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nbsp; STATE
OF VERMONT
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ENVIRONMENTAL
COURT
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Appeal of Albert, et al=
. =
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bsp; } =
&n=
bsp; Docket
No. 110-6-03 Vtec
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nbsp; Decision
and Order
Appellants Gail Albert, Carol Boyd, Susan W. Dixon, Mar=
ian
Feldman, Alfred W. Hoadley, Beverly Jacobson, Chris Johnson, Crea Lintilha=
c,
Susan Moraska, Laurel Neme, Robert Platt, Thea Platt, Andrea Van Hoven,
Carolynne R. Wang, and Deane Wang appealed from a decision of the Planning
Commission of the Town of Shelburne, granting approval to a Planned Reside=
ntial
Development off U.S. Route 7. Appellants are represented by Stephanie J. Kaplan, Esq.;
Appellee-Applicant Ethan Allen Holdings, LLC, is represented by Edward D.
Fitzpatrick, Esq.; and the Town of Shelburne is represented by Jill E.
Spinelli, Esq. An evidentiary
hearing was held in this matter before Merideth Wright, Environmental Judg=
e. A site visit was taken in advance=
of the
hearing, with the parties and their representatives. The parties were given the opport=
unity
to submit written memoranda and requests for findings. Upon consideration of the evidenc=
e as
illustrated by the site visit, and of the written memoranda and requests f=
or
findings filed by the parties, the Court finds and concludes as follows.
Appellee-Applicant Ethan Allen Holdings, LLC, seeks app=
roval
of a 62-unit Planned Residential Development (PRD), to be known as =
ARice Woods,@ to be constructed in phases over approximately three y=
ears,
on a 33.71-acre[1]
parcel of land owned by Rice Lumber Inc. and Rice Realty Company in the
Residential-Commercial zoning district of the Town of Shelburne. In addition to the application as
originally presented to the Planning Commission, Appellee-Applicant propos=
es to
incorporate the conditions imposed by the Planning Commission into its
application to be considered by the Court, as set out in Exhibit 5.
No historic sites or resources are located on or near t=
he
project property. U.S. Route=
7 is a
principal arterial highway for the region.
Commercial and residential uses line this segment of Route 7 and are
visible from Route 7. The Ri=
ce
Lumber lumberyard and its associated buildings and parking area is located
between the northerly portion of the project property and Route 7. A large commercial developm=
ent is
located immediately north of the project property along Route 7. Residential developments are loca=
ted
north of the project property, with access from Route 7, and also to the
northwest of the project property down at the level of Shelburne Bay. Harbor Industries, an
industrial/commercial use, is located to the southwest of the project prop=
erty,
north of the intersection of the LaPlatte River with Route 7. Immediately adjacent to the west =
of the
project property is an undeveloped narrow parcel of property containing a =
steep
cliff that drops off to a much lower elevation than the project property.<=
span
style=3D'mso-spacerun:yes'> That adjacent cliff property is b=
ounded
on its west by the railroad; beyond the railroad farther to the west are t=
he
natural areas associated with the LaPlatte River basin, some of which are =
held
by The Nature Conservancy.
The project property is undeveloped; some portion of it,
especially in its southerly end, was used or attempted to be used for
agriculture at some time in the past. The project property appears to be
located outside the LaPlatte Greenway Map (Comprehensive Plan, Map 6), but
adjacent to its easterly edge. The
Natural Features Map (Comprehensive Plan, Map 4) indicates the presence of=
two
natural features on or near the project property, represented by dots; the=
map
does not specify what these natural features are, whether they are on the
project property or on the adjacent temperate calcareous cliff, or whether=
they
represent the category of >rare, threatened or endangered species=3D or >natural community.=3D The simi=
lar >Town of Shelburne Significant Habitat Map=3D prepared by Vermont Fish and Wildlife Department (Exhi=
bit
I), which appears to be the basis for the information displayed on the >Natural Features Map,=3D has a more explanatory legend but does not locate or
identify the specific features represented by the two hexagonal dots.
The PRD that is the subject of the application before t=
he
Court is proposed to consist of 37 multi-family units (in 14 buildings each
with two or three units) on a 6.98-acre parcel at the southerly end of the
project property, together with 25 single-family houses on the northerly
portion of the project property, each on its own approximately half-acre
lot. The project will utilize
municipal water and sewer services.
Rice Lumber Inc. and Rice Realty Company propose to retain two
commercial lots adjacent to and westerly of U.S. Route 7 (Shelburne Road) =
that
are not part of the PRD project property.
The project property is located westerly and southerly =
of
the two retained lots, with access to Route 7 by two new 26-foot-wide publ=
ic
streets, forming a loop. One=
, known
as Carroll Drive, runs along the southerly edge of the Rice Realty Company
commercial parcel, and makes a right turn to run to the north along the ce=
nter
of the project property, to serve the proposed single family lots, ending =
in a
60-foot-radius turnaround or cul-de-sac.&=
nbsp;
The other, known as Rice Lane, runs along the northerly edge of and
curves behind the Rice Lumber commercial parcel, making a T intersection w=
ith
Carroll Drive between proposed single-family lots 22 and 23. The intersection of Rice Lane wit=
h Route
7 is a signalized intersection also used by the commercial development to =
the
north. A private 24-foot-wide road known as Dennison Circle is proposed to
serve the multi-family lot; it forms its own loop to the south of the east=
-west
segment of Carroll Drive, and has access onto Carroll Drive in two places.=
Sidewalks are proposed to be prov=
ided
along one side of all project roadways out to Route 7 at both intersection=
s.
A small recreation area with a pool[2]
is proposed to be located in a lot located directly across Carroll Drive f=
rom
the multi-unit parcel and directly to the south of single-family Lot 17; a
second small parcel of open land equivalent in size to a single-family lot=
is
located between unit 31 of the multi-family units and Lot 16, the most
southwesterly of the proposed single-family lots. Including the two recreation >lot-equivalents,=3D a total of 11.62 acres of common land open space is
proposed to be located around the perimeter of the multi-unit parcel, arou=
nd
the perimeter of the group of single-family lots, and in the area to the n=
orth
of Rice Lane. Taken together=
, we
will refer to it as Athe perimeter open space.@ It is de=
signed
to satisfy the 50-foot setback requirement for rear yards at the periphery=
of a
PRD, together with the on-lot setbacks in the case of single-family lots 2=
and
3. Zoning Bylaws, '1630.2.3.
Appellee-Applicant proposes in ''4.5 and 4.1(v) of the Declaration of Covenants that use=
of
the perimeter open space be limited to members of the homeowners
=
The
proposed PRD leaves approximately 34.5% of the project property undevelope=
d, in
compliance with the minimum of 33% of open space required for PRDs smaller=
than
50 acres in total area.
Appellee-Applicant is willing to enter into an open space agreement=
with
the Town, governing public access to and restrictions upon the use of the =
open
space on the project property.
However, as discussed below, the need to protect the adjacent tempe=
rate
calcareous cliff from excessive public access suggests that this standard =
open
space agreement may not be appropriate in this instance.
In addition, as shown in the key of the site plans in
evidence as Exhibits 6.1 and 10, Appellee-Applicant proposes that clearing=
of
trees within the individual single-family lots and in the perimeter open s=
pace
be restricted in several respects.
Within the perimeter open space, Appellee-Applicant proposes a so-c=
alled
no-cut zone, although '4.5 of the Declaration of Covenants allows the lot owne=
rs
and the Association to remove Adead or decaying trees.@ Within t=
he
15-foot side and rear yard setbacks of the single-family lots,
Appellee-Applicant proposes that no trees be cut that are larger than 2&qu=
ot;
in diameter at breast height (DBH).
Appellee-Applicant proposes a so called ><=
span
style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa=
mily:
"Times New Roman"'>selective clearing zone=3D within the 30-foot front setbacks of the single family=
lots
and the roadside setbacks of the multi-family lot, in which trees are to be
saved Awhenever possible,@ that is, other than if they are removed to install
driveways and other lot infrastructure.&n=
bsp;
Appellee-Applicant intends to retain trees in the front yard setbac=
ks to
satisfy the requirement to
establish street trees within the forested area of the development, and
proposes to plant a double line of Austrian pines along Rice Lane and red
maples along both Rice Land and Carroll Drive. The landscape plan does not invol=
ve the
use of invasive or non-native vegetation.=
Appellee-Applicant also proposes a building restriction=
for
the building envelope within the setbacks on the single-family lots, so th=
at
the amount that may be cleared is limited to three times the building
footprint, or two-tenths of an acre, whichever is smaller. These clearing limitations are not
specified in the Declaration of Covenants; rather, '13.1 of the Declaration merely requires the property to=
be Aused and conveyed@ in accordance with the various permits and approvals
applicable to it, and '4.4 requires each lot owner to Acomply with all applicable permits, codes, laws, ordina=
nce,
rules, and regulations, of the State of Vermont and Town of Shelburne affe=
cting
the use of the lots and the common elements.@
The project property occupies a hill above and to the w=
est
of Route 7, which in that location runs at an elevation of about 180 feet =
above
sea level. The highest point=
on the
project property is in the northwesterly portion of the site at about 270 =
feet
above sea level. The property
slopes up from Route 7 to a divide running in a north-south direction as s=
hown
on the pre-development drainage plan (Exhibit 6.27). The pre-development divide runs f=
rom the
northerly property boundary in the middle of proposed single-family Lot 3,=
through
the northwesterly side of the road turnaround, through the front of Lot 5 =
and
the middle of Lots 6, 7, and 8, to the high point at the rear of Lot 9.
An extensive
view of Shelburne Bay and the LaPlatte River valley is visible from=
the
cliff edge at the westerly boundary of the project property. However, due to the location of t=
he
proposed single-family lots and the heavily wooded nature of the westerly
buffer area, the view cannot be seen from the proposed single-family lots,=
and
single-family houses on those lots would not be visible from areas below a=
nd to
the west.
The bedrock of the project property hill and the adjace=
nt
cliff is composed of Winooski Dolomite and Monkton Quartzite, characterist=
ic of
the Champlain Valley. This
calcium-rich (calcareous) rock and its associated soils has a higher pH (m=
ore
basic) and sustains a different range of typical plants than in the more a=
cidic
soils typical of upland forested regions of Vermont.
The property is heavily wooded and the soils are shallo=
w to
bedrock, with areas of exposed bedrock or >ledge=3D outcroppings up to approximately 6 feet in height, loc=
ated
primarily within the westerly buffer area and in the rear of the westerly
single-family lots. To the e=
xtent
that the rock outcroppings are located in the westerly buffer area and in =
the
rear and side setbacks of the single family lots, they will not be blasted=
or
removed by the proposed development.
The soils on the project property originated as glacial
till. They are generally sha=
llow to
bedrock and well-drained and therefore are fragile and susceptible to
erosion. They are classified=
as
severely limited for agricultural use and would not be suited to the
construction of on-site residential waste disposal systems. However, the proposed PRD is serv=
ed by
the municipal sewer and water supply system and does not rely on the local
soils for wastewater disposal.
To avoid undue erosion during construction, the proposed
erosion control plan provides that the smallest practical area of land wil=
l be
exposed at any one time within the development; the exposure will be kept =
to
the shortest practical period of time; land will not be exposed during the
winter months; and the sedimentation detention areas will be installed bef=
ore
and maintained during construction and will continue to be maintained afte=
r the
project is completed. As
Appellee-Applicant does not propose to undertake the construction of house
sites on the single-family lots, the Declaration of Covenants will have to=
be
amended to address the commitment of any lot purchasers to similar erosion
control practices during construction on the single-family lots.
With municipal water and sewer service, and with the er=
osion
control plan proposed to be implemented during construction, the soils loc=
ated
on the project property are suitable for the proposed development
Appellee-Applicant does not propose to develop the
individual single-family house sites, but rather proposes only to put in t=
he
roadways and the water and sewer lines and other infrastructure for the
single-family portion of the proposed PRD.
Construction of the multi-family part of the project and the roadwa=
ys
and other infrastructure to serve the single-family lots will require some
amount of blasting and some amount of fill materials. &=
nbsp; As
discussed further below, the location of the roadway and the lot layout in=
the
single-family portion of the project will need to be redesigned to give due
regard to the preservation and protection of existing trees, rock outcropp=
ings
and other natural resources. Once
the location of the proposed roadway is realigned in relation to the veget=
ation
proposed to be saved, modern blasting techniques should enable the blasting
needed for the proposed roadway to be conducted so as to minimize or avoid
damage to that surrounding vegetation, by shaping and directing the charge=
away
from the area to be saved. H=
owever,
as Appellee-Applicant does not propose to undertake the construction of ho=
use
sites on the single-family lots, the Declaration of Covenants will have to=
be
amended to address the commitment of any lot purchasers to similar blasting
practices during construction on the single-family lots. Moreover, in connection with givi=
ng due
regard to the preservation of the adjacent temperate calcareous cliff as v=
iable
bobcat habitat, the blasting required in any given year will have to be
scheduled in consultation with wildlife consultants to occur at a time of =
year
(probably in summer) and for the minimum total necessary duration to minim=
ize
adverse effects on the bobcat life cycle.
Rock recovered from blasting will be used for fill as n=
eeded
in the roadway areas, and additional fill will be brought onto the project
property for that construction. No
stumps, wood, roots or other fibrous materials or refuse will be used as f=
ill. The proposal does not address the=
source
of fill materials; to avoid an adverse effect on the characteristic plant communities in the areas on=
the
site on which they are to be preserved, any such fill in areas capable of
leaching onto those area will have to be drawn from limestone (dolomite)
sources matched in acid-base and other&nb=
sp;
characteristics to the soil or rock occurring on the property. Moreover, as Appellee-Applicant d=
oes not
propose to undertake the construction of house sites on the single-family =
lots,
the Declaration of Covenants will have to be amended to restrict any lot
purchasers to the use of similar fill materials during construction on the
single-family lots.
Appellee-Applicant proposes to limit the introduction of
topsoil on the single family lots to the area in the interior of the lots =
and
to require any such fill to be feathered or graded so as not to affect the
existing vegetation to be preserved in the setbacks or non-cut areas on th=
ose
lots. If properly feathered =
to zero
at the non-cut buffers or setback areas, the introduction of this volume o=
f top
soil at the project property will not adversely affect the existing plants
within the single-family lots, so long as the acid-base balance and other
characteristics of the fill are compatible with the soil on site.
No brooks, streams or water bodies are located on the
project property. The primary
sources of water to sustain the vegetation on the project property and the
adjacent temperate calcareous cliff are direct precipitation and snow melt,
from which the water either infiltrates vertically downward into cracks and
fissures in the rock, or runs across the surface of the rock within the ve=
ry
shallow soils. Because the project property=3D
Several different vegetation communities exist on the
project property; the more northerly and westerly portion of the project
property shows an unusually high diversity of plant species characteristic=
of
the calcareous bedrock and warmer, shallow soils of this location.
The southerly portion of the property proposed as the
multi-unit lot is the most disturbed and least mature of the plant
communities. No rare, threat=
ened,
endangered or uncommon plant species in the multi-family portion of the pr=
oject
property. It consists largel=
y of
successional vegetation communities in transition from old farm field use
towards the type of Mesic Maple-Ash-Hickory-Oak forest located on shallow =
soils
over calcareous bedrock, known as Transition Hardwood Limestone Forest.
The east-facing slopes of the remainder of the project
property, roughly easterly of the elevation line 235[4]
are similarly transitional, with fast-growing, non-native species such as
buckthorn and honeysuckle in the understory. In the areas of single family=
Lots
17 through 22, the forest growth consists of red oak, white oak, ash and m=
aple.
Similarly, on the other side of the proposed development roadway, the area=
of
single-family Lots 16 to 11 is primarily a hardwood forest, with some hist=
ory
of logging and an understory containing buckthorn and honeysuckle.
The most northerly portion of the project, from Lot 23
northerly to Lot 2 and from Lot 2 westerly into the northwest corner of the
project property, is a hemlock forest with 90 percent of the tree cover
consisting of hemlock.
The remainder of the project property contains an unusu=
ally
fine example of a mature Dry Oak-Hickory-Hophornbeam forest, with a diverse
population of unusual ferns, wildflowers, and other plants characteristic =
of
the calcareous rock outcroppings within that forest, and a population of
eighteen yellow oak (chinquapin oak) trees (Quercus muhlenbergii) which is=
an uncommon
tree in Vermont, close to the most northerly extent of its range. Subsequent to the design phase of=
this
project, the yellow oaks larger than 2 inches in diameter have been mapped=
on
Exhibit 10. The Dry
Oak-Hickory-Hophornbeam forest area has not been mapped on the property, b=
ut it
extends roughly from the points on Lots 20, 21, 22, 23, 24, 25, 1, and 2,
westerly to the edge of the cliff, including some portion of lots 13 and 14
. That is, it is located in =
the
area roughly approximated by the area westerly of the elevation line of 235
feet above sea level.
=
From
the rear of Lot 9 to the west are a series of low rock outcroppings
approximately 3 to 6 feet in height.
The rock outcroppings are in a series roughly parallel to the prope=
rty
line behind behinds Lots 6 through 10 in particular. The rock outcroppings have not be=
en
mapped on the project property.
A rare pl=
ant
known as Arabis divaricarpa is found to the west of Lot 8, in the proposed
westerly buffer area. =
Another
rare plant, Solidago squarrosa, is found in the proposed westerly buffer a=
rea
near the cliffs abutting the project property. Other uncommon plants characteris=
tic of
this natural area, including wall-rue, purple cliff-brake, and smooth
cliff-brake, are located in the rock outcroppings in the westerly buffer a=
rea
or on the adjacent calcareous cliff property to the west of the project
property. The unusual mosses=
, ferns
and other plants characteristic of the rock outcroppings in the westerly b=
uffer
area are particularly susceptible to damage from foot traffic and climbing=
on
the outcroppings and cliff walls where they grow.
Yellow oak
occurs more frequently in the Champlain Valley of Vermont than elsewhere i=
n New
England, in northern New York, or in Quebec, due to its preference for
relatively warm locations on limestone and other calcareous soils. In Vermont, it occurs sporadicall=
y on
warm, southwest- to west-facing slopes, in dry soils on calcareous bedrock=
, in
the Champlain Valley (and also in the extreme southwestern corner of the s=
tate
in Pownal). Even small popul=
ations
of yellow oak trees are uncommon in Vermont, as it is at the northeasterly
extent of its range, although it is not rare, threatened or endangered.
Approximately forty occurrences of groups of yellow oak
trees have been reported to the Vermont Natural Heritage and Non-Game Prog=
ram,
including in Charlotte, Ferrisburgh, Burlington, Colchester and Milton.
The eighteen yellow oak trees on the property larger th=
an 2
inches in diameter[5]
are located as shown on Exhibit 10.
They are distributed on the project property in a rough S shape,
extending from the front of lots 20-21 westerly to lot 10 and in the weste=
rly
buffer area, curving back through lots 8, 7, 24 and 6 to lots 3 and 4 in t=
he
area of the proposed road turnaround in the most northerly portion of the
project property. Seven of t=
he
trees are located in the proposed westerly buffer area and eleven are in t=
he
proposed development area. O=
f the
eleven in the development area, three (identified as O, P, and Q on Exhibi=
t 10)
would be removed in the construction of the roadway and a fourth (the largest one, wi=
th a
diameter of 20", identified as N at the front of Lot 6) is probably
located too close to the proposed road to survive. Six of the remaining seven trees =
in the
development area are located within or immediately adjacent to side setbac=
ks on
individual single-family lots. Each
of the yellow oak trees greater than 2" in diameter is proposed to be
protected by a 20-foot radius (40-foot diameter) Ano-cut@ zone around the specific tree. &=
nbsp; Although
the yellow oaks were mapped on the project property and are proposed to be
preserved by a 20-foot-radius no-cut zone around each tree, neither the ro=
ad
nor the single-family lot layout were designed to minimize disturbance to =
the
yellow oaks, the rock outcroppings or the Dry Oak-Hickory-Hophornbeam
forest. Moreover, on shallow=
soil
the roots of the yellow oaks and other trees may extend horizontally far b=
eyond
the protected distance, so that grading and compaction of the soil near the
trees from the use of heavy construction equipment may harm the trees=3D roots and cause the trees to decline over time, especi=
ally
those located adjacent to the proposed roadways.
The proje=
ct
property is immediately adjacent to another high-quality example of an unu=
sual
natural community: the >Temperate Calcareous Cliff.=3D
The project property itself provides habitat for a vari=
ety
of wildlife, including turkey, grouse, cottontail rabbit, squirrels and ot=
her
rodents, red fox, and deer. =
The
nuts and acorns (mast) produced by the Dry Oak-Hickory-Hophornbeam forest =
are
particularly important as a food source for some of these species. Some of these species are prey sp=
ecies
for bobcats. The wildlife sp=
ecies
using the project property are not rare, threatened or endangered.
A viable population of bobcats lives and reproduces wit=
hin
the Town of Shelburne. The e=
xisting
mosaic of natural areas is able to support a wide-ranging bobcat populatio=
n,
due to the permeability of the landscape, that is , where the wildlife is =
able
to move within the landscape to the extent it needs to access all portions=
of
its habitat. The population =
of
bobcats in Shelburne is able to cross Route 7 to access the LaPlatte River
natural areas and the cliff adjacent to the project property. =
This occurs primarily where the LaPlatte River crosses under Route 7, alth=
ough
animals do cross Route 7 elsewhere where there is adequate cover on both s=
ides
of the road. Bobcats and oth=
er
wide-ranging animals will continue to be able to access the cliff adjacent=
to
the project property, and the project property itself, at the LaPlatte River or by trave=
ling
along the southern boundary =
of the
project property and Harbour Industries to the base of the cliff, or by us=
ing
the perimeter open space along the edges of the project property to the to=
p of
the cliff.
In the eastern part of Shelburne, bobcat are observed c=
lose
to human habitation in places in which there is sufficient nearby cover, s=
uch
as dense woods, to provide an escape route. Bobcats can coexist with humans a=
s long
as there are core areas that offer a safe retreat or refuge from human
activities, such as cliffs (with ledges) or dense coniferous bogs and
swamps. In human-dominated l=
andscapes,
bobcats=3D need for this type of security and privacy is higher t=
han
in wilder areas. It is the
existence of good security habitat, as well as food and living habitat, th=
at
makes it possible for bobcats to survive and thrive in this part of
Shelburne. The western part =
of
Shelburne has very few areas of the type of dense cover that bobcats would=
need
to provide those functions otherwise provided by the temperate calcareous =
cliff
adjacent to the project property.
In the LaPlatte River basin, there are patches of coarse woody debr=
is
that could be used as denning habitat, but it is not abundant, and a great=
deal
of use by deer has thinned the understory in that area.
The adjacent temperate calcareous cliff is in current u=
se by
bobcats as shown by the characteristic scratches, scrapes, scent markings =
and
scat observed by trained observers over time at places below and along the
cliff trails and shelves, and as shown by the bobcats photographed by auto=
matic
cameras at the cliff habitat.
It provides extraordinary habitat for bobcats because of its proxim=
ity
to the diverse habitats and plant community types found on the project pro=
perty
to the east and in the natural areas at the base of the cliff to the west =
and
the south, and because of the cliff=3Ds suitability as refuge habitat.
The temperate calcareous cliff adjacent to the project
property provides an ideal core refuge habitat for bobcats, protecting them
from human activities and from other animals. The cliff provides many narrow and
inaccessible areas of ledge outcrops and chambers that can be accessed onl=
y by
bobcats, as they are capable of jumping to and landing on them with accura=
cy. Broken rock or talus on the cliff
creates a complex of structures that only bobcat can reach, including denn=
ing
sites, resting ledges, and narrow outcrop pathways or >cat walks=3D on the cliff facade itself.
The adjacent temperate calcareous cliff is particularly
important to the Shelburne bobcat population in the winter and spring. In winter, bobcats must rest and =
warm
themselves in the sun, when available, in a safe place, so as to minimize =
their
expenditure of energy on flight from threats or on keeping warm. South- and west-facing cliffs, su=
ch as
the adjacent temperate calcareous cliff, are ideal for this wintertime
energy-saving thermoregulation.
Severe winter conditions with deep snow and cold also restrict bobc=
ats=3D hunting mobility and food intake. The relatively safe and warm rest=
ing
refugia provided by the adjacent temperate calcareous cliff are particular=
ly important
for females and for juveniles, with limited energy reserves. The cliffs also provide natal den=
ning
habitat in the spring, and a safe refuge from human disturbance and from
predators such as dogs, coyotes, and possibly fishers (that is, fisher cat=
s) as
well.
Cliffs such as the adjacent temperate calcareous cliff =
also
provide an important social and communication function for bobcats. Bobcats communicate by scent mark=
ing,
which communicates information such as their identity, location in time an=
d space,
and social and sexual status, necessary for mating and avoidance
functions. The scent marking=
s repeatedly found in the same loca=
tions
on the cliff trails indicate the presence of resident animals using the
adjacent temperate calcareous cliff to communicate with other resident ani=
mals
whose home ranges overlap. In
late February and March, the adjacent temperate calcareous cliff is import=
ant
to provide rendezvous sites for males and females, especially within the c=
liffy
refugia associated with females. In
late April to mid-June, these areas are used for safe natal and rearing de=
ns.
If areas immediately adjacent to the cliff, either at t=
he
base of the cliff or at the top of the cliff, are put into use for recreat=
ion
by humans and pets, the value of the adjacent calcareous cliff as bobcat
habitat will decline because it will no longer be available as a safe esca=
pe
refuge. As discussed below, =
the lot
layout of the single-family portion of the project will have to be redesig=
ned
to better take account of and protect the yellow oaks and the rock outcrop=
pings
on the project property, and the size and shape of the westerly buffer may
change
On the other hand, during construction, given the
description of the life cycle of bobcat and their increased vulnerability =
to
disturbance in the winter and spring, it is probable that a construction
schedule could be developed, in consultation with wildlife experts, to res=
trict
the timing of blasting and the timing of use of heavy machinery on the pro=
ject
property to those times of the year when it would not cause the bobcats to
abandon their use of the adjacent property as habitat for refuge, for inte=
raction,
or for reproduction and raising young.
To obtain final plat approval in the present proceeding=
the
proposed PRD must comply with the applicable provisions of the subdivision
regulations, and any provisions of the zoning regulations, municipal plan,=
or
other regulations made applicable to the proposed PRD through the subdivis=
ion
regulations. As the Shelburne
ordinances do not adopt the criteria of the state=3D
Section 800(1) of the Subdivision Regulations requires =
the
Planning Commission, and hence this Court in this de novo ap=
peal,
to evaluate A[w]hether the land is unsuitable for subdivision or
development due to flooding, improper drainage, steep slopes, rock formati=
ons,
adverse earth formations or topography, utility easements or other features
which will reasonably be harmful to the safety, health and general welfare=
of
the present or future inhabitants of the subdivision and/or its surrounding
areas.@
Because the proposed PRD is supplied with municipal wat=
er
supply and sewage disposal services, if it had an improved lot layout (see=
''800(2), (3), (7) and (8) discussed below) and appropria=
te
erosion control and blasting control during construction, the land itself =
is
suitable for development, despite its challenges due to rock formations and
topography. That is, with appropriate PRD design, the existence of these
features would not be harmful to the safety, health and general welfare of=
the
inhabitants[7]
of the PRD or its surrounding areas.
Section 800(2) of the Subdivision Regulations requires =
the
Planning Commission, and hence this Court in this de novo ap=
peal,
to evaluate A[w]hether the proposal includes due regard for the
preservation and protection of existing features, trees, scenic points, br=
ooks,
streams, rock outcroppings, water bodies, other natural resources and
historical resources.@ Section =
800(7)
also requires consideration of Awhether the proposed development is compatible with
surrounding properties.@ Section =
810(1)
requires, with respect to existing features, that the Apreservation of site amenities such as trees, brooks or
drainageways, historic sites, unique geologic features or any other unusual
features, which the Commission feels are an asset to the site and/or commu=
nity,
shall be effected insofar as possible through harmonious design and approp=
riate
construction methods.@
The single-family portion of the proposed PRD does not
include due regard for the preservation and protection of existing trees o=
n the
project property, or of existing wildlife habitat on the adjacent property=
It is important to note that these sections do not requ=
ire
any absolute level of preservation or protection of any existing features,
whether they are trees, rock outcroppings, or a temperate calcareous cliff
wildlife habitat. It only re=
quires
the proposed PRD to take the preservation or protection of these features =
into
consideration in the design of the project, and to give them an appropriate
level of protection. It may =
be that
a roadway for the project cannot be designed without removal of certain
trees. It may be that some of the rock outcroppings are=
more
important to protect than others.
It may be that some portion of the westerly buffer area closest to =
the
cliff edge should be fenced to preclude access, but that other portions of=
the
redesigned buffer area would not need such
limitation. It may be
possible to design the lot layout so that more of the yellow oak trees and
saplings are located in a >no-cut=3D area or in the rear of fewer or differently-shaped
single-family lots. It may n=
ot be
necessary to preserve all the yellow oak trees or all the rock outcropping=
s and
their plant communities, but=
they
first need to be mapped and the single-family area of the subdivision need=
s to
be designed with a lot layout and a road or driveway layout that gives due
regard to their locations. A=
ll that
the Court can determine from the evidence in the present proceeding is tha=
t the
road location and lot layout of the proposed PRD has not sufficiently taken
into consideration the preservation or protection of the existing yellow o=
ak
trees and sapling (regeneration) areas, the rock outcroppings and their
associated uncommon plant life, or the adjacent temperate calcareous cliff
wildlife habitat.
Section 800(3) of the Subdivision Regulations requires =
the
Planning Commission, and hence this Court in this de novo ap=
peal,
to evaluate A[w]hether the proposal includes sufficient open space f=
or
active and passive recreation.@
If all the perimeter open space, including the westerly
buffer area, were available for recreation, the project property would meet
this criterion. However, the=
need
to redesign the road location and the single-family area lot layout and to
protect the adjacent calcareous cliff habitat and the rock outcroppings, as
discussed above, will require a reassessment of whether the redesigned pro=
ject
contains sufficient open space for active and passive recreation to serve =
the
number of people anticipated to reside in the redesigned project. It is possible that additional ar=
ea for
active recreation in the vicinity of the proposed >pool=3D lot would be needed to offset the unavailability of so=
me of
the westerly buffer area.
Section 800(8) of the Subdivision Regulations requires =
the
Planning Commission, and hence this Court in this de novo ap=
peal,
to evaluate A[w]hether the site is suitable for the proposed density=
.@
The proposed multi-family portion of the PRD is suitabl= e for the proposed density of 37 units, if sufficient open space is reserved on = the remainder of the project property for those residents and the residents of= the single-family portion of the property to use for their recreational needs.= However, as the project will need= to be redesigned to reserve a westerly buffer area sufficient to prohibit reside= nts and their pets from access to the cliff edge, and as the yellow oak and ro= ck outcrop areas will need to be mapped and the single-family area will need = to be redesigned to take account of their appropriate preservation, it may be ne= cessary to reserve additional recreational space within the current single family = lot area or along the easterly or northerly project boundaries for the recreat= ional needs of the residents living on the resulting number of redesigned lots.<= o:p>
As now designed, the site cannot support the proposed
density of single-family lots within the single-family area of the PRD, as=
that
density does not include due regard for the natural features as discussed
above. However, Appellee-App=
licant
is entitled to propose as much density as the site can support. It will be possible to redesign t=
he
single-family portion of the PRD to provide a road and lot layout, an
appropriate number of single-family lots, an appropriate amount of recreat=
ional
open space, and the appropriate protection of those natural features.
Section 810(2) of the Subdivision Regulations requires =
that A[l]and shall be subdivided and improved in reasonable
conformity to existing topography in order to minimize grading, cut and fi=
ll;
and to retain, insofar as possible, the natural contours, so as to limit
stormwater runoff and conserve the natural cover and soil.@
Once the natural features are located on the project pr=
operty,
it may be possible to lay out the project roadway for the single-family lot
area to reduce the need for blasting, and for cut and fill from that requi=
red
under the present plan. This
section only requires reasonable uniformity with the existing topography.<=
span
style=3D'mso-spacerun:yes'> It is designed to limit stormwater
runoff so that the natural cover and soil is not lost to erosion.
As discussed above with respect to blasting and erosion
control, as Appellee-Applicant does not propose to undertake the construct=
ion
of house sites on the single-family lots, the Declaration of Covenants will
have to be amended to address the commitment of any lot purchasers to simi=
lar
conformity to the existing topography as is required by this section for t=
he
PRD as a whole.
Section 810(4) of the Subdivision Regulations requires =
that Asuitable hardwood shade trees shall be planted at 60-fo=
ot
intervals, on the average, along both sides of streets or private ways whe=
re
there are or otherwise would be no trees.=
All trees shall measure at least 22 inches in
diameter measured at a point one foot above finished grade level.
Appellee-Applicant proposes to plant suitable trees alo=
ng
Rice Lane and Carroll Drive where there are no trees. Appellee-Applicant also proposes =
to save
trees adjacent to the proposed street in the single-family area, to meet t=
his
requirement. However, the only directive regarding the area along the fron=
tage
of the lots is that it is a so-called Aselective clearing zone@ in which the trees are to be saved Awhenever possible.@ In=
order
to assure that this requirement is met along the redesigned project roadwa=
y, it
will be necessary for Appellee-Applicant to identify the specific trees th=
at
are proposed to be retained to meet this requirement, and to provide for t=
heir retention
and preservation in the project plans.&nb=
sp;