Zoning Board of Adjustment Minutes

TOWN OF SHELBURNE
ZONING BOARD OF ADJUSTMENT
MINUTES OF MEETING
October 7, 2002

MEMBERS PRESENT: Tom Koerner, Chairman; Boris Funtow, Milton Edelman, Gwen Webster. (Steve Waltien was absent.)
STAFF PRESENT: Shannon Courville.
OTHERS PRESENT: Bonnie Thomas, Ed Koehler, Mary Drew, Sarah Newman, Stephen H. Kidder, Matt Waulsganz, Joseph Fernandez, Brenda Fernandez, Lee Suskin, Rob Donahue (Shelburne News).

1. CALL TO ORDER
Mr. Koerner called the meeting to order at 7:02 p.m. and explained that in the absence of a full board, a tie vote equates to a denial of an application. Applicants have the option to request the decision on their application be postponed until a full board is present. The Zoning Board is willing to hear testimony on applications. Mr. Koerner also explained the Zoning Board reserves the right to approve minutes, Findings of Fact, and hold deliberations following regular business or action may be taken during the meeting. The Zoning Board members were introduced.

2. APPLICATIONS
Conditional Use Approval under Shelburne Zoning Bylaw s.920.12 to open an eat-in restaurant at 102 Harbor Road with hours of operation from 7:00 a.m. to 3:00 p.m.
Joseph Fernandez and Brenda Fernandez, owners, appeared on behalf of the application.

STAFF REPORT
Shannon Courville noted repeated requests to the applicant were made for information on parking and the loading dock, but no information was received prior to the meeting. The Board received a floor plan sketch from the applicant at the meeting. It was noted the amount of public space (square footage) was not included on the sketch. Information needed by the Zoning Board to determine the total number of parking spaces required includes the restaurant area (square footage), the number of tenants in the upstairs rental unit, and the number of employees. The Zoning Board stressed the need to have all the information on the site plan as required and listed in the application. The site plan should reflect what is existing on the site and what is planned. Regarding parking behind the existing barn structure, research of the land records and zoning files did not uncover any parking restrictions in the area.

APPLICANT COMMENTS
Joseph Fernandez stated the lot coverage is 15% and the building coverage is 4.7%. Seating on the right of the building is included in the parking calculation. Brenda Fernandez stated two parking spaces will be used by the tenants upstairs. There was further discussion of the requested/required information missing from the site plan. The applicant felt the information was provided. Chairman Koerner reviewed the list of requested information from the last meeting, such as a better site plan, parking spaces marked with dimensions, loading dock and parking delineation (i.e. restaurant parking, tenant parking, and employee parking), all information required with a conditional use application and site plan, property owner names on the site plan. Mr. Fernandez pointed out the scale at the bottom of the sketch can be used for determining dimensions/measurements. The applicant also noted recent copies of the site plan have the correct date (previous plans showed April 19, 1992 as the date). The site plan is titled “Annie’s Daughter”. Brenda Fernandez stated the information requirements have been fulfilled, but now the Zoning Board is adding items and delaying the application.

Gwen Webster asked about the location of a dumpster. Ms. Fernandez stated there will not be a dumpster because there will be very little trash. Most of the waste material is recycled, and the rest is placed in a container (64 toter) for curbside pick up.

Chairman Koerner referred to the plan, dated March 3, 2002, and asked about the amount of public space. Joseph Fernandez calculated 360 s.f. (public space). Regarding parking behind the barn, there are no restrictions. The barn will remain. The Zoning Board stressed the need to have the square footage of the public space shown on the site plan as well as the amount and location of the parking on the site. Per the requirements, one parking space for every two restaurant seats is needed, and one parking space for 200 s.f. floor area. The application will require 10 parking spaces plus one for the restaurant and two spaces for the tenants as well as two spaces for employees. The applicant indicated employee parking will be at the barn, and the site plan shows 15 parking spaces.

The Zoning Board asked about the loading area. Brenda Fernandez stated she picks up her own supplies, and will ask her supplier to make delivers when the parking lot is available. Deliveries occur every two weeks.

PUBLIC COMMENTS
Bonnie Thomas, neighbor, informed the Zoning Board of the extension by Joseph and Brenda Fernandez of the approved hours of operation from Wednesday through Saturday, 5:30 p.m. – 7:30 p.m. to a seven day operation for lunch and night time service. If alcohol is served, this will make matters worse, stated Ms. Thomas, adding the applicant has shown their intention to set their own rules and hours of operation. Ms. Thomas asked how the hours of operation at the restaurant will be enforced and by whom, and suggested the Zoning Board only allow morning and lunch service along with take-out service only (no sit down service) so the hours of operation will not likely expand.

Lee Suskin, neighbor, asked about the parking in the rear and if the parking will be striped for three spaces. Mr. Suskin also inquired about regulating the number of cars parked in the lot. Shannon Courville reiterated the land records and zoning files did not yield any information on restrictions on use of the road for parking. Mr. Suskin requested the Zoning Board apply a restriction on travel behind the barn and allow parking only during the day since the cars will be going past his house and bedroom window. Mr. Suskin also suggested Blodgett Road be used as the entryway and only used during the daytime. Chairman Koerner pointed out the hours of operation stated by the applicant end at 3 p.m. Brenda Fernandez agreed using Blodgett road as the entryway is a good idea though lights shining in windows may be a concern. Joseph Fernandez commented the minutes of a past meeting show a complaint by Mr. Suskin about where Bonnie Thomas parks now. Mr. Suskin refuted making a complaint, and Ms. Thomas said she is not aware of any such complaint being made.

The Zoning Board pointed out if there is a change to the site, then a new application must be filed or the property owner will be cited for a violation by the town (residents need to notify the town of any change to the site). Neighbors also have the option to appeal any decision by the Zoning Board. There is a process for appeal.

A gentleman in the audience suggested a baseline on the number of tripends per hour from the site be set or the use be restricted to the current owner. The Zoning Board noted the use continues with the property, but any changes to the use will require a new/revised application. Boris Funtow recalled there was discussion of the intensity of use at the last meeting on the application. Residents pointed out traffic is deadlocked on Harbor Road during the morning, 7:45 a.m.-8:15 a.m., and afternoon, 2:45 p.m.-3:15 p.m. The gentleman suggested hours of operation on Saturday and Sunday be delayed to allow for quiet during the morning, citing the train whistle that blasts early in the morning during the week occurs later on weekends. Brenda Fernandez agreed to opening at 8 a.m. on weekends, and noted the intensity of use is limited by the number of tables and the size of the restaurant (tiny space). Thomas Koerner asked the average time a patron spends at the restaurant. Ms. Fernandez calculated approximately an hour or less per table. Ten tripends per hour would be an approximation. It was suggested the ITT manual be used for information on tripend generation. Ms. Fernandez objected, saying the Board is again requesting additional information and delaying the application. The Zoning Board explained the burden to provide complete information is on the applicant.

Lee Suskin commented the local bagel place is a combination of take-out and limited seating, yet there is much in/out traffic at the establishment.

Milton Edelman asked about amending the service hours. Ms. Fernandez agreed to limit hours of operation to 8 a.m. – 3 p.m. with employees arriving in the morning at 6 a.m.

DELIBERATION/DECISION
Fernandez Conditional Use Application for a Restaurant at 102 Harbor Road (CU02-17)
MOTION by Gwen Webster, SECOND by Boris Funtow, to approve the conditional use application under Shelburne Zoning Bylaw s.920.12 to open an eat-in restaurant at 102 Harbor Road with hours of operation from 8 a.m. to 3 p.m. with the following conditions:
1. signage to indicate location of off street parking shall be installed and maintained;
2. within 60 days of this approval, the property owner shall record a Memorandum of Municipal Action with the Shelburne Town Clerk’s Office;
3. hours of operation of the eat-in restaurant shall be 8 a.m. – 3 p.m.
VOTING: 0 ayes, 4 nays (Koerner, Webster, Funtow, Edelman); motion did not carry.

It was again noted the Zoning Board and staff repeatedly requested information and a complete site plan from the applicant which was not provided.

Request for a Variance under Shelburne Bylaw s.330.2a for the minimum front yard setback at 1136 Bay Road by the Town of Shelburne
No one appeared on behalf of the application and there were no comments from the public. Chairman summarized the proposal for a fishing access and read the letter from John Guilmette, Vermont Fish & Wildlife Senior Facilities Engineer, dated 9/20/02. The letter requested a variance to allow construction of a fishing platform or a boat ramp within 26’ of the road.

DELIBERATION/DECISION
Fish & Wildlife/Town of Shelburne Variance Application at 1136 Bay Road
MOTION by Gwen Webster, SECOND by Boris Funtow, to continue the application until the next Zoning Board meeting pending additional information on the site plan and to request a representative with knowledge of the plan for the ramp to attend the meeting. VOTING: unanimous (4-0); motion carried.

Request by Ed Koehler to amend a Conditional Use approval granted under Shelburne Zoning Bylaw s.820.10 to establish a retail facility at 2785 Shelburne Road
Ed Koehler and Matt Waulsganz appeared on behalf of the application.

STAFF REPORT
The Board reviewed a site plan, dated 9/26/02, and a letter from the Shelburne Fire Chief, Craig Wooster, dated 9/20/02, regarding the access way to the rear of the building not being officially recorded as a fire lane.

APPLICANT COMMENTS
Matt Waulsganz explained the existing parking on the site (35 spaces) and the additional five spaces required due to the square footage of the building. The 20% reduction that was granted for the site in the past is assumed in the number of parking spaces. It is requested the additional five parking spaces be constructed only if needed. Per the traffic generation data provided, it is clear the existing amount of parking in the lot is more than adequate to accommodate visitors. Photographs of the site demonstrate the lot is never full. The adjacent business (Dunkin Donuts) has morning peak traffic only. The furniture store has 29 available spaces, but typically experiences 10 or less customer visits throughout the day. There is not a specific definition in the Shelburne bylaws of “furniture store” that would delineate the number of parking spaces needed. If the Planning Commission determines the additional five spaces are required, there are two areas behind the building that will be grassed in to mitigate lot coverage. The loading dock doors behind the building will be permanently closed and not used.

PUBLIC COMMENTS
There were no comments from the public on the application.

DECISION/DELIBERATION
Koehler Request to Amend Conditional Use Approval for Retail Facility at 2785 Shelburne Road
MOTION by Boris Funtow, SECOND by Milton Edelman, to grant an amendment to the conditional use approval granted under s.820.10 of the Shelburne Zoning Bylaws to expand retail floor space at 2785 Shelburne Road (Classic Home Furnishings) as indicated in the staff report and with the following conditions:
1. site improvements shall occur as indicated on the site plan submitted for Zoning Board of Adjustment review, entitled “Koehler Property Site Plan”, prepared by Civil Engineering Associates, dated stamped September 26, 2002; modifications to this site plan as a result of site plan review by the Shelburne Planning Commission shall be returned to the Zoning Coordinator for administrative review or additional Zoning Board of Adjustment review;
2. the applicant/owner shall submit a floor plan to the Panning & Zoning Office illustrating the dimensions of the proposed conversion from storage to retail space;
3. within 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);
4. all fire issues shall be satisfied based on the letter from Fire Chief Craig Wooster, dated 9/20/02;
5. approval of the site plan is based on receiving approval from the Planing Commission of the 20% parking reduction;
6. the site plan drawing shall note the two garage doors in the back of the building will be closed off if the green space is added behind the building.
VOTE: unanimous (4-0); motion carried.

Request by Mary Drew for a Variance under Shelburne Bylaw s.820.5 to allow 85 children at the Academy of Creative Leaning Daycare, 4163 Shelburne Road
Mary Drew, owner, appeared on behalf of the application.

STAFF REPORT
The Zoning Board reviewed the variance criteria and discussed whether a variance was the proper course of action for the proposal.

APPLICANT COMMENT
Mary Drew explained her state permit allows up to 134 children at the facility, but the town bylaws allow up to 75 children. Ms. Drew questioned if the definition of “day care” is accurate for her facility since there are kindergartners (12 children) who leave at noon and older school children (10 students) who arrive after 3 p.m. as well as the all day attendees (50 children). Generally between eight to 12 children are picked up by parents around 3 p.m. There was discussion of whether a variance is appropriate because the number of children on site at any point will likely not exceed 75 according to the applicant. Ms. Drew pointed out the day care business could be divided into two separate businesses in one building and meet the requirements for number of children. The Zoning Board suggested the after school program which provides different services than the day care (i.e. homework club, sports, and such) could be named to distinguish itself from the day care service. The after school program is an accessory use to the permitted use (the primary business is day care).

PUBLIC COMMENT
There were no comments from the public on the application.

DECISION/DELIBERATION
Mary Drew Variance Application
The Zoning Board recommended the applicant submit a conditional use application and describe the program, hours of operation, number of participants, traffic/parking, and other data as required. The application would be for an accessory to the permitted use per Section 820.27. Mary Drew withdrew the variance application and will reapply under Section 820.27.

3. FINDINGS OF FACT and APPROVAL OF MINUTES
Findings of Fact for CU02-20 (MacIntyre, 5095 Spear Street)
Finding #10 – delete the word “noncomplying”.

Approval of September 9, 2002 Minutes
MOTION by Boris Funtow, SECOND by Thomas Koerner, to approve the 9/9/02 minutes with the following corrections:
Page 1, statement regarding Ms. Webster’s recusal – clarify that the building was no longer a restaurant;
Page 1, Applicant Comments – change the opening hour of operation to 7 a.m.
Page 3, Applicant Comments, 1st paragraph – change “75 feet” to “95 feet”.
VOTING: unanimous (4-0); motion carried.

The Board requested line numbering be included in the minutes.

4. OTHER BUSINESS
It was noted the RCC Atlantic application has been withdrawn per the letter, dated 9/9/02, from William Dodge, esquire with Downs Rachlin and Martin.

5. ADJOURNMENT
The Chairman adjourned the meeting at 9:17 p.m.

Minutes respectfully submitted by M.E.Riordan, 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 4th day of November, 2002 for the meeting of October 7, 2002.

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