Selectboard Meeting - June 5, 2007
Impervious Surface Compromise Proposed
Following a 15 minute recess in a public hearing debate, Selectboard Chair Audrey Garfield introduced modified language to proposed, interim zoning ordinances. The new language seemed to bring opponents closer to consensus and received supportive comments from Town Attorney Bob Fisher, and from Zoning Administrator, Jim Mullen.
During the hearing, a major point of contention was a provision forbidding any increase in impervious surfaces during the interim period. Fisher warned that the language invites lawsuits because it runs afoul of U.S. Supreme Court decisions on unconstitutional taking. Mullen advocated language which would not prohibit any new impervious surfaces, but only those which cause harm.
After a lengthy airing of the issues, and exchanges between opposing opinions, the new proposed language seemed to bring about a nearly miraculous change in the tenor of the discussion. The new proposal will be warned, and brought up at another public hearing.
The two proposed interim ordinances for the Suburban Commercial Zoning District in West Brattleboro, seemed to have parallel provisions, and in the testimony they were treated together. They were:
1. Suburban-Commercial Zoning District
2. Flood Hazard area regulations
[I know I am just supposed to report and avoid personal observations... but sometimes I just can't help it. I keep wondering whether "impervious surfaces" really refers to people's brains. And I find it symbolic that the compromise seems to be a major breakthrough on the Board -- at last perhaps something is penetrating the "impervious surfaces."]
This years' audit indicated that the new Finance Director, John Leisenring, has been getting the town's accounting on to a solid foundation.
The other major issue discussed was de novo procedure versus 'on the record' in DRB hearings -- details below.
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HERE ARE MY NOTES FOR THE ENTIRE MEETING, INCLUDING THE PROPOSED, INTERIM ORDINANCES:
I walked in about 3 minutes late, and the meeting had already started. Audrey was announcing the new Housing commission and invited people to apply.
(I was missing details at first, so the beginning of these notes are choppy.)
Dora - planning commission - announced meeting about formula stores to be July 9th.
Rich - Economic development and land development: Not an exciting title, but it is important because it involves parks and public space. There is money out there, but you must have a plan to get hold of it. This is the beginning of our discussions.
Dick talked about people sprucing up downtown, and thanked them.
Citizen Participation - no one rose to speak. It seemed to me that the opportunity went by awfully quickly, but maybe it was just that no one wanted to say anything. There were about 20 people present in the audience.
Liquor Commissioners:
Mole's Eye first class liquor license to serve until 2 a.m. passed unanimously.
Entertainment license, application until 2 a.m. but amended by selectboard to 1 p.m. and passed.
Location of the Indo Grocery from 69 Elliot St. t 60 Elliot St. Inquiry to Bob Fisher as to whether they need a new license when they transfer location. He said no. Motion passed 5 - 0.
Meeting of Liquor Commissioners adjourned.
Internal Business:
Audit Report and Discussion - John Leisenring.
Barbara Sondag went over the main features of the new audit. She said that in FYO5 there were 8 "findings." (Apparently this means problems) Six were corrected, 2 were partially resolved.
Accurate entry of data.
Review software updates
Were two findings, and as Barbara rattled off the others I could not follow it all.
She said: "There's a lot of work for John to do and I'm glad I'm not him. But I'm pretty happy with these and looking forward to a lot of good things to come."
Rich asked a question which I did not understand, and John gave an answer which I did not understand, so I guess everything balanced. Rich seemed satisfied with the answer, so I guess it was OK. (Lise is going to fire me for sure!)
Audrey complimented a positive audit report, and asked John about the work that is being done on drafting policies and procedures for the financing dept.
John: My first priority this year has been to learn the procedures as they are, and then to work on creating longterm changes to procedures. He hopes to present the recommended policies and procedures as a whole rather than piecemeal.
Bonds Resolutions:
Talked about the documents needed for bonds approved at town meeting, and said that all the bond documents will need signatures of Selectboard members.
Bonds will be rated by a rating agency to the state, state sells the bonds, and we'll get the money at the end of July. Bonds will be sold on the open market, so we don't know yet what the rates will be.
-fire truck
-fuel tank
-repairs to cornice work at the Gibson Aiken Center.
Motion to approve bonds in the amount of $530,000 passed 5-0.
Taxi cab permit for MP Gouin Co., Inc.
Cab company is stationed in Guilford, but he needs a permit to operate in Brattleboro. Passed.
Permit for 4th of July approved. 5-0.
Street name of "Harvest Hill" for private drive off Miller Road approved. 5-0.
Public Hearings on Interim ordinance amending the Suburban Commercial Zoning District regulations in West Brattleboro. And, an a proposed interim Ordinance amending the Flood Hazard Area Zoning Regulations.
Audrey: Board will take some time to have a discussion before opening
Bob: Researched whether the proposed impervious surface wording constitutes an unconstitutional taking of property. His research concluded that the language which prevents any increase of impervious surface can strip the property of all economically beneficial uses, under findings of U.S. Supreme Court that does constitute an unconstitutional taking because an undeveloped piece of land cannot possibly be used without increasing the impervious surface.
The good news is that there is other language which can be used to deal with impervious surface issues without being unconstitutional. The underlying goal is to find ways to lessen the danger of flooding, and there are alternative ways to deal with potential flooding. Storm water drains, for example. You can regulate impervious surfaces, but there are various exceptions to that such that if the property can be used for economic use, then it is not an unconstitutional taking. "I don't want to get too legalistic in my language..." (He said that just in time, I was beginning to have a hard time.)
Dora: If it is a temporary ordinance, how can that be a taking?
Bob: A temporary ordinance can be a taking, even though it is a taking for a temporary amount of time. We get into a question of what constitutes just compensation. My goal is to avoid litigation, and to use other language if it gets to the same goal without triggering litigation.
Barry Cahoun State Agency of Natural Resources (ANR) Rivers Program was there as an expert.
Jim Mullen, Planning Director -- suggests language with prohibits unnecessary impervious surfaces.
Jim shows map with potential flood areas which would be affected by the ordinance.
Dick asks whether the ordinance would mean that people in those areas could not put a deck or patio.
Jim: Yes. He points out that if Gillies wants to put a deck in the front of the building, which would have not effect on the brook, they could not do it, so we need to modify the language.
Audrey asks Barry whether language allowing building on the side away from the brook would affect flooding?
Barry: Remember, there are already FEMA regulations applying to any building in a flood way, such as how far off the ground you must build: "So there are already a number of hoops..." Barry suggests developing a whole lot of options for building within the flood way.
Steve Steidel: Are we just talking about storm water run off? What if you could put an impervious surface in one place, but mitigate in another place for no net loss of handling run off.
Dora: We have been very remiss for many years, and my concern is allowing more areas for impervious surfaces, which we may find out we need. Once it is put in place, it is difficult to remove. If we put something in there it will cost the community. This is a bigger issue than whether somebody can put a deck in.
Jim: Certainly we want to exempt improvements to bridges, bicycle paths. Gave an example of a bridge whose abutments are eroding away and need rip rap, which is an impervious surface. It would be ridiculous to forbid that. He gave the Farmer's Market as a good use of a flood area.
Audrey: During the period of an interim ordinance, people can come to the Selectboard to request exemptions. Jim do you want to talk about storm water?
[Just then there was a loud thunderclap, as though to punctuate the storm water discussion.]
Jim said that mitigation techniques have an engineering standard that the rate of storm water run off post development can't exceed storm water run off pre-development. There are ways to measure storm water run off in an undeveloped parcel. There are state regulations which trigger state storm water permit if more than one acre of soil will be disturbed. In Brattleboro, because of town zoning, larger than a half acre will trigger the standard no peak run off change.
Audrey asks Barry: Could there be a small project which might cause more impact than a large project?
Barry: Said this could happen. A small project could overwhelm a culvert downstream.
Jim: We have two research interns with us this summer. My suggestion is that they do research on local ordinances which work well so that we can use them as a model.
Jim suggests that we put off the interim ordinance for two months until we can do research and have a geological survey and come up with a really good proposal. During the next two months there are no new projects which would have a significant impact.
Audrey challenged whether he knows for sure that there will be no surprises in new applications.
Jim says it takes about six months to process a new application.
Dora says that it is unlikely that we will be ready with a good proposal for a permanent ordinance in two months.
Barbara: After geological survey is done, we will start wrestling with new proposals and there will be new questions, rather than a resolution. She said that there is nothing wrong with an interim ordinance.
Dick: Jim has come up with language which does not require the Selectboard to become the new DRB. We don't want to make the town so user unfriendly as to make the town unattractive to people wanting to do business. He also cautioned against ignoring advice of legal counsel.
Audrey asks about whether it matters if an impervious surface is added on the brook side of a building or on the opposite side?
Barry: From the standpoint of increasing the liability of the National Flood Insurance Fund, either side increases the liability. Erosion is a different concern, and on the opposite side of the building it does not increase the erosion possibility. From a hydrological standpoint, small projects have a very low impact on peak flow of streams. Not much effect on flash floods, but for floods building up over a period of time they have a greater effect. (The more he talked, the less I understood. OK Lise, go ahead and fire me!)
Barry concluded that some threshold is necessary, otherwise you are micromanaging. (By "threshold" he meant a square footage which triggers the regulation.)
Steidel: why not support Jim's proposal that we just wait two months so that he can come up with good, permanent language?
Dora: It's not going to happen in two months.
Steve: How do you know that? Let's ask Jim if he can do it.
Audrey suddenly calls a 15 minute recess.
When meeting reconvened she reads revised language for the two ordinances.
Unnecessary impervious surface increases are prohibited.
There shall be no net increase in the rate of peak storm water runoff...
Opens Public Hearing, asking if there is discussion from the audience.
Audience member asks for clarification:
Audrey, new language allows us to keep the language which everyone agrees on, and to change the language which is controversial.
Bob: New proposed language would have to be warned, so we are just talking about it today.
Audrey: Purpose of the interim ordinances would be to allow us 6 months to work on perfecting the language of a regular ordinance.
An audience member challenges the proposal as being overkill. He says that it actually effects only a half a percent of the area in the zone, and it is overly burdensome on property owners.
Jim: It says no net increase in impervious surfaces, so if you build a 1,000 sq. ft. building, and remove a thousand sq. ft. of parking lot and grass it over, then there are no expensive hoops to jump through. It is only if you increase the net amount of impervious surface that you would need an engineered plan for storm water mitigation.
Same audience member: Every property owner abutting the brook can be effected by this proposed ordinance, and each of them should be notified.
George Savory: I think the compromise proposed by Audrey answers all of the questions we are trying to deal with, and we should go with it.
Rich: This does not stop Jim's dept. from coming up with a plan in two months, and if they do, they can bring it to us. I just don't see any downside to adopting this interim ordinance.
Monroe Whitaker: I came here to speak against the proposed interim ordinance, but I find the compromise ordinance completely acceptable.
Bob is questioned by Tom Durkin as to whether the compromise would be acceptable to the environmental court. Bob says he believes it would.
Dick: A net swap out would allow anyone to do whatever they want on their property, but he thinks the compromise would not allow this.
Audrey and Rich say that the language does allow this, and they read it. Dick seems to listen thoughtfully.
Public Hearing closed.
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Next -- Discussion of De Novo v. On the Record, as procedure for the DRB
On the record means that an appeals court only considers the issues which were brought up at the original hearing. De Novo means that, in an appeal, the evidence and arguments begin anew.
Craig (chair of DRB): On the record allows more local control, particularly because it allows us to control what issues will be considered on appeal.
Dora: My issue is about lack of public involvement and people's inability to get adequate notice. Most abutters get notice way too late or else miss it, all of a sudden a hearing happens, and they have no recourse because they did not get to present evidence during the hearing. I would feel better about changing to an on the record if we change the practice to give people a greater opportunity to attend and participate.
Craig: Says that if someone comes in now and says, "I just got notice, I oppose this but I don't yet know why, and I want to preserve my right to appeal so I am making this appearance," then they can appeal. Under the new, on the record rules, he is sure that the DRB would grant an 2 week continuance in order to have time to develop and present their case.
Audrey to Tom Durkin, environmental court judge: Why do you suppose that only 8 towns currently have on the record procedures?
Tom: People are reluctant to change. One reason is that some towns are not able to keep a detailed record, which makes on the record difficult.
Durkin talked about an appealed, de novo case in which he found it odd that, as a judge, he was asked to ignore everything the community had decided, and, as an outsider, impose his own opinion. There was then an editorial in the local paper saying: Who is this guy to overrule our community and impose his own judgment? He said that someone sent him the editorial, and he found it ironic because the editorial reflected exactly what he had been thinking himself.
He encourages the Selectboard to at least investigate on the record as a replacement for de novo.
Spoon (DRB Member) Proposes notifying the community of matters coming before the DRB on a weekly basis, as early as possible.
Tim (DRB Member) On the record would encourage people to bring as much information as possible before the DRB because otherwise the party cannot mention it in appeal. It would encourage people to be honest and bring forth complete information.
Audrey: Is there anything not working about de novo?
Durkin: With a de novo system an applicant is likely to present only the minimum amount of material in hopes of getting a quick, affirmative decisions. But with on the record, because they know that they must present everything up front or else lose the opportunity to refer to it in the appeal court, they are thereby encouraged to present a full brief.
Dick: supports the proposal, and suggests trying it for a year and then revisiting it to see whether it is working, or not working.
Dora: Unless we remedy issues impacting on fairness of hearings, I couldn't vote for the proposal. We need more discussion, and I would prefer to table it.
Rich: Agrees,and says that we need more study and to resolve details before making this change.
Audrey: Announces that she is going to vote against the measure.
Durkin: Suggests that certain types of projects (encompassing x number of acres or more, or x number of sq. ft or more)
Motion fails 2 in favor, 2 against, 1 abstention (Dora).
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Discussion of process for hiring new town manager
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New Business
Proposal to move the July 3 meeting to the last week in June in order to finish work on budget.
Leonard Howard appointed as Deputy Health Officer
DRB appointments - Barb 5 slots, 2 full time positions.
Audrey accepts nominations for 2
Joe Bushey
Tim Cuthbertson
David Gartenstein
Spoon Agave
Two top vote getters will be assigned two permanent positions.
Joe Bushey and Tim Cuthbertson appointed.
Meeting adjourned
After the meeting Dora and Tim Cuthbertson discussed the compromise. It was interesting to hear their diametrically opposite, yet equally sincere views. Dora was disappointed with the impervious surface compromise, and felt that the ordinance is being beaten down into ineffectiveness, to which Tim replied that if you paved over the entire area of the Suburban Commercial Zoning District, it would have virtually no impact on flooding (he made it clear that he is not advocating this, just using it as an example to illustrate his point).
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