Zoning Board of Adjustment Minutes

TOWN OF SHELBURNE
ZONING BOARD OF ADJUSTMENT
MINUTES OF MEETING
SEPTEMBER 8, 2003

MEMBERS PRESENT: Tom Koerner, Chairman; Steve Waltien, Milton Edelman, Boris Funtow, Gwen Webster.
STAFF PRESENT: Brian Bigelow, Zoning Coordinator.
Kathlyn Furr, Recording Secretary.
OTHERS PRESENT: Art Dreher, Steve Dates, Elaine Dates, George Faris, Howard Seaver, Stephen Smith, Jeff Lawson, Gregg Beldock, David Marshall, Rebecca Stearns, Dorothy Lowe, Yvonne Brodl, Rose Mary Kollmer, Delphin Lynch, Margaret Aske, L. J. Aske, Persis Post, Paul Morrow, Emily Morrow, Anne Tommerman, Adel Johnson, Kate Liber, Jerry Francis, Jan Abbott, Julie Ann Bandur (Burlington Free Press), Rob Donahue (Shelburne News).

1. CALL TO ORDER

Mr. Koerner, Chairman, called the meeting to order at 7:05 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. Mr. Koerner welcomed Brian Bigelow, Zoning Coordinator, back to Shelburne.

2. OLD BUSINESS

CU03-13, Jeff Lawson seeks conditional use approval under Shelburne Bylaw 920.6 to build an office at 1007 Falls Road; the proposal also requires conditional use approval under Shelburne Bylaw 1620.2 2 for modifying a noncomplying structure (continued from 08/04/03)
Jeff Lawson, owner, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner read the Staff Report. Mr. Bigelow pointed out that there was limited new information presented by the appellant.

APPELLANT COMMENTS
Mr. Lawson submitted a site plan and elevation renderings for the proposed office, which includes small changes to the existing noncomplying structure, electricity, heat and plumbing on the second floor of a 100 + year old barn. The existing barn style and size would remain unchanged, however, four new windows on the north side and three windows on the East Side would be installed. An existing cupola was louvered. There would be no increase to the height of the existing structure. The audio/video home occupation did not require additional parking. Electricity and plumbing would come from the existing home. There would be no increase in the septic. There were no objections from abutting neighbors.

BOARD COMMENTS
Mr. Koerner cautioned that if there were an increase in employees in the future, the appellant would be required to return before the ZBA. Also, the site and elevation plans would need a date, a floor space and all pertinent information that was required on a site plan for a home occupation permit under §1650 of the Town of Shelburne Zoning Bylaw.

PUBLIC COMMENT
There were no comments.

DECISION
Consideration of the application was held at the end of the meeting resulting in the following action:

MOTION by Mr. Funtow, seconded by Mr. Edelman, to grant conditional use approval for CU03-13, Jeff Lawson at 1007 Falls Road, under Shelburne Bylaw 1620.2 2 for modifying an existing noncomplying structure with the following conditions:
1) The site improvements shall occur as indicated on the Site Plan and Elevations prepared by Jeff Lawson entitled Proposed Changes, date stamped September 5, 2003. Minor changes, as determined by the Zoning Coordinator, after review and approval by the Shelburne Historic Preservation and Review Commission (SHPDRC) will not necessitate formal action by the Zoning Board of Adjustment.
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 owner of the approval and conditions.
VOTE: unanimous (5-0); motion carried.

3. NEW BUSINESS

CUO3-19, Shelburne Harbor Ship and Marine Company seeks conditional use approval under Shelburne Bylaws 1330.2 and 1620.2 2 to modify a noncomplying structure at 218 General Greene Road
Lambert J. Aske, President, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed the Staff Report. Mr. Bigelow noted that the building footprint matched that on the Lister’s card.

APPELLANT COMMENTS
Mr. Aske showed the proposed location of the 15-foot addition to a nonconforming building, which was within a 100-foot lake front elevation. The addition would be an artist’s studio. All neighbors were notified and no comments had been received. One tree encroaching on another tree would be cut.

BOARD COMMENTS
It was noted that the Staff Report should be corrected to read: “The addition does not enlarge …”

PUBLIC COMMENTS
There were no comments.

DECISION
Consideration of the application was held at the end of the meeting resulting in the following action:

MOTION by Ms. Webster, seconded by Mr. Waltien, to grant conditional use approval for CUO3-19, Shelburne Harbor Ship and Marine Company, under Shelburne Bylaws 1330.2 and 1620.2 2 to modify a noncomplying structure at 218 General Greene Road in the Lake Shore Overlay with the following conditions and with a correction to Page 3 of the Staff Report, Paragraph 5.c as noted:
Staff Report, Page 3, paragraph 5.c to read: “The addition does not enlarge the original structure by more than fifty (50) percent...”
Conditions of Approval:
1. The current configuration of the house consists of 17,106 cubic feet. Increase limited to 8,553 cubic feet. There are 4,682 cubic feet available for future expansion without exceeding the maximum fifty percent (50) expansion of the outside dimensions of the original noncomplying building.
2. The site improvements shall comply with the site plan, floor plan and elevations prepared by contractor Steve Cunningham, date stamped July 30, 2003, which were submitted with the conditional use application and approved by the Board during the public hearing on September 8, 2003, as amended.
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. Prior to the occupancy of the addition, the applicant shall submit a letter signed by the applicant and contractor stating the improvements were constructed according to the plans approved by the Town of Shelburne as referenced in Conditions #2 and #3 above.
5. 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 owner of the approval and conditions.
VOTE: unanimous (5-0); motion carried.

A03-20, Jolley Associates appeals the Shelburne Zoning Administrator’s denial of an application for site plan approval; the property is 10 Executive Drive
Howard Seaver, Esq., Arthur Dreher, P.E. of Dubois and King, Inc, and Stephen Smith appeared on behalf of the application.

APPELLANT COMMENTS
Attorney Seaver reviewed a brief history memorandum, dated 09/02/03, regarding the 1995 and 1997 applications for a proposed project located at 10 Executive Drive. Proposed uses included a gas station, convenience store and fast food restaurant. At the time of the original application those were approved uses. After Zoning Regulation changes, the gas station/convenience store uses were no longer allowed uses in the Residential/Commercial district. The Selectboard ruled that the application had to be viewed under the new regulations. The Supreme Court ruled that the legal provision for Selectboard review was unconstitutional and that Jolley Associates was entitled to review under the rules in force at the time of the application if it was submitted in ‘good faith’ (if the project was under way for a long time versus last minute). Jolley contends that the two applications denied by the ZBA were submitted in ‘good faith’, and the Environment Court disagreed with the ZBA decisions. The canopy that the court denied for conditional use approval was ruled a second principle structure and has been removed. The court denial was ‘without prejudice and the application can go to site plan determination. The current plans reflect amended changes as indicated by the Judge, and are different from the original application but part and parcel of the same process (zoning permit, conditional use review and site plan approval).

BOARD COMMENTS
Mr. Koerner noted that the appeal was a revisit of a previous application, and read a letter from Paul Bohne, Town Zoning Administrator/Town Manager, dated 07/16/03. Mr. Koerner asked if the original 1996 ZBA determination was for a ‘good faith’ project. Ms. Webster said the application was reviewed under the 1995 zoning regulations. If the ZBA denied a conditional use request under 1996 zoning regulation changes, then the application would have to come back before the ZBA. Attorney Seaver explained that the application was before the Environmental Court for the third time appealing the ZBA’s conditional use determination. It should have gone before the Planning Commission for site plan review and a complete application should be reviewed by the court all at one time. The Environmental Court de novo hearing supercedes the ZBA, however, the application might have to come back to the ZBA for review if the Planning Commission asks for design changes. The court denial was “without prejudice’ (not a final decision) and can go before the Planning Commission for site plan review/approval then back before the court for conditional use evidence, said Attorney Seaver.

Mr. Funtow asked for clarification of the court superceding the ZBA. Attorney Seaver explained that the appellant was before the ZBA because the Zoning Administrator stepped in and made a ruling. The appellant was challenging the Zoning Administrators ruling. Site plan review evidence has not been presented to the Planning Commission as of yet. Mr. Waltien said that regarding the May 2001 ZBA bifurcated decision, the ZBA examined the application under the new regulations. Attorney Seaver clarified that the Zoning Administrator had judged the Site Plan application under the new regulations and conditional use was reviewed under the old regulations. The determination was that the application did not meet current standards. Whether or not (the ZBA) agreed with the project, the project has to include site plan review by the Planning Commission and then go back before the Environmental Court for a decision, said Attorney Seaver.

In response to Board comments regarding ‘good faith’, Attorney Seaver said that the Environmental Court Judge wanted to see all evidence before issuing a decision. They must have Planning Commission site plan review and then go back to the court. The court has determined the application was done in ‘good faith’. It does not detract from the ZBA conditional use determination, which still stands. There was discussion regarding changes made to the application as noted by the Judge (amended to a single Site Plan, elevation plan, floor plan and rendering), time frame (had to file a motion in court 45 days after a Town decision, ‘good faith’ (the appellant was committed to the project as evidenced by a six year process), proposed 34 minor changes to the application, and next steps (if ZBA denied the appeal, then the appellant would appeal the decision to the Environmental Court, which would add a procedural step to the process). Mr. Dreher explained that deleting the canopy changed the whole lighting structure and a lighting consultant was needed. There were not many lighting consultants in the area. The consultant’s recommendations were incorporated into the site plan. Attorney Seaver stated that the appellant would make a commitment to appear before the ZBA after site plan review by the Planning Commission.

In response to a Board question regarding character of neighborhood related to traffic impacts and fast food restaurants, Attorney Seaver said changes could be made through discussion/negotiation. The original fast food client, MacDonald’s, has backed out of the project. Mr. Smith said that the project had gone through Act 250 review and it was determined that the project did not affect traffic. Mr. Waltien asked when the appellant had purchased the property. Attorney Seaver answered the appellant had purchased the property after the May 2001 ZBA denial. Mr. Waltien said the ZBA did not have enough information regarding traffic trip end numbers.

Mr. Koerner said that site plan with changes had been submitted, and the ZBA did not need to review them.

PUBLIC COMMENT
There were no comments.

DELIBERATION/DECISION

A decision would be considered in Deliberative Session at the end of the meeting.


CU99-20 R1, Burlington Drive-In Theatre Inc. (owner)/Shelburne Bay Senior Living Community, LLC (applicant) seeks conditional use approval for 45 additional units at 185 Pine Haven Shore Road

George Faris, attorney, and Gregg Beldock, agent, appeared on behalf of the application.

APPELLANT COMMENTS
Attorney Faris reviewed a brief history of the Shelburne Bay Senior Living Community project and noted that Phase II was built on 10 acres of leased land. The additional 47 units would allow residents the needed greater care to remain together as a family. The ZBA could approve the application under Section 820.2 2. The project was the same general character as the local neighborhood and would increase traffic but no to an adverse degree. There was 100 feet of Route 7 frontage for a PRD approval. The applicant has acquired additional frontage from the Bowling Alley/Pecor property for a PUD. The proposed 47 units were planned as additions to the corners of an existing horseshoe shaped building to keep the footprint as small as possible. The applicant will request approval as a PUD with the Planning Commission. The Pine Haven Shore neighbors had expressed concern regarding visual impacts.

Dave Marshall, Civil Engineering Associates, reviewed the proposed plan; access to the project from Pine Haven Lane and Route 7, extending two ends of the existing horseshoe shaped building, relocation of an access road on the north side, and additional parking to meet minimum requirements in the existing lot with a proposed 20 percent waiver. Municipal water and sewer services were available on site. The proposal would retain the character of the site. Peak p.m. traffic was estimated at 40 trips leaving and 60 trips arriving. There was capacity for traffic at existing traffic lights and there were no adverse impacts to traffic in the area.

BOARD COMMENTS
Mr. Koerner read the Staff Report and noted that a project history and site plan with renderings had been submitted.

Mr. Funtow noted that PRD and PUDs were reviewed by the Planning Commission. Mr. Beldock said a condition from the original project approval required the applicant to appear before the ZBA for any changes to the application. The applicant will seek PUD approval from the Planning Commission.

Mr. Waltien asked if the state’s Route 7 project would impact the traffic pattern. Mr. Marshall explained that the main egress was focused on the Pine Haven Shore Road access versus Route 7. It was anticipated that the Route 7 project would result in a road divider in the area. The traffic light at the foot of Martindale Road would positively affect traffic.

Mr. Koerner asked how many people would occupy a unit. Mr. Beldock replied the typical tenant number was one. Double occupancy was usually short. The existing apartments were very large and the new units would be 400 square feet. Three meals a day would be provided by an existing large kitchen. There would be 4 FTE and 3-4 part time additional staff to provide 15 minutes of care three times per day. Assisted care was provided and the VNA currently dispenses medications. Modifications to the existing parking lot were proposed to provide 90 spaces versus 112. Per Mr. Beldock the parking lot has never been full.

PUBLIC COMMENT
An audience member asked the ZBA to allow the project to start as soon as possible, stressing it was an ideal place for couples to stay together. There was discussion regarding options for residents to stay together (couples may want to stay together, but the situation may dictate a separation). The plan would allow couples that have to separate to stay within the complex.

Ms. Morrow, Pine Haven Shore resident, expressed concern regarding a stand of large trees on the north portion of the parcel. Mr. Koerner explained that landscaping was a Planning Commission issue, but the ZBA could consider the trees. Ms. Morrow suggested locating the parking lot access road along the north side of the building, and adding balconies to make the apartments more appealing. Mr. Beldock said that some residents would not find a balcony advantageous. Demand was higher for bigger units, which presents problems later when a resident wants to downsize.

Jan Abbott, daughter of a resident, said that the facility is full and had a waiting list. The project would allow residents to stay at the facility rather than finding assisted care elsewhere. There were no adverse impacts to the neighbors and no small children would be added to school systems.

In response to the Zoning Administrator questions, Mr. Beldock said that there were no garages planned. A new outdoor activity area included a secure fenced garden area. Mr. Bigelow noted that the Police and Fire departments were anticipating increased emergency calls to the complex.

DELIBERATIVE/DECISION
Mr. Koerner said the ZBA would deliberate the application at the end of the meeting.

CU00-31-R2, Town of Shelburne (owner) and Pierson Library Trustees (applicant) seeks conditional use approval for an addition to the Pierson Library at 5376 Shelburne Road
Elaine Dates, Pierson Library Trustee representative, appeared on behalf of the application.

APPELLANT COMMENTS
Ms. Dates reviewed the request for an addition (vestibule) to reduce drafts into the library lobby. Custom doors would be pulled out to the new entrance and similar doors would be installed on the inside of the vestibule. Two columns, a book drop, a community posting board and bench, heaters and a buzzer (to meet ADA requirements) would be built to code.

BOARD COMMENTS
Mr. Koerner noted that the addition was to a noncomplying building attached to a noncomplying building attached to a third noncomplying building.

Mr. Funtow asked if a pressure relief mechanism would be installed to prevent an airlock. Ms. Dates suggested that the book drop might relieve an airlock situation.

Mr. Bigelow noted that the current application was a revision to the original site plan.

DECISION
MOTION by Mr. Waltien, seconded by Ms. Webster, to approve CU00-31-R2, conditional use request by the Town of Shelburne (owner) and Pierson Library Trustees (applicant) for an addition to the Pierson Library at 5376 Shelburne Road, subject to the following conditions:
1. The site improvements shall occur as indicated on the site plan entitled “Pierson Library Proposed Vestibule”, which is based on a Duncan Wisniewski Architecture plan entitled “Shelburne Village Center”, originally date stamped May 29, 2003, and most recently date stamped August 19, 2003, that was submitted for Zoning Board of Adjustment review on September 8, 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 owner of the approval and conditions).
VOTE: unanimous (5-0); motion carried.

Mr. Koerner noted that a building permit was needed.

At this time the Board acted upon the Lawson and Shelburne Harbor Ship Marine applications. For convenience sake the motions, conditions and results of the motions have been noted in the text of the minutes for each application.

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

The ZBA entered Deliberative Session at 9:43 p.m.

5. DELIBERATION SESSION
MOTION by Ms. Webster, seconded by Mr. Edelman, to exit Deliberative Session. VOTE: unanimous (5-0); motion carried.

The ZBA exited Deliberative Session at 10:18 p.m.

MOTION by Ms. Webster, seconded by Mr. Edelman, to grant conditional use approval for CU99-20-R1, Burlington Drive-In Theatre Inc. (Owner) and Shelburne Bay Senior Living Community LLC (Applicant), under Shelburne Bylaws §820.22 for a 112 unit Elderly Housing Project, subject to the following conditions:


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 constructed as depicted upon drawings entitled Shelburne Bay Senior Living Community Schematic Elevations (Mackenzie Architects P.C. Project #3060), each drawing is date stamped August 18, 2003.
3. No more than one hundred twelve (112) elderly housing units may be developed. Approval by Zoning Board of Adjustment is required for any increase of number of units or change of use.
4. Approvals and conditions from the March 9, 1998 Zoning Board of Adjustment approval that are unrelated to this change in number of units remain in force. To include (with original numbering):
1. This conditional use approval combines the 2.62 acre lot and the 7.03 acre lot for the purposes of land use. Additional principal uses are not permitted entirely or partially on these lots.
2. Any accessory uses shall be developed for the benefit of the residents and their guests and the employees of the development. The accessory uses are not intended to be operated as a principal use for the general public.
3. Existing trees and understory in the southwest corner of the site and along the western property line shall be preserved.
5. Within sixty (60) days of this approval, the applicant shall record a “MEMORANDUM OF MUNICIPAL ACTION” with the Shelburne Town Clerk’s office.
6. Applicant shall obtain subdivision approval as either a Planned Unit Development or a Planned Residential Development approval from the Town of Shelburne Planning Commission prior to making application for a building permit.

VOTE: (4-1); motion carried with Mr. Koerner, Ms. Webster, Mr. Waltien, Mr. Edelman in favor and Mr. Funtow opposed.

Mr. Koerner announced that the public portion of A03-20, the appeal of a determination of the Zoning Administrator by Jolley Associates is closed. Mr. Bigelow is directed to obtain the opinion of the municipal attorney. That opinion is to be made available to Mr. Seaver. Mr. Seaver is to be afforded the opportunity to respond in time for his response to be circulated to the members of the Zoning Board prior to their meeting of October 6, 2003.

6. MINUTES
MOTION by Mr. Funtow, seconded by Mr. Koerner, to approve the minutes of August 4, 2003.
VOTE: unanimous (5-0); motion carried.

7. ADJOURNMENT
MOTION by Mr. Edelman, seconded by Mr. Funtow, to adjourn.
VOTE: unanimous (5-0); motion carried.

Meeting adjourned at 10:37 p.m.

Minutes respectfully submitted by Kathlyn Furr, Recording Secretary.

These minutes are subject to correction by the Shelburne Zoning Board of Adjustment. Changes, if any, will be recorded in the minutes of the next meeting of the Board.

Dated at Shelburne, Vermont this 6th day of October, 2003 for the meeting of September 8, 2003.

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Tom Koerner, Chairman Gwen Webster, Vice Chair

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Boris Funtow Steve Waltien

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Milton Edelman