By Lisa Loomis
Members of the Mountainside Condominium Association are meeting next week to determine the next steps after the District 5 Environmental Commission denied the association an Act 250 permit to rebuild the 36 condominiums that were destroyed by fire in February 2014.
Association members are meeting on April 16 to discuss their options, including whether or not to appeal the decision. The February 2014 fire completely destroyed one of the three buildings that are part of Mountainside. The complex was completely full on the night of the fire, which required the Warren Volunteer Fire Department plus six additional fire departments to extinguish.
COMPLIANCE
The denial hinges on the distance between the condominium and Rice Brook, leading the commission to find the project not in compliance with review criteria covering floodways, stream impact, soil erosion and conformance with local and regional plans, Criterion 10.
Mountainside was originally permitted in 1979 with Act 250 approval. After last year's fire, association members hired a firm to design and engineer the rebuild and also selected a general contractor. The association had received state wastewater permits as well as local permits from the town of Warren – which require that the project conform to Warren's Town Plan.
The issue of setback from Rice Brook was raised during the hearings and in subsequent filings with the applicant and commission members going back and forth over whether the building could be built on the same footprint and in the same proximity to the stream.
CLOSEST POINT
The decision, dated April 3, spells out that the building that burned was located 3.75 feet, at its closest point, to the top bank of Rice Brook. The proposed rebuilt building is 4.6 feet from the top of the bank at its closest point.
Further, the decision, under Criterion 1 (D) Floodways, notes that Rice Brook presents a minimal risk of flooding due to the small watershed area and bank height but goes on to explain that the Agency of Natural Resources (ANR) sets a 50-foot setback from the top of the streambank.
"Because the pre-fire development already had significant encroachment on Rice Brook and the proposal essentially duplicates that high level of encroachment, the proposal will not increase fluvial erosion standards and therefore meets the 2009 Technical Guidance according to the Agency of Natural Resources," the commissioners wrote.
ACT 250 FLOODWAY
The commissioners conclude that the project does not comply with Criterion 1 (D) because it involves rebuilding in the Act 250 floodway.
Under Criterion 1 (E) Streams, the commission reports that Rice Brook has been the subject of chronic sedimentation due to surrounding roadways and developed areas. The brook was removed from the state's impaired waterways list in 2010. By 2013, ANR considered the brook stressed.
Detailed findings for this criterion spell out the fact that Rice Brook is impacted by development upstream of Mountainside Condominiums as that across from the development are existing and proposed buildings and parking infrastructure. Downstream areas are constrained by tennis courts, a road and a health club.
RIPARIAN ENCROACHMENTS
"The current riparian encroachments on Rice Brook and its history of degradation only increase the importance of functional riparian areas along the remaining stream channel," the commission wrote.
"The existing permit allows buffer encroachment that is inconsistent with current Buffer Guidance standards. Although the applicant proposes a riparian management plan and plantings for a portion of the area behind the building, the building footprint remains virtually the same with a minimal setback from the top of the bank," they continued.
The District 5 Environmental Commission concluded that the project would not maintain the natural condition of Rice Brook and adds that "no attempt has been made by the applicant to maintain the stream in its natural condition by scaling the project to the site such that an appropriate buffer is provided. Options include reducing the number of units and/or developing off-site parking."
REDUCE NUMBER OF UNITS
The commissioners do not suggest a methodology for determining how condominium owners could decide who did or didn't get a unit, if the number of units were reduced, or where off-site parking in a densely populated mountainous development might be located.
The commission found that Criterion 4, soil erosion, would also be violated by the project.
Finally, despite the project having received approval from the town of Warren in September 2014, the commissioners found that the project did not comply with Warren's Town Plan or the Central Vermont Regional Plan.
WARREN DRB PERMIT
The Warren Development Review Board (DRB) found that the project, as proposed, did not increase the nonconforming aspects of the previous structure (height of building, stream setback and parking space size); rather it decreased them by lowering overall height, changing parking space size and increasing the distance from the streambank.
The Act 250 decision sites the 2011 Warren Town Plan and its identification of Sugarbush Village as an appropriate area for continued development and also, under a chapter titled "Sense of Place," a land use goal of maintaining setbacks from streams and a 50-foot minimum undisturbed setback along all streams. The regional plan also includes a 5-foot minimum setback from streams.
Carl Lisman, the attorney who represented Mountainside Condominium during the Act 250 hearings, did not return multiple phone calls and emails seeking clarification and comment on the Act 250 decision.
