Interim zoning was extended another three months on Nov. 4, but how close are committees to wrapping up their work?

Michael Mittag, a planning commissioner and member of the Transfer Development Rights interim zoning committee, presented recommendations to fellow commissioners on Nov. 12, but they circled one question at-length: whether this is what the city council wants.

How they got here

Interim zoning began a year ago, in November 2018, and was approved for nine months with the option to renew in three-month increments, up to three times.

The bylaw puts a hold on all new development applications in the city in order to evaluate and update city land use regulations. Development applications that came before the development review board prior to interim zoning are not included.

Land that is exempt from this moratorium on development includes land within the Transit Overlay District, the Meadowlands Industrial Park, the Ethan Allen Industrial Park, the airport, Shelburne Road, and the Auclair property in the South East Quadrant. There are also three small areas just outside the Transit Overlay District, including a portion of the O’Brien family property. 

Evaluating the Transfer Development Rights (TDRs) bylaw is one of the four tasks outlined for interim zoning work. The use of TDRs is a mechanism which allows a developer to purchase the development rights of another parcel and transfer it to a parcel that is planned for denser development – leaving the former parcel open in perpetuity.  

TDRs are currently only permitted within the South East Quadrant, which critics say contradict the “open space preservation, scenic views and natural resource protection, wildlife habitat preservation, continued agriculture and well-planned residential use,” as described as the South East Quadrant (SEQ) section of the Land Development Regulations. 

TDRs have also spurred some legal trouble. The Environmental Court ruled some of the language as “unconstitutionally vague,” and ended up overturning an approval for a project, Spear Meadows, with the use of TDRs. 

One of the most recent controversial projects concerning TDRs is the Dorset Meadows development, which is at the corner of Nowland Farm Road and Dorset Street. The proposal of over 150 units drew in several alarmed residents to its hearings, some with legal representation. The development review board closed the final plat application earlier this month.

Where are things going? 

The charge of the TDR interim zoning committee, as outlined by council’s interim zoning adoption letter on Nov. 13, 2018, is to “undertake an analysis of the program for the Transfer of Development Rights established in and by the Land Development Regulations and recommend options for its implementation.”

“Having TDRs sending and receiving in the same area is problematic,” Mittag explained as fundamental issue at hand; he added that the current structure “doesn’t support the Comprehensive Plan’s objectives to conserve or preserve open space.” 

According to the written findings shared with the commission dated Oct. 8, 2019, an estimated 1,357 TDRs –116 of which are owned by the city and 1,241 by landowners. The committee could not find other TDR programs that transfer development rights from forests, farmlands, meadows and fields to other fields, meadows and farmlands, the findings state.

Limited receiving areas, a mechanism lacking in connecting TDR holders with potential buyers, as well as lack of an easily-accessible database or registry of available TDRs are some reasons why the TDR market has not been robust as envisioned, it continued. 

Interviews with four developers and two TDR owners further confirmed the program’s potential for a market outside the SEQ, Mittag said. Though he did not reveal their identities, he asserted that the sentiment was generally the same. Areas primed for development or redevelopment, like along the Williston or Shelburne Road corridors, would be desirable for developers to receive TDRs and owners to sell them. 

After reviewing the recommendations, Mittag asked the commission if the committee agreed with those recommendations so that the committee could get back to work on next steps. This is where the confusion set in. 

Based on the adoption letter, the question remains if the recommendations listed were sufficient for the city council, or if councilors would expect more information around implementation. 

The city council received an update with recommendations in July, so there must be more work to be done, Mittag said. Based on the verbiage in the adoption letter, commissioners spoke extensively about what they interpreted was enough information and how to go about asking the city council.

Kelly Lord, a member of the TDR committee, attended as a member of the public.

“As someone who’s been in the community for several decades and has already seen interim zoning come and go, I don’t think the community is saying, ‘just get this out as soon as possible.’ I think the community is saying, ‘get it done.’” she said. 

“I think a lot of us actually want to see something done this time, which means that there has to be policy changes and LDR changes and that’s what the recommendations are,” Lord added. 

“You may be right, but have a limited amount of time left,” Commissioner Bernie Gagnon answered. “We want to make sure we want to use it efficiently and make darn sure we give the city council what they’re looking for.”

Commissioner Art Klugo concurred.

“Per the resolution, we’re providing recommendations. It would seem we’re done,” he said. The council may decide the recommendations are enough and that treating the legal language in the LDRs will be a separate effort and not required as part of interim zoning, he noted.  

Ultimately, it’s the council’s choice, Paul Conner, director of planning and zoning, concluded. Councilors could also decide to include policy changes as part of interim zoning, 

This commission voted to have staff draft a memo for council as a “peek behind the curtain,” to gauge if the recommendations format is sufficient or if more work needs to be completed. The commission’s chair and vice chair will comb through the memo before sending it to council, commissioners, and TDR committee members.

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