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Land Trust to appeal density rights decision

Posted Monday, March 13, 2023

By Aaron Calvin. Published by the Stowe Reporter on March 9, 2023. Originial link here.

After the Stowe development review board declined to weigh in on the critical question of density rights, Stowe Land Trust is vowing to appeal in court a decision that effectively granted Paul Percy full control of those rights on a piece of trust-conserved land.

The land trust came to odds with Percy during a process in which the Stowe farmer consolidated the patch of land known as the Landmark Meadow, which the trust conserved and then sold to Percy at a discounted price in 1998, with the agriculture-planned residential development area that contains the Bouchard Farm property on the other side of the West Branch River, also owned by Percy but conserved by the trust.

The Bouchard Farm totals 266 acres, but only 180 acres are protected from development under a conservation easement. Landmark Meadow is just under 16.1 acres, all of which are protected.

Throughout the process, the trust argued that despite selling the land to Percy, they still retained ownership of the density rights, a unit of measurement that designates how many units can be built in one area of a property while the rest of the property is protected.

By consolidating two conserved parcels and their density allocations, Percy was looking to increase the number of units that could potentially be built on the developable parts of the Bouchard Farm, which is fronted by Luce Hill Road with the Stonybrook condominium complex on one side and the farm’s hay and cornfields, barns and farmhouse — and Percy corn maze — on the other side.

Percy argued that the board should decide who owns those rights, but the board verbally stated and then backed up in a written decision that they would not rule on the matter.
By declining to pass judgment, the board essentially allowed Percy, who was himself at one point a longtime member of the town’s planning commission, to go forward with his plans for the now-expanded agriculture-planned residential development.

Stowe Land Trust, however, has argued this decision could have large ramifications on land conserved by the trust with the use of donated and town money, and is planning to appeal the decision, first in Vermont Environmental Court, where such appeals are initially heard, and eventually in civil court, where property disputes are considered, if necessary.

“Stowe Land Trust (SLT) fully, legally, and fairly owns Landmark Meadow’s development rights,” the trust asserted in a statement after the decision. “SLT bought them, along with the land, from a previous owner with donated funds in 1998. SLT then sold the land at a deeply discounted price to Paul Percy for farming and retained all the development rights in the form of a permanent conservation easement.”

The trust asserted that the board’s decision “gives away something of value that belongs to the land trust” and violates their “many legal interests.” The trust indicated they hoped to resolve things amicably with the town and Percy but would pursue the issue until it was resolved.

Kristen Sharpless, the land trust’s executive, pointed out that the Landmark Meadow property is unique within the trust’s portfolio as it sits within the town’s transfer of development rights area, where units of allocated density become a unit of currency within their own market. This is a rare zoning designation in Vermont, according to Sharpless, and one that Stowe shares only with South Burlington.

Whether Percy should be compensating the land trust for the density units or not have access to them at all, Sharpless argued that it should be entirely up to the land trust to decide.

Though the development review board’s decision has set Percy and the land trust up for a legal showdown, Sharpless emphasized that her organization is still committed to resolving the situation respectfully.

“We prioritize having a good working relationship with all our owners of conserved lands and when things come up, we always want to try to amicably sort them out,” she said. “That’s been our objective all along with Paul, in this case, and continues to be so. It sounds very contentious and divisive and it’s definitely a complicated disagreement and important to get right, but we’re still very committed to working through difficult issues with respect.”