MEMBERS PRESENT:       James Dudley, Chairperson; Lisa Levine, Jim Talley, Chris Boyd, Chris Neme.

ADMINISTRATION:           Paul Bohne, Town Manager; Peter Frankenburg, Financial Officer.

OTHERS PRESENT:            Claire Beecher, Ruth Morrow, Jim Beecher, Bob Platt, Derick Senior, Thea Platt, Chris Kapsalis, Maria Horn, Joan Lenes, Jack Galvin, Dick Elkins, Bernie Guillemette, Virginia Rowland, Randy Rowland, Bill White, Dick Reid, Gail Albert, Richard Lednicky, Joanne Guillemette, Sue Davis (Shelburne News), Ashley Mathews (Burlington Free Press), and others.

 

The Selectboard entered Executive Session at 6:30 p.m. for the purpose of discussing personnel matters, and invited the Town Manager to attend.

 

Mr. Dudley called the regular meeting to order at 7:08 p.m.

 

Changes to agenda:

Item #5 (Discussion with Homebuilder’s Association) – Tabled

Item #8.a (Robert Woodworth) - Withdrawn

 

Derick Senior, resident, provided the Selectboard with information on the clear cutting incident on Pond Road in 2005 (clear cutting of 260 or more trees). Mr. Senior asked that the Planning Commission or Town Manager rectify the situation for the protection of the environment and enforcement of the zoning regulations. Residents have sought a legal opinion on the issuance of the Notice of Violation, the Planning Commission approval of the subdivision, and feedback from the committees involved. Ms. Levine asked for before-and-after photographs of the site. Mr. Platt stated the photographs were taken from the front of the house. There is one tree left standing after the clear cutting. Mr. Platt handed out a packet of information and reviewed the application approved by the Planning Commission for the 30,000 s.f. building envelope for a 4,500 s.f. house and the conditions as adopted. Mr. Platt said following a search of the files in the Shelburne Planning Office, a site plan was not found. The Town Manager was asked about the site plan to which he replied “we do these things verbally”, stated Mr. Platt. On the site, there is a 76,000 s.f. area that was clear cut versus a 30,000 s.f. area. The Act 250 permit, Final Plat, deed and Homeowners Association covenants mention the allowance to cut 50’ outside of the building envelope. The Architect’s Review Commission Report was signed by the developer’s agent, Eric Morris. A memo from the Town Planner specifically addresses a plan for maximum shielding/screening of the house from the neighbors prior to filing the mylar. The homeowner had to know what was allowed because it is stated in the deed, the covenants, and would be discovered during a title search, stressed Mr. Platt.

 

Ms. Levine read the deed language relative to minimizing tree cutting. Mr. Platt stated it is clear that the trees were cut. The language “vague and unenforceable” that the Town Manager pointed out needs clarification. The Town has spent nearly $19,000 to audit town departments and spends $172,000 for legal advice from the Town Attorney. A bid for attorney services has not been put out in recent years. There should be written opinions whenever the Town contacts the Town Attorney for advice, stated Mr. Platt. Regarding the Pond Road matter, residents are asking that the Town seek written opinions from the Town Attorney on the six items outlined in the submitted documents (by Mr. Platt), and in the future, it should be mandated that any opinion from the Town Attorney must be in writing and part of the public record for transparency purposes, said Mr. Platt. In addition, construction should be stopped on the Pond Road project and the developer should post a performance bond for screening of the house from Shelburne Pond and Pond Road on the west. It is in the Town Plan to protect views in the pie-shaped area. Mr. Platt asked if the Town Attorney reviewed the application/associated documents before the mylar was filed. Mr. Platt said he had permission from the Planning Commission and Rick Peterson to release the letter in his handout.

 

Chris Kapsalis, Dorset Street resident, said that he can see Shelburne Pond from his property. View protection is in the Town Plan. The neighbors want something that is compatible with the Town Plan and what was approved by the Planning Commission. The language cited by the Town Manager (“vague and unenforceable”) is a technical issue. Mr. Kapsalis said he expects the Town leadership to figure out which permit is in force. The situation is getting more contentious and needs resolution.

 

Virginia Rowland, neighbor to the west of the house in question, invited all the attendees to drive down Shelburne Pond Road. The house being built is enormous and the clear cutting is shocking. Several neighbors have spent many hours (100 hours) and money on legal fees to address the matter, stated Ms. Rowland.

 

Mr. Dudley assured that the Selectboard heard the presenters loud and clear. Ms. Levine suggested adding a question to Mr. Platt’s Item #5 regarding the Planning Commission screening and what the actual deed language means. Ms. Levine requested a legal opinion from the Town Attorney as to whether a single tree is considered “screening”. Mr. Neme noted he was on the Planning Commission when the development was reviewed, and the Commission did try to push the house back into the lot to be less obvious to surrounding neighbors. An opinion from the Town Attorney on what options are available to the Town is needed. The Selectboard will review all the information to gain a thorough understanding of the matter.

 

Gail Albert, Conservation Committee, reported the committee discussed the issues raised by Dan Senecal-Albrecht and others, and adjusted some of the draft language in the Open Space Plan. The comments raised at the last Selectboard meeting were also addressed. Proposed changes to the Open Space Plan have been highlighted (blue booklet). Ms. Albert reviewed minor changes in the draft Open Space Plan, including on Pages 33 & 34 (changes clarify language related to passive recreation, but the intent is not changed), Page 35 (language added for potential projects relative to high value land, consideration of adjacent neighborhoods and further articulating developing priorities), and throughout the document (filling in page number references/appendices and correcting typos).

 

Dick Reid, resident, asked if the blue booklet changes are posted on the Town’s website and at the Pierson Library. If not, and the plan has been changed, then some folks may not be aware of the changes (Mr. Reid included) and would want the opportunity to make comment. It was not known if the changes have been posted on the website. Ms. Albert pointed out the changes are primarily cosmetic (typos) and do not alter the intent of the Open Space Plan. Mr. Reid reiterated if the Town is being asked to react to a final version of the plan, then the public should have an opportunity to look at what is before the Selectboard.

 

Joan Lenes, resident, pointed out that adoption of the Open Space Plan is not a ballot item. The elected members of the Selectboard vote on the plan. Ms. Lenes expressed confidence that the Selectboard would act in the best interest of the town, and asked the Selectboard to take action on the Plan. The Plan can be amended in the future if necessary.

 

Dick Elkins asked if the revised plan will be published, and if the vote will be delayed. It was noted there is a ballot item to be voted at the annual meeting in March relative to the Open Space Fund, and the Open Space Plan is key to how the Open Space Fund is expended (development rights or property in collaboration with a willing landowner). Mr. Neme said he would like the Open Space Plan in final form on the website and in hard copy before the March Town Meeting. Another option is to post the revised plan on the website and have the Selectboard adopt the plan at the next meeting.

 

Bernie Guillemette, Route 116, expressed concern about development around Shelburne Pond and the proposed development across from his working dairy farm. Ms. Albert pointed out the Open Space Plan is not regulatory. Information in the Plan guides the town in formulating zoning and such, and describes how to address concerns. The Plan also contains maps to aid in the decision making process. The intent is to make objective decisions versus arbitrary decisions. Mr. Guillemette said he is not aware of happenings in other parts of town (Route 7 area for example) and the matter on Pond Road got way out of hand before Mr. Platt took action, but why have a Town Plan or Open Space Plan if the town does not intend to follow these plans.

 

The final version of the Open Space Plan will be posted on the town’s website.

 

Tabled.

 

Mr. Bohne reported the Town buys services from VLCT, which underwrites health insurance and contracts with BC/BS to provide insurance coverage. There has been much discussion about increased health coverage costs. Town employees do engage in the wellness program (health screenings provided by VLCT). This year VLCT is offering a Wellness Leader Program. Towns will be rated on their wellness participation. Shelburne is being rated today and again in October. High employee participation could mean up to a $14,000 reward to Shelburne if all criteria are met. There has been good participation in the health screening process. Staff is seeking endorsement by the Selectboard of the Town’s participation (is potential for a future policy). The employee share value/reward would be in a manner to be determined. Employees (approximately 40 people) will decide themselves on whether to participate or not.

 

 

Mr. Bohne reported DeForge Furniture purchased Burlington Antiques Center and has requested an additional 45-gpd sewer allocation for three more employees.

 

9.         CONSIDER REQUEST FOR RELIEF FROM PENALTY FOR LATE PAYMENT OF SEWER BILL BY HELAINE THOMAS   

Mr. Bohne reviewed the letter from Ms. Thomas, dated 01/09/06, requesting relief from penalty for late payment of her sewer bill. The Selectboard can waive the fee as Sewer Commissioners.  The payment goes to pay the water portion first and the remainder pays the sewer charge. Ms. Levine noted the post mark from Massachusetts.

 

Mr. Bohne reported four audit firms responded to the RFP. The selection process was explained. Staff recommends awarding the contract to Fothergill and Segale for a contract period of three years. Peter Frankenburg stated there were lower bids, but staff felt the contract should be awarded to Fothergill and Segale because of the quality and timeliness of the delivery of audits by the firm in the past. Mr. Bohne explained the need for fair and in-depth audits.  Mr. Neme suggested a different auditor might provide a different perspective of the town’s financial records. Mr. Frankenburg stated there are not many qualified firms doing audits at present.

 

The Selectboard signed the liquor license documents as presented.

 

MOTION by Mr. Neme, seconded by Ms. Levine, to approve the minutes of 01/24/06 with the following correction:

Mr. Bohne reviewed the following items:

·        Concern that people are impinging on town staff or the Town Attorney regarding the Pond Road issue. There should be a forum to discuss the matter. Mr. Dudley suggested the Board consider Pond Road as an agenda item for a factual presentation of the events. Mr. Neme suggested scheduling a meeting before upcoming elections and to hear comments from the Town Attorney. The Selectboard scheduled a meeting on 02/21/06.

·        The General Fund budget status is included in the Board packets. Legal expenses will run high again. Police and dispatch have overtime. Staff will do year-end projections.

 

Mr. Neme suggested meeting with the Town Attorney (Steve Stitzel or Tim Eustace) to address questions and flesh out the issues regarding the Pond Road development before the meeting on 2/21/06. Mr. Dudley said a full package of information is necessary. Mr. Bohne said staff will want to review Mr. Platt’s requests to see what is reasonable. All town staff members can interact with the Town Attorney regarding legal issues. Mr. Bohne said he will not advocate for opinions in writing. Mr. Platt has everything available. Staff will ensure the Board has a rounded packet of information. Mr. Dudley said he went to Pond Road to see the house. Ms. Levine asked if it there is violation of the Town Plan, the deed, or a Planning Commission edict, and if so, where does the town go from here. Mr. Bohne explained the Selectboard and Planning Commission are not regulatory bodies to enforce violations of a building permit. Ms. Levine suggested exploring a way to have something in place with authority. Mr. Neme pointed out the matter is a civil suit by private parties, but (legal) opinion on the situation should be sought.

 

The Selectboard adjourned the regular meeting and convened Executive Session at 9 p.m.

 

Minutes respectfully submitted by Kathlyn Furr, Recording Secretary.

 

 

Accepted,

 

James Dudley, Shelburne Selectboard Chairman

MEMBERS PRESENT:       James Dudley, Chairperson; Lisa Levine, Jim Talley, Chris Neme. (Chris Boyd was absent.)

ADMINISTRATION:           Paul Bohne, Town Manager; Peter Frankenburg, Financial Officer.

OTHERS PRESENT:            Michael Segale, Robert Platt, Terry McKnight, Jane McKnight,

Joyce Chamberlin, Thea Platt, Ethan Platt, Ed Kiniry, Nancy

Baker, Brian Flynn, Rosemary Sadler, Judi Manchester, Bob

Manchester, Jim Gears, Bernie Guillemette, Gerry Guillemette,

and others.

Mr. Dudley called the meeting to order at 7:00 p.m.

 

There were no changes.

 

None.

 

Mr. Bohne reported the auditing firm of Fothergill, Segale and Valley has been used by the town for the past five years. Michael Segale, lead auditor was introduced. Copies of the full audit are included in the Town Report (starting on Page 39). Mr. Segale stated the town’s financial statements are in accordance with generally accepted accounting principles. Financial statements including the Statement of Changes in Cash Flow were reviewed.

 

MOTION by Mr. Talley seconded by Ms. Levine, to accept the Town of Shelburne Audit Report for FY05 as presented. VOTE: unanimous (4-0); motion carried.

Mr. Bohne reviewed a federal HUD grant program to provide funding for mobile home upgrades or the purchase of a (mobile home) lot. Grants are offered to towns by the state. Mr. Bohne explained conditions outlined in a sub-agreement with Opportunities Credit Union, which will benefit mobile home parks in a tri-county area. Opportunities Credit Union is seeking Selectboard approval of a resolution to authorize the Town Manager to execute the grant agreement. The pilot project will provide $368,000 matched with Opportunities Credit Union funding for over $1.1 million in leveraged funding. Mr. Neme asked if residents of the park have some legal assurance they can remain in the park for the life of their mortgage. Mr. Bohne stated this is not included in the conditions, but nothing can be forced legally on the owners. The agreements will run for seven years. Mr. Bohne read the proposed resolution on the grant agreement.

 

MOTION by Mr. Talley, seconded by Mr. Neme, to approve the proposed resolution for the Vermont Community Development program grant as presented and to designate and authorize the Shelburne Town Manager to sign the grant agreement with Opportunities Credit Union.

The Selectboard signed the resolution.

 

Mr. Dudley briefly the situation involving clear cutting of trees at 139 Monarch Drive which was brought to the attention of the Selectboard by Robert Platt and Derrick Senior. The matter has been researched and discussions held with Mr. Platt, the Town Manager and the Town Attorney. The Selectboard may go into Executive Session if necessary to discuss litigation. Mr. Bohne summarized information presented by residents and the builder/developer (Birnie Boehland), issues that were raised, and conversations with the Town Attorney (Steve Stitzel). There have been discussions with Peter Keibel, District 4 Environmental Coordinator for Act 250. Staff has reviewed the Act 250 permit on file. Mr. Keibel has not pursued enforcement action, but asked the developer to provide a landscape plan that may obviate what might be a violation of the tree cutting. Dean Pierce, Shelburne Town Planner, developed ortho-photographs of the lot that are accurate to within two feet. Mr. Pierce added lot lines, the building envelope and house plot as an overlay using measurements taken at the house location.

 

The Town Attorney, Steve Stitzel, offered legal options to consider, noting tree cutting can be a difficult case to prove in court unless there are very good “before cutting” and “after cutting” photographs. The court will consider photographic evidence, what existed before, the limits of allowable cutting, and the type of cutting. The easiest way to address the issue of screening is to specific “no cut” areas which results in a limit on tree cutting and clarifies that none of the understory can be cleared. There was limitation on tree cutting imposed on the builder, stated Mr. Stitzel. A past incident along the Shelburne lakeshore where tree cutting was prohibited within 50’ of the lakeshore was recalled. It was noted the prohibition did not stop people from clearing the understory and planting lawns up to the lake’s edge. Now conditions are imposed to ensure the lakeshore is maintained with naturally existing growth, continued Mr. Stitzel, adding the town has a more common set of limitations on cutting of trees within a particular area and that is the type of condition imposed in the Monarch Drive case. The Town has looked at any possible violations of conditions imposed by the Shelburne Planning Commission. Violations under Act 250 permit have not been reviewed. The Act 250 permit is separate from the town with separate enforcement mechanisms. If the Town pursues enforcement, it would be appropriate to coordinate with the District 4 Environmental Commission. Otherwise there could be a resolution that leads to inconsistency of what is to occur. The neighbors have a clear understanding of what was there and is no longer present. It is anticipated there will be extensive photographs showing what was there as well as personal testimony about tree species, height, type, and thickness of vegetation. Detail is important. Mr. Stitzel reviewed the following points based on staff research:

·        There has been no in-depth verification of the building envelope corner stakes which may or may not be an issue.

·        The northwest corner extends a little out of the tree line giving the orientation as a wedge. Farther east, the tree line thickness expands.

·        A home site was approved by the Planning Commission as shown on the site plan and conditioned by the Planning Commission that tree cutting was to minimize the view of the house from Pond Road and from the west. Tree cutting has occurred more on the north side of the house versus the west side.

·        There is no significant exposure of the house on the west side. (An audience member interjected that the area is now wide open.)

·        It was possible for the builder to locate a house where wanted and do so in a manner that would preserve a tree line buffer to the north. This was an option the builder chose not to exercise.

·        There is a potential violation of the Planning Commission condition regarding minimizing tree cutting to preserve the view from Pond Road.

 

Mr. Neme asked about cutting inside the building envelope. Mr. Stitzel advised the express language of the Planning Commission was that if cutting occurred within the building envelope, the builder must still leave a visual screen. Mr. Neme mentioned the result of spaces between trees for a view from the house outward while maintaining a screening buffer from the road. Mr. Dudley pointed out the builder could have moved the house farther back into the lot which would have provided better screening. The Town needs photos and other evidence from the neighbors to document what was removed. The ortho-photo was taken before leaf-out and there is a question about how much mass was there, said Mr. Dudley. An audience member stated they had evidence showing there were some conifers.

                                                                                                       

Mr. Stitzel stated options for action include instituting enforcement proceedings on the builder (issue a Notice of Violation and proceed in court) and coordinating with the District 4 Environmental Commission on what can be done to mitigate the destruction. The Town can waive possible recovery of fines and focus on relief in court. Landscaping can be addressed in the course of litigation. There was lengthy discussion of precedent cases, such as the Green River Reservoir (the offender was ordered to restore the vegetation), consultations with a forester about re-establishing vegetation (might be difficult due to harsh conditions), ledges and soils (will require further exploration), and excavation on the site where the developer buried stumps in a 100’ long by 30’ deep trench (an audience member said he has photographs of the stumps prior to burial). Steve Stitzel noted burying stumps in a rural are is permitted and not a violation of town regulations. Stumps can not be burned however. An audience member said Mr. Boehland is burning without a permit.

 

Mr. Dudley stated the Selectboard viewed the site from off the property. Mr. Stitzel stated the accused party does not have to provide any evidence unless the Town has met the burden of proof. The court decides the truth. Photographs are the best evidence.

 

An audience member asked a request can be made to the court to withdraw the permit. Another individual asked if a Notice of Violation will effect the on-going construction of the house or issuance of a Certificate of Occupancy (CO). Mr. Stitzel stated construction will not be impacted, but if there is a pending violation that could impact issuance of a CO. It was asked if the Town can request an attachment to the builder’s assets to satisfy a reforestation plan. Mr. Stitzel replied if the matter is settled in court, the court can issue certain mandates to the property owner. If the builder fails to complete an action, the Town can complete the work and place a lien on the property. The Monarch Drive matter is under Act 250 review now. The state has not started enforcement proceedings.

 

An audience member asked how sale of the property by Mr. Boehland could influence the proceedings and who bears the brunt of the ramifications once the title passes in a sale. Mr. Stitzel explained the buyer is required to get a clear title. If there are liens on a property, the title is not clear. An audience member noted there is a $900,000 lien on the property (but it could be a cash deal).

 

Mr. Platt presented several photographs of the subject property showing 8” to 10” diameter tree stumps looking from the east and a 23” tree stump that had bled denoting that the tree was alive and not dead when cut. Views from the subject property looking west toward the Rowland house and the Gear house, and a view from Pond Road showing a depression in the land and a sugarhouse were also shown.  Mr. Platt reviewed the Planning Commission final approval language. If the builder had cut up to 50% of the trees, then he could argue this was minimized cutting versus the clear-cutting that occurred, stated Mr. Platt.

 

Mr. Guillmette, neighbor, stated that the sugarhouse was never visible from Pond Road prior to the tree cutting by Mr. Boehland.

 

Mr. Platt showed a photograph of the lot with the house in earth tones superimposed (from the point of view of standing on the ice on the pond looking back at the house). The house is clearly visible where all the trees were cut down. Mr. Platt stated an arborist was consulted on the process of measuring trees. A survey of a 50’ x 50’ forested area (2,500 square feet) adjacent to the site showed a count of 145 trees from 1” to 23” in diameter with species of maple, hemlock, buckthorn, birch and others. The arborist was asked what it would cost to reforest a 50’ x 50’ area. With excavating, re-locating trees, and watering the cost is nearly $145,000. If the entire triangular area has to be replaced, the cost increases five to seven times the 2,500 square foot area. Mr. Platt suggested a performance bond or a lien on the subject property be applied in case the builder goes out of business or sells the property for cash.

 

Jay Strausser, realtor, opined the site is not deforested as alleged. Mr. Strausser said he walked the site and worked with Mr. Boehland prior to the tree cutting. Mr. Dudley asked Mr. Strausser to describe the number and size of trees that were removed. Mr. Strausser said he did not look at the number of trees cut, just stood on the site, but even with what was there, it is not likely the view could be protected once a permit for the house was issued.

 

Mr. Gear, neighbor to the west, said he is astounded by the number of trees that have been removed, and felt the town should force the builder to comply with the site plan. The view from his house looking east (view of the mountains) is now impacted by Mr. Boehland’s house.

 

Mr. Dudley stated the Board will discuss litigation strategies in Executive Session.

 

MOTION by Mr. Talley, seconded by Ms. Levine, to recess the regular meeting and enter Executive Session for the purpose of discussing litigation matters, and to invite the Town Manager and Town Attorney to attend. VOTE: unanimous (4-0); motion carried.

 

Executive Session was adjourned and the regular meeting reconvened.  Mr. Dudley announced the Town will initiate an enforcement process to obtain compliance with Planning Commission directives and coordinate with the District 4 Environmental Act 250 Commission. If the Act 250 process is unsuccessful, the Town will take legal action for enforcement. Townspeople will be involved in the process. Photographic evidence can be sent to the Town Attorney or Town Planner (email: dpierce@shelburnevt.org). The public will be updated as the process moves forward. The Selectboard wants to move forward promptly, but must solidify the next steps. The Selectboard will seek input from the public and the Planning Commission. The developer will be notified. The process for notifying the public and other groups was explained. The matter will be on the Selectboard’s agenda. Staff will email notices.

 

Mr. Dudley briefly reviewed the document submitted by Derrick Senior that included inaccurate statements or comments that were not appropriate to the issue. The document should be corrected, stated Mr. Dudley.

 

None.

 

Mr. Talley thanked Mr. Dudley for his contributions and years of service to the Town.

 

With no further business before the Selectboard, the meeting was adjourned.