Vote No -- Again -- on Zoning Articles 9 & 10

Déja vu... 

In 2013, the Planning Commission proposed a new zoning district at the floody, high water table confluence of Clay Brook, Steinhour/Mill Brook, Crane Brook and Browns River in Underhill Center. The wise voters of Underhill rejected all of the zoning changes proposed that year.

We need to do it again...

Vote NO on ARTICLES 9 & 10

The problem...

The proposed changes upzone along River Road and Pleasant Valley Road, making the minimum lot size smaller, which results in more driveways, more parking area, more buildings, more water wells, more septic systems -- in possibly the worst possible location for development, the intervale of Underhill Center.

There is also downzoning, which is a form of taking, for the rest of Underhill.

It reflects a constant regulatory churn, spinning a revolving door of consultants, that feeds a growing bureaucracy and is ripe for abuse by rent-seeking developers who have the patience and perseverance to work the machinery of government. Consider the change to the zoning district boundary along Beartown Road.

This all goes back more than a decade, way more...

Once upon a time, the good people of Underhill established critical area zoning. Unlike other towns, which zoned against use, Underhill based its zoning on the unchanging natural features of the town. You read that in the titles of some of the zones (Water Conservation, Soil & Water Conservation, etc.) and in the purposes of the zones. We have the unusual situation in Underhill Center of larger minimum lot sizes at the intersection of roads and rivers, while smaller minimum lot sizes exist along the hill sides. That is because the intervale and aquifer recharge area are not good places to build roads, houses and septic systems. In this respect, Underhill is different from all other towns. Read the Town Profile for a discussion of the history of zoning in Underhill.

The current Planning Commission has forgotten all about this. On October 7th the Chair of the Planning Commission was asked about the age and history of the Water Conservation zoning district that she was proposing to change. She had no idea, and thought it was only a few years old, referring the question to surprised fellow commission members David Edson and Carolyn Gregson, asking if they remembered setting up the district. Carolyn was a child at the time. The zoning districts in Underhill have been stable since their establishment in the 1960s.

Underhill's development review from the 60s on could be described as "anything is possible, but everything is conditional."  That's why Underhill could have ski areas in town, and woodworking shops or car repair places -- or a school -- out in the woods. If something was reasonable, it was allowed. It did not rely on a long table of uses. This approach served Underhill very well for decades.

Then, around 2005, our formerly concise town plan and zoning/development regulations started to get the consultants' treatment. Now there are more than 300 pages between the two documents. Nobody has the time or capacity to read them -- not even the Planning Commission and the Development Review Board. These documents demonstrate the awkward expansion that comes from planning consultants who cut and paste text as they move from one job to the next. Documents develop unnecessary repetitions, subtle loopholes, and internal contradictions.

Such documents are ripe for exploitation by the one group that does have time to digest and use the regulations to advantage, real estate speculators.

Underhill Center, really Underhill Waterlogged...

The area of Underhill Center where the up zoning is proposed, at the confluence four streams and Browns River has a history of flooding and high water table. It is possibly the worst the place in town for new development. Flooding in the town office vault, and reliance on a sump pump under the front stairs at Town Hall, ought to be indication enough that there's trouble underground. Or, look in the back yard of the late Underhill Country Store, at its elevated, "best fix" septic treatment structure. The reduced minimum lot size that is proposed for the Underhill Center intervale could create new lots with new rights to construct such less than ideal wastewater systems.


No amount of minimum lot size shrinkage is going to change the fact the many of the houses in the Underhill Center intervale are on lots that are too small, with too little room for a replacement leachfield, an enlarged front porch, or even a new shed. Maintain existing is what these buildings of the past should aim for. The buildings have survived these many years from plain old maintenance. smaller minimum lot sizes will not improve their prospects.

It's not what was promised...

In 2013, the Planning Commission could have taken the no votes seriously and begun proper investigation and planning effort. If they had done so we would see such things as a land capability study, stormwater study, sewer study, utility study, vernacular study, design standards, planning charrettes, traffic studies, public investment planning, and study of the riparian area along Browns River.

Instead, they have a colorful spreadsheet based on looking at air photos and a property tax map. There's a reason that these maps carry disclaimers and warnings about their accuracy. They are not sufficiently accurate to measure the setbacks and dimensional requirements of this area. The only way to really know is to get out in the field with a surveyor with good technique and good equipment.

The 2015 Town Plan called for an overlay with relaxed setback standards. This is reasonable.  It also called for an alternative variance process -- also reasonable. But the Planning Commission didn't do that.

Instead it focused on a new district with smaller minimum lot sizes. The 2018 proposal is the same as in 2013: a new zoning district, smaller minimum lot sizes, shrouded in breathless concern about dimensional standards. Don't buy it. The Planning Commission gambled that Underhill voters would forget about 2013, hoping that voters would accept a well-oiled pitch in place of the hard work of good planning.

Unfairness to the rest of Underhill

The difference between conditional use review before the DRB and permitted use non-review is an important distinction. While the upzoning to the new district with reduced minimum lot sizes, it also increases permitted uses for impermeable surfaces and multi-family buildings, the proposed zoning changes eliminate the possibility for conditional multi-family buildings everywhere else. This would be a blow against responsible development. as it means that most every area will eventually be carved into single-family lots, with all of the attendant roadways, wells, septic systems, etc. It also removes flexibility for the adaptive reuse of existing buildings. The Planning Commission has forgotten the Underhill tradition of "anything is possible, but everything is conditional."  And it has also failed to understand the negative consequences of its proposal, and avoided applying imagination to work on the many other ways that it could serve the town, as described in the Town Plan.

Indeed, the Planning Commission has done much to undermine the future of Underhill Center, by underinvesting in public facilities, and failing to plan for area walking and road design.


If we allow this to continue...

Continued massaging of an ungainly, unreadable regulatory mess is awarded a special label by political scientists: turd polishing.

The stability of Underhill zoning districts is an important to fairness that has lasted many decades. Any time zoning district boundaries move or zoning requirements change someone is getting a gift or having something taken away. That's the crap shoot of living in other towns. For decades it's been different in Underhill, where stable zoning means predictability and little opportunity for rent seeking manipulation of town government. That is until the Planning Commission started massaging the zoning districts. As in 2013, it is a Pandora's Box.  Already there is lobbying for reducing minimum lot sizes in other areas of town.

Vote for fairness, stability, and an end to machinations.

Vote NO -- again -- on ARTICLES 9 & 10.

Zoning against Nature

How did you like what Houston did to itself with Harvey? Poor planning and a wild west attitude along with poor regulation are blamed for much of the disaster impacts. A poor understanding of flood plains has been cited. With global warming, the past is no indicator of future flooding.

The Underhill Town Plan is full of deference to Nature and language to protect natural resources and natural areas.  The town has zones named "Soil and Water" and "Water Conservation", which give a plain summary of the conservation orientation that town planning has had for decades.

So, with Harvey in Houston and all of the clucking about the role a lack of zoning had on the resulting floods, one would hope that the latest revisions to the town's zoning regulations, in addition to shortening, clarifying and simplifying the document, would lessen flooding risk and mitigate the impacts of flooding.

But they've done it again. Despite having previously been turned away by voters, our planners have proposed upzoning in Underhill Center.

Keep in mind that crude hammer of zoning has become a tool of giving and taking, love and hate. Down zoning takes away value from a property, while upzoning is a free gift from the town to the lucky land owner. The Sinex Burlington Town Center project is a first-rate example of rent-seeking and rent-getting, with a $20 million cash boost and big increase in total buildout versus the established zoning.

Here in Underhill, the planning commission is busy giving and taking, while doing exactly the opposite of conserving and protecting. Yes, they have come again at the voters with another upzoning proposal. And it is virtually a repeat of the last time, when voters said no thank you.

PV109 Access Permit: The Three Speeds

The Albertini subdivision at 109 Pleasant Valley Road is, to put it politely, problematic.

There are three kinds of speed involved when considering an access permit, and in any situation where road design is at issue: design speed, operating speed and posted speed. One of the goals in engineering a road is to ensure that these three measurements are roughly equal. The process is supposed to go something like this: Figure out how fast you want traffic to flow, design the roadway to that target design speed, study the actual operating speed (85th %ile), set the posted speed to match the operating speed.When these three speeds converge, the road is relatively safe and comfortable.

Especially since reconstruction of the section of Pleasant Valley Road at Mountain Road, the posted speed along Pleasant Valley Road is not consistent with the operating speed of the road. It is arbitrarily too low.

The Vermont Agency of Transportation's Traffic Impact Study Guidelines succinctly explain the problem of arbitrarily low posted speed limits:

Much like installing traffic signals, reducing speed limits is often seen as a panacea for traffic ills. Speed limits must be set in accordance to the MUTCD. The MUTCD, in section 2B.13, requires than an engineering study be completed in accordance with established engineering principles. It states that the speed limit should be set within 5 mph of the 85th percentile speed of free-flowing traffic. Other factors which may be considered along with the 85th percentile speed are road characteristics (geometry), pace speed, roadside development and environment, parking practices and pedestrian activity and reported crash experience.

Since the 85th percentile speed is quite often higher than the existing speed limit, it is difficult to justify a lower speed limit. Arbitrarily setting a lower speed limit is not an effective method to reduce driver speeds – drivers select their operating speed by “feel”, with little regard to the posted speed limit unless there is active enforcement. Assuming that the majority of drivers are prudent and safe drivers, the 85th percentile speed is deemed a reasonable speed limit unless there are factors which strongly suggest that drivers are making poor decisions at that speed.  

This idea that design speed, operating speed and posted speed should be equal is a fundamental notion in traffic engineering. A lot of design decisions and traffic analysis rely on -- and flow from --this idea. When these three speeds are not in agreement, bad things happen.

That is why it is so disappointing that the consultancy attempting to develop a subdivision at 109 Pleasant Valley Road (PV109) did not immediately point out the discrepancy between posted and operating speed.

Here's how easy it is to discover:
1) Point your browser to the CCRPC database
2) Under Traffic Data, click on Map
3) Click on Underhill in the map of Chittenden County
4) Click on the Underhill Center region of the town, it will look like this:

Each of the dots represents a traffic count location. Click on the one near Pleasant Valley Road at Mountain Road, UHIL16. Then click on "Speed Profile" (more details available by clicking "Download Count"). You will see that even in 2005, before the straightening, flattening and widening project, the operating speed (85th%ile) is well above the current posted speed of 30mph.

At this point, knowing that the posted speed is 30mph, alarm bells should be ringing in the mind of a traffic engineer. But that's not what happened.

Trudell Consulting Engineers (TCE) has repeatedly understated the traffic and safety issues with the proposal to construct an intersection for the proposed Applewood Lane. All the while many, many people have expressed concern about the proposal to construct an intersection on the inside of the blind corner south of Mountain Road. Even now, TCE has proposed a close -- too close -- offset-T intersection.  At earlier stages of the process, they attempted to substitute posted speed for design speed and argue that a 4-way intersection with Mountain Road is not feasible. Now, with the 4-way design complete, they have concocted a "possible class III wetland" and lean on it as a rationalization to continue to push for the offset-T.

Sadly, this lapse of engineering judgement and ethics is not an isolated incident.

Upzoning kills villages

The draft town plan for 2015 shares the same misguidance that the 2010 plan offered, upzoning dressed up without even rationalization to justify it. The bottom line is that upzoning kills villages and hamlets.

One sad example is Butlers Corner in Essex, where used to stand a collection of houses that marked a stop on the stage route, with a tavern and farmhouses, and in later years a corner market. Along came water, and sewer (to resolve failed septic system problems). Boom. There's a freeway and a shopping mall. Then a planning reaction to make a town center with mixed uses and compact arrangement. The results are clear: failure. Failure to create new humane spaces. Failure to preserve old buildings. Fiske house? Abandoned. Cedar Spring Farm? Abandoned and demolished. Store? Gone. Tavern? Demolished. Derocher house? Relocated and radically transformed. Only one old building remains in use and only because of a very expensive restaurant remodeling.

Compare with Williston's stable, not-neotraditional zoning, as described in this article:
http://www.willistonobserver.com/a-tale-of-two-developments/

Upzoning leads to maxed out subdivision and development using short-term profit maximizing style, which is uniform, production housing,  built in short period. Whether single-family, duplex or multifamily,  or even residential tower, it is not going achieve the difficult to duplicate, subtle qualities of compact settlement in a "traditional" village.

Right to Farm

Right to Farm is mentioned in the draft plan. But because Vermont is a Dillon Rule state, the state's right to farm law, which has been in place since 1981, is the final word on right to farm.

http://vnrc.org/resources/community-planning-toolbox/land-use-law/right-to-farm/

Underhill's zoning has a role in prohibiting non-farming uses, and permitting farming uses, but it already does that.

It's All About the Nuisance

"Zoning generally overrules nuisance. For example: if a factory is operating in an industrial zone, neighbours in the neighbouring residential zone can't make a claim in nuisance. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance."[wikipedia]

This is a problem because it is impossible to imagine all of the possible future uses of land, much less write prescriptive zoning rules that elegantly address the many conflicts that can arise. And it is terribly inefficient and usually ineffective to try to right the wrongs of harmful, nuisance, noxious uses.

Underhill had for a long time a very good solution: no-growth policy befitting an exurban fringe town, stable zones with stable densities, limited permissible uses, broad conditional use review. This allowed for the flexibility of nuisance law with the anticipation of zoning. Yes, the regulators and townspeople need to be vigilant. But, in a no-growth town like Underhill, it is not a burden and works well by allowing gradual, ad hoc use conversions and straightforward, conditional control of noxious uses.

Population

Chittenden Regional Planning Commission (CCRPC) wants Underhill to know think that the future is booming. In a presentation to the Underhill Planning Commission, we hear: 

"If the past is any indicator, Chittenden County will feel the pressure from a majority of that growth. Woods and Poole estimates that Chittenden County may see 50,000 new residents by 2035 (refer to the first figure in Section 2.1). "<link>

And this is reinforced in the ECOS plan with loud graphics:

2013 Chittenden County ECOS plan 1.2 Vision, p.5

30% population explosion!!!! Whoa, take it easy. This bears more scrutiny. CCRPC has a history of getting it wrong. In 1976, they said the population in 2000 the Chittenden County population would be 182,149, 24.3% above the actual population which was 146,571. In 2001, CCRPC projected an annual growth rate of 1.4%, 2000-2010, which would be a population of 168,439 in 2010. With just a nine year horizon, they still missed the actual 2010 census of 156,545 by 7.6%. If the past is any indicator, CCRPC has overstated population projections.

In the final version of the ECOS plan, long after the message of growth had been implanted, and even after long-time planner Tony Redington mocked CCRPC for inflated population projections, only an inoculating caveat is added. But the claim of high growth remains -- and the boldface.

"Woods and Poole estimates that Chittenden County may see 50,000 new residents by 2035 (see Figure 2 in Section 2.1). These numbers are only projections at two different levels of geography and will very likely be inaccurate, but still they give us a sense of the direction of the market demand for jobs and housing in our region." -- Chittenden County ECOS Plan, 3.0 Introduction, p.78

The bald face text continues with a tell-tale denial that suggests exactly what the plan is about:

"This Plan is not a plan to achieve growth, rather it is a plan that recognizes that there are many external factors over which we have little control locally." -- Chittenden County ECOS Plan, 3.0 Introduction, p.78

At least, they are not crooks, but they are phishing for suckers. Underhill planning commissioners have been exhorted by regional planners to get more housing -- a lot more. But before swallowing this hook, line and sinker, Underhill ought to look to some other sources and apply some common sense.

As Art Woolf pointed out in a January 8, 2015 column in the Burlington Free Press, Vermont's population is flat right now. It's a return to normal. "If history is any guide, small towns will certainly experience depopulation, just as they did through most of the late 19th and first half of the 20th century. It's very likely to also be the experience of most of Vermont's larger towns and cities, especially outside of northwestern Vermont," he wrote.

The only state population projection available comes from a report prepared by the VT Agency of Commerce and Community Development, which evaluated two scenarios using migration rates derived in two different decades, the 1990s and the 2000s. Using the more recent 2000s data, Chittenden County population increases by just over 4.1% -- not 30% -- while Underhill's population shrinks by 3.3% from 2010 to 2030. Not surprisingly, the greatest growth is in suburban towns near I-89.

VT Agency of Commerce and Community Development <link>

For comparison, a similar state report (methodology), prepared in 2000, projected 2010 Chittenden County population at 157,471, an estimate error of less than 0.6% for the decade -- an order of magnitude more accurate than CCRPC.

At the same time, Chittenden East Supervisory Union (CESU) protests (a bit too much, especially given their failure to produce any projections) that school population is dropping, echoing similar claims by the Vermont Agency of Education.

But the US Dept. of Education thinks that unlike all surrounding states, enrollment in Vermont will rise modestly over the next few years. Not surprisingly, the South and West have strong enrollment growth.

Public School Enrollment -- National Center for Education Statistics

And the Vermont Housing Finance Agency has a similar projection for school-aged enrollment.

Housing and Vermont's School Enrollment -- Vermont Housing Finance Agency

Note the source for this data, the US Census Bureau. They don't get any more rigorous than that. What's interesting about these numbers is how much lower the state's school enrollment is than the number of school-aged kids. Already, in 2004-5, the statewide enrollment was 93,813, well below the projected bottom of the Census Bureau curve of school-aged kids. Maybe the claimed education crisis is a marketing problem -- not a shortage of kids or excess of schools. If the state's schools could recapture market share, it looks like they'd enjoy increasing enrollments for more than a decade. There are more mysteries to be solved in the enrollment data: The US Census doesn't jibe with the Vermont Agency of Education data, which doesn't agree with the US Department of Education data. And we are not talking about small numbers. It's thousands of kids apparently unaccounted.

All states and the District of Columbia produce and report population projections to the US Census Bureau, except Vermont. What should that tell us about the conflicting population projections of CESU and CCRPC? The projections that they use seem to be very much in line with their respective agendas, school consolidation (pardon me, "redistricting") for CESU, and housing boom for CCRPC (sorry again, "smart growth").

State-Produced Population Projections -- US Census Bureau

New York has a nice set of charts, including a sequence of population pyramids that illustrate the passage of baby boom echoes and a projected population decline after 2030.

With all of the sloppy numbers from CCRPC underpinning the whole regional plan, what should we do?:

• Regional planners lack credibility. Challenge them or ignore them, but don't let them push us around.
• Plan for non-increasing population.
• Plan for open space and conservation. That is Underhill's true role in the region.