Communication from Emily Lee and Lee Buffinton on Improprieties in Public Hearing process

July 6th, 2016

Fellow Planning Commissioners,

We are concerned that the Public Hearing on the Downtown Mixed Use Overlay is premature and does not meet legal requirements under Vermont Law. Furthermore, many of the documents in the meeting packet contain errors and/or omissions in regard to the Planning Commission’s positions.
Vermont Law States:
"When considering an amendment to a bylaw, the Planning Commission shall prepare and approve a written report on the proposal...The report shall provide a brief explanation of the proposed bylaw, amendment, or repeal and shall include a statement of purpose as required for notice under section 4444 of this title, and shall include findings regarding how the proposal:
(1) Conforms with or furthers the goals and policies contained in the municipal plan, including the effect of the proposal on the availability of safe and affordable housing.
(2) Is compatible with the proposed future land uses and densities of the municipal plan.
(3) Carries out, as applicable, any specific proposals for any planned community facilities.
This mandatory Planning Commission report must be completed 15 days prior to a public hearing in order to meet certified notice requirements. The Planning Commission has not prepared and approved a written report as required by law. Nor have we had a comprehensive discussion on the proposed amendments’ conformance with municipal policies, including the availability of affordable housing. Furthermore, we have not reached consensus on these issues. Indeed, some Commissioners have raised concerns that certain regulations do not conform to the goals and policies of our municipal plan. For instance, at our last meeting commissioners expressed universal opposition to the proposed regulation that would permit a college campus to occupy the Burlington Town Center site, emphasizing it would be contrary to Plan BTV which calls for mixed uses and a variety of housing types. Clearly, the Planning Commission need to carefully assess the proposed overlay district and its many regulations for conformance with the goals of Plan BTV, which is the Municipal Development Plan.
For instance, in order to comply with the law we are asked to consider the effect of the proposal on the availability of safe and affordable housing. We have not considered the number of affordable units the proposal without height bonuses would create compared to the existing bonus structure. Nor have we factored the impact of allowing student housing, which may be exempt from the low income housing requirement, into that equation. Without more specifics and study we cannot assume that this proposed amendment furthers our goals and policies regarding affordable housing
The Burlington Planning Commission Report Municipal Bylaw Amendment found on page 43 of the July 6th Planning Commission packet, was written by Planning and Zoning staff and not the Commission. The Commission members are seeing it for the first time in the packet and have never discussed its contents nor voted on it. It does not accurately represent the views of the Commission. Nor, does it satisfy our legal requirement to deliberate and write our own report.
The Summary of Planning Commission Comments & Actions in our packet for July 6th public hearing needs corrections and additions to truly reflect the positions taken by members of the Planning Commission at recent meetings as follows:
Key Elements #3 as written: "The Commission understands the limitations associated with bonuses and the rationale for moving away from them in this overlay, and generally agrees that provisions/restrictions should be explicit"
Note: The Commission has not voted on this and this is not the unanimous opinion of the Commission.
Key Element #4 as written: "Retain current maximum height of 105ft to conform with illustrations in planBTV Downtown & Waterfront."
Correction: The current maximum height is 65' and only with bonuses can a building be 105'. We suggest changing the language to reflect one member's stated preference to "Retain maximum height of 65 feet by right with options for additional height with bonuses."
Note: Members of the Commission are not able to make an informed decision on the appropriate height and massing for this site because of a lack of appropriate visual tools such as a physical model and sufficient time to review and debate the change. The Planning Commission needs more time in order to make the legally required assessment for conformity to the municipal plan regarding height and massing.
Key Element 11 as written: "The Commission supports the language regarding the urban design treatment of parking floors. The Commission feels that if parking is permitted in these areas, high standards are needed regarding the screening of cars and lights."
Note: Some members of the Commission want stronger language regarding compliance with Plan BTV's emphasis on underground or completely wrapped parking, so that exterior design treatment and screening of cars and lights would not be needed at all.
Conclusion in Key Element 12 as written: "Therefore, the Commission recommends no parking structures at the perimeter of a building on the ground and second floors fronting streets, and reiterates the importance of the design and screening requirements to ensure that any parking located in above-ground structures is indistinguishable from other floors of a building from the street view."
Note: The Commission has not voted on this element. There were suggestions by members of the Commission to have the parking completely wrapped by a liner building or off site in order to be in conformance with Plan BTV that should be added to the letter.
Key Element 16 as written: "The Commission is uncomfortable with the remote possibility that this district could become a post-secondary school/campus. The Commission recommends that the CDO’s use table not be modified as proposed."
Correction: The Commission is uncomfortable with post-secondary school/ campus being an allowed use on the use table because it is not consistent with Plan BTV. The Commission recommends that the CDO's use table not be modified as proposed, allowing post-secondary schools/colleges as conditional uses only.
Note: The term "remote possibility" is an editorial comment that does not reflect the opinion of the Commission.
Many of the above errors and omissions are also present in the letter to City Council written by Planning and Zoning staff that suggests that the Planning Commission "strongly supports" the adoption of the Downtown Mixed Use Core Overlay District amendment”. In fact, The Planning Commission has not voted on this matter. This letter goes on to states that, "The Planning Commission finds the proposed amendment to conform with the goals and policies contained within the City's Municipal Development Plan regarding the availability of safe and affordable housing, future land uses and densities, and proposed community facilities." In fact, the Planning Commission has not come to this conclusion and we have not chosen to delegate this decision-making to others.
In summary, due to our above mentioned concerns about the Public Hearing, We respectfully ask that the Public Hearing be postponed until we as a Planning Commission are able to perform the due diligence required to meet our legal obligations.
Thank you.
Emily Lee
Lee Buffinton