writing to express my strong opposition to the proposed Norwich Zoning Regulations currently before you and to ask the Selectboard to reject these proposed regulations at this time for further comprehensive revisions.

I take no pleasure in criticizing the work of a number of well-intentioned and hard-working volunteers in developing these draft regulations, but feel there's really no alternative to outright rejection at this point. While this letter may seem late in the game for the Selectboard, it is consistent with detailed comments I have provided the Planning Commission at their meetings, at public forums conducted to receive comment on these drafts, and by direct correspondence dating back even to the late 1990's. I have attached a PDF copy of one such letter written in response to the Planning Commission's February 2007 draft which I feel remains relevant to the draft now before you. (PDF available by request)

Where to begin? Three basic points:

1) The size and scope of these proposed regulations far outstrip our ability to meaningfully review proposed developments and to meaningfully enforce these regulations throughout the development process.

A simple example: Deer Wintering Areas. (NZR Draft 3.13 (B)(3))

According to 3.13, the impact of proposed development on the enumerated features shall be determined by the Development Review Board and development shall conform to the criteria of those regulations.

Specifically, Section 3.13(3) states that, "Development shall be located and configured to minimize adverse impacts on critical wildlife habitat, including travel corridors, deer wintering areas and natural areas identified in the Norwich Town Plan, by the Vermont Department of Fish & Wildlife, the Vermont Agency of Natural Resources, or through site investigation."

The section further states that development may be excluded from such habitat and a buffer area of adequate size shall be established to protect such habitat.

In theory, this all sounds fine. In practice, it's largely meaningless.

Huge swathes of Norwich are identified by the Vermont Department of Fish & Wildlife as deer wintering habitat and travel corridors between such habitat. Those maps are of some vintage and make no effort to identify variable levels of criticality. At DRB hearings where this criterion has been reviewed, testimony tends towards whether a neighbor has seen deer in the vicinity, hunters visit the area, and if anyone saw dropping during the site visit. There are currently no resources utilized by the town to assess relative criticality of habitat and land owners are left to the whims of the hearing whether their chosen house site or subdivision line will be found to impose more than minimized adverse impacts. Recognizing the capricious nature of the regulation in practice, the DRB is rightfully hesitant to give it any teeth.

To effectively regulate adverse impact upon deer wintering areas and related critical habitat, the town needs more detailed and transparent identification of the areas affected. This would allow land owners to plan ahead regarding house location and subdivision design. It would allow the Zoning Administrator to more meaningfully assist the land owner in the application development process by being able to point to regulations which are objectively comprehensible and enforced. It would allow neighbors and concerned conservation entities to meaningfully engage in the DRB review. Finally, it would allow the DRB to apply the existing regulations with more confidence in the fairness of the review process and the defensibility of the decision itself upon judicial review.

We don't have those maps today. To my knowledge, we don't have any specific plan to develop those resources at this time. So my question remains: Why regulate something we can't regulate well? Why burden land owners, their neighbors, DRB volunteers, our Zoning Administrator, and the town's legal resources on broad stroke regulations of this type? Don't regulate what you can't regulate effectively. While I've used deer wintering areas as an example here, there are many others throughout these regulations. The scope and size of these proposed regulations reflect our authority to regulate development under state law rather than our ability to meaningfully regulate a subset of factors specifically important to our community.

2) These proposed regulations burden land owners with voluminous restrictions and advice which are, in most cases, unenforceable due to vagueness, poor conception, or inconsistent application.

Example: Scenic Resources and the Norwich Gateway.

No one, at any level of the litigation concerning the Simpson project, disputed whether the January 2000 Inventory of Scenic Resources specifically identified the subject property as a scenic resource. To my knowledge, no one (other than our Zoning Administrator) questioned whether the Inventory of Scenic Resources was a legitimate legal basis to regulate development on that parcel. Nevertheless, in practice, the Inventory and applicable provisions in the subdivision regulations were deemed too vague to enforce. Upon appeal, the determination of what constituted an adverse impact to a scenic resource came down to a subjective judgment whether the lot in question was sufficiently scenic to warrant restricting development and whether the regulations were sufficiently specific to support a permit denial. The court concluded they were not and the DRB would be well-advised to finesse future fragile feature determinations so they are not the primary basis for a permit denial. Despite this, the proposed zoning regulations adopt the same mandatory language which has already proven effectively unenforceable under our subdivisions regulations.

Again, don't regulate what you can't regulate effectively. Why extend the fragile features criteria to our zoning regulations when they are so problematic in our experience under our subdivision regulations? Why put land owners through a series of hoops which are likely unenforceable, at least against those applicants with the means to mount an appeal?

If the town wants to preserve scenic resources, don't saddle land owners and DRB volunteers with these criteria. Entrust the Inventory of Scenic Resources to our Conservation Commission to prioritize these resources in a series of public hearings. Use that priority list to pursue conservation easements on those resources of highest priority. Don't impose a broad-stroke list of regulatory criteria on individual land owners -- potentially impacting the value of what to many is their largest single investment -- without taking the time to meaningfully differentiate between what the community would like to see conserved and what the community is actually willing to step forward and conserve.

3) These proposed regulations reflect a promulgation process which poorly utilizes town resources, burning out volunteers, and repeating a pattern of planning projects which collapse at the finish line rather than sustain a thoughtful and effective planning regime.

Examples: Town Plan, Zoning and Subdivision Regulation revisions, Inventory of Scenic Resources, etc.

Vermont state law is blessed with an enlightened attitude towards land use regulation which values local democratic participation in developing regulations above any centralized planning bureaucracy. In practice, I feel we, as a town, have made very poor use of our authority.

Why is it up to the Planning Commission alone to draft, research, and review proposed regulations and planning initiatives? Certainly, state law entrusts our Planning Commission with the authority to do so, but that doesn't mean the Planning Commission has to do it alone. We need the political and administrative leadership to reorganize our planning efforts to delegate far more research and drafting to existing and ad hoc committees which can utilize and develop specific expertise on discreet projects. Final policy determinations and regulatory language would remain the responsibility of the Planning Commission, but the development of policy and regulations would benefit from broader input.

Recent revisions to Chapter 117 clearly envision a more collaborative, less confrontational structure for both planning and permitting through the use of advisory commissions. The Bradley Hill Road controversy of a few years back illustrates this point well. A land owner sought to develop a parcel and access that parcel by improving what was effectively a hiking trail for automobile use. Neighbors objected. The Planning Commission and Selectboard were dragged into the fray. The controversy became a matter of litigation and a political rallying cry for libertarian land-owner rights folks on one side and communitarian trail/hiking/recreational rights folks on the other. In an attempt to avoid further such controversies a town committee was created to review all Class 4 roads in town and recommend candidates for trail designation. The committee was responsive to both libertarian and communitarian views and, in their work together, a more balanced and collaborative outlook on the issue emerged as everyone came to recognize a one-size-fits-all regulatory approach did not reflect the values of the community.

We are a community entrusted with the legal authority to limit what individual land owners can do with our land. We should exercise that authority sparingly and in a manner which draws broadly from the community to come up with solutions which suit us as a community. These 135 pages reflect the bureaucratic default which occurs when a single committee of volunteers are overextended, harried politically, suffer 100% attrition over a matter of a couple years, and plow on so they can get to the next item on their inexorably growing agenda. No number of public hearings asking townspeople to absorb 135 pages of regulatory language can make this document reflective of the community.

I am confident the Planning Commission has done the best they can under trying circumstances. I am simply saying it's time to address the circumstances. Let's take a step back and recognize the practical effect these regulations will have on land owners, their neighbors, DRB members, and, ultimately, the community. Let's develop a planning structure which addresses individual policy and regulatory goals in a deliberate and effective manner rather than seek to reinvent the wheel through omnibus decennial rewrites of our Town Plan and regulations. No volunteer-based Planning Commission can do that alone. It's time to exercise the political will and leadership to admit we're off track and put our minds to developing a solution which serves the community and its land owners.