Old rules, new uses: Waterbury looks to interim zoning downtown

February 12, 2021 | By Emmett Gartner 

Perry Hill Partners' new mixed-use commercial development at 28 Stowe St. was denied a zoning permit for a brewery because the use clashes with zoning regulations in need of updating. Proposed interim zoning bylaws would allow it. File photo by Lisa Scagliotti.

As the three-year effort to rewrite Waterbury’s zoning regulations continues at a snail’s pace, town officials are looking for a way to usher in new development projects in the downtown that don’t meet the outdated rules. 

The fact that developers are even considering investing in new ventures during a pandemic economy adds urgency that’s led the Waterbury Select Board to launch the process to implement interim zoning bylaws for a core area of the village. 

The board will hold a public hearing via video conference on Feb. 22 at 7:15 p.m. to discuss the measures recently drafted by Community Planner Steve Lotspeich and town staff.

According to Lotspeich, the proposed bylaws are a two-year stopgap measure to address town development issues and economic impacts from the COVID-19 pandemic. Their provisions would increase housing density and facilitate a wider range of commercial and light industrial uses in the downtown area mostly along Main Street from just west of Stowe Street to Warren Court, and bounded by the railroad tracks.

“The idea [of the bylaws] is to be able to foster further economic development and assist in the continued development of our downtown,” Lotspeich said. 

The draft bylaws are available on the town website homepage, waterburyvt.com, and details to connect online to attend the hearing on Zoom will be posted closer to the meeting date. 

The select board is seeking public comment that could lead to revisions before the board votes on whether to put the measures in place. The draft proposes that the interim bylaw be in effect for two years from the time the select board adopts it, with a possible additional one-year afterward if approved by the select board.  

The move comes in the midst of a tumultuous period of interactions between local developers and the town planning and zoning department.

Jason Wulff, a Waterbury resident and commercial property owner, identifies this conflict as the result of outdated zoning regulations and strict enforcement practices that anchor the town in the past. 

His own two development projects were derailed after a string of decisions by the town zoning administrator and development review board in December. Wulff and partner Aaron Flint – known as Perry Hill Partners – applied for a change in approved use for their new commercial building at 28 Stowe Street that they’ve named Bell’s Block. 

They asked to change from retail/office use to a taproom, brewery and retail space. Another request involved office space at the adjacent property they own at 11 North Main Street. Both applications were denied based on the town definitions of allowed uses. For example, without a “brewpub” category in the existing zoning regulations, Zoning Administrator Dina Bookmyer-Baker considered it a “bottling plant” which is in the regulations but is an industry forbidden in the zone where 28 Stowe Street is.

Consequently Bookmyer-Baker denied the application and the DRB in December upheld her decision.  The minutes of the DRB appeal hearing indicate that Bookmyer-Baker “stated that she doesn’t have wiggle room in dealing with applying the definitions in the Zoning Regulations. She must take the definitions literally.” 

The applicants pointed to Prohibition Pig around the corner from 28 Stowe Street which operates a brewery on the corner of Main and Elm streets, but town officials rejected the comparison saying Prohibition Pig’s main business is a restaurant.  

“This ambiguity,” said Wulff, “has caused much stress on property owners as well as Development Review Board members who are left trying to interpret out-of-date regulations and definitions that do not match our current economy.”

Looking for another chance, in January Wulff and Flint appealed the local decision to the Vermont Superior Court, Environmental Division, asking to have the application reconsidered.

Regulations predate brewpubs

The steps toward interim zoning were put into place just two months ago when the Select Board invited Lotspeich along with Planning Commission Chair Ken Belliveau and Vice Chair Mary Koen to discuss the comprehensive zoning bylaw rewrite and a timeline for a draft.

The planning commission, which is responsible for drafting zoning regulations, has not updated Waterbury’s zoning bylaw regulations since the mid-1990s. 

Without mentioning Wulff’s name, Select Board Chair Mark Frier alluded to developers having a tough time getting permits.  

“There’s a specific project that’s looking to come into town that is struggling to navigate our current zoning regulations and I think a lot of it has to do with when they were written,” Frier said. 

An owner of The Reservoir Restaurant & Taproom that sits just a block from Wulff’s project, Frier recently navigated an application past the Development Review Board with success. In November, Frier applied for a change of use for 40 Foundry Street from an auto parts retail store to a brewery with retail and a tasting room. The board approved the request with some conditions.The Foundry Street location is in an industrial zoning district that allows for a use such as a brewery, unlike 28 Stowe Street which lies in the downtown commercial district which has different restrictions. 

The new brewery would brew small batches several times a week and host tasting events, according to the application. Frier’s partners and prospective tenants are Ryan Miller and Lil MacNamara who run Freak Folk Bier, a boutique brewing operation launched in 2019 using Queen City Brewery on Pine Street in Burlington. The operation experiments with fermentation techniques to produce small batches for limited-release tastings. 

Frier in his role as select board chair took the opportunity in December to raise the topic of the languishing zoning rewrite that’s hindering other applications from moving ahead. “The newer businesses like breweries aren’t necessarily clearly defined, especially microbreweries,” he suggested at the start of the discussion with the planners. He also mentioned several hair salon proposals having similar difficulty.

Belliveau offered some self-deprecating humor. “The Planning Commission has been working on this comprehensive rewrite of the town development regs for – I think I may still have had hair when we started,” the balding Belliveau said with a smile. “It has been a slow painful process.” 

Reasons for the slow pace include the scope of the project and the fact that planning commision members are volunteers who take their charge seriously in wanting to understand their work well, 

Belliveau said. 

He then explained how the commission has recently decided to shift its focus on rewriting the bylaw in sections “in the interest of getting something accomplished,” starting with revising downtown sections first. The board encouraged the planners to do just that along with drafting an interim bylaw to provide a short-term update to address some of the stumbling blocks. 

In January, the planning commission invited a state community planning official to a meeting to discuss the state’s guidance that advocates breaking bylaw rewrites “into workable pieces.” Within a few short weeks, the interim zoning bylaw draft was headed to the select board for approval. 

Planning Commission at odds 

Yet despite what appeared to be some consensus on how to move ahead, members of the Planning Commission at a meeting on Monday voiced concern that the process is now moving too quickly. 

“To be quite honest with you folks, at least some of the members of the planning commission felt blind-sided,” Belliveau said of what he said is a rush to unroll interim zoning bylaws.“We thought we were working together and it didn’t feel collegial the way it occurred.”

Commissioner Martha Staskus agreed. “Again we’re getting diverted from our real mission of getting these bylaws enacted and reviews. It’s a little bit frustrating,” she added.

Select board members Katie Martin and Michael Bard also attended Tuesday’s meeting and responded directly to the commission’s grievances. 

“Thank you for your comments, and going forward I would just recommend: come in [to the select board meetings] and tell us that you’re pissed off. I’m hearing the frustration and I am understanding you,” Martin said. 

By the meeting’s end, the attendees found a wider consensus on how to address the interim zoning bylaws, crafting the following statement that they will send to the select board ahead of the Feb. 22 public hearing: “This draft as it is written does not come with a recommendation for approval from the planning commission. In the view of the planning commission the draft is incomplete and contains a number of unresolved issues.”

Looking ahead

Outdated zoning regulations are a common hurdle for Vermont towns looking to modernize their community development practices. 

According to Jacob Hemmerick, planning and policy manager for the state Department of Housing and Community Development, “A lot of land use regulations in Vermont were put in place around the 1970s and principally reflect a lot of mid-century suburban values that frustrate some of our statewide land use goals, and that is to develop compact settlements surrounded by working farms and forests.”

For this reason, ill-fitting designated use definitions like “bottling plant” can be attached to a craft brewery and disqualify it from development in certain zoning districts. Updates to these bygone regulations are by no means simple, he said.

“Zoning is a complex tool and takes a lot of public process to make changes,” Hemmerick said,

“but that public process and being responsive and adaptive as conditions change is what keeps a community stronger.”

With the planning commission’s comments in mind, the select board will field the critique of the public and make a decision on the interim bylaws. 

“The select board can make substantive changes after they hold the hearing,” Lotspeich said regarding the upcoming review process. “They can take comments on written and verbal testimony and make substantive changes [to the bylaws] and adopt them, which is effective immediately.”

The board can also decide to scrap the bylaws altogether, but doing so would put them back in dispute with Wulff’s proposed development.

Lotspeich confirmed that the interim bylaws as proposed would allow Wulff’s brewpub to move forward. “What’s anticipated in the unified development bylaw would allow a brewery with a tasting room and retail outlet in the 28 Stowe Street location,” Lotspeich said.

Despite these allowances, Wulff is hesitant to throw his support behind the interim bylaws and claims both that his proposed development should be allowed regardless, and that the bylaws need to go a step further.  “I’m really hopeful that we’re going to get somewhere that’s a lot better,” Wulff said, “but it’s been a lot of work.”