‘We cannot consider this petition’

Amid rancor over the proposed Windham-Windsor Housing Trust project and a petition for the Putney Selectboard to rescind the zoning permit, the board chair reflects on property rights, the permitting process, and the end of the appeals journey. And about civility and public discourse.

PUTNEY — It has recently come to our attention that a petition has been submitted asking that this board rescind the zoning permit issued to Windham-Windsor Housing Trust to construct affordable housing on the land adjacent to the Putney Community Garden.

Let's just get that part out of the way before I continue: The Selectboard does not have the authority to rescind zoning permits and, consequently, we cannot consider this petition. Our town attorney has confirmed this. For those who enjoy reading statute, the relevant citation is 24 V.S.A. §4472.

Now, let's talk about land rights in Vermont.

The parcels currently owned by Gateway Associates are private land. Let me say that again: This is private land. Owning land comes with a bundle of rights. Those are: the right of possession, the right of control, the right of exclusion, the right of enjoyment, and the right of disposition, also called "fee simple ownership."

In other words, landowners can do whatever they want with their land, with two exceptions: One, the town can levy taxes on it, and two, it is subject to federal and state statutes and, more locally, our town zoning regulations.

There is no community process to check landowner's rights. This parcel does not belong to the town, nor does it belong to the community, and while the current landowners have very generously allowed the public the freedom to walk on it and enjoy it - and even to have a community garden and a farmers market on it - it remains private land, with the landowners retaining the full bundle of rights as any other landowner in town.

Like any other landowner in town, they could have posted it and not allowed anyone on it. They could have planted it with trees, or hayed it, or put animals to graze on it. They could have put a fence around it or built a private residence or put up solar panels or a Dollar General or a parking lot, as long as they continued to pay their property taxes and those uses conformed with federal and state law and our town's zoning regulations.

They didn't.

They decided to sell it to a housing trust. That was their right as private landowners. You, the public, and we, the Selectboard, do not have a say on who private land owners sell their land to, or for how much. They do not have to sell it to you or someone of your choosing because you think you have a better use for the land. It's not your land. It's theirs.

* * *

Now, let's talk about the permitting process.

Windham & Windsor Housing Trust, which will soon be the new landowners entitled to all the same bundle of rights as all other landowners in the state of Vermont, decided that when they finally own these parcels, they want to place housing on it - go figure. So they went through the process of obtaining a permit to allow them to do so.

Again, you, the public, and we, the Selectboard, do not have a say on what kind of structures a private landowner may put up on their land. That would be a very different permitting model. That would be "permits by popular opinion."

Imagine wanting to add a deck to your house and having to go to Town Meeting to seek permission from your fellow citizens to do so. What if they didn't like you? What if they decided it wasn't anything personal - they're not against decks per se, but they felt you already had enough decks? What if they think decks are bad for the environment? What if they think you haven't lived in Putney for long enough?

Fortunately, to build a deck, or any other structure on your land, your project just has to conform to the rules in our zoning bylaws to get approval to build it.

That process doesn't question what kind of people might set foot on your new structure or if your new structure will bring in the right amount of taxes. It's based on a set of standard rules, no matter what your name is or where you came from. It's a process that tries to balance land rights with town goals in the most objective way possible, with a robust appeals process that goes all the way up to the Vermont Supreme Court.

Our zoning bylaws apply to every landowner equally and do not bend to the opinions of a vocal minority. They are applied in a statutorily defined process, by appropriate municipal panels.

In our case, that process goes through our zoning administrator and our Development Review Board. The Selectboard and the voters have no role in this process.

* * *

Now, let's talk about this petition.

Regarding the unsubstantiated - and, frankly, malicious - allegations that members of the DRB, the Planning Commission, and the Selectboard variously engaged in underhanded tactics in order to "push this project through," I'd like to address some specific pieces of misinformation that continue to circulate and are vaguely referenced in this petition.

One is that the DRB and/or the Selectboard reduced the size of the DRB shortly before the WWHT permit was issued. This is false.

On Feb. 26, 2014, the Selectboard voted to reduce the DRB from a nine-member board to a seven-member board.

On March 9, 2022, the DRB - with a vote of four out of a possible seven, five of whom were present, with one recusal - unanimously approved the Project.

On March 23, 2022, the Selectboard reduced the size of the DRB from seven to five, because of issues with recruitment and known and ongoing issues with recusals due to conflicts of interest.

March 23 is after March 9. Let's repeat that: March 23 is after March 9. Every single year. The year 2014, likewise, is eight years before 2022, which was way before this permit was a twinkle in anyone's eye. There is no narrative that can make this timeline work in any other way.

Another is that there were multiple and ongoing conflicts of interest among members of these boards. This is also false. While one member of the Selectboard and one member on the DRB did have a vested financial interest in the sale of the property in question, each time time this subject came up, these members properly disclosed their conflict and recused themselves.

Every time. I know. I was there.

Another is that the Planning Commission changed zoning bylaws in order to accommodate this project shortly before the permit was issued. Specifically, that the parcel was "zoned commercial and then re-zoned residential."

The town did not "rezone the Gateway project land from commercial to residential." Putney does not have commercial-only zoning. The parcel in question has always been zoned Village Residential.

What the Planning Commission recommended, and what the Selectboard voted for after a duly warned public hearing, was to reduce the minimum lot size from 15,000 sq. ft. to 10,000 sq. ft. for public water and sewer lots to support the potential of the Neighborhood Development Area designation.

The proposed Gateway project fit within the existing minimum lot size before these changes were made, so the conspiracy theory that the Planning Commission and the Selectboard voted to change these rules to make the project conform is untrue.

Also, those changes were voted on in April of 2021. The permit was not applied for until December of 2021 and wasn't granted until March of the following year.

In other words, the project was designed to conform to our zoning bylaws, not the other way around. Again, if we follow the generally accepted view of how time works, this narrative cannot be construed in any other way.

* * *

Furthermore, while investigating what missteps there might have been in an effort to improve our processes going forward is a good idea, the remedy for any missteps in the original process has already been taken.

That remedy was appealing the DRB's decision to Vermont Environmental Court and then the Vermont Supreme Court. Both courts reviewed the permit de novo (as new) and found it to conform to the Town of Putney's zoning bylaws.

When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous body to hear the case (in this case, our Development Review Board). This appeals process is designed to cure any issues that may have arisen in the original process.

In other words, the courts upheld the permit approval objectively on its merits based on their legal interpretation of our zoning bylaws without considering the DRB's reasoning for coming to the same conclusion.

The Vermont Supreme Court was the last stop for this appeal. There are no other avenues left to appeal or rescind this permit.

The court has spoken. Windham & Windsor Housing Trust has won the right to build the housing they've been permitted for on the land that they will soon own.

* * *

Now, let's talk about civility and public discourse.

A recent post on Facebook directly targeted the members of our DRB in a sexist and ageist way, and many other commentaries and false narratives both on and off of social media for the past two years have continued to paint the entire town leadership as an evil cabal that is secretly in the pocket of a large, wealthy monopoly.

The subsequent inevitable comments target certain areas of town in denigrating terms, using coded language and dog whistles that disrespect and stereotype the people - our friends and neighbors - who call those areas home.

I have also heard of former and current members of our boards and commissions being verbally accosted while going about their daily personal lives in Putney, and accused of making out financially or personally on this project.

One individual told me they have received hate mail. Another told me it's just "par for the course." But it should not be par for the course. Healthy disagreement and discourse is one thing. Threatening and bullying is another.

That is not OK. I expect better of Putney. Those comments and that sentiment and that downright disrespect for fellow town members and hardworking volunteers is not the Putney I know and love.

Furthermore, when false allegations are publicly made against individuals and organizations on social media and elsewhere in order to tarnish their reputation, it is defamation and libel, neither of which is protected speech under the First Amendment.

We are all members of this town, no matter where we live, or how long we've lived here, or who we rent from, or what positions we hold.

I will say again: this particular issue has been arbitrated by our highest court, and they have spoken. It is over. It is time to move on. We have other issues we need to work on.

I see a lot of energy and engagement right now around housing, which is great, but it is not being applied in a constructive way, and it is not looking forward. Please begin to use your energy in a way that truly helps form our future in Putney.

Aileen Chute, chair of the Putney Selectboard, read this statement at the Aug. 23 board meeting. "Keep in mind that a) I wrote it to be spoken and b) it's obviously only from me, and not from the entire Selectboard," she cautions. Editor's note: A Commons reader suggested publication of this statement. We welcome and appreciate such suggestions; please get in touch at [email protected] if you come across something you think inspires good food for thought.

This Voices Primary Sources was submitted to The Commons.

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