Board members present: Ethan Swift, Linda Stewart, Anne Bransfield, Jenny Nixon

Others present: Tina Wiles, Chris Lekberg, Phyllis Reed, Fred Dunnington, Middlebury Town Planner, Janet Mondlak

The meeting was opened at 7:05 pm

Ethan introduced Brandon's planning process by laying out the timeframe with the adoption of the Town Plan last spring and how the Planning Commission is currently revising the land use ordinance. He said there are some issues that Brandon is looking at which are addressed in the Middlebury bylaws, including PUDs, waivers, and development issues in the downtown.

Ethan introduced Fred Dunnington who is Middlebury's zoning administrative officer and town planner. He works in an administrative capacity on some of the town's projects.

Fred presented slides of Middlebury including land use (and associated geographic constraints), zoning districts, their build out analysis, and population density as GIS tools to help guide planning and zoning processes.

In addition, Fred explained their Town Plan map showing land use districts: flood plain, rural and AG areas, the airport, Middlebury College, their industrial park, residential areas, a protected highway district (highway commercial - they have tried to manage development along Route 7 for instance), the proposed OMYA rail spur, and the proposed bypass routed along the eastern side of town.

Fred discussed the issue of Designated Growth Centers and explained how the planning commission wrote them into the town plan. He said the town went through the preliminary application process to formally designate these growth centers but did not complete the process through the State. Fred said there are no real incentives for doing this and it represents a lot of work.

Fred then discussed their Village Area Land Use Districts

Ethan then asked whether or not Middlebury had a designated downtown and Fred indicated that it is. There is a separate tax assessment district. The district grew out of a plan he wrote in the early 1990s. The idea was to expand downtown, give the downtown more mass and identity, better market downtown, have a downtown coordinator, and have a tax assessment district. To date, the district has leveraged $1.2 million in grants with the $30,000 they raise each year.

There is a Downtown Improvement District Commission comprised of a group of business people who identify eligible projects to the Selectboard. They fund downtown amenities as if the downtown was a mall. Fred said in addition, there is the Better Middlebury Partnership (formerly known as the Downtown Middlebury Business Bureau) which is a nonprofit 501 C 6 organization which works with businesses as an advocate. The Downtown Improvement District is operated out of the town and they collect taxes. The Partnership works in cooperation but operates separately.

Planned Unit Developments - Fred pointed out Adams Acres on a site plan. It is behind G Stone Motors and Rouse Tires. It is a residential area started in the 1970s. It has been building out slowly. There are other residential PUDs which haven't been built out. He described another PUD which started in the 1960s for an insurance agency headquarters. Although there is a business headquarters there amongst residences, they are compatible.

Fred said there is a Design Advisory Committee comprised of design professionals from around the community. For any project which has to go in front of the DRB, applicants are asked if the project involves buildings or designs, particularly historic buildings, if they want to utilize the services of the Design Advisory Committee. It is a free service made up of volunteers. He said sometimes it works and sometimes it does not. He said once people get into the hearing process they already have a lot invested in the project and it is harder to get them to modify their project. Some people "don't want to show their cards" until they get to the hearing. He said that in cases where it works, the advisory process changes the psychology for the applicant. It can disenfranchise the public if they realize that the applicant has already worked with the town. He said when it works, it has resulted in great results. Fred said that a project's appearance is very important. People care about that. It requires skill and people who understand the design process to serve on this type of Advisory Committee. Applicants have reasons for doing things, often economical. Can people be advised in residential renovation projects? Fred said yes, for additions. The committee will give advice at any level. When there is an application for a basic metal building or a gravel pit, there is not much for the Design Advisory Committee to do. Fred said the committee was established in 1987 and is served by various professionals in the areas of real estate and architecture.

PUDs - Fred said Middlebury recently hosted a meeting for Smart Growth Vermont (organization formerly known as Vermont Forum on Sprawl) called the Vermont Neighborhoods Project. Middlebury was used as an example regarding how to envision mixed use projects. The idea of the program was to obtain community ideas about new housing development on specific sites in Addison County. Fred reviewed the visioning graphics showing different types of developments. He said getting a developer to invest in a mixed-use project can be a challenge.

Fred explained the theory of a PUD. He said the developer would look at what is buildable under conventional rules and then take the same number of units and cluster them. On-site amenities are identified which are often natural assets. Densities are usually figured on a gross basis (i.e., they include wetlands in the number of permittable units, even if those lands could not have been built upon). Clustering can save money on roads and utilities. Middlebury has a density bonus for affordable housing but he does not think it has been used. Development costs are high.

Fred said the most recent building in Middlebury has been focused in the "South Village" at the southern edge of the downtown area between Court Street (Route 7) and Creek Road (this is the Village Residential and Commercial District). They are mixed use PUDs with retail, housing, commercial, etc.

The biggest PUD is Middlebury College. Fred said they have embraced a PUD and master plan for their own benefit. He reviewed the challenge of getting the College to come up with their Master Plan. Middlebury College is a big tax exempt enterprise in town but they use a lot of services. Town residents have been subsidizing municipal services resulting in a good deal of resentment. As the College was looking to grow out the campus, it was time for the Town to work with them on "a gift in lieu of taxes". He said currently, the Town and College have a great partnership. They gave $9 million to the Town for the Cross-Street Bridge construction which otherwise would not have been able to be built. Fred explained how the Town used the PUD tool in that instance to force the College to do master planning. He said the College's Master Plan is now being used for their own purposes and the most recent updated version has elements in it the Town did not ask for.

Ethan said the Brandon Town Plan has labeled some areas suitable for future growth. He asked Fred if in Middlebury's effort to focus more development toward South Village, if it was a combination of looking at infrastructure and suitable land and trying to encourage developers or investors to look at that area? Fred said a lot happens by subtraction. There are areas unsuitable for development because of topography, natural resource constraints (e.g. wetlands and floodplain areas), or ownership. In addition, there are the additional constraints due to conserved lands (land trust parcels) and the Green Mountain National Forest. Potential development is also constrained by a ridge of mountains the east and heavy clay soils to the west. There are also primary agricultural soils with existing agricultural operations. Town planners look at population projections including the surrounding towns and then do a build-out analysis based on density allowances as per land use districts. This analysis looks at all potential buildable areas both residential and non-residential. He said some property owners do nothing with their land for years. South Village was built before others which might have been more suitable because the land was available. There is another PUD east of the airport with a 40 lot subdivision which might come out of hibernation soon. Fred said doing an analysis of what could be built by zone is very helpful as is traffic planning.

Fred reviewed some of the more recent controversial plans. In 1994, a big Price Chopper with a restaurant was proposed (for where the Chittenden Bank now sits). It took two years for the DRB to go through the hearings. A Comfort Inn was being proposed at the same time as the existing Marriott. That was a contested project. The Marriott decided to modify the project based upon the Design Advisory Committee's recommendations and at the time, the Planning Commission (it was before the creation of the DRB), denied the Comfort Inn. The Marriot was subsequently built because of their flexibility and being agreeable to modify their project design.

South Village is a mixed-use PUD consisting of 45,000 square feet of commercial space, 30 apartments, 24 cottages and 27 village homes. The commercial segment consists of (or will consist of) retail, office, bank, and sit-down restaurant, apartments. All the housing has been classified as "affordable." There is still vacant space for the retail and sit-down restaurant. Fred said there is another recently built 30 unit apartment building north of Shea Motors. Both are full and both are the first ones in town with underground parking.

Ethan asked whether there was anything (on the books) requiring the land owner to sustain affordable housing over a period of time. Fred said there are some housing land trusts in the region that perpetuate the affordability aspect of these projects. However, town planners are developers are rethinking this designation of some of the units. He said the mixed uses proposed for offices and retail have not yet happened. They designed the building with energy efficiency in mind (e.g. LEED certified, etc) but they couldn't find any tenants. He reviewed what happened with some of the proposals for the PUD: an Aldi's Market, a Starbucks, and a Staples. There was a lot of opposition with more than 1000 people signing a petition against these most recent proposals. He said there is a criterion in their bylaw that says "there will be no undue adverse effect on the vitality of the downtown." How do you define that (asked Ethan)? How did Starbucks and Staples go away? Fred said after eight hearings, the DRB wrote an approval. It was appealed by both the opposition and the developer. The DRB had written in the decision that the project would not have an undue adverse effect on the economic vitality of the downtown. The DRB tried to strike a balance but the developer didn't like everything in there. Both the neighbors and the developer appealed. It went to Environmental Court and it was eventually withdrawn because of the current economic situation.

Fred spoke to the rebuttable presumption provision for Act 250 permitted projects. Discussion ensued about economic impacts and how they are written into DRB decisions with regard to Criterion 10 of Act 250. Middlebury's DRB has local Act 250 review with regard to criteria 6, 7, and 10 as does Brandon.

Ethan asked whether or not Middlebury imposes impact fees on new development. Fred said Middlebury does not require impact fees. He said building downtown costs more because it is more expensive to be in the downtown district. It often costs more to renovate "old" buildings rather than building something "new."

Middlebury has banned buildings being painted franchise prototype colors, including the incorporation of brand logos (i.e. which are not exempt from signage requirements).

Fred then discussed the South Ridge / Lodge at Otter Creek PUD project. Fred said this is on 220 acres, mostly surrounded by conserved land. He showed the development and said it is a 40 lot subdivision as well as a senior housing facility. There are only three houses built so far. The developers found more interest in single family housing and decided to build out the roads, sewers, etc in one phase to accommodate this perceived interest and need for this type of housing stock. It is often easier and cheaper for developers to build this type of infrastructure in one phase as opposed to doing it piece-meal.

Currently, Middlebury has permitted but not yet built well over 100 units of housing. There is an Industrial Park with a master plan with 100 acres. A lot of land has been placed in conservation although it is essentially flood plain unsuited for development.

There is another permitted senior housing facility called East View which should begin construction this coming summer.

Linda asked if it is possible to ask developers to only start building infrastructure for lots which have been sold. Fred said economies of scale don't work to just build small pieces. How bad is it that there are building lots which are unsold? The owner of South Ridge is talking to Connor Homes about building more affordable homes there.

The issue of utility services versus growth centers were also discussed. Fred pointed out the water and sewer service areas and the transmission lines and water supply recharge area on their maps. He said Middlebury has a productive well for water supply. Some of their existing businesses (e.g. Otter Creek Brewers and apple cider producers depend on that). This was critical in developing their industrial corridor to the north along Exchange Street.

The Cross Street Bridge is being paid for with a local option tax and a generous donation from the College. There is a lot of local pride about it. There is an economic development opportunity on land in the area owned by the Town and the College because of the new bridge. The ribbon cutting will be October 10, 2010 at 10 AM.

Fred said the planning commission is already revisiting the Town Plan and are looking to have an updated version by 2012. It is anticipated that the revised plan will have a focus on sustainability and affordability.

Ethan said Brandon has seen a couple of large employers recently close their doors. How can we preserve/ perpetuate some of those non-conforming uses which have economic value to our local economies? Ethan asked whether Middlebury has experienced this dynamic in Middlebury. Fred said Middlebury has an Industrial zone and he reviewed a number of currently empty, large buildings. There is a huge vacancy now in their Industrial District. Specialty Filaments on Route 116 is also now vacant. What will attract new businesses to move here? There continues to be some agricultural-related entities that prosper due to the nature of the county. The Town had extended water and sewer out Exchange St. for some businesses which didn't always function as intended. For instance, Agri-Mark was given concessions to locate in this area but unforeseen impacts to municipal infrastructure were realized such as the significant amount of dairy sludge that is routed through their wastewater treatment facility (which doesn't necessarily have the capacity and treatment capability to handle this type and amount of waste). Earth Best Baby Food is another example of a business that started here but then discovered that they no economic reason to exist here as the organic baby food market lies in California. Fred said there are not a lot of tools to use to remedy these obstacles. Businesses come here because the owners want to live here. The town has tried to bring in businesses but to no avail. Zoning and planning don't bring them in, the market does. However, mixed use does well. Fred said a lot of people are doing business out of their homes and they have liberal zoning regulations for home occupations. Currently higher education is stable and clean industries are desirable but that may not always be the case.

The next issue discussed is Middlebury's use of waivers versus variances. Zoning is supposed to allow some reasonable use of someone's property. People are entitled to that. Fred described how difficult it is to prove a variance is necessary under a strict reading of the law. Since the late 1980s, Middlebury has been using a Waiver instead of Variance. The Waiver asks: "Will it have an undue adverse effect on the character of the neighborhood?"

Fred said he has also been allowing administrative conditions in his initial review of permit applications. However, he noted that anything can be appealed. They circulate these applications (especially in cases where administrative waivers have been allowed) to the development Review Board and adjoining neighbors. If he feels that an administrative waiver (e.g. a revised setback allowance) is warranted and neighbors don't object, he will write it. However, they don't empower neighbors. They rarely issue a setback waiver for less than 5' from adjoining property lines.

Fred said over the years, some projects have been permitted which shouldn't have been. The Waiver initially goes through the administrative officer and then passed on to the DRB to determine if they want to weigh in. (Section 724 of Middlebury bylaws.) Fred said zoning runs with the land and doesn't expire due to land/ property transfers. He looks at the long-term impacts of projects and presumes that over time buildings will be occupied by others.

Fred summarized that a delicate balance to strike is how much prescription to write in to the land use ordinance while allowing for some flexibility at the same time. Regarding non-conforming uses, Middlebury had clear and tight rules which didn't always make sense and which required non-conforming uses to remain in perpetuity. They changed the regulation so now someone can change a non-conforming use into something else as long as it is not making it "worse."

Fred said Middlebury's sign section is not good and recommended that the Planning Commission not look to use it.

Brandon Workbook - Fred said it could be used advantageously for guidance.

Being no further business, the meeting closed at 9:09 pm.

Respectfully submitted

Janet Mondlak

Recording Secretary