MEMBERS PRESENT:      Robert Roesler (Chairman), Tim Pudvar, Al Gobeille. (Bill Smith and Gary von Stange were absent.)

ADMINISTRATION:          Paul Bohne, Town Manager; Peter Frankenburg, Finance Director; Bernie Gagnon, Public Works Director.

OTHERS PRESENT:          Joan Lenes, Phil & Vicki Carleton, Peter Gibbs, Gwen Webster, Tom Moreau, Mark Brooks, Chris Kapsalis, Abby Miller, Sean Folley, Gregg Beldock, Craig Smith, David Brown, Joel Baird (Burlington Free Press), Danielle Frawley (Shelburne News), and others.

 

The Selectboard met in Executive Session prior to the start of the regular meeting to discuss personnel matters.

 

Robert Roesler called the meeting to order at 7 p.m. and recognized the service to the community by Steve Waltien who recently passed away. Mr. Waltien who served on Shelburne’s zoning board was a wonderful person and volunteer who gave back to the community, Chittenden County, and the State of Vermont.

 

Additions:

Item 11.a – Approval of liquor licenses.

Item 11.b – Approval of license to Green Mountain Power for replacement of poles on Falls Road.

Postponement:

Approval of the March 23, 2010 minutes due to lack of a quorum of those present at the 3/23/10 meeting.

 

David Brown, Shelburne resident, mentioned his experience serving on the State Board of Libraries and urged the Selectboard to have newly appointed board members attend the Town Officers Educational Conference which is very helpful in learning basic procedures and how to operate successfully on a board.

 

Gwen Webster, Shelburne citizen, noted her request to include in the record an email mentioned at the March 9, 2010 meeting has not been addressed. Staff will follow up on the matter.

 

Gwen Webster opined if the discussion involves the Shelburne Wood application then Chairman Roesler should recuse himself. Discussion of procedure would not require recusal. It was confirmed the discussion is about process and procedure, not the Shelburne Wood application specifically.

 

Chris Kapsalis, Dorset Street, opened the discussion about the procedures followed by the Development Review Board (DRB) by providing information on his years of experience as an IBM facilities manager before retiring. The position involved construction and management of multiple buildings with various uses and a bridge on the IBM site. Mr. Kapsalis said he also managed 500 workers. Sean Folley who worked with Mr. Kapsalis on the presentation was introduced. Mr. Kapsalis said the purpose of the presentation is to offer ideas of reform for both boards to consider (Selectboard and DRB). Mr. Kapsalis mentioned the research of materials that was done (review of findings of fact, minutes, tapes of meetings, process and procedures) and discussions that were held with various individuals (Shelburne administrators, board members, residents, area town administrators, and others). Rules of procedure in Shelburne and South Burlington as well as rules of decision by the District 4 Environmental Board were also researched. Mr. Kapsalis stated following investigation it still was not clear how the facts led to the conclusions and conditions put on the Shelburne Wood project and this led to the lack of trust in the process, problems with transparency, and people hurt by the outcome. The transparency issue was caused by the use of deliberative session, contended Mr. Kapsalis, noting the DRB was consistently asked to make the votes and each member’s discussion public. The DRB went into deliberative session eight times in four meetings. Mr. Kapsalis explained the request before the Selectboard is that if deliberative session is held the activities should be recorded as is done with motions and votes (i.e. indicate who voted in the affirmative and who voted in the negative on each condition). Also, retroactively and in the future an addendum to each finding should be published and it clearly stated what went into each decision.  According to Vermont statutes annotated (VSA), findings should explicitly and concisely restate the underlying facts that support the decision based exclusively on the evidence of the record and conclusion of law based on the evidence. If this is being done it is not apparent to the public, said Mr. Kapsalis. A further recommendation to the Selectboard is not to limit overview of the DRB to appointments, but to consider talking to the members, either individually or as a group, to see how to make the process better and to encourage communications. Review of the meeting videos on the Shelburne Wood project revealed the same pattern was followed by the DRB, continued Mr. Kapsalis. Six months from the first document that was issued by the DRB problems were still not resolved by either party, and there was no mention of findings. No one asked for help along the way. Finally the developer gave up. In South Burlington all projects, no matter the size, go through a phased review because it is easier not to focus on everything at once and the applicant and board have flexibility in the future. For example, the golf course project and South Village project in South Burlington changed over time due to various outside forces (economy, traffic). The Shelburne DRB meeting tapes on the Shelburne Wood project show disbelief by one member in the traffic study and other expert testimony. Extraneous information, such as the town’s purchase of slope in another area of the LaPlatte River, was mentioned as being considered in the project as well. It appears the Shelburne Wood project was handled in the most complicated way it could possibly have been and the outcome hurt the town and the people. It is hoped the boards can get together and improve the process, said Mr. Kapsalis.

 

Sean Folley, Harvest Lane, reiterated the intent of the presentation is to focus on procedure and not take the DRB to task. The DRB members are decent, well meaning individuals who have devoted lots of their time, said Mr. Folley. To improve the process the practices need to be modified to make them better for the board, the applicant, and the public. The request is that each condition reference the finding of fact from which it emanates. In other words if the town plan guides development and the zoning bylaws are the way to enact the town plan and the DRB is to ensure the rules are followed by the applicant, the public needs to know where the decisions are grounded in those instruments. With Shelburne Wood $1.3 million was invested and over four years of effort, and if it all came down to just a couple of conditions then it is even more imperative that those conditions are clear as to the reasoning because the entire project seems to have come to an end based on a couple of conditions, stressed Mr. Folley, adding the clarity of the reasoning is not apparent to many of the people who were following the process. In addition, some of the board members and town staff were talking about the reasoning not being sound if the application goes to Environmental Court. The town does not want to have to appeal the process to establish clarity, stated Mr. Folley, rather clarity should be built into the procedure up front so the appeal process is the last resort to establishing clarity around the decision making process for the DRB.

 

Chairman Roesler explained that by charter and state statute the Selectboard appoints members to the DRB to serve as the zoning board did, applying the zoning ordinance and subdivision regulations. The DRB serves in a quasi-judicial capacity and the Selectboard has no jurisdiction over the DRB or a project unless there is an appeal to Environmental Court or a similar suggestion is made by the applicant or the town’s attorneys to the applicant’s attorneys and brought before the Selectboard for decision on whether to further prosecute or come to a reasonable decision. The Selectboard does not have jurisdiction to get involved in the nuts and bolts of a project until that point. The comments about the process are appreciated, continued Mr. Roesler, adding no one is proud of how the process worked and there is agreement it could have been done better. The comments from the public have been heard. Chris Kapsalis pointed out the town plan and other documents do not totally mesh. Confusion between the documents is controlled by the Selectboard. Mr. Roesler said the Selectboard is continually grappling with amendments to the zoning bylaws. The town plan must be amended by law periodically and then amendment of the zoning bylaws follow. The Selectboard is working toward making the documents compatible as best possible. Al Gobeille confirmed the Selectboard attempts to eliminate ambiguity, but it is problematic to get wording that is specific yet not limiting.

 

Gregg Beldock, Shelburne Bay Senior Living, LLC, applauded the effort with the town plan updates, but noted many suggestions and recommendations by experts in certain fields, world renowned experts, and many of the definitions, rulings, percentage calculations, density descriptions, definition of elderly housing, senior living, assisted living, at the expense of the taxpayers of the town and in effect to help town staff and the DRB make better recommendations, information was provided, but little or none was incorporated into the new town plan or the tools that the DRB needs to use on a daily basis. The town needs to do a better job, said Mr. Beldock. Shelburne has facilitators, such as the town manager or the town planner. The issue is not technical analysis, but fundamental analysis. It is more an attitudinal matter and an issue of leadership. The town has and has had the tools to do a better job and make things clear. The tools have to be used.

 

Rev. Craig Smith, Trinity Church, observed the process has been a learning experience for the town and state. Shelburne Wood was the test of the process, and it appears adjustments are needed. The Selectboard has the responsibility to interpret the vision and emphasize this to the DRB and how the facts are interpreted. There is much subjectivity in the midst of objective matters.  The group is called “Shelburne Neighbors” because the members are neighbors to the residents of Shelburnewood mobile home park and the primary concern is these residents are losing their homes. In the process, the group expanded their concern to include smart growth, economic development, and affordable housing as well as other elements in the town plan. In the interview process to (re)appoint to the DRB the Selectboard is urged to appoint a group of people who can find a way to make affordable housing happen in town. There is nothing personal to any individuals serving on the board, but rather a question of faithfulness to the town vision. Rev. Smith also urged the Selectboard to audit the process to see the facts. There were occasions when a decision was made on a project and the applicant thought it was clear, but then a condition was made in the end. That is what makes the distrust, said Mr. Smith, when the developer needs to decide to go forward with more investment or not. The applicant needs to know the condition will be maintained after the discussion is concluded.

 

Gwen Webster, past member of the Shelburne zoning board (served for 12 years), read information from the Secretary of State’s Office that said according to the U.S. and Vermont constitutions it is mandated that in the treatment of applicants and applications all provisions of the bylaw apply. With phased review the applicant would expect certain conditions if all issues are not addressed. Typically the details are hashed out in preliminary review and final review covers the end details. Regarding votes in the affirmative, in deliberative or open session all motions are made in the affirmative so those who sign the decision voted for it and those who were not in favor of the decision do not sign. Ms. Webster read information from the Vermont Secretary of State regarding deliberative session and quasi-judicial boards. Deliberative session is not subject to the open meeting law at all and may occur when the board is acting in a quasi-judicial capacity like a court deciding issues, such as a zoning application or tax appeal. Decisions must be in writing. Deliberative session occurs after the board has heard all the evidence in the public process hearing. In deliberative session the board meets in private to weigh the evidence and make a decision. Personal experience on the zoning board, continued Ms. Webster, was that deliberative session shortened deliberations on the subject. Deliberative session is a tool unique to design review boards or in this case a zoning issue. It is like being on a jury except with a jury findings of fact are not needed. The deliberative part of the process needs to be protected. Information with the Secretary of State’s Office on quasi-judicial boards is available for purview by anyone, said Ms. Webster. Chris Kapsalis interjected the suggestion is not to use deliberative session, but just to modify the way it is used to repair the damage done to transparency to the public.

 

Vicki Carleton, Shelburnewood resident until December when the time is up for the park, said it would be beneficial to request the DRB members and other board members go to the meetings (conferences) that were mentioned. It has been five years and the residents of the park do not know if they can hold out to hope another developer is found in the next nine months. It feels like this has been a slow burn, continued Ms. Carleton, and the fire department has been next door with the slow burn, but people are losing their homes anyway. The work of the boards (Selectboard, DRB) is appreciated, but it could have been done better. What will happen with the residents of the mobile home park is not known. Ms. Carleton said she is in shock when living in a town where people reach out and help those in need in Haiti or from Katrina, yet there are residents of the town who will lose their homes.

 

Peter Gibbs, Shelburne resident and DRB Chairman, expressed appreciation for the constructive criticism of the process and comments about the DRB. It is expected the same presentation will be made at the next DRB meeting and there will be good discussion to follow, said Mr. Gibbs.

 

Chairman Roesler stated Bill Smith and Gary von Stange will review the meeting tape and take the comments under advisement. The Selectboard will take the comments as constructive criticism to do better in the future.

 

Al Gobeille disclosed he had discussions with Gregg Beldock about some issues, and their children play on the CVU lacrosse team coached by Mr. Beldock’s wife. Mr. Gobeille felt he could still be objective and participate in the discussion.

 

Gregg Beldock gave kudos to the Selectboard for being so open, and said the process of combining the planning commission and zoning board to form the DRB was good and long overdue. The application for expansion of the Shelburne Bay Senior Living facility has cost $3.4 million to date and been five years in the making, said Mr. Beldock, and 52 residents have passed away since the start of the process, 29 couples have separated, and 114 people requiring assisted living arrangements are still on the waiting list. The Selectboard signed an agreement/contract and in good faith represented to a judge in court that the town board would expeditiously move forward. “Expeditious” does not mean ‘fast’, but means ‘unfettered’ or ‘unencumbered’, ‘without your foot being tied’ if broken down in its etymology. It has been two years since the first meeting about the settlement, continued Mr. Beldock, which is anything but expeditious or with honor or good leadership. It is most likely not intentional; board members only have so many hours, so many nights to dedicate. Mr. Beldock said fundamentally service needs to be personalized in the town, citing the bad experience a local dry cleaner mentioned he had with the town administration. Mr. Beldock said he wants to feel good about going to the town offices, about shopping in Shelburne, about spending time, effort, and money to expand opportunity in the area so subsequent generations can remain in town. The Selectboard is the leader and the job is to lead. The situation on the DRB needs to be fixed so the Selectboard should fix it. That is common decency. Mr. Beldock apologized for being pedantic. Since the agreement was signed by both parties in November, 2008 for the Shelburne Bay project, continued Mr. Beldock, $500,000 has been spent in tax revenue and that makes me a good customer to the town. Personalize the service and treat customers with some common decency, and if you are at the top, you are the leaders to ensure the town facilitators treat the customers that same way, stressed Mr. Beldock, adding he does not feel treated in that manner, and does not need to be lectured by the town manager or zoning administrator who frankly are facilitators who work for the taxpayers. Their job is to facilitate and enact the town plan and follow the direction of the Selectboard, opined Mr. Beldock. Regardless of the project, right now the Selectboard members are the elected leaders and it is time to start leading which means the facilitators work for the Selectboard, whether that means working with the DRB on a weekly basis or in the town water department. Customer service and personalized service need to be part of the every day ethos. Mr. Beldock said he does not see integrity, intimacy, and intensity in the town offices. At the DRB meeting the facilitator was clearly apostating the process with his timing and withholding of information. Mr. Beldock said in his experience in 40 states and four countries he has not witnessed this and hopes not to see it again. It should not take 45 days to make a decision. Not every application is the same or should be treated the same, but there is a previously existing agreement with the Shelburne Bay project and it is a slap in the face for the Selectboard that the town manager and planner failed to facilitate the process so the DRB can write a decision in an expeditious manner. It has been five years and hundreds of thousands of dollars have been spent fighting an extension to an allowed use. A court order says to allow 220 seniors on the site and the town is supposed to do this expeditiously. Good leadership means contacting the DRB and pointing out there is a signed agreement, signed in good faith. The fault is not the DRB. The DRB needs proper facilitation, stated Mr. Beldock.

 

Bill Smith and Gary von Stange were contacted by telephone to participate in the decision on the stipulated settlement agreement. Rob Roesler disclosed Karen McAndrew and Fred Allen are his neighbors. Mr. Roesler felt he can make a decision objectively.

 

 

Al Gobeille commended Mr. Gagnon on the presentation at the bike/pedestrian paths summit that displayed Shelburne as a model bike/pedestrian community.

 

Bernie Gagnon explained Champlain Water District (CWD) has 22 water tanks and owns and operates 17 tanks. Shelburne is the only community that still owns and operates its own tanks (north tank on Spear Street, south tank by Greenhills Drive, and Wake Robin tank). The tank maintenance contractor provided a proposal to CWD for their tanks at a fixed cost per year and drafted a similar proposal for the Shelburne tanks. CWD is receptive to taking over the north tank from Shelburne, but not the south tank due to the cell carriers on the tank (having carriers on tanks is against CWD policy). CWD is also not interested in ownership of the Wake Robin tank due to operational concerns and needed upgrades to the system as a whole. In 2004 Shelburne painted the north tank at a cost of $180,000. The maintenance contract proposed by the tank contractor is $20,000 per year. CWD will take over ownership of the north tank provided the town does some improvements at the site, such as installing a fence, doing some site work, and installing security measures (motion sensors and lighting). The cost of these improvements is approximately $30,000.

 

Paul Bohne noted the Water Commission is inclined to support going forward with the offer. There are right-of-way issues (the town has access to the tank, but the driveway is not in the town’s right-of-way). The site has been surveyed. Brush clearing in the 125 s.f. area is part of normal operational and maintenance work.

 

Joan Lenes, Shelburne resident, asked if the change in ownership will impact chloramines in the water. Bernie Gagnon stated disinfection is done at the CWD plant then water is pumped to the satellite tanks.

 

Al Gobeille asked about the cost of a water tank and why CWD is motivated to take over ownership. Bernie Gagnon estimated a new tank would cost several hundred thousand dollars. Maintenance costs govern future operational costs. The town would have to pay the $20,000 per year for the maintenance contract and set money aside for painting ($200,000). These costs would be foregone in the future if CWD owns the tank. CWD recognizes Shelburne is paying for maintenance of all 19 tanks in the cost of water. Also, with control of all tanks CWD operations are secure in the service area.  Al Gobeille asked about installing a ring for the carriers on the south tank so CWD will take over the tank ownership. Paul Bohne reported Verizon Wireless will be installing a structure on the tank for their antenna and the ATT antenna so the tank can be easily maintained. The goal in the next three or four years is to have the remaining three carriers on the tank on a ring as well so the tank can be painted without interrupting service. The tank maintenance company needs to have input on the ring installation to ensure the tank can be maintained.

 

Rob Roesler asked about the Wake Robin tank. Bernie Gagnon explained the tank has limited connections which impact maintenance of proper water levels. Also, more redundancy is needed because there is only one pump station as the means to fill the tank. Capital projects related to CWD taking over ownership of the tank have been discussed. All are fairly expensive.

 

Danielle Frawley, Shelburne News, asked if the rate paid by residents will change if CWD owns the tank. Paul Bohne stated there are parts of the system that are old and need improvement which is very expensive. The Water Commission would like to see the water rates stop increasing.

 

Paul Bohne reported the property owner said she was called out of the state prior to the due date to help a sick relative (mother) and did not return until after March 25^th. The tax bill was paid immediately though late.  The Selectboard discussed waiving penalty and interest in this case. Mr. Bohne noted state law allows waiving of penalty only, not interest. Peter Frankenburg stated the Hartshorn account has not been charged interest as yet due to the 30 day grace period. Al Gobeille noted excuses for late payment are typically the post office or an employee, but in this case a family member was ill and the property owner was out of town. Peter Frankenburg noted the property owner mailed the payment which was postmarked “March 26, 2010”.

 

 

According to a letter from Andrew Marks, dated 3/30/10, Mr. Marks was hospitalized for emergency bypass surgery. Mr. Marks is a single parent with young children and could not personally make the payment. Peter Frankenburg stated the penalty amount if $236.79.

 

 

Tom Moreau reported the Chittenden Solid Waste District FY11 operating budget decreased 6/10^th of one percent. The $9 million budget decreased by $57,000 due to health insurance changes (CSWD offers a health savings account and high deductible plan). Revenues are up 2.6% due to increased recycling and strong markets for goods. The FY11 capital budget is up $1.2 million due to the proposal to build a new composting facility in Williston. Surplus funds from recycling will pay for the building. Trucks, loaders, and roll off containers are also needed.

 

Paul Bohne asked about the disposal of sludge. Mr. Moreau explained the cost is not increasing much (a fraction of a percent). CSWD is doing a study of how to bring down the cost of sludge disposal long term. CSWD acts as a broker for sludge disposal and bids for the entire county to secure a better price. There was continued discussion of sludge disposal in Canada and at the landfill in Coventry.

 

 

Peter Frankenburg reported on the revenue side property tax revenue is down $38,000 due to tax appeal decisions. There are some large appeals pending so the amount could further change. Penalty and interest income is up $42,000 from late payments. Delinquencies in property taxes total $330,000 (school and town combined) which is 1.5% of the total billing. The amount is about the same as last year. Deed recording fees due to refinancing activity will go over budget even with the transfer of funds to the records preservation project. State highway aid that was received was better than projected ($13,000). Police judicial fees are at 94% of the budget ($50,000 collected against the budget of $54,000). Police personnel have been focused on enforcement details. Interest income is down due to lower investment ($34,000 budgeted and only $12,000 received year to date). Current use is showing a $25,000 variance due to properties added to the current use program (one time change). Income from building use and leases has a positive variance. Legal expenses are $4,000 over budget, year to date. There was $58,000 spent in legal fees through February in defense of property tax appeals. Computers & Technology has a negative variance due to reinstallation of software to get the network functioning after a major virus infection. Property and casualty insurance premiums are over budget due to an increase in the premium based on the claim experience of the town and the VLCT insurance pool. Shelburne continues to work on diminishing claims. The assessor’s contract included an adjustment for inflation, but there was no CPI this year so there was no significant change in the contract (positive variance). The winter was mild so heating costs were less than budgeted. There was some negative variance in the Fire Dept. due to necessary maintenance of equipment and replacement of ice rescue equipment. The department is looking for areas where this can be offset. In the highway budget overtime is at 55% of the budget resulting in a positive variance. Salt was under budget. It appears the capital projects that were planned (storm water work and repairs on Pond Road) can be done.

 

Paul Bohne summarized there is more good news than bad with the budget. Discussion is needed about the dispatch overtime. The matter will be discussed with the police department about how the department operates and why the overtime spikes. Peter Frankenburg noted there have been two full-time staff turnovers in the position. The position requires much training.

 

The Selectboard signed the liquor licenses documents for Shelburne Kitchen on Falls Road and Flatbread Factory in Shelburne Plaza.

 

Paul Bohne explained Green Mountain Power will replace poles and guy wires from the Catholic Church on Church Street across to Marsett Road. The poles are in the town right-of-way.

 

 

Postponed.

 

Paul Bohne briefed the Selectboard on the following:

 

Tim Pudvar asked about the charge of the fire and rescue task force. Paul Bohne will forward a copy of the charge to look at a plan of merger for fire and rescue service including pros and cons and intermediate steps to get to merger.

 

Tim Pudvar wished his son, Max, a happy 11^th birthday.

 

 

The regular meeting was adjourned and Executive Session convened at 9:21 p.m.

 

MEMBERS PRESENT: Robert Roesler (Chair); Bill Smith (vice-chair); Tim Pudvar, 

                                          Al Gobeille and Gary von Stange.

ADMINISTRATION:     Paul Bohne, Town Manager and Peter Frankenburg, Finance

                                           Director.

OTHERS PRESENT:      Norm Silcox, Terry and Jane McKnight, Peter Gibbs, Gwen

                                           Webster, Dick Elkins, Dorothea Penar and Danielle Frawley

                                           (Shelburne News).

 

       Robert Roesler Called the meeting to order at 7:00.

 

2.   Motion by Mr. Smith, second by Al Gobeille, to go into executive session and invite the Town Manager to attend.

Gary von Stange then said that he had a statement and asked whether he should read the statement or ask to have it entered into the record. The Board asked that he read the statement. Mr. von Stange then read the statement regarding recusal by Bob Roesler, whether the April 20 meeting was properly warned, the validity of the agenda, the timing of the discussion of the consideration of recusal by Bob Roesler, the impropriety of the discussion of DRB appointments before April 27, 2010 as he believed had been previously agreed, the propriety of Bill Smith chairing the meeting regarding appointments to the DRB with Bob Roesler still in attendance and participating, packing of the DRB under the guise of reforming process and the independence of the DRB from Selectboard oversight.

 

Discussion of Mr. von Stage’s statement ensued.

 

The Board exited executive session at 7:40 p.m. and reconvened the meeting.

 

Gary von Stange objected to the validity of the meeting.

 

Statements were made by all who attended the meeting regarding the reappointment of the DRB members, recusal by Mr. Roesler, attacks on members of the DRB by supporters of Shelburnewood and whether to interview the candidates in open or executive session. There was discussion on all of these issues with members of the Board.

 

The Board then discussed the process of the appointments to the DRB. The Board agreed to interview each candidate in open session, on asking each candidate seven prepared questions, and breaking the interview process up into a group on April 27^th and the remainder on May 11.

 

MOTION by Tim Pudvar, SECOND by Bill Smith to adjourn the meeting. VOTING unanimous (5-0); motion carried.

 

The meeting adjourned at 9:18 p.m.

 

Respectfully Submitted,

 

Paul W. Bohne III

Town Manager

 

 

Accepted,

 

 

For the Selectboard