PUTNEY — A third appeal to the proposed Windham & Windsor Housing Trust (WWHT) 25-unit, mixed-income, residential rental housing project on Alice Holway Drive has been filed in Vermont Superior Court.
A hearing date has been set for Monday, Nov. 27, at 3 p.m., via remote video conference. It is expected that next steps will be defined at that hearing.
Appellants Laura Campbell and Deborah Lazar, represented by attorney Harold B. Stevens, oppose the Environmental and Superior courts' previous opinions, effectively dismissing their prior two appeals.
The new appeal, filed on Oct. 31, challenges the former court opinions that the lots in question are contiguous and whether the WWHT project does, in fact, "satisfy the definition of 'affordable housing' since the lots are not contiguous."
It also asks whether the district commissioner erred in the jurisdictional opinion that concluded the project is exempt from Act 250 review.
The appellants say the court "should require land use review and a project permit."
WWHT has proposed a 25-unit, mixed-income residential rental housing project on Alice Holway Drive.
"We are confident that the Courts' prior rulings will be upheld," says WWHT Executive Director Elizabeth Bridgewater. "At a time where affordable housing is so desperately needed in our community, where local wages are far outstripped by housing costs, we remain focused on creating-much needed homes in our region."
"The new case is also a legally viable response to Environmental Court's failure to address the central issues of the first two appeals, which are that court insisted repeatedly via their denials, were "outside of their jurisdiction," says Campbell. "We are persevering, in order to involve Vermont Agency of Natural Resources, to contest a misrepresentation of the lots in question as 'contiguous,' and to review the development strategy by which Peter Paggi of WWHT applied exemptions of Act 250 articles and other abnegations of significant regulations in the WWHT permit process from 2019 to 2022.
"We are continuing in our opposition to WWHT's Alice Holway Drive project because it amounts to is a gross misuse of 0.91 acres of precious open, green space which benefactors of Friends of Putney see as ideal for outdoor recreational, social, contemplative, educational, and aesthetic activities essential to the health, vitality, and enjoyment of the Putney Community and visitors."
From one nonprofit, a new nonprofit emerges
"I see a park where WWHT has contrived to lay the ground for an oversized, 'big-box' housing project taking up any and all outdoor space and leaving no safe place for play," Campbell says.
She avers that Julie Tamler of the former Inclusion Center also saw a park when she transferred her 501(c)3 Internal Revenue Service not-for-profit status to Friends of Putney.
A 501(c)3 nonprofit refers to the section and subsections of the United States tax code under which the tax exemption is allowed. Such public charities are exempt from corporate taxes, and donors can deduct their contributions on their own personal federal income taxes.
According to filings with the Vermont Secretary of State's Corporations Division, Campbell and Lazar are directors of Friends of Putney, along with a third director, Daniel Hartigan.
"Julie envisioned an inclusive, accessible park, welcoming the Putney community of all ages and capacities as well as greeting visitors to Putney," says Campbell. "A spacious green, with flowing walkways through diverse, carbon-sequestering shade trees, alternating with areas under cultivation with native shrubs and wildflowers for pollinators, a gazebo, picnic tables, and benches.
"On the western side of Alice Holway Drive, I see a natural pavilion for events, crafts sales, and even winter season gatherings. An accessible, safe, locally designed, sourced, and available children's playground and a kiosk for trail and bike maps, craft tours, and all the performance venues, shops, and eateries a revitalized Putney will offer."
"I don't know a lot about legal things, but you can change the name and essentially the purpose of a nonprofit," says Tamler, adding that she supports the Friends' vision for the acreage in question.
The Inclusion Center was incorporated in 2014 as an organization to provide educational and social activities for people with disabilities, including a drop-in activity center.
"During Covid, Inclusion Center was no longer meeting and we went online," Tamler said. After her son, Ruben Tamler-Schottland, died in 2021, "we lost most of our board for various reasons, and things very dramatically changed."
"We were trying to figure out what to do with our nonprofit status, and we had some money we wanted to do something good with, something that would promote inclusion," Tamler added.
In 2022, a group called Envision Putney met several times, and Lazar says she realized in those meetings that residents "were unclear about the new development of housing and wanted information about exactly what was being proposed."
That group ultimately melded into the Vermont Council on Rural Development meetings that took place last year. One takeaway of those meeting results was to look at creating housing here.
Lazar explains that Tamler's offer of transforming the Inclusion Center into Friends of Putney came out of those original discussions.
"The original board elected a new board and resigned," she says. "The new board's first task would be to change the name and mission statement."
That new board - Lazar, Campbell, and Hartigan - created a new mission and direction for the organization.
"We chose the name 'Friends of Putney' and changed the mission statement to include protecting open space in Putney, creating affordable housing for Putney residents, and supporting the creative sector," Lazar says.
The IRS, which approves the federal tax-exempt and tax-deductible status for nonprofits, routinely allows organizations to change their name.
According to a post from Foundation Group, a nonprofit management consultancy, "Once a charitable nonprofit receives 501(c)(3) status, it is free to operate any program it desires, as long as that program satisfies a charitable purpose within the IRS definition, even if that includes a wholesale change in mission," its CEO, Greg McRay, posted on the organization's blog in 2021.
The only thing the IRS requires is that the organization report that change on its next annual filing with the IRS, McRay added. In lieu of taxes, nonprofits file form 990, which by law must be made available for public inspection.
One lot or two?
Campbell, who has lived in town for 33 years, was the sole appellant on the first appeal, filed in March 2022.
Before the Development Review Board (DRB) approved WWHT's permit application on March 9, 2022, she wrote about her concerns in a letter to Chair Phillip "Pip" Bannister, WWHT Director of Real Estate Development Peter Paggi, Putney Town Manager Karen Mathieu-Astley, and Windham Regional Commission Executive Director Chris Campany.
She says she received no replies and thus turned to the Vermont Superior Court's Environmental Division, as an appeal.
In her letter, Campbell expressed concern about the WWHT permit application, noting some omissions and discrepancies, in her view, in that application.
She wrote her review of the information left her "with the impression that the application submitted on Dec. 14, 2021 was completed carelessly and may not meet legal requirements." She noted the issues of contiguous lots and questioned whether acreage requirements for such a development are being met in the WWHT plan.
Campbell and others contend the two lots the housing plan involves, noted as Lots A1 and A2, are "separate parcels set apart by an essential roadway of the town of Putney" and not contiguous.
"Alice Holway Drive is a heavily trafficked, town-of-Putney street separating Lot A1's remaining 0.91 acres and A2's 2.02 acres," Campbell wrote in the letter. "Alice Holway Drive already poses safety problems for drivers, pedestrians, and bicyclists. Traffic of all sorts will endanger children who are expected to live in WWHT proposed housing units, children who will need space for play and who will also rely on the school buses that pick up and discharge students along Alice Holway Drive.
"A distinction between Lot A1, where WWHT proposes building on .91 acres, and Lot A2, which has been correctly assessed as very clay-based soggy acreage given to frequent flooding and storm water run-off problems, is lacking. It would seem reasonable to me to distinguish between A1 and A2 soil quality by designating A2 as lying within the Flood Hazard Area."
A 26-year resident, Lazar says she began learning about the proposed development as a member of the Community Garden in 2020.
"I became an interested person in the case during the first appeal of the WWHT permit in 2022," she says.
"I read with enthusiasm the two opposing counsel's opinions. WWHT's lawyer said it is 'one lot with a road on it.' And the lawyer for the appeal described it as two lots divided by a road. How could it be both things? I wondered."
Lazar says she travels Alice Holway Drive "almost every time I enter and or leave Putney."
"I wondered how the lawyer could call the two lots contiguous because it is a main road for Putney residents who enter and leave the town who also must travel on Alice Holway Drive regularly," she says, adding the Drive is also the southbound exit for Putney Co-op customers, which she says average 500 daily, plus 20 employees and several delivery trucks.
"Putney residents had asked for [the DRB to conduct] a feasibility study and a traffic study before issuing the permit; it was never done," says Lazar. "The current appeal in Environmental Court is asking for a review to determine if the current design has enough contiguous land for the density of 25 units."
Lazar says when the Selectboard first received a petition signed by more than 5% of Putney's registered voters, it was "dismissed" by Selectboard Chair Aileen Chute.
"The Selectboard does not have the authority to rescind zoning permits and, consequently, we cannot consider this petition," Chute said at the outset of the Aug. 23 board meeting in the opening of a prepared statement that went on to forcefully rebut project opponents' assertions.
Regardless, Lazar believes "there were issues raised in that petition worthy of discussion that could have received some attention."
"Our board agreed to cover the expenses of the appeal in Environmental Court," she continues. "The question before the Court was always about whether the land was contiguous. And whether the permit was given erroneously."
This News item by Virginia Ray was written for The Commons.