Zoning Board of Adjustment Minutes

TOWN OF SHELBURNE
ZONING BOARD OF ADJUSTMENT
MINUTES OF MEETING
MARCH 8, 2004

MEMBERS PRESENT: Tom Koerner, Chairman; Steve Waltien, Milton Edelman, Gwen Webster. (Boris Funtow was absent.)
STAFF PRESENT: Brian Bigelow, Zoning Administrator.
Kathlyn Furr, Recording Secretary
OTHERS PRESENT: Ken Cartularo, Dave Marshall, Tucker Holland, Rob Donahue (Shelburne News).

1. CALL TO ORDER
Mr. Koerner, Chairman, called the meeting to order at 7:04 p.m.

2. OLD BUSINESS
Mr. Koerner noted that approval of minutes, Findings of Fact, and Deliberation/Decisions could be conducted at the end of the hearing. Mr. Koerner explained the deliberative process and noted that with only four ZBA members in attendance a 2-2 vote could result in a denial. An applicant could elect to delay the hearing of their application until the full Board was present.

3. NEW BUSINESS

CU99-20R2 Request for modification of a previous Conditional Use approval after review under Subsection 820.22, Similar Uses. The initial approval permitted 62 units of elderly housing (March 9, 1998). A second approval consisted of three additional units for a total of 65 units (July 12, 1999). The third request for an increase of 47 assisted care living units to a total of 112 was originally approved on September 8, 2003. Applicant is requesting changes to two of the six conditions of the September 8, 2003 approval, specifically:
1. The site shall be developed as shown on the site plan titled, “SHELBURNE BAY SENIOR LIVING, PROPOSED BUILDING EXPANSION”, date stamped Aug 18, 2003 as submitted by the applicant and amended by the Planning Commission. Site Plan prepared by Civil Engineering Associates and identified by their project #02224.00, dated May, 2003 last revised June 24, 2003.
2. Additions are to be constructed as depicted upon drawings entitled “Shelburne Bay Senior Living Community Schematic Elevations” (Mackenzie Architects P.C. Project #3060); each drawing date stamped August 18, 2003
David Marshall, Civil Engineering Associates, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed the request for modification to a previous Conditional Use approval for Shelburne Bay Senior Living Community (CU99-20R2).

APPLICANT COMMENTS
Mr. Marshall explained the updated site plan and footprint reflected staff comments and neighborhood input on the proposed additions to the north and south wings of an existing building. The approach changed to serpentine along the north of the building to retain a vegetative strip and provide traffic calming on the nine-acre site. Emergency access would be maintained and changed to run west of the catch basin. Footprint changes were proposed to meet maximum over-the-road transportation issues. Elevation changes (sheet 3) included dormers on the proposed new buildings versus full story height.

Mr. Bigelow said the applicant had to come back before the ZBA for review of the proposed changes but noted that the changes still meet the dimensional zoning requirements for setbacks and coverage. Original architectural plans were dated 08/15/03 and latest revisions are dated 01/12/04. The Fire Department requirement included a five-foot asphalt emergency access/walkway centered in a stabilized service road that would allow EMS response and applicant would provide snowplowing for year-round access. Per Mr. Marshall, Pine Haven Shore Lane neighbors and the applicant have come to an agreement as shown.

Ms. Webster asked what was proposed in the area west of the north original building. Mr. Marshall replied it was not a building component, but a fenced secure courtyard.

Mr. Waltien asked for clarification regarding the number of signatures on a neighborhood notification list. Mr. Marshall explained that at one point the applicant was seeking a PUD and an agreement with Mr. Pecor was needed so an expanded notification list was created. The expanded list was not necessary with the proposed changes.

PUBLIC INPUT: None.

DELIBERATION/DECISION
Request for Modification of Previous Conditional Use Approval for Building Expansion, Shelburne Bay Senior Living, Pine Haven Shore Road (CU99-20R2)
MOTION by Mr. Waltien, seconded by Ms. Webster, to approve the request for modification of a previous Conditional Use approval after review under Subsection 820.22 Similar Uses; and changes to two of the six conditions of the September 8, 2003 approval as presented, subject to conditions in the Staff Report as follows:

1. The site shall be developed as shown on the site plans as submitted by the applicant, including site plan (sheets C1-C11 and L1) prepared by Civil Engineering Associates and identified by their project #02224.00, dated October, 2003, last revisions dated February 9, 2004, entitled, “SHELBURNE BAY SENIOR LIVING, PROPOSED BUILDING EXPANSION”, date stamped February 10, 2004. Minor changes are to be forwarded to the Zoning Coordinator for a determination on necessity for additional Zoning Board of Adjustment review.
2. Additions are to be constructed as depicted by drawings (Sheet #s A2.01, A2.02 and A2.03) entitled Addition to Shelburne Bay Senior Living Community (Mackenzie Architects P.C. Project #3060). Each drawing is dated January 12, 2004 and date stamped January 30, 2004. Minor changes are to be forwarded to the Zoning Coordinator for a determination on necessity for additional Zoning Board of Adjustment review.
3. All other conditions from CU99-20R1 remain in effect.
4. Within sixty (60) days of this approval, the applicant shall record a “Memorandum of Municipal Action” with the Shelburne Town Clerk’s office.

VOTE: unanimous (4-0); motion carried.

CU/V02-25R1 Request for Conditional Use approval under Article XVI, General Regulations, Section 1620, Nonconforming Uses and Noncomplying Structures; and request for Conditional Use approval under Article VIII Residential-Commercial District for Retail (§820.10), Similar Use (§820.22), and Multiple Uses (§820.23)
David Marshall, Civil Engineering Associates, appeared on behalf of the application. Mr. Koerner offered to recuse himself from the hearing because he had done some work for the applicant. The consensus of the Board was it was not necessary.

STAFF REPORT
Mr. Koerner reviewed the request for Conditional Use approval by the Buono Appettito Corporation (CU/V02-25R1).

APPLICANT COMMENTS
Mr. Marshall explained the proposed site plan that would accommodate planned Route 7 road improvements. The applicant was seeking to make improvements to include the restaurant, commercial office use, and hair-tanning salon. Limited changes to the Buono Appettito restaurant building are proposed. There will be 1,000ft² of office space and 1,000ft² of retail space on the first floor of the commercial building. There is a proposed office for restaurant use, and an apartment on the second floor. A variance had been granted earlier for lot coverage (due to reconfiguration of parking and lot access as a result of Route 7 improvements), though not finalized the proposal is/will be designed to be at least neutral on coverage issues. There is a second point of entry to the site from the side street. One entry/exit access point from Route 7 will remain. Mr. Marshall explained that there was not enough parking to satisfy zoning regulations. A parking study was conducted over a three-month period which showed the need for 39 parking spaces during peak use. The proposed accessory apartment would use two spaces. The combined restaurant and office would require 54 spaces. Some green space was recovered by compacting the building space. The site plan will be revised to reflect the changes to the site.

Ken Cartularo said they were losing six front parking spaces due to changes along Route 7, and parking spaces have been relocated to the (building) sides and back. Mr. Marshall explained the north elevation plan of the commercial building, which included a new entry, dormers, and roofline, east entry, window configuration and roof pitch. The second floor included a 1,600 square foot apartment (a staircase and knee walls were included in the square footage), and a 400 square foot office. There was discussion of whether the apartment is a specific conditional use (accessory apartment) or a similar use. Mr. Marshall noted there were motel uses on the west and north sides of the applicant’s lot, which were short term residential uses. The Zoning Board will consider the apartment as a conditional use under the similar use provision. The apartment will not significantly change the character of the neighborhood due to the residential/commercial-zoned district.

In response to a question regarding the application number, Mr. Bigelow clarified that the application was a revision of an earlier application but does not include a variance request. Mr. Marshall stated the applicant was not proposing any changes to the lot or building coverage or the number of existing commercial uses (3). Mr. Bigelow said the only additional use was residential, and that residential use was allowed without an additional lot area requirement. Modification of a multiple use was an additional conditional use.

PUBLIC INPUT: None.

DELIBERATION/DECISION
Conditional Use, Buono Appettito Corporation, Shelburne Road (CU/V02-25R1)
MOTION by Ms. Webster, seconded by Mr. Edelman, to approve CU/V02-25R1, request by Buono Appettito Corporation for revision to a previous Conditional Use/Variance approval providing an update clarification to the site plan reflecting the building plan with a similar use with conditions as proposed in the Staff Report
as follows:

1. The changes to and uses of the site shall occur as indicated on the Site Plan, entitled Buono Appettito Restaurant Proposed Modifications Site Plan, date stamped February 5, 2004, as prepared by Civil Engineering Associates, Inc. (Sheet 1, Project #02236) and submitted with the General and Conditional Use applications and approved by the Board during the public hearing on March 8, 2004. Minor changes are to be reviewed by the Zoning Coordinator for a determination regarding the need for additional review by the Zoning Board of Adjustment.
2. The modifications to 3198 Shelburne Road shall occur as shown on elevations and floor plans entitled Cartularo Professional Building (Sheets 1-4, revised date of December 18, 2003) prepared for the applicant by Koerner Design, dated stamped February 5, 2004. Minor changes are to be reviewed by the Zoning Coordinator for a determination regarding the need for additional review by the Zoning Board of Adjustment.
3. The applicant shall obtain Site Plan review to include approval under §1670.1.n for a reduction in required parking spaces.
4. Within sixty (60) days of this approval, the property owner shall record a “Memorandum of Municipal Action” with the Shelburne Town Clerk’s office. This document will notify future property owners of the approval and conditions.

DISCUSSION: Mr. Bigelow reported a neighbor (Mr. Gabriel Handy) sent a letter requesting that a shared sewer line be disconnected from the Econolodge line and Buono Appettito connect to a separate sewer line connection as shown on the site plan. Mr. Cartularo said he might not want to put in the approved sewer line since (the building) already had a working sewer line. Mr. Marshall questioned if the matter was a Zoning Board or Planning Commission issue. Mr. Koerner stated that if the connection was shown on the site plan and was a construction condition as shown, then the applicant was locked in according to the plan. The Board could delay a vote on the application if desired. Mr. Cartularo said he would like the Board to vote on the application. Mr. Marshall said the project would proceed as shown on the plan. Even without a separate condition, the sewer connection as shown was a ‘de facto’ part of the approval.

VOTE: unanimous (4-0); motion carried.

CU04-02 Conditional Use approval to modify a noncomplying structure under Section 1620.2 of the Shelburne Zoning Bylaw. Specifically the modifications are proposed to convert an existing accessory structure into a single-family dwelling; the modifications will not encroach into any yard setback beyond existing building lines
Tucker Holland, owner, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed the conditional use application by Tucker and Michelle Holland to modify a noncomplying structure by converting an existing accessory structure into a single-family dwelling.

Mr. Bigelow noted that the Town had requested a letter of support from the applicant’s attorney. There may be a future application for another conditional use. Mr. Koerner asked if the plan was to make the “barn” into a guesthouse in the future. Mr. Holland answered affirmatively. Mr. Koerner commented that it would be a stretch to change the structure into a guesthouse.

APPLICANT COMMENTS
Mr. Holland explained the three-lot subdivision plan, and that it seemed to make more sense to renovate the existing barn now and build a smaller residence on one of the lots in the future. There was no intention to create a home to be sold. The renovated barn would be an extension of the family use, such as a mother-in-law apartment. It would not be rented out. The architect included elements note a multi-use, which would be primarily a residence. Currently, the Holland’s live in a Gardenside townhouse.

Mr. Koerner said that the zoning ordinance would limit an accessory apartment to 600 square feet. Otherwise the space could have bathrooms, bedrooms, etc. A kitchen would result in an additional residence, explained Mr. Koerner. Mr. Holland said that visual impact was an issue with the Planning Commission; the setback and design was changed. The proposal would work within the existing footprint. Mr. Koerner suggested moving the barn closer to the building envelope of the proposed future smaller residence as an addition to the planned smaller structure. The current barn location had major summer traffic concerns. Mr. Holland asked the importance of a visual impact with regard to approval of the whole project and whether the town would care where the building was located. Mr. Koerner pointed out that there were conditions of a cracked barn foundation, and the structure sat down below road level. Water flows down to the barn. The proposed future building envelope was 150 feet away, said Mr. Koerner. Mr. Holland explained that the contractor was still gathering information regarding the barn foundation due to the winter snow. A Board member spoke in favor of renovating the historic barn versus tearing it down.

Mr. Edelman asked if the easement shown on the plan was for the town. Mr. Holland replied the easement is for a town bike/pedestrian easement (eight feet from the property line and between the road and barn). Mr. Edelman commented that there was no room between the barn and road for a bike path.

Mr. Holland showed the location of the on-site septic system on the site plan.

Mr. Bigelow said the Town Staff was comfortable with the attorney’s letter. No input was received from the neighbors. Mr. Holland said he had met with Mr. Cabot once and Mr. Cabot had no objections to the plans. Bill Dunn was also positive.

PUBLIC INPUT: None.

DELIBERATION/DECISION
Conditional Use, Modify Non-Complying Structure into Single Family Dwelling, Tucker Holland, Harbor Road (CU04-02)
MOTION by Mr. Waltien, seconded by Mr. Edelman, to grant the request by Tucker and Michelle Holland for Conditional Use approval to modify a noncomplying structure under Section 1620.2 of the Shelburne Zoning Bylaw to include converting an existing accessory structure into a single-family dwelling, and the modifications will not encroach into any yard setback beyond existing building lines, subject to conditions as noted in the Staff Report as follows:

1. The interior and exterior improvements shall occur as indicated on the site plan prepared by T.J. Boyle and Associates entitled “Holland Residence, Barn Renovation” (Sheet L1) with the latest revised date 3/04/04 (date stamped March 5, 2004) and the floor plans and elevations, prepared by Birdseye Design, entitled “Holland Barn” (Sheets A1.1, A1.2, A1.4 and A1.5) with a latest revised date of 2/13/04, submitted for Zoning Board of Adjustment review and date stamped March 5, 2004 as amended and conditioned. Minor changes to the referenced plans are to be submitted to Zoning Coordinator for a determination on the need for additional Zoning Board of Adjustment review and approval.
2. Utilization of the noncomplying structure for a permitted use is allowed under the Vermont Supreme Court case In re: Miserocchi, (See also February 12, 2004 letter from Richard Darby, Esq.). If, however, at some future point, there is a proposal to change the permitted use to a conditional use (i.e. an accessory apartment), the Zoning Board of Adjustment must review such application under the conditional use provisions of the applicable zoning regulations at the time the application is made. At such time, the Zoning Board of Adjustment has the authority to deny the application if the conditional use standards for the proposed use have not been satisfied.
3. Within sixty (60) days of this approval, the property owner shall record a “Memorandum of Municipal Action” with the Shelburne Town Clerk’s office. This document will notify future property owners of the approval and conditions.

DISCUSSION: Mr. Koerner asked for clarification of a pedestrian easement. Mr. Holland explained that the Planning Commission had met with the Paths Committee. It was a Town request to acquire an easement whenever it was possible in the target area. A Planning Commission member brought up the easement condition. Mr. Holland noted his support of public pathways. The easement was recorded as presented (along Bay and Harbor Roads). It would require a tremendous amount of work to put in a path and the Town would have to replace plantings. Mr. Cabot’s approval is also needed.

Mr. Holland indicated that he would consider moving the barn.

VOTE: unanimous (4-0); motion carried.

4. ADJOURNMENT
The meeting was adjourned at 8:20 p.m.

Minutes respectfully submitted by Kathlyn Furr, Recording Secretary.


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Thomas Koerner, Chair Milton Edelman

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Steve Waltien Gwen Webster


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