Board Members Present: David Soulia, Dave Mills, Rick Conway, Chuck Charbonneau, Kevin Blow, Mark Winslow
Board Members Absent:
Also in Attendance: Jeff Biasuzzi, Ed Bove, Hank Pelkey, Dave Trombley, Tracy Wyman, Alicia Malay, Gary Kupferer, John Haverstock, Michael Shank, Dan Adams, Barb Lalancette
- The meeting was called to order at 7:03PM by Dave Mills – Vice-Chair.
- Approval of Agenda
A motion was made by David Soulia and seconded by Mark Winslow to approve the agenda as amended. The motion passed unanimously.
Switch the order of Item 6 – Review Attorney Kupferer’s Suggested Town Plan Language and Item 5 – Election of Chair Person
- Approval of Minutes
December 28, 2017 Planning Commission Regular Meeting
Kevin Blow requested clarification of which Commissioner had made the statement under the Public Comments section on Page 2, Paragraph 2 regarding the village map. Jeff Biasuzzi to review the recording to determine which Commissioner made the statement and advise the Planning Commission.
- Public Comments
Dave Mills stated this section was relative to comments other than items on the agenda. Public comment would be allowed during Attorney Kupferer’s Town Plan Language discussion.
- Review Attorney Kupferer’s Suggested Town Plan Language ***CLICK HERE TO DOWNLOAD THE DOCUMENT***
Dave Mills requested Mr. Kupferer provide his opinion regarding the proposed language. Correspondence received from Ed Bove of the Rutland Regional Planning Commission (RRPC) would also be read. John Haverstock reported tonight’s meeting was scheduled as a result of a conversation between the RRPC, Hank Pelkey, Dave Mills, Gary Kupferer and Mr. Haverstock regarding the state statute changes for all town plans adopted after January 1st to determine what is needed to comply.
Gary Kupferer advised the issue is related to 24VSA 4382. When adopting a new town plan, there are new requirements that took effect for town plans adopted after 1/1/18. If a plan had been approved before 1/1/18, this language would not be required. Mr. Kupferer reviewed the proposed Pittsford Town Plan to determine what would be required to meet the new statute. The only language that is required is the highlighted item in his letter. The proposed language was taken from a draft of Guidelines from the Agency of Natural Resources, dated December 14, 2017. There are two important sections: (2a) and (2d). The language does meet the requirements of 2d as it indicates the plan “may” include specific policies to encourage the active management of those areas for wildlife habitat, water quality, timber production, recreation, or other values of functions identified by the municipality. Under the statute, a land use plan, which “shall” consist of a map and statement of present and prospective land uses, is the reason additional language is required. The language included meets the first sentence of 2d. Under 2a the language complies, but the districts need to be placed on the Town Plan Land Use map. Mr. Kupferer proposed the minimal required language be added to comply, in his legal opinion, with the statute that is in effect for adopting town plans after January 1, 2018. Mr. Kupferer was open for questions from the Board or the public.
Dave Mills reported he met with Ed Bove of the Rutland Regional Planning Commission concerning this subject and read the following statement from Mr. Bove received in an email dated, January 11, 2018:
With the language in the Conservation District section of the Land Use Plan, “The Conservation Districts 1 and 2 consist of contiguous forested lands that are protected from the encroachment of development…” and the Future Land Use Map showing the Conservation Districts – RRPC staff will recommend to the Community Committee that this criterion of statute is satisfied for Regional Approval.
This opinion only applies to the Forest Integrity requirement does not apply to opinions regarding other elements of the Future Land Use map (such as the expansion of the Commercial Districts form the village center.
Gary Kupferer expressed concern the language included is different from the broad language and he does not know if Mr. Bove is saying the old plan complies with the new statute. The language does not mirror the new language in the statute.
David Soulia stated the second sentence of the email pertains to the color of the Land Use Map. Conservation 1 and 2 provide for single and two-family construction, but he does not know if it needs to be clarified whether it is Commercial or Non-residential, but it reads that it cannot be developed. Mr. Soulia noted this is taken from the town plan. Jeff Biasuzzi asked Counsel if it is all-inclusive that one cannot develop in the one and two-family structures. Mr. Kupferer noted it is a good point, however, the Town Plan is more of an advisory document, but what matters is the zoning ordinance because the Town Plan is more theoretical. Mr. Biasuzzi questioned an Act 250 application because Act 248 or Act 250 take into consideration the Town Plan. Mr. Kupferer was not familiar with the language in the Town Plan, but the language proposed was what is required in statute. This statute and the ANR guidebook is statewide and any town adopting a town plan after January 1, 2018 must adhere to the statute. Mr. Biasuzzi’s point is well taken because an opposing party to a development could make that argument with an Act 250 application and Act 248 is very powerful because zoning does not apply in an Act 248 hearing.
Mark Winslow stated as a board member, he could not put this writing in the Town Plan because when asking to map hedgerows it is far away from reality. Pittsford is likely to be the first town to have to consider this verbiage and he is not in favor of this type of language going into the Plan. Mr. Kupferer stated this is a good point because Pittsford’s town plan process was started before the statute went into effect and may be the first under the criteria.
Kevin Blow questioned whether the language has to be in the Town Plan to comply with the statute. Mr. Kupferer confirmed that some type of language will have to be in the Town Plan to comply because it doesn’t matter that the process was started last year due to the adoption taking place after January 1st. Mr. Kupferer’s concern is if there is someone who challenges it, there could be an expensive legal matter. Mr. Winslow expressed concern that it could be an expensive legal matter from a challenge by landowners if this type of language is added.
David Soulia agreed with Mr. Winslow’s sentiments. Mr. Soulia has discussed this matter with Ed Bove of the RRPC who advised, from a legal criterion that the Town is not under obligation to put mandatory language in the Plan. He noted in looking at Mt. Tabor, they have neither a town plan nor zoning and they still exist. Mr. Bove advised the language in the Town Plan regarding the Conservation Districts covers this language and the Town was ahead of the curve with already having this language.
Chuck Charbonneau did not want to put restrictions on any land, however, expressed concern that when obtaining direction from legal counsel, he goes with it. Mr. Charbonneau felt the Town’s hands are tied. The Planning Commission does not have this type of power and needs to pass the information on to the Select Board for their decision whether to include the verbiage in the Town Plan. The Town’s attorney would be the one to defend the Town in a dispute.
Rick Conway stated this is a decision of the Select Board. Without the confusion from RRPC concerning the map, the Plan would have been approved prior to the change in statute. There were actions done in the Zoning to remove language that was inconsistent, with the idea of amending the Town Plan at a later date. The Zoning is done and the Town Plan has now expired and Mr. Conway questioned the ramifications that this is not in force. John Haverstock advised village grant money would not be available. Mr. Conway asked for the purposes of Act 250, what would occur if the Town Plan is not in force. Mr. Kupferer stated it could be is a lot of confusion and litigation. Zoning is the key, but with Act 250 if there is not a Town Plan, there would be no restrictions and the other argument would be you couldn’t go forward with Act 250. The Town Plan is theoretical; however, how much the zoning complies with the town plan is an issue in most towns. Mr. Kupferer noted he did not have a direct answer, but he could see someone having arguments if you are pro-development or not pro-development because the town would be missing part of its planning. Mr. Conway noted it is unfortunate because the process had moved forward with the hearings completed and due to an erroneous item from the RRPC, the process had a setback. Mr. Conway questioned if there was a clause that could excuse the Town from the January 1st change since the process was so far along. Mr. Kupferer suggested the Town obtain the opinion of the VLCT on the issue of the approval process having been started, but not completed before January 1st. Jeff Biasuzzi also suggested contacting the Secretary of State for a determination. Mr. Kupferer noted it might become a controversy for other towns that had also begun the process. David Soulia reiterated the proposed language is not required because the RRPC does not have an issue with the current language. John Haverstock noted concern between the RRPC’s approval and what the court would require as far as statutory requirements. Mr. Kupferer suggested Ed Bove provide clarification and notice that the language is not required. Mr. Conway questioned if Mr. Bove is vested to make a legal decision in his position or if he has sought legal counsel, as there could not be reliance on his statement without confirmation. Mr. Kupferer suggested the Planning Commission could request the RRPC’s legal counsel put it in writing that the current language satisfies the statute. Mr. Conway stated the RRPC made a suggestion about contiguous forest when doing the process and his understanding was the language in 4382 (2a) and (2b) is statute. Mr. Kupferer stated the language that Ed Bove provided would have been before the new statute was in effect and he would like something from the RRPC indicating the Town Plan without the suggested attorney language would comply with statute.
Dave Trombley asked if the draft the language was taken from is constitutional or will the State be making changes. Mr. Kupferer’s understanding is the State has mapped out the corridors. Mr. Trombley recalled a past issue with the discussion of wildlife corridors that had many stipulations and it is his fear this language is miniscule to what was previously required and he is concerned there is a lot more coming from Montpelier about wildlife corridors. Mr. Kupferer noted there are some other specifics from other towns, but this was the document that provided information on what other towns have done.
Tracy Wyman, Select Board member from Brandon, stated he would not approve this language in Brandon’s Town Plan and has talked with another Brandon Board member who agreed that he would not approve this type of language. Mr. Wyman, as a personal landowner, noted he would be upset if his Select Board approved it.
Hank Pelkey asked if the language could be amended out if the Select Board currently chose to approve it. Mr. Kupferer advised it would have to be legally amended out through an amendment process. Jeff Biasuzzi stated statute does provide for an amendment of a town plan at any time, however, if amending to a reaction to a lawsuit, the existing town plan would come first. Mr. Pelkey stated the last time the Town was involved in a situation, it cost the Town $120,000.00. Mr. Kupferer noted that is one of the things that concerns him because his opinion is the safer route, but suggested checking with the Secretary of State and the VLCT to obtain their opinion.
Mark Winslow stated the Town Plan could be amended once the correct language is determined, however, if the language is placed in the proposed plan and someone challenges it, the same legal issues could arise. Mr. Kupferer noted in his legal opinion, the safer approach is to include the language as he would feel better representing the Town with the language in, however, again suggested contacting the VLCT and the Secretary of State.
Dan Adams asked if the current Town Plan is on a deadline and it was noted it has expired. John Haverstock advised in the absence of a Town Plan, the Town would be ineligible for grant programs. Mr. Kupferer noted more concern with Act 250 as someone could make an argument with zoning because there is not a Town Plan.
David Soulia stated having the language in the Plan should have coinciding map changes, as this could be limiting people with forested parts of their property. His major concern with the language is knowing how this will reduce people’s property rights as time progresses. The Town already has a Conservation District and property owners are aware of the limitations and this change is creating another pseudo-conservation district that he cannot in good conscience include, unless all property owners are notified.
Rick Conway stated planning commissions prepare town plans and select boards adopt them. The Planning Commission does not have any public input and it is understood that the process has to be statutorily followed. Mr. Conway thought the Town needs to reach out to the State to clarify because the process is too far along to go back. The Plan would have been adopted last year if there had not been the changes from the RRPC and the Town needs to discuss this with the Secretary of State and the VLCT to assure they know what has transpired. Dan Adams questioned if another public hearing would be held if additional language were added about a wildlife corridor. Mr. Kupferer confirmed the process would include public hearings.
Hank Pelkey stated the Select Board changed the maps, but it was done on the advise and consent of the Planning Commission Chair. Rick Conway confirmed that he was talking about the Village Designation map, not the Land Use map. The Planning Commission had a special meeting to accept the map and there was a matter of confusion and Pittsford would have adopted the Plan prior to January 1st if there had not been the issue with the RRPC. It was a lot of confusion and many things coming in at the last minutes.
Barb Lalancette requested clarification if the statute is a draft statute. Mr. Kupferer confirmed the statute is in effect and adopted, but the proposed language was obtained from a draft document that towns are recommended to comply with. Jeff Biasuzzi stated if the statute is hard and fast and does not include wildlife corridors, he thought the guidance piece could be ignored. Mr. Kupferer indicated it is not the definitive language, but the question is if the additional language is required. Mr. Kupferer suggested the Town could make the potential argument the process was started before January 1st and the Town Plan should remain under the previous statute, however, suggested the Town should confirm this. Rick Conway stated the Town Plan hearing was held on October 19th and the ANR draft is dated December 14th, which is two full months later. When holding the hearings, the Town would not have had any of the information and the Select Board made no changes except for the updated village map. Mr. Kupferer agreed there is no question the changes that came in December were insignificant, but it pushed the timeline past January 1st.
Dan Adams questioned Act 248 that deals with utilities, noting the only wind tower project was supposed to be on the Taconic mountain range that included Grandpa’s Knob. ANR was willing to let the project go forward and now he reads the landowners are not going to be able to develop their land except for single and two-family homes. If the language is placed in the Town Plan, will it affect Act 248 and will it override the PSB’s approvals based on Plan. Gary Kupferer stated with Acts 250 and 248, the town plan is very important. John Haverstock advised the State has felt pressure to give deference to town plans regarding Act 248. Mr. Kupferer noted if a project did not comply with a town plan, Act 250 would likely not approve it. Act 248 is like Act 250 for utilities, but has ignored town plans when wind tower projects were being considered. With Act 248, one does not have to comply with zoning.
Rick Conway believes the Town has to include substantial deference in the Plan for energy projects. The Planning Commission did not go that route until the RRPC’s Energy Plan has been approved. Dave Mills stated at this month’s meeting, the RRPC would be discussing the Energy Plan. Every town had indicated they do not want any wind energy that required the towns to come up with more solar. The final draft of the plan was submitted in July and it was supposed to indicate no wind. Dan Adams asked if it included the Town Plan and the Zoning bylaws, as there would have to be a map overlay. Mr. Kupferer stated it would not be included in the Zoning map, but rather the Future Land Use map. Mr. Kupferer advised the way the statute is written, it is identified by the state, the regional planning commission and the municipality and suggested clarifying this item with Ed Bove.
Dave Mills, as a landowner, is not in favor of the language, but questioned if the language could pertain to just the Conservation zones because they are very restricted. Mr. Kupferer asked if the forest blocks and wildlife habitat connectors are the Conservation District. Mr. Kupferer noted there is a statewide map that outlines these areas and if they were already in the Conservation District, he would agree. Jeff Biasuzzi stated the new Forestry bill going through in the spring would have a plan for consideration towards these wildlife corridors. Dan Adams asked if there is any guidance given as to what the corridors are supposed to be. Rick Conway worked with Steve Schilds of the RRPC on the development of the maps for the current proposed Plan dated 9/13/17 and there is a map that includes the natural resource language outlined. The Planning Commission was told the maps were required to be in the town plan. In the town plan process, the Planning Commission sent Certificates of Service to adjoining towns and if the State wants the Plan changed, those towns would need to be notified. The Town met all requirements, including the addition of the river corridors that was prepared by the RRPC. Mr. Kupferer suggested the information provided by the RRPC might have satisfied the requirement. Jeff Biasuzzi questioned how the State is going to mandate some of these items, such as river corridors because they are now a town-by-town option that could provide additional compensation in the event of a flood. The wildlife corridors may affect current use value plans. Mr. Mills stated there are no boundaries and the Town of Pittsford will now affect Brandon, Chittenden and Rutland Town and he does not think it is fair to move forward without notifying those towns. Tracy Wyman stated in 2017, the H233 bill affects 10-acre parcels and above. Jeff Biasuzzi stated that might be one of the bills that will be sent back for a study.
Rick Conway believes the Planning Commission is done with this process, as the Select Board has the authority to adopt the Plan and they would be the governing body to make the change and send it back to the Planning Commission for change. Mr. Kupferer agreed if the Planning Commission chooses not to adopt the language, the legislative body could still make the change. John Haverstock stated prior to Select Board meeting, the Town could obtain input from the Secretary of State and VLCT. Mr. Kupferer noted the key is that the Plan is adopted by the Select Board at the end of the process and there is the potential argument that the process was started under the old statute. It was the Board’s pleasure to have the Town Manager contact Ed Bove of the RRPC, the Secretary of State and the VLCT to obtain an opinion that would allow the Select Board to make a decision.
Dave Adams noted the State of Vermont has passed another law without coming to speak with landowners. He has been working with the Federal and State Wildlife Departments in developing a wildlife corridor without the State requiring him to do so, but he will now hold off from doing this as it could affect the people that border him.
Rick Conway was aware of additional meetings being scheduled by the group, Staying Connected and Mr. Adams noted this was the group that began the discussion of wildlife corridors. Dave Mills stated there had been a previous hearing with regard to a grant application for Staying Connected and the next step had been to go to the legislature. Mark Winslow stated this appears to be an agenda, but not reality.
David Soulia questioned if the Town was open to lawsuits if the Town Plan did not include the suggested language. Mr. Soulia thought if the language were included, it would open the Town to lawsuits from a taxpayer’s perspective. Mr. Soulia reiterated Mt. Tabor has no zoning and Fair Haven did not have a town plan until just recently and asked how it would be that Pittsford would be subject to lawsuits if they were not. Mr. Kupferer stated there was a zoning issue in the Town a few years ago and though the safer legal way would be to comply with the statute, though agreed that whatever is done, there could be lawsuits. Dave Mills asked if the Town Plan would be legitimate for another 6 years if it were adopted without the language and as long as there are no changes in zoning and no one contested anything. Mr. Conway stated it was his understanding that originally town plans expired every five years and it is now eight years; and procedurally an issue had to be brought up in two years. Mr. Kupferer could not confirm whether this was correct.
Dave Mills stated 250 years ago many people suffered and died for the rights we have today and for any town to give up people’s property or individual rights that the State is mandating is disgraceful, especially if it is clear that it is a special interest group pushing this with a federal grant. Dan Adams noted if this movement goes forward, there will be a drastic restriction of interests on properties because landowners are fed up of the restrictions that are being placed on them. Gary Kupferer stated this is inverse condemnation because it is an indirect taking.
John Haverstock thanked Mr. Kupferer and the Planning Commission for the discussion. Mr. Haverstock will report to the Select Board and Planning Commission the information that he obtains from the Secretary of State, VLCT and the RRPC.
6. Election of Chair Person
Dave Mills entertained a motion for a new Chairperson. Rick Conway stated the Planning Commission usually appoints a new Chair after town meeting due to possible changes in the members and suggested electing an Acting Chair until that time. Mark Winslow thanked David Soulia for his work as the Planning Commission Chair as the Board completed a lot of work under his direction. Dave Mills reported there is also a vacancy on the Planning Commission. Mr. Mills would be willing to serve as Acting Chair until March and would be agreeable to serving as Vice-Chair at that time.
A motion was made by Rick Conway and seconded by David Soulia to elect Dave Mills as the Acting Chair Person of the Pittsford Planning Commission until town meeting in March. The motion passed unanimously.
Jeff Biasuzzi questioned if the Planning Commission had any information to submit for the next Pittsford News. Mr. Biasuzzi will advertise for the Planning Commission vacancy and the Select Board hearings and announce the changes in the Board Officers.
7. Schedule Date for Next Meeting
January 25, 2018 @ 7:00PM – Planning Commission Meeting
A motion was made by Mark Winslow and seconded David Soulia to adjourn the meeting at 8:49PM. The motion passed unanimously.
The Pittsford Planning Commission