OPINION: Montpelier’s Experiment in Land Use Regulation

by Paul Gillies

Hearing, Montpelier Planning Commission

Final Draft, Bylaws

Monday, 5:30 to 7 p.m.

City Council Chambers

Next Monday night, January 5, the Montpelier Planning Commission holds its first hearing on its final draft of the bylaws. They are available at the city website, and invite thoughts about what has been proposed.

Respect the Basic Principles

There are a few basic principles to the writing of bylaws. First, they must be based on the current municipal plan, as that is the fundamental authority. The plan is the design; the bylaws are the operating manual.

Bylaws must be reasonable. That’s a legal requirement. They must be clearly written, avoiding ambiguity. And they must be impregnable from attack by appellants who challenge what the development review board decides, based on the bylaws.

Montpelier readopted its 2010 city plan in 2015, without amendment or updating of the various charts. The 2010 plan was properly heralded throughout the state as one of best, because of its vision, clarity and reasonableness. Like us, it has aged over time, and being readopted, while legally valid, has left question marks as to its currency.

Bylaws are expected to grow organically out of the plan, but that has not happened this time. The planning commission was given a draft set of regulations, written somewhere else, based on some other plan, and asked to improve it. The commission spent many hours wrestling over this process, but without a plan that could effectively inform the draft, the result is bound to be challenged because of this defect in the process.

Reasonableness ought not to be so difficult. Taking the draft as a whole, it’s hard not to conclude that Montpelier will be entering a period of more intense regulation if this version is adopted. The intensity of detail will drive up the cost of new construction, and discourage investment in downtown, putting the city at a disadvantage in a competitive region and economic climate. Montpelier will be competing for the most regulated community award.

Creativity is discouraged in the present draft. Decisions that landowners would otherwise be able to make are foreclosed by the mandates for design and style in some areas. The bylaws appear to create a completely planned municipality, a kind of Disney Main Street, requiring new structures that replace older ones to reflect the styles of what came before. By this, Montpelier will marbleize itself, allowing only recreations of what exist today.

Get the Details Right

There are practical problems with the draft. The district maps do not include property lines, as the maps that accompanied the plan have shown, making it difficult for landowners to make their own plans before filing an application without having to consult with the zoning office. Some maps, such as the conservation map, are not based on reliable data, and identify areas that will be protected, even though their location is misplaced on the map.

Landowners will also need to consult experts to make reliable decisions as to what standards apply to specific parcels, where better maps with better clarity would avoid that extra cost.

It’s hard not to conclude that implementation of the bylaws will create more conflict, more opportunity for appeals and more confusion, than the existing set of regulations. There are sections that set timetables without sanctions. There are internally inconsistent provisions, such as the rules on shading of yards, mediating between a right of privacy for a neighbor and the encouragement of backyard solar panels.

While some parts of the regulations are severe in their specificity as to what is allowed, in other places, what should be clear is left to the discretion of the Development Review Board, offending the general principle of zoning that an applicant ought to be able to know in advance whether what is proposed is agreeable or not. Too much discretion in a decision-maker, when it comes without specific standards, is ripe for challenge.

Land use regulation need not be a war between regulation and development, but the present draft invites needless skirmishes and arguments. It promises more controversy. Zoning doesn’t need to become the moral equivalent of war.

Take Up the Master Plan

Montpelier is a precious jewel of a municipality. Protecting its character is a noble mission. It cannot be put into a glass jar. It must breathe. It must evolve. These are not ends that will be achieved with the present draft.

The master plan really ought to come first. A ten year old vision of a city is no basis on which to build a set of regulations, if indeed the plan was considered when the original draft of the bylaws was presented to the commission. The present plan expires next December, when the City Council has required a new and better plan, with current and reliable data supporting it, to be ready.

That should be the starting point for the development of regulations. This set is premature.

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