MARCH 12, 2007

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

ADMINISTRATION:           Brian Bigelow, Zoning Coordinator.

OTHERS PRESENT:            Randy Rowland, Kathy Stockman, Rad Romeyn, Roger Guillemette, Marge Sharp (Shelburne News), Bernie Gagnon, Joanne Guillemette, Bernie Guillemette, Cecile Guillemette, Gerald Guillemette,  Norman Burnett, Jenny Burnett, Jennifer Smith, Mike Anderson, Mike Burke, Ian Jewkes, Ed Fitzpatrick, Thea Platt, Robert Platt, Ashley Matthews (Burlington Free Press).

Mr. Koerner called the meeting to order at 7:05 p.m. Introductions were made. Mr. Koerner reviewed the hearing process, noting the Zoning Board may elect to deliberate in Deliberative Session following conclusion of the public hearing portion of the meeting.

 

None.

 

Ed Fitzpatrick appeared on behalf of the application.

 

STAFF REPORT

Tom Koerner reviewed the staff report, dated 3/12/07, and read the memo from Brian Bigelow to the Zoning Board of Adjustment (ZBA) summarizing the appeal by API Properties.

 

APPLICANT COMMENTS

Attorney Ed Fitzpatrick representing API properties gave a brief history of the application to develop a large piece of property of which the majority lies in Shelburne and some in the Town of St. George.  In January 2005, the sketch plan was approved.  In 2006 a boundary survey was submitted showing the true town lines and boundary lines per the tax maps between Shelburne and St. George.  Two public hearings on the preliminary plat were held with much discussion on the town line boundary issue. Preliminary plat approval was received.  There is a single parcel located in St. George, and the Town of St. George wanted subdivision of the single parcel from the larger parcel. This was done and the parcel was sold to Jennifer Smith who built a house on the land.  The lot development occurred after preliminary plat approval was received. The location of the lot in the Town of St. George versus Shelburne was questioned by a citizen, and following investigation by the Shelburne Zoning Administrator, a Notice of Violation was issued.  Brian Bigelow noted he received a complaint and issued the Notice of Violation after looking at maps and determining the house site was indeed in Shelburne. Edward Fitzpatrick stated his client’s position is that the lot is completely in St. George. Attorney Fitzpatrick pointed out the law firm of Shelburne’s town attorney (Steve Stitzel) during this time was representing both the Town of Shelburne and the Town of St. George, but that matter has been rectified. At this time, Shelburne’s legal counsel on the matter is not known. St. George agrees the survey work by Krebs and Lansing is accurate. In answer to the question why the matter is before the Zoning Board, and it was noted that appeals of the Zoning Administrator’s decisions are heard by the Zoning Board of Adjustment.

 

Jerry Guillemette, adjacent property owner, stated from the first day work began on the site, the owner was questioned about the location of the lot being in Shelburne. Bernie Guillemette, adjacent property owner, stated the lot blends with the boundary of their property in Shelburne.

 

Mike Burke with Krebs and Lansing Consulting Engineers said his firm spent several hundred hours in field work and document review researching the boundary line and that he would give a brief summary of that research.  A boundary survey of the entire 133 acre parcel and the eight acre lot in question was shown.  A lotting plan from 1876 (drawn in 1798) was reviewed. The lotting plan shows the original subdivision of the Town of Shelburne and was used for property transfers for 150 years before more complex subdividing was employed. At that time fences, stone walls and vegetation growth that occurred along the lot lines were the visual representations of boundaries. In November 2006, a survey report was done for town line retracement. Proprietor records describe the original owners of the properties and the dimensions of the lots. The focus of the application is on the southeast quadrant, lots 74, 75, 76, 77, and 78. The original owner was William Sutton who owned Lot 74.  Jirah Isham owned lots 75, 76, and 78, and before his death he subdivided his land.  Records describe how Mr. Isham subdivided his land.  Most of Lot 76 is included and defined by the well documented east line of the former Tom Bushey farm.  Two parcels on the lower portion of the property make direct dimension calls to the Shelburne town line (east side of Perry property to the Shelburne town line). The remaining portion of Mr. Isham’s property was subdivided by his heirs.  Each call starts from the Perry property (former Bushey farm) and extends to the Sutton property. The treed hedgerow illustrated how the land was originally parceled. The width of Lot 74 is known.  Lot 74 (Sutton property) is now part of the golf course, and with information from 1831 when Jirah Isham subdivided his property and the lotting plan noting the lot width of 13.5 chains or 891 feet, the Shelburne town line can be determined.  The Shelburne zoning map shows the line is as much as 150 feet too deep into the Town of St. George.

 

Ed Fitzpatrick questioned the difference between the Shelburne tax map and the Shelburne zoning map. Brian Bigelow stated the tax map shows parcels while the zoning map shows zoning districts but that they are consistent in terms of where the boundaries are shown. Boris Funtow pointed out with the maps used by Brian Bigelow to determine the location of the property the structure is indeed in Shelburne, not St. George.  Mr. Fitzpatrick mentioned there were letters between St. George and Shelburne in the early 1980s about the discrepancy in the location of the town line, and then the paper trail just ends.

 

Mike Burke continued his  review of historical data, noting in 1845 the Legislature proposed moving the St. George town line to the edge of Shelburne Pond. The Legislature approved the proposal, but the Town of Shelburne did not, so the action was void. Mr. Burke stated Krebs & Lansing had researched the state archives and town records in both Shelburne and St. George and no other record was found regarding a change to the town line. A memo, dated 2/15/07, references field survey information from other surveyors and the information is consistent with the Krebs & Lansing retracement.

 

PUBLIC COMMENT

Bernie Guillemette stated the only survey map showing the town line to the west is from Krebs and Lansing, and the line would then place half of the Guillemette barnyard in St. George which is not the case.

 

Norman Burnett, owner of Rocky Ridge Golf Course, felt the newly built house is on the Shelburne side of the boundary line. Mr. Burnett noted he is sensitive to boundary lines due to the high plateau on Hole #15 of the golf course and the potential for golf balls to hit any structure below. It is impossible to erect a fence to protect the newly built house from golf balls. The issue was discussed at two previous meetings and there was assurance given that there would be language to protect Rocky Ridge Golf Course and the Burnett family from liability exposure. There was no indication given at the previous meetings that the line would be moved and the St. George portion expanded resulting in expanded acreage owned by Mr. Anderson. The change in the town line gives enough acreage for a house where before a house would not be permitted.  Mr. Burnett mentioned that now area residents have to hire a professional to determine the boundary line. Mr. Burnett expressed surprise that construction on the house under discussion continued even after a Notice of Violation from the Town of Shelburne was issued. Mr. Burnett again expressed concern about golf balls hitting the house.

 

Jenny Burnett stated in August, 2005, Mike Anderson offered the property under discussion to them during which time they walked the property and were shown the boundary line, commonly accepted as the willows at the edge of the line.  The lot being offered was 6.5 acres, not eight acres.  Mrs. Burnett stated they declined the offer, but in hind sight if they had know the frontage of Rocky Ridge is as wide as it is, they would have talked more about the lot.  A map with the new town line on it was not seen. Mrs. Burnett also said they were surprised to see a house being built on the lot. Some field tests done by the Burnetts confirmed golf balls from Hole #15 could hit the house. Since the Notice of Violation was issued, the septic has been added on the side of the house where trees could have been planted to protect the house, and a garage has been added.

 

Kay Kraushaar expressed concern about taxation from the two towns, and that no correspondence has been received from St. George about the subdivision.  Another concern is the house may not be a personal residence. Mr. Anderson indicated he did not know the owner would build the house where it is presently location (Mr. Anderson thought the house would be farther north). Ed Fitzpatrick stated he did not know why St. George calls the single lot a “subdivision”. Regarding proximity to the golf course, Mr. Fitzpatrick recalled there was one meeting solely concerning compatibility to surrounding properties which resulted in language on “Right to Farm” and “Right to Golf”. The same language was added to the deed on the lot sold to Jennifer Smith.

 

Bernie Guillemette asked who determined where the foundation of the house was to be located.  Jennifer Smith replied an area within the building envelope which met the setback requirements was chosen. Mr. Guillemette also stated representatives from St. George and Shelburne did not do a site walk together. A site walk was conducted with people from Shelburne who were opposed to how close the house was to the Shelburne town line.

 

Boris Funtow asked about the involvement of the Shelburne Planning Commission with the application. Mike Burke said the Planning Commission reviewed the application for development of the 133 acres and the application had to show boundary lines.

 

There was discussion of impact on taxes if the town line is moved. Jenny Burnett opined the boundary line is near the willow trees (there is a surveyor’s pin), adding taxes have been paid on property based on the tax maps.  If the tax maps are argued, all property owners will want their taxes adjusted accordingly. Ian Jewkes, surveyor, stated the consensus line and the Krebs and Lansing line is based on town records which indicate 13.5 chains or 891 feet is where the town line is located. There was further discussion of the discrepancy in town boundary lines. Mrs. Burnett stated the Shelburne tax map #12 shows the town line east of the pin through which the newer Krebs and Lansing boundary line goes. Rad Romeyn, neighbor, asked about the impact on the remaining subdivision of the 133 acre parcel if the spec house is in Shelburne. Mr. Romeyn also expressed concern about the situation on Pond Road being repeated (permit violations). Brian Bigelow stated it is anticipated new boundary lines would be drawn and changes to the site plan will be made.  Ed Fitzpatrick stated the approved plat considers the land to be in St. George, however, if the land is in Shelburne, variances will be needed from Shelburne to approve the foundation and clerical work will have to be done to set the boundary lines, then the owners can finish building the house.

 

Bob Platt asked if the question of the boundary line is for the Zoning Board of Adjustment or Selectboard.  Mr. Platt felt the Zoning Administrator made the correct decision and the Selectboard for Shelburne and St. George should decide the issue of the boundary line. Tom Koerner reviewed the bylaw explaining why appeals of decisions by the Zoning Coordinator come before the Zoning Board of Adjustment.

 

There was a discussion of why construction continued after the cease and desist order. Brian Bigelow pointed out that as the property owner feels the property is in St. George,  so a notice from Shelburne is irrelevant. Also, at least one Selectboard member in St. George feels the property is in St. George based on surveys.

 

Jerry Guillemette questioned the acreage of the lot and where the 1.4 acres from the eight acre lot is located if 6.6 acres is shown on the survey. Ms. Smith confirmed the lot is 8.4 acres.

 

Joanne Guillemette stated no notices were sent to adjacent property owners about the sale of the lot or a house being built so it is not known if “Right to Farm” language is in the deed. Also, continued Ms. Guillemette if the boundary is moved for the Smith house, the frontage of lots along Route 116 will be impacted.  Bernie Guillemette asked if the St. George zoning permit was properly posted for the house under construction. Bernie Guillemette showed a survey of the property by Henry Switer showing the location of the town line.

 

Thea Platt, Pond Rd., recalled Bradley Kirby’s garage was built within the setback and the Town of Shelburne forced him to move the garage. Ms. Platt questioned why the Zoning Board cannot rectify the situation with the house under discussion; construction should stop until the situation is resolved. Tom Koerner stated discrepancies in surveys that date back over 200 years are common.  The current case involves a town boundary line which is a little different and more complex. It was suggested one solution may be to relocate the house on the lot. Boris Funtow commented there is no dispute about the maps used by Brian Bigelow to render the decision on the property being in Shelburne.

 

Ed Fitzpatrick asked who the attorney representing the Town of Shelburne will be for the case. Brian Bigelow will forward this information when it is received.

 

Jerry Guillemette asked about the proximity of the house to the Shelburne town line if the housesite is totally in St. George, expressing concern about construction of additional houses based on erroneous information. Mr. Guillemette recalled a recent application on Pond Road that indicated the road had moved, so it appears boundary lines are moving. Steve Waltien stated if the house under discussion is located completely in St. George, then Shelburne setbacks do not apply. There was agreement the true boundary line needs to be discovered regardless. Mike Burke stated in November, 2006 a substantial portion of information on the town boundary line was submitted to the Shelburne Selectboard and the Shelburne Town Attorney (Steve Stitzel).

 

The enforcement process for a Notice of Violation was explained. Appeals are heard by the Zoning Board.  The Zoning Coordinator enforces the decision of the Zoning Board.  A property owner continues construction on the property at the risk of future action against them from the town, including fines and appropriate injunctive relief if the matter is pursued in court.

 

There were no further comments.

 

DELIBERATION/DECISION

Bernie Gagnon appeared on behalf of the Application

 

STAFF REPORT

The Zoning Board received a written staff report on the application, dated 3/12/07.

 

APPLICANT COMMENTS

Bernie Gagnon, Shelburne Public Works Director, stated the siting of the salt shed was based on the Waldorf School easement.  Subsequently to submitting the site plan, negotiations with the school on the easement were ongoing.  The new easement will move the salt shed farther from the stream (100’ from the brook). Also, the relocation will provide more area to maneuver vehicles in the side yard.

 

Boris Funtow asked if there are any setback or dimensional issues, noting if the shed is in the setback a conditional use approval cannot be issued. Brian Bigelow stated there are no setbacks or dimensional issues.

 

 John Holt suggested continuing the application until the easement issue is settled.

 

Steve Waltien mentioned a huge sand pile south of the Teddy Bear Factory.  Mr. Gagnon stated the sand pile is not the town’s.  Brian Bigelow will investigate the matter.

 

PUBLIC COMMENT

None.

 

DELIBERATION/DECISION

Dan Senecal-Albrecht (via teleconferencing) spoke on behalf of the application. Gwen Webster recused herself from the Zoning Board.

STAFF REPORT

The Zoning Board received a written staff report on the application, dated 3/12/2007. Tom Koerner explained Regional Planning would like to install informational signs pertaining to the Lake Champlain byway.

 

APPLICANT COMMENTS

Dan Senecal-Albrecht did not have comments in addition to the information provide in the staff report.

 

PUBLIC COMMENTS

Gwen Webster, Shelburne resident, agreed with the sign placement at Shelburne Bay and in the park, but felt the sign for the village green was “tacky” and inaccurate (there are very few vintage farmhouses along Route 7 in the town as shown in the portrait).  Ms. Webster questioned the need for a sign and such a large sign on the village green, adding a portrait of the village is not necessary when you are in the village. Steve Waltien agreed with the comment about the sign on the village green.  Dan Senecal-Albrecht briefly listed the boards and committees in town that reviewed the draft text on the signs. Mr. Senecal-Albrecht urged Ms. Webster to submit her suggestions for text changes for consideration.  There were no further comments.

 

DELIBERATION/DECISION

Gwen Webster returned to the Zoning Board.

 

None.

 

The Zoning Board signed the motions.

The minutes were signed by the Zoning Board.

 

The meeting was adjourned at 9:40 p.m.