Zoning Board of Adjustment Minutes

TOWN OF SHELBURNE
ZONING BOARD OF ADJUSTMENT
MINUTES OF MEETING
SEPTEMBER 09, 2002

MEMBERS PRESENT: Tom Koerner, Chairman; Boris Funtow, Steve Waltien, Milton Edelman, Gwen Webster.
STAFF PRESENT: Shannon Courville.
OTHERS PRESENT: Bonnie Thomas, Ed Koehler, John Guilmette (Agency of Natural Resources), Michael Lash, Roland Lemoge, Joy Lemoge, Karen MacIntyre, Thomas Hunt, John Hasen, Joseph Fernandez, Brenda Fernandez, Lee Suskin, Sue Moraska, Robert Whiteman, Annette Whiteman, Oscar Drumheller, Elizabeth Drumheller, Marcel Beaudin, Stephen Kidder, Paul Bohne, Rob Donahue (Shelburne News).

1. CALL TO ORDER
Mr. Koerner called the meeting to order at 7:03 p.m. and noted that the Telecommunication Board Meeting was postponed. Mr. Koerner explained approval of minutes, Findings of Fact, and Deliberations were sometimes conducted at the end of the meeting. The procedure for hearing applications before the Zoning Board (ZBA) was reviewed (includes staff report, applicant comments, ZBA input, public comments).

2. NEW BUSINESS - APPLICATIONS
Conditional Use Approval under Shelburne Zoning Bylaw Sections 920.12, 930.1 and 1670.1, to open an eat-in restaurant at 102 Harbor Road with hours of operation from 7:00 a.m. to 3:00 p.m. The property is in the Village and Village Design Review Overlay Districts.
Joseph Fernandez and Brenda Fernandez, owners, appeared on behalf of the application.

STAFF REPORT
Ms. Webster noted that she had recused herself due to a conflict of interest in the past, but she no longer worked at the restaurant.

APPLICANT COMMENTS
Ms. Fernandez explained that the restaurant was currently a take-out establishment, but tourists would sit on the lawn or ask for a place to sit and eat. The restaurant would offer a few small tables as well as take-out. Ten parking spaces would be required for the sit-down restaurant and employees would park at the barn. The apartment had two separate parking spaces. A site plan was submitted showing the location of a cooler. The following items were noted:
· No comments were received from the Fire or Police Departments.
· Square footage was needed on the site plans.
· Hours of operation were from 6:00 a.m. to 3:00 p.m., and 5:00 p.m. for take-out only.
· The number of employees was not stated.
· Plot plan numbers were needed.
· Parking might be a potential problem with 10 spaces for clients, two spaces for apartment tenants, and employees parking at the barn.
· Traffic impact would be limited by 10 customer parking spaces.
· The restaurant would not be open on Sundays.

Ms. Fernandez said that regarding objections for a 7:00 a.m. breakfast service, there was nothing peaceful at Harbor Road at that time. The train was running, there were commuters and school traffic. Sit down service was not anticipated at that time, or the time could be adjusted to 8:00 a.m. There was plenty of space at the barn for two employee parking spaces (lot 3). Mr. Fernandez noted that they owned lots 1, 2 and 3.

PUBLIC COMMENT
Ms. Thomas, abutting neighbor, asked how many tenants lived in the rented apartment and how many cars they have. Ms. Fernandez explained that there could be no more than two licensed cars. Ms. Fernandez expressed concern regarding the question. Ms. Thomas expressed concern that the restaurant business was expanding from four days a week to seven. Mr. Funtow suggested that the original application conditions be researched.

Mr. Hasen, resident, expressed concern about noise from the restaurant in the evening hours. If the restaurant closed at 3:00 p.m. there was no problem. Morning traffic was a problem, however, there is not necessarily opposition to the Fernandez’ proposal.

Mr. Suskin, resident, expressed concern about use of the rented apartment and asked for a definition of the term “residential”. Mr. Koerner noted that the Zoning Bylaws were available for review. The apartment was a separate issue from the application and was not germane to the discussion. Mr. Suskin said that the amount of traffic the apartment tenants generated would need to be addressed in the permit process. Mr. Waltien agreed the point is valid as related to the number of cars for sit-down service. A change of use might need to be structured. Mr. Suskin pointed out that the application did not include parking at the barn. The Planning Commission conditioned that the right of way to the barn could not be used by the pubic during the subdivision process or that access had to come from Blodgett Road. The Engstrom right of way also had to come from Blodgett Road, said Mr. Suskin. Ms. Fernandez stated that the proposed barn parking would be for employees, not the public. Mr. Fernandez pointed out that Ms. Thomas’ right of way was directly under Mr. Suskin’s window. Mr. Suskin commented that parking at the barn should require a permit even for the property owner. The Zoning Administrator will research the use of the barn for employee parking and use of the right of way.

Ms. Webster asked how the character of the Harbor Road area compared to Falls Road or Marsett Road. Mr. Fernandez pointed out that Harbor Road was a separate area next to the railroad tracks and was zoned mixed use. Mr. Suskin suggested that the number of trips to the restaurant be monitored the first couple of months to establish a base line.

BOARD COMMENTS
Mr. Edelman asked for clarification of breakfast service. Ms. Fernandez said that breakfast would be served, but it was not anticipated there would be many customers.

Mr. Koerner asked if there would be any exterior changes. Mr. Fernandez replied that the lighting and sign would remain the same.

There was discussion regarding square footage, which was not noted on the site plan.
Mr. Koerner asked the applicant to furnish square footage for the business and deed restrictions.

Request for a Conditional Use Approval under Shelburne Zoning Bylaw Article XIII, Lakeshore Overlay District, Section 1330.2c for an addition to an existing nonconforming structure which is within the 100 foot setback from Lake Champlain at 3689 Harbor Road.
Marcel Beaudin, architect, appeared on behalf of the application.

APPLICANT COMMENTS
Mr. Beaudin explained the plans to refurbish the Phillip Drumheller ‘caretaker’s house’ to include space for his parents. One clarification was the correction of names on the application. The house would not be any closer to the lake as currently, the footprint would be increased 50 percent of the existing house, and the volume in the roof area would increase vertically. There are two residences on the property. The principal residence size was increased in 1998. The request was to do the same with the caretaker’s cottage, which was built prior to 1980. The existing cottage was 75 feet from the lakeshore and was a nonconforming structure. Mr. Beaudin showed the location of the dwelling on the site map (within the Overlay District as noted on page 3 of the application). The volume of the house was based on the outside dimensions.

STAFF REPORT
Mr. Koerner noted that volume calculations, setbacks, and site plans were submitted. Mr. Courville, Zoning Administrator, said that no comments had been received from neighbors.

PUBLIC COMMENTS
There were no public comments.

Request approval for a variance to allow construction of a platform under Shelburne Bylaw Section 330.2a for the minimum front yard setback at 1136 Bay Road which is in the Rural 1 District.
John Guilmette, Agency of Natural Resources representative, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed that the Town of Shelburne has applied for a variance for the construction of a fishing platform. A site plan had been submitted.

APPLICANT COMMENTS
Mr. Guilmette clarified that a variance for a 8’x 30’ fishing platform was requested versus a 6’x 55’ as shown on the application. The location of the proposed platform, access entrance, grass areas, parking lots, proposed reconstructed boat ramps, and an addition ramp was reviewed. The Lakes and Ponds Agency has reviewed the plans. Mr. Guilmette reviewed the following:
· The platform proposed location was 26’ feet from the Bay Road edge.
· The fishing platform would be large stone blocks, capped with 12 inches of concrete, and at an elevation of 100’.
· Anglers historically used the location, and the water was deep at the area. If the location were changed to the north, it would be too shallow and interfere with a proposed buffer strip and proposed dock/ramp.
· The proposal would use existing material on the parking lots to save $50,000. There would not be much difference regarding storm water runoff between the gravel and paved surfaces.
· The State of Vermont has a 35-year access area plan that included legislatively mandated ADA access to shore-fishing areas.
· No traffic study was done. No comments were received in the past regarding traffic issues.
· Sheet 7 detailed the proposed concrete slab, with a railing for safety and to comply with ADA codes.
· The walkway to the fishing platform would be Sur-pac.
· Funding was provided through boat registrations, fishing permits, etc.
· Public and Town input has been incorporated into the proposed access design.

PUBLIC COMMENTS
A resident asked when the access area would be open to the public. Mr. Guilmette replied that the state was in the process of receiving permits, and the project would go out to bid this fall, for construction the summer of 2003. Mr. Guilmette explained that the project has gone through reviews that included archeology, wetland, recreation, and land use. The goal was to move the fishing/boat launch access upstream to avoid shallow water.

Mr. Whiteman, resident, expressed concern that wheelchairs would require a paved walkway versus the proposed gravel in order to use the access area. Mr. Guilmette said that the surface material would be re-examined.

Request for a Conditional Use approval under Shelburne Zoning Bylaw Section 1620.2 2 to modify a noncomplying structure at 5095 Spear Street.
Karen MacIntyre and Thomas Hunt, owners, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner noted that the house was a noncomplying structure near the golf course.

APPLICANT COMMENTS
Ms. MacIntyre stated there are a total of 15 acres. The family has lived on the site for two years. A brief history of the house, which was burned 30 years ago, and rented out for 10 years was reviewed. Ms. MacIntyre explained the proposal as follows:
· The front porch would be removed to increase the setback from 63’ to 66’.
· The siding would be removed and replaced.
· The proposed house addition would include an attached garage.
· A fenced dog run would be added to the rear of the proposed garage.

Ms. Webster suggested that overhead garage doors would be better versus swing-out doors. Mr. Koerner suggested that the proposed house addition/garage be staked out to avoid mistakes during construction. There was discussion regarding the existing house porch setback, where a proposed bike path was located, and the existing house which was listed as a four-bedroom home, but one room was remodeled into a bathroom.

PUBLIC COMMENTS
A resident stated that the renovations were a wonderful transition to an old farmhouse.

DECISION/DELIBERATION
5095 Spear Street
MOTION by Mr. Funtow, seconded by Ms. Webster, to approve the conditional use request for 5095 Spear Street under the Town of Shelburne Zoning Bylaw Section 1620.2 2 to modify a noncomplying structure, with the proposed conditions:
1. The site improvements shall occur as indicated on the site plan, entitled “MacIntyre/Hunt Property 5095 Spear Street”, and the front elevation, date stamped August 12, 2002, that were submitted with the Conditional Use and General Applications.
2. Within sixty (60) days of this approval, the property owner shall record a “MEMBORANDUM 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.

Mr. Koerner said that building plans should be finalized with the Zoning Administrator and cautioned that the contractor could not go any closer to the road than the current situation.

Request for a variance review and approval under Article XVI, General Regulations and Article VII, Residential 3 District to construct a house that exceeds the building coverage maximum in Section 730.2.c.
Paul Bohne, owner, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner noted that the lot was a nonconforming pre-existing lot.

APPLICANT COMMENT
Mr. Bohne reviewed that the proposed building would have a 2,321 square footprint on a 3,000 square foot lot. The proposed building met the setbacks, but would exceed allowed building coverage by 2.6 percent. The lot was in the Residential 3 district. No negative comments have been received from the neighbors.

PUBLIC COMMENT
Mr. Lemoge, neighbor bordering on the west, said that they have experienced a drainage problem. Mr. Lemoge expressed concern about stormwater runoff from the proposed roof and driveway. Mr. Bohne explained that a dry brook bed on the property would be maintained for the purpose of handling water run off. Ms. Lemoge commented that since the sewer was installed, the brook bed has been dry, however, during the blasting, the underground water had changed and ended up in their (Lemoge) yard. Mr. Lemoge stated that they had to have drainage work done around their foundation to deal with the underground water problem. Mr. Bohne said that the roof would have down spouts, and the driveway would drain to the east. A swale would move any water run off to the brook bed. Mr. Bohne showed how water would drain on the site plan map and suggested the neighbors do a site walk. Mr. Koerner reviewed that the situation was out of the scope of the ZBA and asked the neighbors to work a compromise between them. Mr. Lemoge stated he would like to have an engineering study done on the water management. Mr. Bohne said that the lot was heavily wooded and there would be no changes made to the brook bed. Down spouts and sloping grades would naturally move any water to the brook bed. Mr. Bohne stated his intention to be a good neighbor and do whatever necessary not to disturb the neighbors.

There were no other comments.

DECISION/DELIBERATION
Bohne Variance Application
MOTION by Mr. Waltien, seconded by Ms. Webster, to approve the variance request under Article XVI, General Regulations and Article VII, Residential 3 District to construct a house that exceeds the building coverage maximum in Section 730.2.c, with the following conditions:
1. As set forth in the Staff Report.
2. All water issues off all roofs are directed into natural drainage ways per the site plan.
DISCUSSION: Mr. Lemoge reviewed the proposed site plan and elevations. It was noted there is a 15-day appeal period, and the building permit had a 15-day appeal period as well.
VOTE: unanimous (5-0); motion carried.

Request for approval to amend a conditional use approval to add 600 square feet of retail floor space in a portion of an existing two-unit commercial structure. Approval is required under Article VIII and XVI of the Shelburne Zoning Bylaws.
Stephen Kidder, agent, and Edmund Koehler, owner, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed submittals which included a site plan and floor plan.

APPLICANT COMMENT
Mr. Kidder reviewed the current store (retail) space and said that 600 square feet of retail space would be added. The store space is pre-existing. There was a sheetrock wall between the two existing spaces. Three parking spaces would be added at the northeast corner. Two spaces permitted for Dunkin Donuts were never used and there was adequate space in back for three spaces. This demonstrates that the spaces could be built to comply with regulations. Mr. Kidder submitted a separate floor plan showing storage space that would be converted to retail.

Mr. Courville explained that a conditional use was required due to a nonconforming lot. Mr. Funtow said currently lot coverage was 68.9 percent which exceeds the bylaws. If more parking spaces were added, there would be an increase in the nonconformance, said Mr. Funtow. Mr. Kidder explained they were told if the retail space was increased, then three parking spaces must be added. The business only expects 7-10 customers per day. There was discussion regarding the number spaces for the whole site,18 parking spaces at Dunkin Donuts, traffic flow, and a foot print of 6,000 square foot (inside is 5,600 square feet) and the total of 25 parking spaces. Staff will pull the original permit for the furniture store and Dunkin Donuts.

PUBLIC COMMENT
A resident asked for clarification regarding the technical aspects of the proposed parking. Mr. Koerner explained that the ZBA was obligated to abide by the Zoning Bylaws, and explained the process. Staff needed to go back and research changes in use and parking requirements. A variance might be required. The ZBA could not cut any slack based on the number of customers to the store.

Michael Lash stated another issue was placement of parking spaces in the fire lane in the rear of the building. Also, the rear of the lot was not adequately plowed and trash haulers and delivery people had trouble gaining access. Mr. Kidder stated that there were no fire lanes in the rear of the store. Mr. Courville noted that the Fire Department has no comments.

Mr. Kidder said that the dumpster belonged to Dunkin Donuts. The furniture store did not have a dumpster.

Mr. Koerner asked if the three proposed parking spaces would be placed in the woods. Mr. Kidder replied yes. Whether two parking spots were included in the lot coverage calculation needs to be determined. Mr. Kidder said that a engineering study would be submitted.

Mr. Koerner said the application for a conditional use would be continued in October pending additional information. A variance might be required.

Request for a Conditional Use approval under the Town of Shelburne Zoning Bylaw Section 1620.2 2 to modify a noncomplying structure.
Robert and Annette Whiteman, owners, appeared on behalf of the application.

STAFF REPORT
Mr. Koerner reviewed that the request was for a modification to a noncomplying structure.

APPLICANT COMMENTS
Mr. Whiteman explained that they had filled in a pool and changed a screened porch to a three-season porch. There was a violation of setbacks. The porch was 12 ½ feet from the property line and the house was ten feet. The footprint was the same and nothing was being added The porch screens were changed to windows and new siding put on. The house was built in 1963. They were waiting for the contractor to finish the main entryway, and the dimensions of the porch were the same. A lattice dividing wall would landscape the side.

Mr. Koerner said there was no problem with the lot coverage and building coverage.

DECISION/DELIBERATION
Whiteman Conditional Use Application
MOTION by Mr. Edelman, seconded by Mr. Waltien, to approve a conditional use application to convert an existing screened porch into a covered porch with conditions as noted:
1. The site improvements shall occur as indicated on the drawings and elevations that were submitted with the Conditional Use and General applications.
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.

Mr. Koerner pointed out a building permit is also needed by the applicant.

3. ADJOURNMENT
The Chairperson adjourned the meeting at 9:48 p.m.

Minutes respectfully submitted by Kathlyn L. Furr, Recording Secretary.

These minutes are subject to change 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 7th day of October, 2002 for the meeting of September 9, 2002.

Tom Koerner, Chairman
Boris Funtow
Milton Edelman
Steve Waltien
Gwen Webster