Burton appeal denied

In a 4-1 split decision, the Burlington Development Review Board voted to deny an appeal of stormwater improvements and parking layout revisions at the Burton Snowboards facility on Queen City Park Road.

The board has up to 45 days from that vote – made during its Jan. 22 meeting– to finalize the decision. A separate appeal, made by the city council of South Burlington, was withdrawn before the meeting, under several conditions.

The denied appeal was made by a group of South Burlington and Burlington residents whose properties neighbor the Burton Snowboard facility. The group, called Citizens for Responsible Zoning, appealed the permit on the premise of how it was granted, among other points.

They say that the scale of improvements and parking layout revisions exceeds that which can be approved administratively and should have been handled under Burlington’s Development Review Board process – which involves public meetings and allows for comment.

The group is concerned the proposed changes are the beginning of a series that would see South Burlington’s Higher Ground concert venue move into the Burton Snowboard facility.

According to Justin Worthley, Burton’s senior vice president of human resources, talks between Higher Ground and Burton about the concert venue have been public. And they are still in the works, he told The Other Paper.

This summer, several South Burlington residents from the Queen City Park neighborhood shared their concerns about the proposed Higher Ground to Burton move with South Burlington city councilors.

During that council meeting, the neighbors cited potential dangers, like inebriated concert goers cliff diving at Red Rocks Park, emergency services having difficulty navigating the one-lane bridge near the Burton factory and increased noise levels in their neighborhood.

But during the Jan. 22 meeting, Burlington Development Review Board Member Brad Rabinowitz said the board had no applications seeking approval for a concert venue on the Burton property.

“This is not anything to do with, I believe a performance venue, at this location,” Rabinowitz said. “The conversation tonight is about the parking lot and the stormwater and changes there.”

The two permits before the board that evening were related to site work that would address new state stormwater requirements under Act 64.

But the Citizens for Responsible Zoning group’s attorney, Frank Kochman, contended that the stormwater improvements and parking lot changes represented the first step “in an effort to compartmentalize and fragment” what he said would become a significant change of use at the facility.

It is a common tactic used by developers that limits the scope of public review on their activity, he said.

“The way I see it is, all’s fair in love, war, and land development,” Kochman said. “It’s certainly not illegal to try to separate the matter. The question here is whether the developer has legally succeeded under the rules, in avoiding your review.”

The difference between the two approaches is that the development review board process involves public meetings, while the administrative process is completed in-office by the city planners, Burlington Zoning Clerk Alison Davis previously told The Other Paper.

Burton responds

During the meeting several representatives from Burton spoke to the stormwater project designs.

The Burton representatives shared that the proposed stormwater and site changes were not an attempt to “game the system,” they said, adding that efforts to redesign stormwater management on the property had begun back in 2014. Burton tabled that work because new stormwater rules were still several years away, and the company was uncertain of its plans for the building.

“We’re certified as a B-corporation, sustainability is a major commitment for us as a corporation,” Worthley said at during the hearing. “The last thing we want to do is be at risk of not being in compliance with the state stormwater requirement.”

According to Worthley, discussions between Higher Ground and Burton around a venue change to the Queen City Park facility have been discussed publicly and are ongoing.

Worthley added that application would need a conditional use approval.

“There’s going to be public input on that,” he said. “That will be a place where people can look at what we say we’re doing and if they still have concerns about it that will be adjudicated by the development review board, process.”

The company is close to filing a conditional use application, according to Worthley. But Burton has to “button up a few things” first, and looks to talk to the Citizens for Responsible Zoning group and South Burlington about how they plan to address noise, safety and traffic concerns –before the hearings, Worthley said.

“We are working our tails off to make sure we’re doing this project in a way that’s going to create an amazing location that people are going to love and not something that creates problems for the neighborhood,” he continued.

Citizens for Responsible Zoning responds

Laurie Smith, a South Burlington resident and member of the Citizens for Responsible Zoning group, was disappointed by the Burlington Development Review board’s decision.

“It was pretty disappointing during the deliberations to hear them say that they were correct on the law but were going to defer to staff,” Smith said.

Citizens for Responsible Zoning planned to regroup during a meeting on Sunday, Jan. 26. They have 30 days to decide whether to appeal the permit applications in environmental court, Smith said. And they are still concerned about the conditional use permit that would see Higher Ground move to the Burton facility, he added.

Smith says the group isn’t against Burton or its vision for a “dynamic,” multi-use facility. Rather, they are worried about the scale of the project.

“The concern is appropriate scale to the neighborhood, and the largest rock concert venue in the state of Vermont going into the middle of a predominantly residential neighborhood ... just doesn’t make sense,” Smith said. “It’s not opposition to Burton, it’s not opposition to their hub concept and it’s certainly not opposition to stormwater [management].”

Smith noted that some may view the group’s argument as “NIMBY” (“not in my back yard”) and while he says there’s some truth to that, he believes there’s more to it.

“In urban areas light pollution and noise pollution are two of the biggest issues,” Smith said.

Burlington already has a late-night noise corridor, he said, adding it makes more sense for noise levels, traffic and the environment to keep that area centralized.

“It’s sort of a big overarching issue besides just this, ‘Oh we don’t want it in our backyard,’” he said. “It’s, ‘Let’s preserve the pockets of quiet that are rare in our urban environment.’”

Scope of the Work

The lot and stormwater changes proposed at the Burton site, including excavation and other site work, exceed 500 square feet of development, requiring a development review board review, Kochman said.

But Burlington’s Principal Planner, Scott Gustin, says it was appropriate to the permit application. The proposed changes are a net reduction in impervious surface, not an addition, he said.

“Nothing in the appeal correctly provides grounds to reverse these two zoning permit approvals,” Gustin wrote in a letter to the development review board.

The construction cost and size of proposed changes meant the permit applications could be reviewed as a Certificate of Appropriateness, Level 2, and reviewed administratively, Gustin wrote. His letter outlined how the site plans reduce lot coverage and contain no change in total parking spots.

The plans also call for some landscaping changes, revised outdoor lighting and stormwater management changes. And there is no net change in the number of curb cuts, rather some alterations to the location of the proposed curb cuts – subject to review by the city’s right-of-way and excavation inspector, the letter says.

“In sum, a number of existing features are to be altered, but very little is actually new,” Gustin wrote. He recommended the board move to “uphold the approval” of the two Burton permits.

Why South Burlington withdrew

South Burlington City Councilors had also filed an appeal against the Burton applications for stormwater and site work. Those applications were filed due to a concern that part of one of the facility’s curb cuts encroached on South Burlington land.

The councilors voted to withdraw their appeal the night before the hearing, on the basis that several conditions were to be addressed in writing. According to City Manager Kevin Dorn, Burton has agreed to revise its plan so that the curb cut does not encroach on South Burlington land. Burton has also agreed to install gates at the curb cut limiting access to large vehicles conducting operations at the building’s loading docks.

The council is satisfied with the gated entrance and restricted use, Dorn said. But, he added, change of use is a “different issue.” He said change of use at the Burton facility is a “matter of significant concern” to the councilors.

Councilor Thomas Chittenden confirmed a change of use application is a matter of concern. While he supports stormwater work at the Burton facility, he is concerned about Higher Ground’s 1,500-seat concert venue moving to that location, away from emergency services.