Zoning Board of Adjustment Minutes

TOWN OF SHELBURNE
ZONING BOARD OF ADJUSTMENT
MINUTES OF MEETING
NOVEMBER 3, 2003

MEMBERS PRESENT: Tom Koerner, Chairman; Steve Waltien, Milton Edelman, Boris Funtow, Gwen Webster.
STAFF PRESENT: Brian Bigelow, Zoning Coordinator.
OTHERS PRESENT: Jerry Francis, Roy Rabideau, Gary Krasofski, Ann Krasofski, John Powell, Rick Thwing, Lenore Thwing, Joyce Errecart, Judy Raven, Clark Hinsdale, Stuart Jacobs, Anzi Jacobs, Rob Donahue (Shelburne News).

1. CALL TO ORDER
Mr. Koerner, Chairman, called the meeting to order at 7:03 p.m., and noted that approval of minutes would be conducted at the end of the meeting. Findings of Fact and Deliberation/Decisions could be conducted in a closed Deliberative Session at the end of the hearing as well. Mr. Koerner explained the deliberative process.

2. OLD BUSINESS
CU03-24, Conditional Use approval to demolish an existing nonconforming dwelling, and rebuild a larger dwelling on the same footprint that does not decrease any yard setbacks. The Zoning Bylaws allow for replacement and enlargement of a structure in the Floodplain and Watercourse Overlay District if approved by the Zoning Board of Adjustment as a Conditional Use. The Zoning Bylaws allow for replacement and enlargement of a structure in the Lakeshore District if approved by the Zoning Board of Adjustment as a Conditional Use. The property is in the Residential 1 District. The continued use of the property for a single-family dwelling is a permitted use
Gary Krasofski and Ann Krasofski, owners, and Roy Rabideau, agent, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed the staff report. Mr. Bigelow noted that a site plan, photographs and a sketch of the existing footprint were submitted.

APPLICANT COMMENTS
Mr. Krasofski reviewed the location of the subject property on the north side of Bay Road. The existing dwelling is a 50-year old three-bedroom raised ranch. It is proposed to replace a retaining wall at the 98-foot level with a wall built to the 103-foot elevation, and a new slab at the same elevation. A new saltbox style structure would be on the same footprint (24’x32’). The grade would be brought up on the lakeside to stay within the fifty percent volume capacity. A letter from Karl Jurenkuff, State of Vermont, was submitted regarding the retaining wall, which was built in the 1930s and was falling over.

In response to a Board question, Mr. Krasofski replied that he was not connected to Town water and sewer. The lot would be improved by the new retaining wall, which would add more protection from the lake.

Mr. Koerner asked if the abutting neighbors had been notified. Mr. Krasofski said that he has lived on Shelburne Bay for 53 years and knew his neighbors well. No one has objected to the project and the retaining wall is a shared project with abutters.

Mr. Koerner asked for clarification regarding the north elevation of the building. Mr. Krasofski explained the proposed shed style roof design with a walk out balcony, window, skylight and door. The configuration of the building would be as represented on the drawings. Mr. Koerner noted that the Board might require the final plans show the windows to be the same as submitted for staff approval before construction was started. Mr. Krasofski said that the final plans would be given to staff. Regarding the slab, the existing foundation was dirt and crawl space. Currently, framing was anchored to cement pillars, but some are gone or rotted out. The new slab would be within the old footprint.

Mr. Koerner stated that the volume calculations must be within 50 percent of the existing structure. The building cannot become progressively bigger. Mr. Krasofski replied he understood.

PUBLIC COMMENTS
There were no public comments.

DELIBERATION/DECISION
Consideration of application CU03-24 was held at the end of the meeting.

3. NEW BUSINESS
CU 03-23 Conditional Use review and approval under Article XVI, General Regulations, Section 1620.2.2, Noncomplying Structures
Richard Thwing and Lenore Thwing, owners, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed a request for a conditional use approval for a 7’2”x12’1.5” porch addition to a noncomplying structure located within the 30’ setback in the Residential 1 district. A site plan with property boundaries was needed.

APPLICANT COMMENTS
Ms. Thwing noted the existing structure was a raised ranch, and submitted a rough sketch showing the subject property location, driveway, Green Hills Road and Marsett Drive. Mr. Thwing said the house was on a 140’x 260’ lot. The front of the house was 40’ from Green Hills Road. There was an existing porch/deck on the front of the house. Ms. Thwing said the proposed 7’2”x12’1” deck would be no wider than the existing deck. The existing steps would be covered by deck wood, with steps to the existing walkway and three steps to the driveway.

Mr. Koerner requested photographs and site plans that include the house location, proposed deck, and a complete application. The proposed deck cannot be built any closer to the road than existed now. Ms. Thwing replied that they understood and that was why the new deck is 7’2” wide. Ms. Thwing submitted photographs and a site plan sketch for the record.

PUBLIC COMMENTS
There were no public comments.

DELIBERATION/DECISION
Consideration of application CU03-23 was held at the end of the meeting.

CU00-31R2, Conditional Use (Revision to CU00-09, CU00-31 and CU0031R1) to utilize the Noonan House structure with two upstairs studio apartments and office space on the ground floor. The Owner/Applicant currently seeks Conditional Use approval to amend the August 4, 2003 approval to convert the commercial space from Business or professional office (§920.6) to Retail establishments designed to sell to the general public (§920.8). (§920.6)
John Powell, Lake Champlain Housing Development Corporation representative, Clark Hinsdale and Joyce Errecart, Interfaith Group representatives, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed a request to amend a current permit to change the use from office space on the ground floor of the Noonan House to retail space use. A ZBA decision required that the Planning Commission make the decision regarding the number of parking spaces. The original application required 11 parking spaces versus seven spaces as suggested by the Planning Commission for the earlier “office” approval.

APPLICANT COMMENTS
Mr. Powell asked for a change of use to retail space, in particular a thrift shop space. The Interfaith Group would use the space for the community at large. Mr. Koerner asked how many parking spaces the Planning Commission had determined was necessary. Mr. Powell replied the project was allocated seven spaces currently. Mr. Bigelow clarified that for every 150 square feet of retail space, one parking space was required for a total of seven parking spaces. Mr. Powell said he did not know if the Planning Commission handled the issue by meeting or administratively. The entire project included the 18 unit Ockert Drive project as a package. Ms. Webster noted that ZBA originally determined nine parking spaces were required, and now there was a difference of use. Mr. Powell explained that according to square footage retail use calculations of 150 square feet, excluding storage space, nine spaces were required, but with a 20% reduction, seven parking spaces are needed. Ms. Webster pointed out the ZBA did not have the power to give a reduction, and the Applicant based calculations on the old application, not the current proposal. Ms. Errecart said the Planning Commission took the position that the residential units were “rooming” house units needing one parking space each. The retail use parking spaces requirements were the same as for professional office space. Ms. Webster clarified the units are studio apartments, not rooming house units. There was continued lengthy discussion of current parking space calculations per the Zoning Regulations, which did not include a shared parking concept at this time, holding the Town to the same ZBA review applied to all applicants, and the proper designation of studio apartments versus “rooming house” language. Ms. Errecart said that two parking spaces were allocated for the two rooming house units, and seven spaces for the professional office use. When a 20 percent reduction was calculated, that resulted in a total of seven parking spaces. On the other hand, the ZBA was looking out for the Town of Shelburne. It was noted there are times when the (Village Center) parking lot is full, such as at 6:00 p.m. for recreation programs or dog training class nights. Mr. Koerner advised the applicant to return to the Planning Commission to get a ruling regarding the parking issue.

Mr. Funtow commented on the need to revise the parking regulations with regard to shared parking space concept.

Mr. Edelman asked for clarification regarding the thrift shop lease. Mr. Hinsdale replied it was a 15-year lease, then year by year. Mr. Koerner asked for clarification regarding employees. Mr. Bigelow said that employees were not an issue. Mr. Edelman asked if retail use required a loading zone. An Interfaith representative replied that a loading dock was not applicable. There would be a selective drop off as people brought in boxes. The acceptance of clothing or little household items would be selective. A small commercial dumpster was noted on the site plans, however, unused clothing would be sent to a baling system in Addison County for shipment to third world countries.

PUBLIC COMMENTS
There were no comments from the public.

DELIBERATION/DECISION
Consideration of application CU00-31R2 was held at the end of the meeting.

CU/V03-26, Stuart and Anzi Jacobs, 294 Pine Haven Shores Lane, for a Conditional Use and Variance review and approval under Article XVI, General Regulations, Section 1620.2.2, Noncomplying Structures and Article XIII, Lakeshore Overlay District, Section 1330.1.2, Additions to existing nonconforming structures
Stuart and Anzi Jacobs, owners, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed the conditional use and variance application, CU/V03-26, which was a proposal to add an attached garage to a noncomplying structure. A site plan was submitted.

APPLICANT COMMENTS
Ms. Jacobs pointed out the location of Shelburne Bay, Pine Haven Shores Lane, and house on a site plan. The house was located at the south end of Pine Haven Shores Road, which had small lots and a right-of-way running through the lots. Pine Haven Shores Lane was a private road shared by the residents. A front yard setback of 30 feet was required, but the proposed garage was within 21 feet. The lot was 93 feet wide and 200 feet long.

Mr. Koerner asked for clarification regarding the location of the private road and why it would narrow the front yard. Mr. Bigelow explained the right-of-way was 25 feet wide and resulted in two front yards for each lot. Mr. Jacobs pointed out that each homeowner owned a portion of the right-of-way and was responsible for a shared maintenance. Mr. Koerner said if the homeowner owned the right-of-way, then there should not be two front yards. There was discussion regarding simantic differences between easements versus rights-of-way, which were not town roads. Mr. Bigelow said that the Town did not distinguish between public versus private roads. Ms. Jacobs stated they paid taxes on the right-of-way.

Ms. Jacobs said they currently use the existing garage across the lane from the house and pointed out an error in the Staff Report regarding the construction date (should read 1951). Due to health issues, an attached garage was necessary. A doctor’s letter was attached to the application, said Ms. Jacobs.

Mr. Koerner suggested a 22’x 25’ garage versus 25’x 25’, or relocating the garage around the corner of the house. A variance addressed physical uniqueness of a lot, not physical characteristics of a person, explained Mr. Koerner. There was discussion regarding physical uniqueness of the lot (Ms. Webster said that a right-of-way in the middle of a lot might qualify as a unique characteristic), character of the neighborhood related to hardship as defined by the State of Vermont, which was not applicable in this situation, the legal right-of-way width of 25 feet, and slope elevations of the Jacobs’ lot (Mr. Waltien said that the steepness of the lot could be a “not self created hardship”.)

Mr. Koerner asked if the applicant would be willing to remove the old garage. Mr. Jacobs replied that they were not willing to tear it down since it was a great storage building.

PULBIC COMMENTS
Mr. Francis, neighbor, said he was an engineer and drew the garage plans as a favor to his neighbor. Mr. Francis said he conducted a survey and the site plan and boundaries were accurate. The Meillers, abutters to the South, submitted a letter of support.

DELIBERATION/DECISION
Consideration of application CU/V03-26 was held at the end of the meeting.

CU03-27, Shelburne Craft School Corporation, 60 Harbor Road, for a Conditional Use review and approval under Article XVI, General Regulations, Section 1620.2.2, Noncomplying Structures
Judy Raven, Shelburne Craft School representative, appeared on behalf of the application. Mr. Koerner said that he might have a conflict of interest since he drew the site plan for the school. It was the consensus of the ZBA that there should be no problem.

STAFF REPORT
Mr. Koerner reviewed the Conditional Use request for a 14’x 24’ pottery shop addition at the school campus. The proposed addition would replace an existing open-air pottery shed.

APPLICANT COMMENTS
Ms. Raven explained that currently there was one indoor kiln and two kilns located in an outdoor structure. The plan is to consolidate all three kilns in one area. The outdoor structure would be taken down. The proposed addition would not encroach into the setbacks and would be no more nonconforming than already exists. It would create a more attractive and safer area. The addition would be enclosed with windows. (Mr. Koerner noted that the windows were donated period 1950 windows that fit the architectural style.)

Ms. Raven said kiln emissions would not increase. The heat from the kilns enters a stack and there were no concerns regarding a fire hazard. The plan was discussed with Mrs. Senior, Tracy House, and she has no objections.

Mr. Bigelow explained permitted uses for a school certified by the Department of Education. It was had been assumed the craft school was certified, but the Department of Education did not have anything in the State files. Ms. Raven said if the school was certified, it was done in 1949. The state does not certify schools such as the craft school since there were no grade levels or standardized curriculum. The craft school was used by students as part of the Village School curriculum. A letter from the Village School was not requested in support of the application, said Ms. Raven. Mr. Bigelow said the use does predate zoning. Staff recommended an application as a “similar use” and continuing this application. It might be easier to put the pottery kilns in an existing building versus building an addition. Also, a concrete pad flush with the ground would not require a permit. Ms. Raven said the school would continue the current application and re-apply as suggested by staff.

PUBLIC COMMENTS
There were no comments from the public.

DELIBERATION/DECISION
MOTION by Ms. Webster, seconded by Mr. Edelman to table the request by the Shelburne Craft School for Conditional Use approval for a 14’x24’ pottery shed addition. VOTE: unanimous (5-0); motion carried.

A03-28, Shelburne Craft School Corporation, 54 Falls Road, appeal of the decision of the Town of Shelburne Zoning Coordinator for a denial of the appellant’s application for two free standing signs
Judy Raven, Shelburne Craft School representative, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed the Staff Report on the appeal of a denial for two freestanding signs.

APPELLANT COMMENTS
Ms. Raven explained the application for two similar signs to serve the Shelburne Craft School at the former Pierson Library building. The proposed signs would attract people to the building. The DRB suggested that two signs were needed. The school tried to create signage in keeping with the character of the Village Center. The signs were 3’x 3’. The Town owns the triangle-sized lot and building. The School/Town lease does not include the triangle lot.

Mr. Edelman noted that the Zoning Regulations allowed one free standing sign and one facade sign. There was discussion regarding existing Village signs, such as at the Creamery which was a larger sign due to the distance from Route 7 and visibility, the location of the Pierson building in relation to the sidewalk, lot configuration between Falls Road and Route 7, and evergreen trees on the triangle lot.

In response to a Board question, Ms. Raven said that the school was a commercial non-profit business, and as such, the school needed people to come into the building to view artwork for sale, or to take classes. It was a shared commitment with the Town to maintain a public building. Mr. Bigelow pointed out that if the building had housed the previous use (library), the signage would still have been denied.

Mr. Edelman commented that freestanding signs on the triangle were distracting as seen from Route 7. If a sign was placed along Falls Road, people would see it. Ms. Raven explained that there was no one good location to place a sign where everyone could see it. The state would not allow a facade sign if there was already a sign that bordered on a state highway. Mr. Edelman suggested the school purchase a state highway sign.

Ms. Raven said the school had used a temporary sign, but it proved invisible. Mr. Funtow said that there was nothing in the Zoning Regulations to address invisibility. Ms. Raven suggested that the Board review the DRB minutes regarding the two signs.

DELIBERATION/DECISION
Consideration of application A03-28 was held at the end of the meeting.

4. DELIBERATIVE SESSION/DECISIONS
MOTION by Mr. Waltien, seconded by Mr. Koerner, to enter Deliberative Session. VOTE: unanimous (5-0); motion carried.

The ZBA entered Deliberative Session at 9:50 p.m.

MOTION by Mr. Funtow, seconded by Mr. Edelman, to adjourn Deliberative Session and reconvene the regular meeting. VOTE: unanimous (5-0); motion carried.

The ZBA exited Deliberative Session and reconvened the regular meeting at 10:30 p.m.

MOTION by Mr. Waltien, seconded by Mr. Koerner, to grant Conditional Use approval for CU03-24, Gary Krasofski, 670 Bay Road, to demolish an existing nonconforming dwelling, rebuild a larger dwelling on the same footprint that does not decrease any yard setbacks subject to the following conditions:
1. In accordance with §1430.5.a, the proposed rebuilt residential structure shall have the basement floor elevated to 103’, above the base flood elevation of 102’.
2. In accordance with §1430.5.e, the development, to include the proposed retaining wall and associated fill, may not result in any increase in flood levels within the regulatory floodway during the occurrence of the base flood discharge.
3. In accordance with §1430.5.g, all gas and electrical equipment, circuits, and appliances shall be located above the BFE of 102’.
4. In accordance with §1430.5.h, any future connection to the existing municipal water supply systems shall be designed to prevent the infiltration of floodwaters into the system.
5. In accordance with §1430.5.i, in the event that a replacement sanitary sewage system is necessary, a design requirement will be to minimize or prevent infiltration of floodwaters into the systems and discharges from the systems into floodwaters. Applicant must ensure that the existing septic system is not degraded by the excavation for the retaining walls.
6. In accordance with §1430.5.n, applicant must obtain all necessary permits from those governmental agencies from which approval is required by Local, State or Federal law for the proposed retaining wall and associated fill. These permits are to be obtained prior to application for a building permit.
7. The current configuration of the house consists of a total of 11,085.7 cubic feet. The footprint of the rebuilt dwelling must exactly match the existing footprint. The total increase is limited to 16,024.5 cubic feet. Based on the submitted elevations there are 604 cubic feet available for future expansion without exceeding the maximum fifty percent (50%) expansion of the outside dimensions of the original noncomplying buildings. Final elevations may differ from the elevations reviewed at the November 3 hearing provided that the volume increase is less than 44.5%. Reworked volume calculations will be required prior to application for a building permit.
8. The site improvements shall comply with the site plan, date stamped October 21, 2003, which were submitted with the conditional use application and approved by the Board during the public hearing of November 3, continued from October 6, 2003, as amended. As part of the building permit application, the applicants shall submit a site plan indicating the limits of site construction. The removal of trees and shrubs for this application shall only occur within the boundary of the limits of the construction plan. Other than the trees removed for construction as indicated above, trees shall not be removed from the property unless the trees are dead, damaged, or severely diseased as determined by an arborist.
9. Prior to the occupancy of the additions, the applicant and contractor, Roy Rabideau, shall submit a letter signed by the applicant and agent stating the improvements were constructed according to the plans approved by the Town of Shelburne as referenced in conditions #1 and #2 above.
10. 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.
VOTE: unanimous (5-0); motion carried.

MOTION by Ms. Webster, seconded by Mr. Waltien, to approve the request by Richard and Lenore Thwing, CU03-23, at 164 Green Hills Drive, for a Conditional Use approval under Article XVI, General Regulations, Section 1620.2.2, Noncomplying structures, subject to the following conditions:
1. The site improvements shall comply with the site plan and elevations, prepared by Lenore Thwing, date stamped November 3, 2003, which were submitted with the conditional use application and approved by the Board during the public hearing on November 3, 2003.
2. 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.
VOTE: unanimous (5-0); motion carried.

MOTION by Mr. Waltien, seconded by Mr. Funtow, to approve a request for a Conditional Use, CU00-31R2, (Revision to CU00-09, CU00-31 and CU0031R1) to utilize the Noonan House structure with 2 upstairs studio apartments and office space on the ground floor. The Owner/Applicant currently seeks Conditional Use approval to amend the August 4, 2003 approval to convert the commercial space from Business or professional office (§920.6) to Retail establishments designed to sell to the general public (§920.8). (§920.6), with the following conditions:
1. The site improvements shall occur as indicated on “Exhibit B”, “Exhibit C1” and “Exhibit C2”, each date stamped October 23, 2003 that were submitted for Zoning Board of Adjustment review on November 3, 2003. Amendments to the Site Plan as a result of Shelburne Historic Preservation and Design Review Commission and Planning Commission review shall be forwarded to the Zoning Coordinator for administrative approval or referral to the Zoning Board of Adjustment if appropriate.
2. The Applicant shall provide off street parking on Town Center property in accordance with §1670 as follows: 4 parking spaces for the residential uses (§1670.1.b), 7 parking spaces for the 1,036 ft. of retail space (§1670.1.k) and space for loading (§1670.2.1). Subsequent adjustments by the Planning Commission need not return to the Zoning Board of Adjustment.
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.
VOTE: unanimous (5-0); motion carried.

MOTION by Mr. Waltien, seconded by Ms. Webster, to approve the Conditional Use portion of application CU/V03-26, by Stuart & Anzi Jacobs Stuart, 294 Pine Haven Shores Lane.
1. The proposed addition may only be used as a garage. Any other use will need to be reviewed by the Zoning Board of Adjustment under §1330.2.c of the Town of Shelburne Zoning Bylaw.
2. The site improvements shall not infringe upon the front yard setback as shown on the site plan, date stamped October 20, 2003, which were submitted with the conditional use and variance application reviewed by the Board during the public hearing on November 3, 2003. A Site Plan showing a revised footprint within the building envelope shall be presented prior to making application for a building permit.
3. As part of the building permit application, the applicants shall submit a site plan indicating the limits of site construction. The removal of trees and shrubs for this application shall only occur within the boundary of the limits of the construction plan. Other than the trees removed for construction as indicated above, trees shall not be removed from the property unless the trees are dead, damaged, or severely diseased as determined by an arborist.
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.
VOTE: unanimous (5-0); motion carried.

The request for a variance by Stuart and Anzi Jacobs was continued.

MOTION by Mr. Edelman, seconded by Mr. Waltien, to approve the appeal, A03-28, by the Shelburne Craft School Corporation, 54 Falls Road, to a decision of the Town of Shelburne Zoning Coordinator for a denial of the appellant’s application for two free standing signs.
VOTE: 2 ayes, 3 nays (Mr. Koerner, Ms. Webster in favor, Mr. Waltein, Mr. Funtow and Mr. Edelman opposed.); motion failed.


5. APPROVAL OF MINUTES
MINUTES OF OCTOBER 6, 2003
MOTION by Mr. Waltien, seconded by Mr. Funtow, to approve the minutes of 10/06/03 as written. VOTE: unanimous (5-0); motion carried.

6. ADJOURNMENT
MOTION by Mr. Koerner, seconded by Mr. Edelman, to adjourn the meeting. VOTE: unanimous (5-0); motion carried.

The ZBA meeting was adjourned at 10:50 p.m.

Minutes respectfully submitted by Kathlyn Furr, Recording Secretary.



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Thomas Koerner, Chair Milton Edelman

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Gwen Webster Boris Funtow

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Steve Waltien

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