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Ferrisburgh developer wins supreme court case, ready to break ground

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By ANDY KIRKALDY

FERRISBURGH — The Vermont Supreme Court ruled on Aug. 1 in favor of the owners of Pierce Woods, a planned 21-lot subdivision south of Stage Road in North Ferrisburgh, paving the way for developing the land and marketing of what will be the town’s first Planned Residential Development (PRD), which the town’s planning commission approved on Jan. 24, 2006.

The Supreme Court ruling upheld a Feb. 28 Environmental Court decision that also favored Ferrisburgh Realty Investors LLC (FRI), the Pierce Woods developer, in an appeal of the town permit that had been filed by project neighbor Robert Schumacher. Schumacher had opposed Pierce Woods before the planning commission and during FRI’s Act 250 process.

 Schumacher was also on the losing end of a 2007 Addison County Superior Court decision that awarded FRI $890,000 in a civil suit for dealing in bad faith and breach of contract.

Schumacher had signed an agreement not to oppose development of the Pierce Woods land when buying his neighboring parcel from the FRI land’s previous owners, John and Irene Pierce. That agreement had been assigned to FRI when it struck a deal to buy the Pierce Woods parcel from the Pierces.

In January, however, Superior Court Judge Helen Toor reduced that award to $90,000. Both FRI and Schumacher have appealed that decision to the Vermont Supreme Court, FRI in hopes of retaining the larger award and Schumacher in hopes of having the decision against him overturned. FRI vice president Pedro Zevallos said briefs in that case are due later this month.

Meanwhile, Zevallos said FRI, which has as its principal former Ferrisburgh Planning Commission member David Shlansky, is ready to proceed with Pierce Woods. Lots, which will be sold in phases starting with parcels nearest Stage Road, should hit the market by late this year.

“We’re happy with the decision of the Vermont Supreme Court. We can take the next step with the project. It’s been a long time coming,” Zevallos said, adding, “The most exciting part of this is that we received this permit. We are developers. We are not in the business of suing people and going to court.”

FRI took advantage of Ferrisburgh’s PRD regulations to make most of the lots smaller than otherwise would have been required by zoning on the 115-acre parcel, which runs from Stage Road south to Lewis Creek. Seventeen of the 21 lots are 1.7 acres or smaller, and they will be served by a common septic system and road.

Zevallos and Shlansky said the plan allows 83 acres of sensitive wetlands and woodlands to be conserved with easements.

“The most important thing about the development is that it is going to be built as it was designed ... as a conservation–oriented development,” Zevallos said. “We are very proud of the design.”

SUPREME COURT RULING

In objecting to the Pierce Woods PRD, Schumacher and his attorney, Carl Lisman, raised several objections:

• That the planning commission could not determine whether the number of lots proposed was legal based on FRI’s submitted plans.

• That the planning commission should not allow FRI to include “the untraveled portion” of the road right-of-way when calculating how many lots it could create. 

• That PRD bylaws give the commission too much leeway (“standardless discretion”) to grant waivers of zoning regulations.

• “That the PRD failed to meet minimum lot size requirements.”

The Supreme Court rejected those contentions in its decision to affirm Judge Thomas Durkin’s February Environmental Court ruling.

On the first point, the Supreme Court decision said that Schumacher and his attorney’s interpretation would require an applicant to design and get permission to build a theoretical “unwanted subdivision” in order to apply for a PRD, and that “If such a burden on the landowner was in place, we might question its reasonableness.”

Instead, the decision supported Durkin and the planning commission’s calculation for “allowable density” assuming the gross acreage, a conventional development and applicable zoning.

On the road right-of-way issue, the Supreme Court ruled, “the Environmental Court’s interpretation of the word ‘road’ to mean only the 20-foot traveled portion of the easement was not inconsistent with the bylaw or at odds with our precedent.”

As for the issue of “standardless discretion,” the Supreme Court said the town’s PRD bylaw provides adequate “general and specific standards for PRD review” and “strikes an appropriate balance between providing guidance to the Commission and avoiding inflexible requirements.”

Finally, the Supreme Court noted some inconsistent language in the PRD bylaw regarding lot size, but said provisions elsewhere made it clear its intent was to allow smaller lots in PRDs than otherwise permitted.

“Neighbor’s insistence on a literal construction would frustrate the purpose of the PRD ordinance by outlawing the trade-off of housing clustered on undersized lots in exchange for preservation of large tracts of open lands and forests,” the decision stated.

CASE PENDING

Still to be resolved by the Supreme Court is FRI’s appeal of Superior Court Judge Helen Toor’s January ruling that cut the award to FRI from $890,000 to $90,000, and Schumacher’s attempt to have any award tossed out.

Toor ruled that the jury erred in granting the higher amount because the losses should have been limited to those theoretically sustained by the Pierces in the original agreement, even if it had been assigned to FRI.

“Because this case is based upon an assignment of rights from the Pierces to FRI, only damages incurred by the Pierces may be awarded, and the damage award based on losses to FRI in unsupportable,” Toor wrote.

Toor accepted Schumacher’s argument that the 18-month delay in the $1.5 million sale of the land from the Pierces to FRI caused the loss of $90,000 of interest to the Pierces, and based her decision on that amount.

Regardless of the outcome of this particular civil suit before the Supreme Court, Zevallos said FRI might consider taking other actions against Schumacher.

“This pattern of obstruction has cost us a lot of money and a lot of time,” Zevallos said. “We are exploring all of our options, not only to continue the development, but to deal with the damages that we have incurred.”

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