MEMBERS PRESENT:       Tom Koerner, Chairperson; Milton Edelman, Steve Waltien, Gwen Webster. (Boris Funtow was absent.)

ADMINISTRATION:           Cindy Tyminski, Acting Zoning Coordinator; Steve Stitzel, Town Attorney. Paul Bohne, Town Manager.

OTHERS PRESENT:            George Faris, Gregg Beldock, Sean McGrath, Jennifer McGrath, Scott Prom, Thomas Little, John Wakefield, Susan Davis Margery Sharp (Shelburne News).

 

Mr. Koerner called the meeting to order at 7:00 p.m. Introductions were made. The deliberative process was explained (deliberative session may be held at the end of the meeting). Chairman Koerner pointed out with four Board members in attendance a tie vote (2-2) results in a denial. Applicants have the option to postpone their application hearing until a full board is present.

A05-08: Application by Gregg Beldock of Fieldhouse, LLC to appeal the opinion of the Zoning Administrator (OP05-03) where the Zoning Administrator found that the Zoning Board of Adjustment should review changes to the previously submitted plan and assess the impact on the standards applicable to their review (§210.6) for property known as Harrington Circle, formerly 19 Harbor Road, in the Village District (Article IX)

 

George Faris, attorney, and Gregg Beldock, applicant, appeared on behalf of the applications (appeal and conditional use amendment).

 

Steve Stitzel, Town Attorney, outlined the issue before the Board the review of the If the Board feels there is sufficient change to warrant review, an amendment to the proposal is also on the agenda for action by the Board.  A letter from the Town Attorney, dated 2/2/05, was reviewed. Mr. Stitzel recalled he was contacted in January by the Zoning Coordinator to provide a determination on whether a change to a PRD from the original plan and warranted additional review by the Zoning Board.

 

Research was done on town ordinances regarding moving a district boundary line up to 50’ from one district into another district, and case law on similar zoning ordinance provisions as well as the conditions imposed by the Board.  According to town zoning regulations and case law, lots split by zoning district boundaries are unique to zoning regulations.  The area of discussion is a 50’ strip of land that is the subject of the proposed change and how that 50’ piece of land is used.  This should not be a review of the entire site. 

 

After receiving information from the Town Attorney, the Zoning Coordinator prepared a opinion letter indicating that in her opinion the change was not insignificant, citing that the land that originally contained a certain number of square feet of residential structure per approval of the modified plans. There was more square footage of residential structure in the current proposal.  The issue is whether there is sufficient change to warrant further review by the Zoning Board, stated Mr. Stitzel.  It was clarified the 50’ extension into the residential zone is part of Lot 2, the lot for the entire housing project.

 

Mr. Edelman questioned why the entire project would not be subject to review again if the Board considers the 50’ land area.  Mr. Stitzel explained based on case law it is the review of a change in a zoning district boundary, not a project.  Typical cases in the nation were noted where a portion of a commercial lot extends into the residential zone and the owner of the commercial lot wants to extend farther into the residential zone. The issue is not whether it is appropriate for commercial development to occur on the commercial lot, but rather what specific commercial development is proposed on the residential lot portion and what the impact will be on the residential district.

 

The Shelburne zoning regulations specifically allow the Zoning Board to review a change to the use of the 50’strip of land under discussion. The Fieldhouse, LLC case is unusual because generally residential development is considered a more restrictive type of development and the industrial development allowed on the 50’ strip is considered a more intensive type of development.  Mr. Stitzel stated the issue to be settled is whether it is appropriate to allow residential development on a 50’ strip of land in an industrial district or whether it would be more appropriate for the 50’ strip of land to be developed for commercial/industrial purposes as presently allowed under the zoning regulations. 

 

Mr. Waltien observed the residential development is encroaching on the industrial zone, and the Zoning Board must decide if it is appropriate to allow residential development on a 50’ strip of land that adjoins land zoned for industrial development.  For example, the owner of residential property may want to move his development closer to industrial development, but the industrial landowner may feel this is not compatible with the use of his (industrial) property. The Zoning Board in this case would have to determine if changing the use from industrial to residential would be detrimental to the adjoining (industrial) property and the use on that property, stated Mr. Waltien. It was noted industrial/commercial development may not be occurring presently on the industrial property, but it is permissible.

George Faris discussed the approval in June 2004, when the Zoning Board made a determination that a 50’ extension into the commercial/industrial was acceptable.  Ms. Webster interjected the Board also stated any changes to the proposal must be reviewed by the Zoning Board.  Mr. Stitzel clarified any change would first be brought to the Zoning Administrator. Mr. Stitzel reiterated the issue is whether the change that has occurred impacts on the adjoining land.

 

Mr. Edelman asked Mr. Faris to limit his interpretation of the 50’ strip as outlined in a letter, dated 02/17/05.  Mr. Faris reviewed the location of the 50’ strip of land on the site plan, noting four buildings within the strip.  Conditional use approval was granted with the condition any changes following Planning Commission review would be referred to the Zoning Coordinator for determination of the need for further review by the Zoning Board.  The Planning Commission made changes which arose from a review of the housing project on Lot 2, in particular the configuration of the housing changed from 12 clustered units around a “U”-shaped driveway to 14 units scattered across Lot 2.  As a result of this change, portions of five buildings are in the Village District extension. 

 

Ms. Tyminski pointed out that this “U”-shaped version was not the plan that had submitted to the Zoning Board in June 2004.  Mr. Faris disagreed and indicated there was a date stamp of May 2004 on the site plan and therefore it was the correct one.  Ms. Webster said she remembered that the buildings were sited in a linear fashion along Harbor Road. Records were retrieved and confirmed that Mr. Faris had presented the wrong plan.  It was determined that the “U”-shaped plan was not the plan that had been approved in June 2004 nor was it the plan that had been submitted in their appeal application. 

 

Gregg Beldock then explained the difference between the two plans is 1,000 feet of structure in the 50’ strip.  Mr. Faris pointed out the original plan proposed 3,937 s.f. that was increased to 5,360 s. f. following Planning Commission approval.

 

Mr. Faris went on to say that the Planning Commission approved the revised plan in September 2004. At that time, it was stated that Brian Bigelow, Paul Bohne and the Zoning Board Chairperson were knowledgeable about changes to the site plan.  There was discussion of the participants’ roles and responsibilities.  Mr. Faris contended that Mr. Koerner knew the proposal went before the Planning Commission and was approved.  Mr. Koerner agreed he knew after the fact that the proposal was reviewed and approved by the Planning Commission.  Mr. Edelman noted regardless of Mr. Koerner’s knowledge of the proposed changes, Mr. Koerner could not move the application over to the Zoning Board. Furthermore, he noted that the ultimate responsibility lies with the applicant to ensure all conditions of approval are met.  Mr. Faris countered it is not certain that that is the case.

 

Mr. Faris said that the Zoning Coordinator’s letter of 2/02/05 stated that the plan increased the area in the 50 foot strip from 3,937 s.f. to 5,360 s.f. on a site plan that was extensively reviewed and subsequently approved.  As a result of the lot coverage increase of 1,432 s.f., the Zoning Coordinator concluded four out of five conditional use criteria might be affected, including capacity of community facilities, character of the area, traffic, and impact on adjoining properties.

 

In the Staff Report prepared to amend the Conditional Use approval (another application), also dated 03/07/05, Mr. Faris contended that the Zoning Coordinator concluded there would be little or no effect on community facilities, area, public welfare, or impact on adjacent properties.  Ms. Webster commented Mr. Faris is discussing the wrong application and staff report and the matter before the Zoning Board is the appeal only.  Mr. Faris continued, noting that the Zoning Coordinator’s only observation regarding traffic is that the traffic study was for the 12 units, not 14 units.

 

Mr. Faris argued further that Chapter 117 requires the town’s Zoning Administrator to advise applicants of other necessary municipal permits or approvals and to coordinate a unified effort of review processes.  He believed that the latter was not followed in this case.  The town has responsibility to proactive.

 

Ms. Webster pointed out it is the duty of an applicant is to follow the conditions of approval and request a hearing before the board for any significant changes.  Mr. Faris asked how an applicant would know if a change is significant or not.  Ms. Webster said the onus is on the applicant when changes are made to determine what amendments are necessary.   Mr. Faris argued if changes to what was approved were not common knowledge that would change the case, however, with this case, the Zoning Administrator, Zoning Coordinator and others were intimately involved in the entire process and the application. The Town is a co-applicant and the burden should be equally shared.

 

Mr. Faris stated according to the February 2005 opinion letter, the Zoning Coordinator felt further review of the revised site plan would have little or no effect on the criteria raised in the letter. Ms. Webster reiterated the Zoning Board is only considering the appeal and the staff report for the application to amend the approval is irrelevant. Once again Mr. Faris continued and stated that this provides the Zoning Board with a basis to reverse the Zoning Coordinator’s decision and dismiss the matter.  Mr. Faris confirmed Mr. Bohne’s review of the information submitted to the town.

 

Mr. Waltien pointed out at issue is the additional 50’ strip and that in his letter Mr. Faris discussed the entire site.  Mr. Faris stated the structure in the 50’ strip makes a difference with regard to conditional use approval and density within the land strip.

 

An area developer in the audience commented if he made one change to a project site plan, additional review by town boards would be trigger and the same should apply to Fieldhouse, LLC.  Mr. Faris replied the matter concerns the scope of the Zoning Board. The Fieldhouse residential project is a permitted use within the Village District. When the Zoning Board was asked to extend the Village District an additional 50’ previously into the commercial/industrial zone which was granted.  There was brief discussion of boards making changes to applications and the flow of information. The board broke for a deliberative session.

 

A05-08: Appeal of Zoning Administrator’s Decision re: Further Review of Site Plan by Gregg Beldock of Fieldhouse, LLC for Harrington Circle

MOTION by Mr. Edelman, seconded by Mr. Waltien, that the appeal of Harrington Circle, A05-08, be approved as presented. VOTE:  0 ayes, 4 nays (Koerner, Edelman, Waltien, Webster); motion did not carry. The appeal is denied.

 

CU04-12R1: Application by Gregg Beldock of Fieldhouse, LLC to amend Conditional Use approval (CU04-12) to increase the residential density on a 50-foot portion of a lot that had been bisected by two districts (§210.6); applicant previously received approval to extend the regulations of the Village District (Article IX) 50’ into the Commerce/Industry District (Article X) for property now known as Harrington Circle (formerly 19 Harbor Road)

 

MOTION by Mr. Waltien, seconded by Ms. Webster, to approve the amendment to the conditional use approval,CU04-12R1, regarding an additional 50’ strip of land from Lot 2 into the Commercial/Industrial zone subject to the conditions noted in the Staff Report, dated 03/07/05, and as follows:

 

 

Sean McGrath and Jennifer McGrath, owners, appeared on behalf of the application.

 

Mr. Koerner reviewed the staff report. Chairman Koerner asked if the applicant is seeking a retroactive permit for the added deck structure. Ms. Tyminski confirmed this.

 

Questions/concerns submitted by Boris Funtow, absent Zoning Board member, were presented. Comments include a request for setback dimensions on the application, a complete site plan, information on the trash area and outdoor lighting, sign, square footage of retail and food service, and a concern about parking a company van in one location as advertisement.

 

It was explained that the retroactive expansion involved adding a new roof and a new deck with a handicapped ramp.  There was mention of removing the deck, handicap ramp, and stairs. The contractor indicated there should be legal correspondence on file regarding the ramp and the right-of-way. Following a site visit by Labor & Industry, work on the project was halted and required to be done to code which resulted in an expensive upgrade, causing delay.

 

Chairman Koerner asked about change of use.  Jennifer McGrath stated the change is from a convenience store to a pizzeria, but there will be groceries/sales (65% of the business). Mr. McGrath read a letter from Mr. Burns, Capital Candy Company, indicating the McGrath’s store purchased enough grocery items to be considered a convenience store in Mr. Burns’ opinion. . The site manager for the Route 7 project said that the ramp must be removed by April 1^st. There will be a drive through between the Antique Shop and Marcos. The median on Route 7 will allow exit to the north only. Ms. McGrath said cars can exit to the south from their lot, and that was the intention regardless of the conditional use application.  Ms. McGrath stated sales at the store are 50/50 (groceries/pizza), and items are delivered to Shelburne residents upon request.

 

Chairman Koerner clarified there are two issues:  conditional use approval and changes to a handicap ramp.  The store is a non-conforming/non-permitted structure. Ms. McGrath stated another handicap ramp will be built. Mr. Koerner asked if the ramp is too close to the Route 7 setback.  Mr. McGrath stated Labor & Industry indicated at their site visit that the ramp was the right of way of the easement.

 

Mr. Koerner stated a more comprehensive plan is needed. The contractor clarified according to Labor & Industry; there is not a problem with the ramp provided it has the same pitch. . Mr. Koerner observed the ramp is too close to the front yard setback. ADA requirements must be met for the ramp. The contractor noted Labor & Industry said the ramp must conform to the correct pitch for wheelchair accessibility.

 

There was discussion of possible locations for the ramp on the property.  Chairman Koerner advised the applicant to return with a site plan. Mr. Koerner explained that a variance is another consideration for the change proposed.  Ms. Tyminski explained that a change to a commercial building will require site plan review by the Planning Commission.  The applicant mentioned the delay in the project to date (18 months) due to all the confusion.

 

Mr. Koerner summarized a sketch plan is needed for the ramp and the property owner may need to seek a variance as well. Staff will research to determine if the Disabilities Act overrides decisions of the Zoning Board. Mr. Koerner reviewed items to be shown on the site plan (location of ramp, the building, elevation, parking, lighting, dumpster and screening, landscaping, access road).  There was discussion of the design of an ADA ramp, rear yard setbacks, decking on the south side of the building, dimensions for a turnaround for the ramp, ramifications of changes to a non-conforming building, and change of use issues (fast food versus convenience store).  Ms. Tyminski noted the warning of the application said “…similar uses allowed in the district”, and neither restaurant nor fast food uses are included in the district.  It was noted the existing sign is permitted.

 

None.

 

All board member agreed to continue the hearing to the next regular meetingm. The Zoning Coordinator will contact the applicant regarding a variance.  

 

Scott Prom and Tom Little, agents, appeared on behalf of the application.  Steve Waltien recused himself.

 

Mr. Koerner reviewed the staff report on the appeal of the Zoning Coordinator’s decision involving definition of “accessories” to farming.

 

Mr. Prom reviewed background information as follows:

 

Mr. Prom asked for relief from the definition of accessory to farming that would include typical public events offered at most wineries, such as wine tasting, sales, and tours. There was lengthy discussion of whether retail sales and wine-related events as proposed are a farming operation. Reference was made to the letter from Ken Albert, dated 02/11/05, to the Zoning Board saying “…it is becoming more and more important for farms to be vertically integrated and move away from being dependent on selling at commodity based prices.  This mandates attracting and involving the public with the operation”.  There are two other local vineyard/winery operations (Cambridge and Grand Isle) that conduct similar accessory uses on agricultural lands.  It was noted in Mr. Albert’s letter that the base activity at Shelburne Farms is farming and the base activity at Shelburne Vineyards is farming which will continue into the future.  Shelburne Vineyards will establish a sustainable and generational farm-based, diversified agricultural business that will create local employment and enhance Shelburne’s already unique qualities.  Tours/tasting are common at any farm winery.  Many farms across the country involve the public in their operation.  Farms become vertically integrated beyond relying solely on commodity based prices, and in areas with heavy developmental pressures, farms must have the opportunity to attract the public to make vertical integration work. There are three other local argi-businesses utilizing accessory events: Shelburne Orchards (offers tasting and sales), Charlotte’s Pelkey Orchard (tasting and sales), and Owl’s Head (events and sales).

 

Mr. Waltien, resident, commented there are venues in Shelburne that produce loud noise and lights (referring to concerts at Shelburne Museum where it is not necessary for some residents to purchase tickets to events since the concerts can be heard from their houses).

 

Ms. Webster stated businesses should consider the neighbors when holding events.  Mr. Edelman commented incidentals and events should not overcome the farming operation. Mr. Koerner asked the applicant to forward a list of proposed accessory uses for review at the next Zoning Board meeting.  All board member agreed to continue the hearing to the next regular meeting. The applicant will present the Board with a precise list of accessory uses that it is proposing.

 

Steve Waltien returned to the Zoning Board.

 

CU05-09: Application by the Town of Shelburne for Conditional Use approval for the construction of a salt and sand shed (§1020.11) on property on Turtle Lane in the Commerce/Industrial District (Article X)

The application was withdrawn.

 

John Wakefield, agent, appeared on behalf of the application.

 

Mr. Koerner reviewed the conditional use application for change the use at the former Harbor Industries Building from a machine repair business to a commercial storage facility.

 

John Wakefield stated the building will be used to store wholesale commercial roofing material.  Traffic to the area should not increase and there will be no additional lighting or signage on the premises.  The business anticipates up to 11 employees using the office space in the future.  Work hours will be 8:00 a.m. to 5:00 p.m. There will be 19 parking spaces including two large truck spaces. There was discussion of the proposed parking which is ample and the types of truck traffic expected.  Mr. Edelman suggested a solid fence be installed around the property to screen the entire area from Route 7 traffic.  The applicant was asked to submit an explanation of the truck traffic to the Zoning Coordinator. (Note:  The applicant provided information requested by the Board the next day to the Zoning Coordinator that loading and unloading will involve two large trailer type trucks).

 

None.

 

 

Chairman Koerner adjourned the meeting.

 

 

 

 

Dated at Shelburne, Vermont, this 12^th Day of April for the meeting of March 7, 2005.

 

 

 

Thomas Koerner, Chair  

Gwen Webster

Steve Waltien 

Boris Funtow

Milton Edelman