Analysis: A closer look at the DRB process

Wednesday December 26, 2012

WILMINGTON -- The Development Review Board has had its fair share of difficult cases over the years.

Nicki Steel, chairwoman of the board in Wilmington, sat down with the Reformer to discuss her perspective.

"I like the process," said Steel. "I like to figure out what people are asking for, looking at the law and seeing how it fits together. I strongly believe everyone needs to be volunteering with something -- something you enjoy."

The DRB has a clear-cut beginning and end on each application, unlike other town committees and boards. The board cannot revisit an application once it has been closed.

Steel has been a volunteer on the board for more than 20 years. She says that being the chairwoman doesn't mean she gets to tell the other members how to vote.

"They wouldn't listen anyway. I am one voting member out of five. I am responsible for connecting with the zoning administrator and running the meeting."

Back in the late 1960s and early ‘70s, Steel recalled an approval for something that is now referred to as "Haystack masterplan," which was the initial development of where the golf course is and where the mountain is, as well as the amount of land that could be used to develop for houses.

The board's work on that project and the development of Chimney Hill during that time helped to influence the creation of Act 250.

Recently, Haystack owner Jim Barnes applied for changes to the land that were approved in July. His team brought data from the early Haystack development plans to make sure all the open land would remain that way.

"There have been changes throughout the years but we had to look at the big picture to make sure basic decisions that were made in early ‘70s were still going to be followed."

A few years ago, the board put together a comprehensive review of permits that were approved for the Haystack land. Then it did a summary of the findings, so that when and if ownership changed hand, there is already solid documentation of zoning regulations. This helps to determine whether a project will fit in with previous approvals.

Wilmington also has a historic review district, which makes permits a little more difficult to obtain because of regulations that are mandated for that district where mostly stores and restaurants are located.

Steel said that each town's DRB is different, but every DRB has to follow state law. Every member has a different life experience that they can bring to the table.

"I'm proud of the professionalism our board tries to bring to the process. I'm not saying other boards don't, but we try to follow the law and be professional."

In Wilmington, the exhibits are given to the zoning administrator, who then checks the application to make sure it is complete and has all the necessary documents. The administrator then puts a warning into the newspapers because it is a law that applications for projects that go before the board must be made public.

"This is to preserve rights of applicant and abutters. The neighbors need to know something is happening."

Wilmington Zoning Administrator Alice Herrick tells applicants what they may be able to expect at a hearing and schedules the meetings with the DRB. She has worked as the zoning administrator since 2007.

"I see the process all the way through. At the meeting, I don't always say a lot. I'm not a board member and I don't have a vote," said Herrick. "I'm there as a resource for the board."

During the process, the members cannot talk to the applicant about a project outside of an official meeting. In addition, when outside of a warned meeting, board members may discuss procedure but nothing specific about a current case.

Steel said she reviews applications about a week before the hearing to see if anything is missing. She then may review the documents again the day before.

Some members of the DRB write down questions for the applicants before the hearing so that they can be more prepared.

The board will go into deliberative session, which usually means that the board has a private meeting and the public has to leave the hearing.

"The great majority of the hearings end in one session," said Steel.

That is unless the board needs more information submitted to make a decision or a site visit needs to happen in order to understand the project.

The Wilmington DRB assigns a case manager after members collect main pieces of data, which are called "facts and findings." A draft of the decision is then made by the case manager.

Although this happens rarely, it may be decided that the board has to get together again to discuss the case again.

When an application comes through to the zoning administrator that will be heard by the Wilmington DRB, it is either to meet criteria for conditional use or for a variance. Conditional use permits are easier to obtain and usually are submitted by applicants who want to do something with a business or a multi-family dwelling.

These businesses include restaurants, retailers or manufacturers.

A variance is very difficult to obtain. This usually concerns setbacks. The case that opens up again early in January, which is an application for the Ann Coleman Gallery, includes setbacks as well as putting up an additional floor.

It is also in the historic review district, which means the applications must meet other regulations.

The Coleman Gallery is required to get waivers and must meet the flood hazard review standards, along with the approval for the variances.

The case has proven to be complicated for both the board and the Coleman Gallery.

Conditions that the board decides upon for a particular applicant are related to criteria. There is a checklist for five pieces of criteria that the applicant must meet for either a variance or a conditional use permit.

Dot's Restaurant, like the Coleman Gallery, was in the Historic Review District of Wilmington. The applicants were required to submit an application to the DRB.

Since Irene, flood hazard review has been a major concern for board members and applicants, especially in the historic review district. Construction must meet the base flood elevation standards required by the state.

"This was another one where the flood hazard review was a crucial element in their rebuilding. Theirs was in the flood zone as well as the historic review district," said Herrick. "They enjoy certain protections under the town flood hazard regulations, but they still wanted to protect their building."

The owners decided that they wanted to make the building stronger, so they would raise it up and cease use of the basement.

The basement had been completely flooded out in Irene, so they decided they would stop using it altogether.

"They came in with a really good project and it's one that had to be reviewed by the town and state flood hazard people."

After Tropical Storm Irene, the Brattleboro DRB had seen similar projects and complicated issues.

"The DRB has well-informed leaders that have managed to conduct themselves really professionally in some really tense settings especially following Irene," said Brattleboro Planning Director Rod Francis. "The board conducted itself in a dignified way and that's due in great part to the skills of the chair and the senior members of the board."

Francis typically gets a report for a project that needs to be reviewed. He then makes sure it is in compliance with zoning laws. He identifies with the board where there may be a conflict with current regulation and makes a recommendation.

The Brattleboro Zoning Administrator will provide a draft of the decision. The language of it will be prepared by the zoning administrator so that the DRB can look at the decision before and after the meeting.

The DRB decides whether or not the project will be approved after reviewing that draft at the hearing. The zoning administrator will make another draft of the board's decision, which will be signed by the chair and other members of board.

The rest of the process is the same in both Brattleboro and Wilmington.

Interested parties may give testimony at a hearing. If they want, they can appeal if an approval is later drafted by the board. If an appeal is made, the interested party takes the applicant to Environmental Court.

"The DRB should do what it is assigned to do," said Steel. "It can't discriminate and it should be consistent. We can't look at personalities. We must look at applications. A thing people have to do is train themselves to put aside their personalities and look at the law."

The DRB has 45 days to make their decision after the hearing.

"I'm very proud of fact that we get most of them out in a week or two weeks."

There is a 30-day period to appeal the board's decision. The rights to an appeal can be found at the bottom of the approval. If there is no appeal, the approval becomes final.

The Wilmington DRB currently has openings for three alternates.

Chris Mays can be reached at 802-254-2311, ext. 273, or Follow Chris on Twitter @CMaysReformer.


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