Let's get this out of the way up front: There's nothing sexy about the Burlington zoning rewrite. Slather it in lipstick, dress it up in a cocktail dress, cram it into a push-up bra and put an icy cold beer in its hand, and you still won't get 99 percent of the population to pay attention.
So it was somewhat shocking, on a recent gorgeous August evening, to find Burlington's City Hall Auditorium jammed with people waiting to testify at a public hearing on the subject. Even more surprising was the number of citizens who stuck around for three to four hours to testify. Each speaker got a whopping two minutes before a loud "BEEP!" announced it was time to surrender the microphone.
Meanwhile, Burlington has invested six years and nearly a half-million dollars rewriting its citywide zoning ordinance. The result is a veritable mountain of new rules and regulations - hundreds of pages of documents and dozens of additional amendments, many of which were introduced in the last two months. Despite the size of the taxpayer investment, residents and local businesspeople are clearly uneasy about the speed with which they're being asked to process all that information.
One of the more contentious issues on the pile is also one of the most difficult to explain - a proposal to adopt "on-the-record review" for all major projects under consideration in downtown. This relatively minor and arcane change in protocol may seem trivial [read: boring] to the average Joe. For one, it only affects the functioning of the Development Review Board, a quasi-judicial body that most people know nothing about and probably will never encounter. Nevertheless, this seven-member panel of unpaid volunteers ultimately decides what does or does not get built in Burlington.
So why are so many Burlingtonians getting apoplectic over what amounts to a procedural fix? Several reasons. For one, DRB decisions can have serious repercussions for years, even decades, to come. They can affect everything from the number of parking spaces in downtown to the availability of affordable housing and the height and setback of buildings along the waterfront. For example, the much-maligned Courtyard Marriott got the DRB's blessing.
To understand how on-the-record review would play out, consider how Queen City building projects are evaluated now. When a developer proposes, say, a new townhouse in the Old North End, the plan undergoes a comprehensive review by the DRB to ensure that it meets all the city's zoning and design criteria. For instance, does it fit in with the scale and character of the neighborhood? Does it include adequate parking for tenants? Will there be adequate stormwater runoff protections? How will it affect the flow of pedestrians and traffic? And so on.
Currently, DRB hearings are more or less informal. Granted, witnesses are sworn in before they testify - under penalty of perjury - and their comments are taped and duly noted in the minutes. However, the hearing lacks the formal rules and protocols of a court proceeding. There's no judge, stenographer or official transcript, and witnesses frequently testify without help from an attorney. Moreover, unlike court, the DRB allows the public to throw in their own two cents, either by voicing their views in person at a public hearing, or by submitting them in writing.
If someone disagrees with a DRB decision - say, a neighbor objects that a new condo complex will tower over his secluded backyard - he or she can go to Vermont Environmental Court in Barre, pay a fee and file an appeal. (Environmental Court also hears Act 250 appeals, but that's another story.) Under the current system, the court then conducts what's known as a de novo review of the facts. In essence, the slate is wiped clean and each party presents its case as though none of the previous deliberations had ever taken place. It's the legal equivalent of a schoolyard "Do-over!" - albeit, a very expensive, stressful and time-consuming one.
What's wrong with that system? Supporters of on-the-record review say that it essentially gives opponents of a project two bites from the same apple. A builder who's already spent thousands of dollars and many months parading their experts and studies in front of the DRB must now repeat the entire process in Environmental Court. Ditto for all the public comment on the project.
What's good about de novo review is that new information can be discovered, presented and entered into evidence, new witnesses called, opposing experts cross-examined, etc. In fact, the developer can even present a proposal modified from the one first shown to the DRB. Supporters of de novo review say that this extended legal review gives the public sufficient time to really consider the project.
Finally, after both sides have pleaded their case, a judge decides whether or not the project should proceed. If one party still disagrees with the decision, the ruling can then be appealed to the Vermont Supreme Court.
That game would change considerably, however, if Burlington decided to adopt on-the-record review. In the event a DRB decision were appealed, the Environmental Court judge would consider only the facts that were first presented to the DRB - generally speaking, no new findings would be allowed. DRB hearings would become more formal and complex, and the rules of evidence closer to those in a courtroom. Testimony heard before the DRB would be considered admissible and "on-the-record" evidence - hence the name - each side presenting its case as though this were the final consideration of the facts. In effect, the judge's role would simply be to determine whether the DRB applied the law correctly.
It all sounds very civilized, but passions run high on both sides of the issue. Futhermore, those "sides" are not what you might imagine. This is not a battle between big, greedy developers and neighborhood activists. Nor is it a debate over big government versus small government, liberal versus conservative, or pro-growth versus anti-growth. There are developers for and against OTR review. Ditto historic preservationists, anti-sprawl proponents and affordable housing advocates. About the only generalization that can be made is that both sides feel strongly and claim to want to preserve public involvement in the permitting process.
John Ewing, founder of the Vermont Forum on Sprawl and former chair of the Vermont Environmental Board, is a strong supporter of the on-the-record review. "I think it's an excellent idea for downtown Burlington," he says. "It's very critical that Burlington have as level a playing field as possible with development in the suburbs. We want to attract good businesses to downtown. The way it is right now, it's becoming more and more handicapped in favor of the suburbs."
Meanwhile, Burlington builder-developer Melinda Moulton, whose projects have included Main Street Landing and the Lake and College building, is against the amendment. She says that her tasteful, eco-friendly projects wouldn't have been nearly as successful had they not incorporated the input generated by the current system.
"Main Street Landing believes that the process really worked for us," Moulton says. "When people are allowed to think about what's happening and bring in new ideas, it does nothing but create a better process. We've never been afraid of that."
Critics of on-the-record review include the nonprofit groups Preservation Burlington, Citizens for a Livable City and several members of the Burlington Planning Commission, among others. They argue that OTR review is an inherently unfair and anti-democratic system that favors moneyed interests. They contend that it reduces citizen participation because it turns every DRB hearing, no matter how big or small, into a costly and protracted legal fight.
"If citizens don't have the expertise or time to conduct a thorough review, then those questions don't ever get asked," notes Ann Vivian, a local architect and president of Preservation Burlington. "There's more potential for flawed information getting through the process."
As Vivian explains, DRB hearings are often the first opportunity for members of the public to scrutinize the details of a project - unlike the developers, who know their projects inside and out. As a result, it's difficult to process all that new information and challenge it at the same time. And, since on-the-record review gives all interested parties just one opportunity to argue the facts, she and others say it would force opponents of a project to come into every DRB hearing "loaded for bear."
Burlington attorney and planning commission member Norm Williams also opposes on-the-record review. Several years ago, he represented a group of neighbors in their fight to stop a 27-unit affordable housing complex in the Old North End. It would have been built behind Burgess Electric at 102 Archibald Street.
Neighbors there had several objections to the project; the primary complaint was that it was out of scale with the neighborhood and lacked adequate parking. The DRB approved the project, but that decision was appealed to Environmental Court. In 2005, the court killed it on the grounds that BCLT's parking survey had been inadequate.
Williams contends that had on-the-record review been in place, the Roosevelt Apartments likely would have been built. As he points out, neighbors there didn't know much about the project or the site until the case went through the legal discovery process, which unearthed lots of new information.
For example, neighbors found out that the neighborhood parking "study" offered by the developer wasn't a scientific study at all, just an informal telephone survey. Moreover, Williams adds, it wasn't until the case went to court that they discovered toxic contamination on the site.
"As it was, the neighbors had to scramble" for information, Williams says. "In this case, discovery was key. You can't know in advance how important it is." Under OTR review, he adds, the public never would have had a chance to cross-examine the experts and refute their assertions.
Finally, skeptics of OTR review are asking why this change needs to be made at all. According to the Department of Planning and Zoning, only a small percentage of all DRB decisions ever get appealed to Environmental Court - in fiscal 2006, only eight of the board's 88 decisions were challenged in court; in FY 2007, just one of 74 decisions was litigated. As Planning Commission member Ralph Montefusco puts it, "It's not exactly clear how much of a problem this really is in Burlington. Exactly what are we trying to fix here?"
Lack of affordable housing? Not-in-my-backyard selfishness? Threats to the public good? Supporters of on-the-record review - including Burlington's Community and Economic Development Office, several members of the DRB and the Planning Commission, several city councilors and the Home Builders and Remodelers Association of Vermont - claim the current system allows the interests of a few people to outweigh the interests of everyone else. They point to several major projects proposed for downtown that have been wrapped up in litigation for years.
OTR proponents argue that on-the-record review isn't about speeding development and making life easier for builders. Instead, it's about restoring fairness to the process, controlling costs - for citizens and the city, as well as builders - and keeping permit decisions in the hands of local citizens who live and work in the city.
Paul Sprayregen, owner of Investors Corporation of Vermont, has built some of the most prominent buildings in Burlington over the last 25 years, including Park Plaza, 40 Main Street and One Burlington Square. Three years ago, ICV proposed a 50-unit, $16 million apartment building at the corner of College and Pine streets. The project, known as 114 College, received DRB approval, but four residents in an adjacent building filed suit, claiming that, among other things, the new high-rise would block their views of Lake Champlain and the Adirondacks. Now, after three years of litigation, Sprayregen says he's spent more on legal fees than he did buying the land.
"The way it is now, you don't even have to attend the [DRB] hearings or voice any concerns at the local level," Sprayregen says. "You can bring up any issue you like in Environmental Court, whether it's germane or not, whether there's been testimony at the DRB level or not. It's never-ending, and in my opinion, it's been used to abuse the process."
Tim Ashe, a Progressive Ward 3 city councilor, agrees. While he supports the idea of keeping neighbors involved in the process, he doesn't think a small group of people should be able to "stonewall" development for selfish reasons. As he points out, 15 percent of the units in 114 College are required by law to be affordable.
"[The opponents] are saying, 'You're stripping away rights from residents,'" Ashe says. "The flipside to that is, I'm trying to provide affordable homes to people who don't have them." And, he adds, the longer these court battles drag on, the less affordable those homes become.
A similar fight is being waged on Lakeview Terrace, where a 25-unit condo complex proposed in the old Cornell Trading Company warehouse at 237 North Avenue has been stalled in the courts since June 2005. Miro Weinberger is a partner at the Hartland Group, which proposed the project. Weinberger says that three households have spent a minimal amount of money fighting his project - less than $10,000, according to Alan Bjerke, one of the plaintiffs. However, the Hartland Group has spent "in the neighborhood of $100,000" in legal fees, carrying costs and other expenses - all of which, Weinberger adds, will drive up the cost of those units if or when they get built.
More importantly, Weinberger says, all the feedback that 15 to 20 other residents in the community provided to the DRB was lost entirely. Those people who weren't a party to the lawsuit or called to testify, he explains, were effectively shut out of the process. In the words of Brian Pine, CEDO's assistant director for housing and neighborhood revitalization, "All that public testimony, all that time that citizens took to come out and make their voices heard, is flushed down the toilet. That strikes me as very antidemocratic."
Pine's wife, Liz Curry, works on affordable housing projects in Franklin County - not in Burlington - as a project developer with the Champlain Housing Trust. In late 2005, Curry worked on an affordable housing complex in St. Albans, one of the few municipalities in Vermont that uses OTR review. Contrary to critics' fears, she says, OTR review actually gave the neighbors more opportunity to have their concerns addressed because it put the developer on the record and didn't allow him to "wiggle around" neighbors' concerns.
"When it comes to building affordable housing," Curry adds, "I look at on-the-record review as the only way we're ever going to dig ourselves out of the NIMBY factor."
Unquestionably, on-the-record review requires more work, staff training and preparation at the local level. That may explain why only a small number of municipalities in the state employ it. According to the Vermont League of Cities and Towns, fewer than a dozen of Vermont's 246 municipalities use on-the-record review. Only one is comparable in size to the Queen City: South Burlington.
John Dinklage chairs the South Burlington DRB, which has used on-the-record review for years. Speaking on his own behalf, and not his board's, he says he believes OTR review has given his board more "teeth" so that applicants are compelled to be more thorough and honest in their responses.
"To the best of my knowledge, we've had no complaints, and it has not been an issue in South Burlington," Dinklage says. "In my opinion, it doesn't cut out the public. It forces the public to use the process as it is intended: to get local people involved early, and to try to resolve issues at the local level, if possible, so you don't fight things out in court."
Other communities have had less success with OTR review. Mark Leonard is the zoning administrator in Morristown. He says Morristown used OTR for several years, but found it too burdensome because the town lacked the staff and expertise to write decisions that met the stringent standards applied in court. Frequently, Leonard says, the court would send decisions back to the DRB and instruct it to re-do them. "Finally, we said, 'Nah. It's not worth it." That said, Leonard suggests that a city the size of Burlington should have the staff and resources to do what Morristown could not.
Interestingly, one of the few people who hasn't weighed in is the man who would actually have to administer that change. Austin Hart chairs the Burlington DRB. Speaking on his own behalf, and not for his fellow board members, Hart says he was open to the idea of a pilot project for OTR review when it was proposed a year ago. He still thinks the system can work, noting it would allow people who live and work in Burlington - not some judge in another part of the state - to decide the best way for Burlington to grow.
"It seems there's a fair amount of paranoia out there about what the motives would be for going to on-the-record review," Hart says. "That doesn't have to be the result, if we do it well."