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

ADMNISTRATION:            Paul Bohne, Zoning Board Clerk.

OTHERS PRESENT:            Michael Wool, Bob Murphy, Don Johnston, Persis Post, David Willard, Faith Emerson, Rebecca Stearns, Steve Reynes, Chris Eling, Peter Morris, Dan Hassan, Doug Moses, David Hall, David Marshall, Dawna Hammers, Margery Sharp (Shelburne News).

 

Mr. Koerner called the meeting to order at 7:06 p.m.  Introductions were made and the rules of procedure and establishment of “Interested Party” status were explained. Chairman Koerner noted the Board may elect to deliberate applications in Deliberative Session at the end of the public portion of the meeting.

 

Application was continued.

 

Attorney Steve Reynes, Peter Morris, Dan Hassan, and David Hall appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner reviewed the application for expansion of Shelburne Bay Senior Center. The application was continued from previous meetings (September 25 and November 6, 2006). It was noted a letter from Mr. Reynes, dated 11/16/06, was received by the Board.

 

APPLICANT COMMENTS

Attorney Reynes briefly reviewed the initial opinion filed on behalf of the applicant, the legal opinion by the Town Attorney (Steve Stitzel) and the response by the applicant to that opinion, and finally, the Town Attorney’s supplement to the correspondence. The filings have been helpful in clarifying legal issues. At the hearings in September and November, there were no objections voiced relative to the issue of setbacks. Attorney Reynes pointed out the application is for Conditional Use approval and must undergo further review by the Planning Commission. A portion of the letter from the Town Attorney, dated 11/29/06, was read. The paragraph read summarizes the issues. The applicant agrees the application should be a PRD. The Zoning Board is being asked to act on Section 1620.2.2 with the addition that the PRD should be reviewed by the Planning Commission under State Statutes and local bylaw sections 840 and 1630. The Zoning Board was provided with language from Section 1620.2 of the Shelburne zoning bylaws relative to PRD setbacks. Mr. Reynes disagreed with the interpretation by the Town Attorney, opining instead that the language refers to ‘yard’ or ‘setback’ areas rather than ‘yard setbacks’. The Zoning Board can grant conditional use approval to a project that does not diminish yard or setback areas. For example, the Fieldhouse, LLC project was a non-complying industrial structure with a proposed change in use to recreation. The project received conditional use approval. Mr. Funtow interjected that the Fieldhouse project did not involve one lot with separate units so a buffer was not under consideration. Attorney Reynes argued the non-complying structure provision does not apply to change of use. That the hotel has a variance complicates the situation somewhat, but a variance is not in the question. The buildings are where they are. The application is for a change of use to elderly housing. The current ordinances permit expansion and/or alteration of existing structures if there is no further encroachment. The proposed project will encroach less.

 

Main points are as follows:

 

Mr. Funtow asked if the three lots would merge into a single lot. Attorney Reynes stated the lots are not merged presently, but there is a contract to transfer the lots. The application was signed by the applicant and the landowners. Mr. Bigelow noted it is not unusual to have an agent represent the applicant. Ms. Webster expressed concern the Board would be approving a hypothetical application. Attorney Reynes stated it is not unusual for a contract to be contingent upon approval of permits. Peter Morris, architect, noted there is a letter in the Board’s packet from the landowners authorizing the applicant to represent the landowners. Mr. Funtow stated conditional use approval would not be granted until the lots are merged. It was clarified the lots will not be merged with the existing Shelburne Bay Senior Center parcel so there are actually four lots involved in the overall project. Mr. Funtow asked why the Planning Commission did not review the PRD before the matter was brought to the Zoning Board. Attorney Reynes stated the project was reviewed with the Town Planner who advised securing approval for the use from the Zoning Board before going through site plan review by the Planning Commission.

 

Mr. Koerner asked if the site plan and elevations are the same as previously submitted. Attorney Reynes confirmed this. Ms. Webster asked for clarification of the overall length of the building. Mr. Morris assured the length was measurable from the drawings but he did not have that number. The zoning regulations cover area, setbacks, and height. An overlay of the site plan can be done to show the building footprint. Attorney Reynes added the mass of buildings currently includes the Ponderosa Restaurant. The site plan shows landscaping and other details.  The project is for senior housing and deals with elderly people, some in wheelchairs which require a need to traverse a building without going outside. The two buildings will be connected.

 

Mr. Waltien asked if the application requires a variance. Attorney Reynes explained that the applicant is not requesting a variance because it is felt that no variances are required.  Staff had noticed the hearing, and assigned an application number as if a variance was required.  Mr. Bigelow confirmed a variance application has not been filed. It was noted that a Conditional Use approval would need to state that the requirements of the bylaws were met and a variance was not applicable.

 

Mr. Funtow observed if the application is to be treated as a single lot with a PRD, there is the issue of the maximum number of dwelling units being 18 per the ordinance. Mr. Koerner pointed out the use is similar. Attorney Reynes explained 18 units is a permitted use, but it is possible to have more units under a similar use. Per the opinion of the Town Attorney in the letter of 11/3/06 the number of units will be reviewed by the Planning Commission. Ms. Webster questioned whether Shelburne Bay is a variance for the number of units which should come under variance/conditional use review. Mr. Funtow questioned the interpretation of “similar use”. Attorney Reynes explained the project is not simply housing for the elderly, but includes care of Alzheimer’s patients, assisted living, and independent living. A proposal for more than 18 units would be reviewed under Conditional Use criteria and reviewed by the Planning Commission as a PRD. Ms. Webster stated usage gives a finite number of units, but what is proposed requires a variance. Attorney Reynes said he was told there is a mechanism to allow the existing facility to expand by 18 units to 112 unit density on the existing 9.87 acres. There are 54 units on the acreage presently. The application is for 72 units. A provision under the PRD regulations says specifically the Planning Commission can change density. Mr. Funtow stated his concern about the application coming before the Zoning Board prior to review by the Planning Commission since the Zoning Board cannot grant a density change under Conditional Use criteria.

 

David Hall explained the applicant is seeking a higher density under Section 820.22 for care above and beyond independent living units. Section 820.22 differs in that there is a two-acre maximum. The project has four acres, said Mr. Hall. Ms. Webster clarified the reference is dimensional, not density. Attorney Reynes stated according to the Town Planner Section 820.22 recognizes uses do change. For example, a gas station is not permitted, but a higher technology use might be. There is a need to provide economically for elderly and expanded care. The project is for a continuance of care. Mr. Koerner questioned if the application is pushing a definition to meet what is being proposed. Ms. Webster pointed out a proposal for a motel would require 3,500 square feet per unit, and a similar use would still require 3,500 square feet. Mr. Morris stated currently there is a 73 unit motel, a 220 seat restaurant, and a retail use on three separate lots.

 

Dan Hassan, agent, stated the definition of elderly housing has evolved over the years. Shelburne has recognized the need to upgrade the zoning bylaws. The Town hired a consultant for assistance in this endeavor. There has been discussion of 42 units versus 18 units. There is no scientific method to determine the number of 42 units. Surrounding towns (South Burlington as one) have quadrupled the 42 unit number. Vermont and Chittenden County are the fastest growing areas for elderly housing. The proposal will address the progression of care from living independently to assisted housing, and assisted-memory care. For this type of project there will be reduced impact on town services such as water and wastewater.

 

Mr. Koerner asked if there are specific numbers of units dedicated to different stages of care. Mr. Hassan stated there will be 60% independent living units (one-bedroom, 1,200 s.f. apartments), 25% assisted care units, and the remainder as assisted-memory care (less than 300 s.f. studio type apartments).

 

Mr. Waltien felt the Zoning Board does not have latitude to increase the number of units. The Board is charged with applying the existing bylaws and regulations. The Planning Commission has the ability to change the density. Attorney Reynes argued the increased density is a conditional use under the Conditional Use criteria. The applicant has not been told the project does not meet the Conditional Use criteria. Mr. Reynes suggested the Board set a hearing date to accept final legal memos/findings that are submitted and then make a decision.

 

PUBLIC COMMENT

Persis Post, Shelburne Bay Senior Center resident, invited the Board to visit the senior center on the upcoming “Red Hats Day”. The center is wonderful and residents are well taken care of, said Ms. Post, adding right now the “gateway” into Shelburne is dumpy looking, but the proposal will improve the gateway with a green strip and landscaping. Mr. Waltien noted in both public and private discourse no one has spoken against the project. The struggle is with the zoning regulations.

 

Doris Willard, Shelburne Bay Senior Center resident, said the majority of people at the center are extremely independent. The project is for 74 units. Mr. Waltien reiterated the zoning bylaws do not allow what is being proposed, though the attorneys have presented a good argument. There is a difference of opinion between two attorneys on the interpretation of the bylaws. There is no objection to the project concept.

 

Attorney Reynes reviewed a Supreme Court case law as outlined in a memo, dated 11/16/06, saying if the Board finds the bylaws are ambiguous, the decision must be in favor of the landowner. The Board can motion to issue conditional use approval for the number (of units) that meet the regulations and allow the application to move forward to the Planning Commission. Mr. Waltien clarified the Rules of Procedure do not allow the Board to design a project. The applicant must specify the number of units and supply supporting evidence to grant the request. Attorney Reynes suggested the Board approve the application subject to the Planning Commission review/approval of the application. Mr. Holt suggested the applicant resubmit the application for no more than 54 units and proceed to the Planning Commission. Mr. Hassan suggested the Board grant approval of a “not to exceed” number of units or postpone a decision until action is taken on the application by the Planning Commission. Mr. Koerner questioned how the applicant was directed first to the Zoning Board rather than the Planning Commission. Attorney Reynes said the Town Planner directed the applicant to address the Zoning Board first for conditional use approval then go before the Planning Commission with the detailed site plan.

 

DELIBERATION/DECISION

 

David Marshall, Civil Engineering Associates, appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner stated staff determined had determined the earlier shortfalls discussed on November 4 regarding parking and lot coverage had been addressed.

 

APPLICANT COMMENTS

Dave Marshall said final coverage calculations were submitted.

 

Mr. Bigelow relaid Fire Department questions about any proposed gates on the access road will be gated. Mr. Marshall stated there is currently a gate, but how emergency responders will handle access after hours is a question. Ms. Webster suggested a carded entry or a number (pad) security entry. Mr. Marshall assured whatever is needed will be coordinated with the Fire Department.  Mr. Marshall explained the two points of access. A stack of lumber limits one access. There is an issue with idling trucks parked on the neighboring property. A gate installed part way down the access road will allow waiting trucks to park on Rice Lumber property. The Planning Commission approval included plantings as additional screening for the parking lot. The access to Rice Woods is under appeal in court, but the Planning Commission required that the access be shown on the site plan. There is no increase in the proposed lot coverage. There are 42 parking spaces required. The application shows more than 55 spaces, stated Mr. Marshall.

 

PUBLIC COMMENT: None.

 

DELIBERATION/DECISION

David Melincoff, agent, appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner read the written staff report, dated 12/4/06, noting the property is next to the Sirloin Saloon. Conditional use approval was granted in 1984 with conditions. Mr. Bigelow gave a brief history of the merged lots.

 

APPLICANT COMMENTS

Mr. Melincoff sated the space is vacant. The applicant wants to rent the unused space behind Reel Hospitality. Reel Hospitality is the owner. The total space is 4,000 s.f. Reel Hospitality uses 1,000 s.f. The remainder (3,000 s.f.) would be rented out. Mr. Funtow asked if the applicant was asking for withdrawal of the stipulation. Mr. Melincoff said when originally proposed the property was one lot. The office building is used for office space for the restaurant (Sirloin Saloon). Then Zoning Administrator (Cindy Tyminski) said there should be two lots for the separate uses. Mr. Koerner questioned if the two lots would negate conditions relative to parking. Mr. Melincoff stated there are currently 53 parking spaces. The Sirloin Saloon uses 22 spaces from 6:00 p.m. to 10:00 p.m. The remainder is for the office use.  Mr. Bigelow noted staff will work with the applicant on details (square footage) for the tenant office space.

 

PUBLIC COMMENTS: None.

 

DELIBERATION/DECISION

Dawna Hammers, owner, appeared on behalf of the application.

 

STAFF REPORT

Mr. Koerner read the written Staff Report, dated 12/04/06, and noted that a 4’x 16’ deck will maintain the historic width of four feet. The applicant will remove two feet from the existing 6’x 16’ deck. The deck was there when the house was purchased by the applicant. Town staff researched the property to help determine a solution. The 4’x 4’ stoop existed prior to the deck.

 

APPLICANT COMMENTS

Ms. Hammers said she is also seeking approval to modify the windows on the house. Photographs of the house with the proposed windows drawn on the images were submitted. The window project will be a future project.

 

DELIBERATION/DECISION

Mr. Koerner said the applicant would need a building permit, which would be good for two years and can be extended for one more year if necessary. Mr. Bigelow said a conditional use approval never expires. For approval of the windows the applicant would need to apply to a Design Review Board.

 

MOTION by Mr. Waltien, seconded by Ms. Webster, to close the public portion of the meeting and enter Deliberative Session. VOTE:  unanimous (5-0); motion carried.  The public portion of the meeting was adjourned and Deliberative Session convened at 8:45 p.m.

 

The ZBA exited Deliberative Session and reconvened the regular meeting at 9:45 p.m.  No decisions were reached as result of the Deliberative Session.

 

 

The ZBA meeting was adjourned at 9:55 p.m.

 

Minutes respectfully submitted by Kathlyn Furr, Recording Secretary.

 

_________________________________ _________________________________

Thomas Koerner, Chair                                    John Holt

 

_________________________________       _________________________________

Gwen Webster                                                 Boris Funtow

 

_________________________________

Steve Waltien

 

Copies:

   Applicants & Agents

   Town Clerk

   Files