WHAT MIGHT BE ILLEGAL ABOUT THE TOWN-CENTER-RELATED ZONING CHANGE?

At last night's City Council Work session on the zoning rewrite for the Overlay district, councilors repeated many times how important it is to make the distinction between the zoning change and the particular project, so many times, in fact, that it seemed like special pleading. There is very little distinction to be made between the zoning re-write and the interests of the Sinex Town Center redevelopment, but to admit this puts the City in the Spot Zoning hot seat.

Over the last few sessions this predicament became even clearer: On Thursday evening, councilors put forth various proposals to shrink or expand the overlay district. Some suggested removing the Macy's parcel, the People's Bank parcel, the other bank parcel; Dave Hartnett suggested expanding the overlay district so that MORE buildings could go higher. Would removing this or that parcel make the zoning change spot zoning? No one was sure, but all were sure that the more parcels removed, the more danger there was. Still, the City Attorney persisted in affirming that there is no problem with the overlay as is being spot zoning. But last night the discussion about adding a section of Church Street not currently in the overlay district revealed that there may, indeed, be some anxiety about the culpability of the city. Why else add this section which is still under review by the Form Based Code committee, why else would David White be push, push,pushing the addition of this section (allowing Church Street heights to go up in a staggered set back fashion) when both the Planning Commission and the Ordinance Committee have CLEARLY recommended NOT to do this? Why else would David White feel it necessary to misrepresent the position of the Planning Commission last night (when their comments can be clearly verified on tapes of the meetings), by saying that there was "no opposition" on the part of the Planning Commission to making this change.

Over the last few meetings other questions of legality have arisen, particularly regarding the question of the binding nature of the Pre-Development Agreement approved in May by all City Councilors except Max Tracy and Chip Mason (the latter having recused himself due to conflicts of interest). Many councilors and the City staff assured the public that signing this agreement was not binding in any way, that it was really just a great way to finally get the information they needed to make an informed decision (guess what, much of that information has still not been provided and the model came too late for it to have any bearing on either the Planning Commission or Ordinance Committee discussion). Some said they would not sign the final agreement unless certain changes were made. But on Thursday, City Attorney warned the councilors that certain changes to the overlay district zoning change upon which the PDA is predicated would not only make the contract/agreement void, but might be actionable.

Suddenly we are told that to NOT change our city's zoning to cater to this one developer's wishes and the promise of one development might be illegal! When it is also probably illegal to do just that! 

Another sore point is the question of whether or not the new zoning ordinance is in compliance with our comprehensive plan and Plan BTV. The Planning Commission (as noted before in other posts and particularly by the letter co-written by Planning Commissioners, Emily Lee and Lee Buffinton, printed in full below) is required by Vermont Law to have filed a report 15 days before a public hearing on a zoning change that asserts that the change is in compliance with the city's comprehensive plan and that it fosters the creation of safe and affordable housing.

The Planning Commission never filed such a report. David White did so in their name, without their knowledge, and without consulting them on these questions. They never did come to a conclusion on these vital questions, even though (after Lee Buffinton recused herself) they did agree to move the ordinance packet with their comments on to the City Council.

Why did they not come to a conclusion about these questions? Possibly because they did not have time; probably because they could not in good conscience rule that the zoning change is in compliance with our comprehensive plan, which calls for human scale development , "within the permitted development envelope"  (meaning within our current zoning), which calls for underground parking, does not call for university uses or student housing downtown, which calls for the creation of affordable housing for families and middle-income residents. They probably could not in good conscience affirm that the zoning overlay, which does away with the leverage for requiring more affordable housing units and replaces it with a by right height allowance, fosters the availability of safe and affordable housing. The specific development associated with this overlay (which they should not be considering, but, hey, no one can forget it), offers 80 units of student housing (not a relief at all for the housing problem), only 54 units of affordable (if the zoning were as it is the city could ask for up to 20% more affordable units to just get the building up to 85 feet!), and the rest of the 274 (just one below the Act 250 threshold!) will be luxury units.

What most people do not seem to understand is that it is illegal for the city to pass a zoning change that is not in compliance with our comprehensive plan and does not foster the creation of safe and affordable housing. 

One supporter of the project accused the Coalition last night of misrepresentation because we are alleging that there may be illegal things happening. She said that the CITY ATTORNEY says everything is on the up an up, so how can we allege that it is illegal?! Well, legality is ironed out in court and is not a black and white question. We do not know what the final ruling on any of these questions would be, but we certainly think there is great cause for concern on many counts. Other lawyers not on the pay roll of the City agree with us. 

In any case, the laws are made for a reason, to protect certain things like due process, public input, consistency, to avoid special interests and corruption. Would it be something to crow about if the city was able to subtly and sleezily get around the law and not get in trouble? I am sure most of us demand much more from our public officials than the ability to work the system in the interest of a developer.

Next City Council Work Session is on Wednesday at 5 P.M. Come early to sign up for Public Comment time. The Council is expected to deliver its final vote on the Zoning Change by September 12th. Let the councilors know your concerns through email or phone if you cannot come to the meeting!