BRATTLEBORO — A judge agreed with the Development Review Board’s decision to approve a site plan and conditional use application for a child care center after a neighbor appealed due to concerns about the uptick in traffic on the otherwise quiet road.
“The proposed use aligns with the stated purpose for the zoning district,” Judge Thomas J. Walsh wrote in a decision issued this month in Vermont Superior Court, Environmental Division. “[T]he site will remain low-density and residential as the child care center is located inside an existing converted garage attached to a single-family residence that will remain a single-family residence.”
In the appeal, Emma Jones-Higley questioned whether The Natural Child School’s proposal to increase the number of participants in the program conformed to standards in the town’s regulations for site plan and conditional use applications. An attorney for Jones-Higley argued the plan would increase the amount of traffic on Fort Dummer Heights in ways the DRB did not adequately consider.
“We believed that the traffic was excessive,” Jones-Higley said in an interview. “I wanted my property rights to be protected. It wasn’t directed at a child care facility. It was directed at traffic.”
Jones-Higley said the traffic drastically changed since she purchased the home in 1991, and she also had concerns about the noise and dust.
The Natural Child School moved from Sunset Lake Road to Fort Dummer Heights in 2018. Owner Amaryah Pendlebury’s proposal called for an increase from six full-time and four part-time children to 11 full-time children due to regulatory reasons.
Zoning Administrator Brian Bannon said state law allows family child care centers to be run under a permit for as many as six full-time students and four part-time students, and the center needed local approval to go up to having 11 full-time students.
The DRB approved the project in July 2020. An appeal must be made within 30 days of issuing a decision.
Walsh said the appeal questioned if the DRB made an error when calculating the impact of the project “by recognizing and considering unlawful pre-permit traffic” on the road in comparison to what would be generated by having the 11th child.
“Applicant’s admission that The Natural Child School was providing care for more children than were authorized to attend shows that the DRB’s traffic findings were indicative of the proposed child care use, and somewhat conservatively high,” Walsh wrote. “Consequently, the DRB’s finding of a total of 60 to 80 one-way daily vehicle trips on Fort Dummer Heights encompasses the number of trips to be generated by the proposed child care use, with 60 one-way trips being from the child care use.”
Walsh said the DRB made an error that “does not require remand” and does not have to do with the board’s factual findings “but with its legal analysis of them.” Evidence supports “the range of existing traffic levels and approximate number of trips per day per child attending childcare on the Property,” he wrote.
His decision notes the proposed use will not exceed capability of the site and the road, and will not have an undue impact on the town’s transportation infrastructure.
“As for the capability of the site, the DRB found that the main limitation on the site is the wastewater system, which is approved for a total of 13 people not including Applicant,” Walsh wrote. “The proposal for eleven children and two staff members consequently does not exceed the 13-person limit.”
Walsh said the DRB’s finding of a low traffic volume on the road is supported by testimony from the applicant that use for the child care center is staggered, with parents dropping off and picking up their children at different times.
“Further, paving the lower section of Fort Dummer Heights will serve to mitigate the impacts of the traffic by reducing the noise and dust that Appellant currently experiences as cars pass her house on the existing gravel surface,” Walsh wrote, referring to a condition of the DRB’s approval requiring new paving at the site.
Walsh said the court affirms the DRB’s conclusion that moving staff parking away from the front of the child care center leaves the existing spaces open for easy pick-up and drop-off for parents, and gives emergency vehicles sufficient space to quickly enter and exit.
Also questioned in the appeal are potential impacts on the natural environment and wetlands. Walsh said the project will not result in undue adverse impacts in these areas as Pendlebury only proposes “few structural changes to the Property and represents in her application that she will preserve the natural landscaping and tree cover, which supports the DRB’s finding that the location of the play area buffers the neighboring homes from noise from the childcare center itself because of the surrounding tree cover.”
Bannon said he’s “happy the court upheld the DRB’s decision.”
Pendlebury said she works really hard to provide child care for families.
“I’m very pleased that I can have 11 kids in my care,” Pendlebury said. “You know, that’s very important for our area, where there’s a very low number of child care spaces available. It’s obviously very helpful for the people I serve in the community. It’s less about me as a business but for the families I know could use the child care spaces.”
Pendlebury called Jones-Higley’s opposition to the project “unfortunate.”
“I wish her no ill will,” Pendlebury said. “I’m not sure why she was against it. All I’m trying to do is provide something for the community that we really need. I’m just happy that things worked out the way they did.”
Now, Jones-Higley’s house is in the process of being sold.
“It was a big change for me,” she said. “It was two homes, minimal traffic. So the neighborhood changed drastically very quickly. Because it was a right-of-way right through my property, it affected me more so than I like, so I chose to just leave.”
Jones-Higley said her property will be good for a young family, being that there’s a child care facility next door.