Wheeler Park – “Non-Binding”? “Loopholes”? What gives?

Posted by Abby Crocker on Facebook 12/7/15

  Abby Crocker

Update from 12/7 Public Hearing on zoning changes to allow for Wheeler Nature Park land exchange.

In 2011, 70% of South Burlington voters approved a ballot item “Proposed Land Exchange and Conservation Easement”. This meant that voters authorized exchanging 7.25 acres of Wheeler Nature Park for 21.27 acres of adjacent land, and then placing a permanent conservation easement on all of Wheeler Nature Park (about 119 acres).

I went to tonight’s city council meeting because I wanted to know what the status of the permanent conservation easement is, now that the land exchange will be finalized. The city council, and Paul Connor (Director of Planning and Zoning), said that the vote in 2011 was “non-binding” and they are not “required” to place a conservation easement on Wheeler Nature Park. They are asking the city attorney to review the 2011 ballot language to determine if they are in fact required to place Wheeler into conservation or not. The City Council postponed a vote on the the rezoning until they can review this again, after hearing from their lawyer, on Dec 21st.

I am attaching photos of the 2011 ballot language and Paul Connor’s 2011 memo to the residents of SB describing what a “YES” vote on the ballot would mean. Do you think there is any room for ambiguity here?

Even if there is some legal loophole that makes this a non-binding ballot, isn’t the desire of the people of South Burlington clear? We VOTED YES (70% of us!) to place Wheeler Nature Area in permanent conservation. I am totally taken aback that the City Council is not honoring the will of the voters.

 

Comments

   Duncan Scott Adamson I don’t see how you read this any other way Abby. This is truly disheartening.

  Cheryl Ganley I do not see how this could have been interpreted in any other way. I find it concerning that the city council and planner are trying to back peddle on this situation. My guess is that they have some other plans for this land. Thanks for staying on top of this Abby.

  Emilee DiFerdinando Hoffman Quite despicable behavior on the part of those who are supposed to be upholding the wishes of the residents of South Burlintgon.

  Karen Ryder Thanks, Abby, for going to bat on this. I was at the meeting as well and, as a member of the Board of the SB Land Trust, I am also disturbed about this “confusion” which must be resolved by Dec.31. I will reserve judgement until we hear from legal counsel and attend the Council meeting on the 21st when a decision will have to be made by the Council.

  Bridget Burkhardt I’m so astonished that I’m not sure what to say. It seems like the city council is directly going against the will of the voters. Thank you for keeping track of this, Abby. Is anyone planning to write to the Other Paper or post on Front Porch Forum? I would be happy to draft something but would want you to review it Abby, since you have been more on top of this issue than anyone.

  Duncan Scott Adamson Is VT Attorney General a possible resource here? The City Attorney is representing the City government, not the residents.

  Paul Engels I was on the City Council when we authorized this land exchange and wrote this ballot item. We deliberately added the conservation easement because we did not trust future city councils to leave Wheeler Nature Park alone. The only real protection for this property is a conservation easement.
The current city council chair is opposed to conservation easements. I am not surprised that the sycophant that we have as a city planner supports her. I was opposed to in-house legal council too since it was obvious that the city attorney would become the legal arm of the city manager.

  Tracey Harrington The Council has not said they are not going to conserve the land. They are asking for legal clarification, which they should anytime there is a question about legal obligation and authority.

The two items are related, but the dependency is this: if we do not amend our LDRs, the land swap doesn’t happen – which means the city loses the opportunity of adding 14 acres of land which voters authorized the Council to put into a third party conservation easement (the 21 acre parcel less the 7 we are swapping for it). The city also runs the risk of being sued for not abiding by the settlement agreement. I understand the concern and also want to see the third party conservation easement. However, the action is to hold elected leadership accountable to the 2011 vote, not to claim there is a nefarious plot afoot from a presentation on draft amendments that must precede the land swap. Identification of this 21 acre parcel on the Official Map has been on the Planning Commission agenda for when it is official – after the LDRs are adopted, land swap is finalized, and a third party conservation agreement is in place (whenever and however that takes place). Accusations get us nowhere, especially when they are directed toward staff who work very hard on our behalf. Please be mindful of the language used and the direction of frustration.

  Pat Clifford Let’s have a binding revote

  Abby Crocker Tracey Harrington, I agree that the discussion here needs to be kept respectful. However, I do not think whether the current Council chooses to conserve Wheeler or not is at their discretion. It was the public vote in 2011. The city council could have approved the land swap last night IF they had just agreed that the conservation easement was coming next. They didn’t. They are researching IF they have to place the conservation easement….not WHEN it can be done. We should have a commitment from our city council to honor the conservation easement and a timeline for when it can be addressed. Stating the the 2011 vote was non-binding is just looking for legal loopholes to get out of what was a very clear ballot and vote. If the City Council wanted to honor the results of the 2011 ballot there would be no reason why they need to consult with a lawyer to see if they are “required” to do so.

  Tracey Harrington We have a different interpretation of what they are asking for a legal opinion on. My take away was that they are asking for clarification on whether it was binding and the wording of the vote since the question was brought up about interpretation of the legality of what it meant. I did not interpret it to mean they are asking “do we have to do it, because we really don’t want to and want a way out of doing it”. More info to come on Dec 22 after they’ve spoken to legal.

  Tracey Harrington Last night’s warned possible vote was on the LDR draft amendments which must be adopted prior to any conservation – the council can’t vote to conserve land we don’t yet own. Owning the land is contingent upon the draft amendments. Those have to come first.

   Michael Simoneau I believe that Tracey is on the right path with her thinking here. I don’t believe the Council is motivated to deviate from the outcome of the prior vote, but is uncertain on how to proceed with the timing of approving the swap and then the conservation easement. Last night I sought clarity on this as I would like to understand the language in the easement and how permissive or restrictive it might be if and when the City wants to implement use strategies, maintenance plans, etc. My interest in this was expressed personally, though I do sit on the Parks and Recreation Committee, and expect that the Committee would also like to understand it. I encourage avoiding conspiracy theories here. I also believe if the Council chooses to deviate from the outcome of the prior vote that public opinion will at a minimum compel another vote on the matter. Just my opinion! smile emoticon

   Abby Crocker Tracey Harrington…but we DID vote to conserve Wheeler. That was the 2011 ballot. The city council could end any perceived differences in this discussion by simply stating “we have every intention of adhering to the 2011 ballot and placing Wheeler Nature Park in a permanent conservation easement”.

  Tracey Harrington And I expect that discussion and potential vote on intention to conserve will be on the Dec 21 agenda – and if it’s on the agenda they can then vote on it. The conservation question was not in last night’s agenda. Only the LDRs were. In either event, I will be at the meeting on the 21st to see what the follow up is.

   Cheryl Ganley I was just reading the SB School and Community planning task force recommendations to the steering committee dated 06/03/15. While reading this it makes me wonder if they are putting off conserving this property due to the proposed elementary school consolidation. Pg 18: Fields displaced could be built at Wheeler or Underwood Pg. 19: It was recognized that many open space properties owned by the City, such as the Underwood
property or Wheeler property, were purchased with Land Trust funds and thus have use
restrictions on them Pg. 19: Available Property. The locations proposed by Saxon Partners for the replacement of Central
School, namely Dorset Park, and the Wheeler and Underwood properties, have deed restrictions
that will make development of those properties challenging.Pg. 21 SECTION 3: PLANNING OPTIONS
T
INDIVIDUAL BUILDING SITE PLANNING OPTIONS (see diagram) Pg. 93: Though there may be a suitable option our Task Force did not discuss, the location of a new
consolidated ~780 student elementary school has not been thoroughly addressed. Oak Creek
property might be a potential site, but this is concerning as it is only 10 acres in size. (Currently our
three elementary schools use a combined approximate 30 acres of land.) A consolidated
elementary school would require a significantly larger facility, an increase in parking availability and
an increase in open play and green space. As such, other options may have to include purchasing
privately-owned adjacent land (thus an increase in costs) or expanding into the nearby designated
natural area such as Wheeler Park, and we know that preserving open/green space is an important
concern to our community. http://www.sburl.com/…/uploads/Final_Report_6-3-2015.pdf

  Wes Daum I do not see the words “non-binding” anywhere on the ballot. If this was a non-binding vote does this also mean that the election of city councilors was non-binding?

  Paul Engels The 2013 election should have been non-binding when the Attorney General determined that Pam MacKensie, Pat Nowak and Chris Shaw broke the campaign finance laws.

Ray GondaThe language looks pretty clear to me. It seem the majority on the council (read clique) want to pave over all open spaces in the city.

  Laurel Williams Cheryl Ganley, the language you quote is concerning to me. While the Open Space Committee/Natural Resource Committee discussed the potential forms open space may take, the tax money that supports open space purchase in no way supports “expanding into the nearby designated natural area such as Wheeler Park”. That open space fund is specifically dedicated to purchasing open space, end of story. It would be a significant legal misadventure to use land purchased by the open space fund for a school or any other non-open-space use.

  Scott H Baker Any lawyers in our group that can look into this? We should definitely have a letter in the OP so others are aware of the meeting and deliberations. Anyone have contacts at the Garden Society at Wheeler? This park is supposed to be “the green lungs” of SB: http://www.sburl.com/…/WNP_-_MP_FINAL_-_CathyEdits.pdf

  Wes Daum I believe the Garden Society is no longer at Wheeler.

  Abby Crocker Laurel Williams and Cheryl Ganley, just to clarify one thing – I was on the Task Force and was a strong advocate for maintaining open space/natural areas as is. Why purchase a natural area or open space just to pave over it later? This is why the permanent conservation easement is SO important.

The below statement comes from the Minority Opinion, which is in essence a separate document (authored by myself and Monica Ostby). We made this statement to protect natural areas…not use them for schools. And, placing a consolidated school on Oak Creek made us (minority opinion) very concerned about the nearby natural area.

“Though there may be a suitable option our Task Force did not discuss, the location of a new consolidated ~780 student elementary school has not been thoroughly addressed. Oak Creek property might be a potential site, but this is concerning as it is only 10 acres in size. (Currently our three elementary schools use a combined approximate 30 acres of land.) A consolidated elementary school would require a significantly larger facility, an increase in parking availability and an increase in open play and green space. As such, other options may have to include purchasing privately-owned adjacent land (thus an increase in costs) or expanding into the nearby designated natural area such as Wheeler Park, and we know that preserving open/green space is an important concern to our community”