AUGUST 7, 2006

MEMBERS PRESENT:         Tom Koerner, Chairperson; Steve Waltien, John Holt, Boris Funtow. (Absent: Gwen Webster)

ADMINISTRATION:            Susie Leonard, Interim Zoning Coordinator.

OTHERS PRESENT:             Steve Reynes, Rad Rowland, Birney Boehland, Todd Farrell, Mike Burke, Stuart Bennett, Tom Griffith, David Hall, Marcel Beaudin, Eric Morris, Paul Bohne, Margery Sharp (Shelburne News).

 

Tom Koerner called the meeting to order at 7:05 p.m. Introductions were made. Mr. Koerner reviewed the hearing process and establishment of “Interested Party” status. It was noted a tie vote will result in denial of the application. The Zoning Board may elect to deliberate applications in Deliberative Session at the end of the public portion of the meeting.

Marcel Beaudin, agent, appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner explained the property is located next to the antique and coffee shop in the village. Parking was discussed at the last meeting.

 

APPLICANT COMMENTS

Mr. Beaudin stated the property is in the village and covered by village regulations. The application is now for a smaller addition to the primary structure and office use of the entire (upstairs and downstairs) carriage house/barn building. The proposal was modified to add another parking space and reduce the new square footage (to 203 s.f.). There should be a total of 17 spaces per the calculations, but the applicant will be seeking relief from the Planning Commission for three parking spaces. Ms. Leonard noted there is no benefit to the applicant to apply under the Village Core Overlay district. The application does not qualify for the 50% parking reduction. The Village Core Overlay language applies to conversions in the principal structure.

 

Mr. Beaudin reported lot size issues will be settled with a quit claim deed (from Clayton Investments). The attorney is reviewing the documents. The addition to the Clayton building has not been recorded in the Town records. That building is actually closer than 25’ from the boundary line.

 

This proposal is for a one-story addition attached to the existing porch. Ms. Leonard pointed out the footprint for the proposed addition as shown on the site plan is for 256 s.f. (the original square footage amount) but that the applicant wanted flexibility in the exact location of the addition.  Mr. Beaudin stated the original porch was used as a summer kitchen. A new foundation will replace the existing foundation.

 

Boris Funtow observed that the proposal is a modification to an application granted in 1995 with five conditions, and the applicant is now asking for changes.  Ms. Leonard stated the Zoning Board can change past conditions. Staff felt the Zoning Board’s concerns with the previous application were intensity of use and preservation of green space. Mr. Beaudin interjected there have been changes to the ordinance with regard to the Village Overlay district indicating “qualifying” structures in the Village Overlay district could apply for a 50% reduction in parking. It appears the town desires more density of use, stated Mr. Beaudin. Ms. Leonard suggested the Board indicate in the decision on the application which conditions of the previous approval do not apply, otherwise the prior conditions are still in effect.

 

Mr. Koerner asked about the office space. Mr. Beaudin explained the offices are all affiliated with the organization known as “The Awakening”. The new owner will continue the same type of organization.

 

PUBLIC COMMENT

None.

 

DELIBERATION/DECISION

MOTION by Mr. Funtow, seconded by Mr. Waltien, to approve CU95-2R1, application by Robert Cowles (owner), Joiner Valley Partners LLC (applicant) and Marcel Beaudin (agent) to amend the previous approval in order to add to the existing primary structure (office use) and convert an accessory structure (carriage house) to residential use at 29 Harbor Road, subject to the conditions as set forth in the Staff Notes, dated 08/07/2006, and as follows:

1.      The site shall be developed as shown on the Site Plan titled “Existing Conditions Site Plan, Proposed Changes 16 June 2006” prepared by Civil Engineering Associates, Inc. and Marcel Beaudin, as revised through 3 August 2006.

2.      These conditions modify or supercede conditions as listed in CU95-2 as follows:

a.) Strike Condition #1 in its entirety: “That ten parking spaces exist on-site and no more may be added”;

b.) Strike Condition #2 in its entirety: “That the second floor of the carriage house is restricted to private use by the property owner only and may not be rented for office, professional or commercial use, or as an apartment”.

c.) Strike Condition #3 in its entirety: “That there be no expansion of the existing parking area or reduction in the amount of green space”.

d.) Strike Condition #4 in its entirety.

e.) Add to Condition #5: “That the propane gas tank and dumpster shall be suitably screened.”

VOTE: unanimous (4-0); motion carried.

 

CU06-28: Continued Conditional Use application by Jeffery and Barbara Noyes (owners and applicants) to convert a single-family dwelling to a duplex at 376 Bay Road in the Residential-Commercial (Article VIII) and Lakeshore Overlay (Article XIII) Districts

No one appeared on behalf of the application. At the end of the meeting, the Board continued the application to their September meeting.

 

MOTION by Mr. Waltien, seconded by Mr. Holt, to continue V/A06-29, application by Patrick Grangien (owner) d/b/a “Amandine on the Village Green” appealing the denial of a sign permit by the Zoning Coordinator and seeking approval to observe a setback of 0 feet where a setback of 10 feet is required for a sign at 195 Falls Road in the Village and Village Core Overlay (Article IX) Districts and the Village Design Review Overlay (Article XV) District. VOTE: unanimous (4-0); motion carried.

 

MOTION by Mr. Waltien, seconded by Mr. Holt, to continue V06-30, application by Catamount/HSI/Shelburne, LLC (owner) and Larry Williams, Redstone Commercial Group, (applicant) in order to install a free-standing sign with a setback of 0 feet (on the property line) rather than observing the 10 feet setback requirement (§1680.1.B.5) at 5247 Shelburne Road in the Village Core Overlay (Article IX) Districts and the Village Design Review Overlay (Article XV) District. VOTE: unanimous (4-0); motion carried.

 

Thomas Griffith, owner, appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner reviewed the written Staff Report, dated 08/07/2006.

 

APPLICANT COMMENTS

Mr. Griffith explained the proposal for improvement to their single family dwelling by converting a family room and storage room into a 423 s.f. accessory apartment for his 82-year old mother. No exterior changes are proposed. The lower level space has windows and a fireplace. The apartment will not encroach into the garage.  The application also includes a request for expanded parking to accommodate movements of the property-owner’s truck.

 

Chairman Koerner reviewed the requirements for an accessory apartment and asked if the space will include a kitchenette. Mr. Griffith replied a kitchen was contemplated. It was noted a neighbor expressed concern the house will become a duplex which could have a negative effect on property values. Ms. Leonard stated that she had talked to and received a letter from that neighbor; she offered to read or distribute the letter. Another neighbor expressed support for the application. State regulations support the accessory apartment use.

 

Mr. Funtow commented the application just showed an area highlighted but did not clearly state that the family room would be converted to the proposed use.

 

PUBLIC COMMENT

None.

 

VOTE: unanimous (4-0); motion carried.

 

Birney Boehland (owner), Steve Reynes and David Hall (attorneys), Todd Farrell (landscape engineer), and Mike Burke (engineer with Krebes and Lansing Engineers) appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner reviewed the written Staff Report, dated 08/07/2006.

 

Steve Waltien asked if the neighbors were notified of the appeal hearing. Mr. Koerner said the warning of the hearing was published in the newspaper two weeks ago. Randy Rowland, neighbor to the property, stated most of the neighbors are out of town. He said that the neighbors were told the meeting would be an administrative discussion and not a public hearing.

 

Mr. Koerner gave a brief history of the violation. The Zoning Board asked for clarification of the appeal.

 

APPLICANT COMMENTS

Attorney Reynes explained the following:

·         According to Page 4 of the Zoning Board Staff Report, five trees were cut. The Town received images from Mr. Smith. On Page 5 of the report it was the Zoning Administrator’s opinion that five trees were cut and the proposed landscaping plan did not provide adequate screening which does not relate to the permit condition upon which the Notice of Violation is based.

·         Attorney Reynes read Page 2 of the “Town Permit and Notice of Violation” booklet, dated 08/01/2006, 3^rd paragraph  which stated: “Prior to filing a Mylar, the applicant shall submit finalized and executed legal documents…” which apply to covenants provided by Bob Rexford for the 2003 application. The applicant did not hear from the Town Attorney or Town board so it was decided the conditions were satisfied.

·         Attorney Reynes read the covenant provision, Section 8.3.k, regarding tree cutting and site dwelling (Page 13).

 

Mike Burke, Krebs and Lansing, explained the location of the building envelope per Sheet 5 and Sheet 12. The house could have been constructed in the northwest corner of the building envelope that goes into the field, and if so, there would have been no trees in the field. The house was pulled back into the wooded area. The building envelope is less than one-half acre. Attorney Reynes pointed out since April no one has said the house was built outside of the building envelope. The covenants allow for cutting no more than six times the square footage of the foot print of the proposed house and related structures. For the Town to contend two trees were cut within 30’ of the house does not apply. The house was not built at the time. Section 8.3.k says no tree larger than 4” shall be cut without the approval of the Architectural Review Committee. Mr. Bushey provided a letter saying the trees that were removed were dead. Mr. Reynes questioned the violation since no points were rebutted by the town and five trees were involved.  A colored photograph (taken by Mr. Boehland), dated 08/03/2006, was submitted. Mr. Reynes questioned what difference the five trees would make. A landscaping plan was prepared. Mr. Reynes inquired how it can be determined that the landscaping plan does not screen better than two or three trees. Mr. Reynes said his client met with Steve Stitzel, Town Attorney, and the Town Manager in the spring and explained what was requested by the Town.

 

Mr. Boehland pointed out an existing oak tree (on the landscape plan). The two large dead ash trees, 12”-18” in diameter, were removed; their tops were breaking off. The house was moved back from a clump of healthy Maple trees. Two other trees were 30’ from the house. A landscaping plan was submitted to the Town Manager and Town Attorney, and modified to include Maples and Crabapple trees in place of Apple trees per the Town’s directive. Also, two White Ash trees were planted, stated Mr. Boehland.  Todd Farrell, landscaper, explained that 35 trees over 2”-2.5” caliper were planted on the property, including Vermont grown Green Ash, Crabapple and Red Maple.

 

There was discussion of the photographs labeled “3D” and “3E” showing views of the northwest corner of the building envelope, Exhibit 4A, a photograph showing a band of trees, and a photograph taken from the boat ramp looking toward the house which shows the trees planted at the end of June, 2006.  Attorney Reynes reiterated there is no violation; at best, the discussion is of five trees, two that were dead.

 

Chairman asked the Town Manager to present the Notice of Violation reasoning. Paul Bohne explained that the Planning Commission set conditions to shield and minimize the view of the house from Shelburne Pond and from neighbors to the west. Gary Smith did a GIS mapping that showed three trees outside of the building envelope and two trees which were 30’ from the house and would have provided screening were cut down. New trees planted per the landscape plan are not of the type and size to adequately provide screening from the pond. Proof of what trees were felled was provided by the GIS mapping (Exhibit B). Mr. Koerner asked Mr. Bohne if two of the trees that were removed were dead. Mr. Bohne referred to Exhibit B, the ortho-photograph, which shows the trees, 28.99’, 25.36’ and 28.41’ in height respectively, as clearly green. It was noted the airplane was flying to the east of the site so there was a distorted view of the location of the trees. The ortho-photograph was taken in May of 2004.

 

PUBLIC COMMENT

Randy Rowland, neighbor, clarified the main issue involves the Planning Commission approval indicating lots #2, #3, and #7 had to be substantially screened from Pond Road and from the west. The Planning Commission was asked to provide a definition of “screening”, but a reply has not been received to date. The covenant language does not cover what was required by the Planning Commission. It is unclear why the discussion is about three or five trees or tree width, continued Mr. Rowland, when there were hundreds of trees removed and reference to the building envelope was not translated. The issue is whether the applicant is still liable. There is insufficient screening to the west and Crabapple trees will not screen the view in the winter. The house is clearly visible from Shelburne Pond and from Pond Road. Mr. Koerner noted the appeal is of the Notice of Violation which involves cutting five trees. The neighbors’ concerns have been heard by the town.

 

Eric Morris, subdivision developer, acknowledged the Planning Commission sets conditions and the covenants are used to satisfy the conditions. Mr. Morris said his attorney felt some of the conditions were “hazy” and contacted the Town Attorney (Tim Eustus) for clarification. The conditions were met as set forth by the Planning Commission, stated Mr. Morris.  Attorney Reynes added with regard to the covenants, Mr. Rowland contends the covenants were not met, but if a homeowner wants to (clear) cut six times the footprint, they must get permission from the Architectural Standards Committee (Mr. Morris). Section 8.3.k is not invoked until the envelope is exceeded. Mr. Boehland stated the trees on the lot were a mix of Ash and Maple, but no pines. Ninety percent of the Maples were damaged by the ice storm and two of the Ash trees were “punky”. Mr. Boehland clarified he is not the developer.

 

There was mention of Mr. Boehland’s statement that his family has been harassed. Mr. Rowland apologized for the situation, noting the Shelburne Selectboard is the entity pushing the issue. The Chair of the Selectboard was on the Planning Commission at the time of the subdivision. The Selectboard decided to do something about the tree cutting, where healthy, fully foliaged, quality trees, numbering 50-150, were cut down. Mr. Waltien reiterated the issue presently under discussion and before the Zoning Board involves five trees and not the issue of clear cutting.

 

Mr. Funtow noted a Certificate of Occupancy has not been issued. Mr. Boehland confirmed the house is not occupied. Mr. Funtow asked if the permit, B05-194, was issued. Ms. Leonard confirmed the permit has been issued to the applicant. Mr. Bohne pointed out the permit is not valid to allow construction and removal of trees. Regarding B05-194, there is question whether the additional permit was needed because there is a condition (#5) which was not being met. No conditions were written on the permit. The violation should have pulled the permit due to Condition #5 as set by the Planning Commission. The condition goes with Lot #2 and the covenant language pertains to shielding the views of the westerly neighbors and from Shelburne Pond, but not Pond Road. The applicant is in violation of Condition #5 of the Planning Commission subdivision approval. Minutes of the meeting show final subdivision approval was granted with conditions, stated Mr. Bohne. Attorney Reynes said he is having difficulty understanding why cutting five trees is a violation. Section 1710.a of the ordinance was referenced, noting there is no indication that cutting five trees on your own property is a violation. The Planning Commission conditions do not tie to the covenants, continued Mr. Reynes, adding the Vermont Supreme Court notes any ambiguity must be shown in favor of the landowner. It has been six months and there is no justification on how the tree cutting ties to violation, and no reply regarding the building envelope, stated Attorney Reynes. Mr. Waltien clarified the homeowner is arguing that in the process of building a house and clearing a building envelope, cutting the trees was a part of the development. Mr. Waltien asked if the contention is that a homeowner can clear cut within the building envelope before construction. Attorney Reynes observed there is wide choice of where to site a house within a building envelope. The homeowner can have a building footprint that takes up the entire building envelope.

 

Mr. Holt asked who cut the trees. Mr. Boehland said he felled the trees, and explained that within a 50’ buffer a maximum amount could be cut. The dwelling was not built at the time the trees were removed.  Mr. Burke showed a site plan of the overall Bushey Farm property that included conserved lands, lots, and building envelopes for Lot 2 (extended to the southwest to a field and northeast to a field and primarily located in wooded ledgy-sloped area). The design intent of the building envelope was to have a large enough area to allow flexibility in siting a house. There was a one-half acre limit to the clearing. A building envelope was staked out several times - before and after the purchase of the lot. The construction was clearly inside the building envelope. If the house were sited at the upper end of the lot, the crown of the tree line would have been impacted.  Mr. Koerner noted the house footprint is 3,100 s.f. for a two to three-story structure. There is question as to how much the reaction to the tree cutting is due to the landscaping and how much is related to the scale and style of the house.

 

Mr. Koerner asked for clarification of the ortho-photograph (Exhibit A). Mr. Bohne explained the radar imaging identifies trees and heights by taking readings (soundings). A plane is used to collect the radar data and take the ortho-photo. Mr. Burke opined that radar is not reliable between the interface of the ground and elevations. Mr. Bohne pointed out the radar ortho-photograph shows the placement of tree trunks and greenery. The plane flew to the right-hand side of the property so the scenery leans and shadows are evident in the photo. The northeast corner of the house is visible. Staff highlighted on the photograph the location of existing trees, and where trees were cut. Mr. Boehland noted #37.17 (on the photograph) was a large tire dump and two abandoned vehicles. Two dump truck loads of tires were removed from the property. Mr. Bohne interjected if the area were a tire dump, it would have been 50’ high. The pictures were taken in May of 2004.

 

Mr. Holt asked if Condition #5 of the Planning Commission approval was violated. Mr. Bohne reiterated the condition provided shielding of the new house from the west and from the pond. If the trees were left in place, then the condition would have been met. Even if the trees were legally removed, taking the trees down removed the screening, said Mr. Bohne. Attorney Reynes expressed concern the first part of Condition #5 was not being considered. According to Mr. Bushey’s letter, there were many dead trees on the property. Mr. Farrell said his visit to the property in the spring of 2006 revealed evidence of ice storm damage that impacted the trees. It is easier to remove a tree before construction of a building versus after building is in place.

 

Mr. Funtow asked to see the documents from 09/11/2004 and 01/08/2004. Ms. Leonard noted the documents are in the Town files. Mr. Bohne stated Page 5 of the minutes, Exhibit I, state the conditions as set by the Planning Commission. The minutes are a legal record. Ms. Leonard agreed the minutes recorded the Planning Commission conditions and are a legal record.

 

DELIBERATION/DECISION

The Zoning Board will deliberate the appeal in Deliberative Session at the end of the regular meeting. The decision and/or Findings of Fact will be on file in the Planning Office.

 

The Zoning Board held an informal discussion regarding Tony Carnes.

 

The Board adjourned the regular meeting and convened Deliberative Session.