MEMBERS PRESENT:       Reg Gignoux (Chairman); Peter Gibbs, Mark Sammut, Dick Elkins, Kay Kraushaar, Claude LaPierre, Jim Washburn.

STAFF PRESENT:                John Adams, Zoning Administrator; Dean Pierce, Planner.

OTHERS PRESENT:            Terry Kennaugh, Paul & Anne Bakeman, Donal Curley, Jamie Kaisur, Diane Hartman, Ron Bushnell, Gail Albert, Greta Krag, Jesusa Krag, David Krag, Andrew Marks, Steve Vock, Marge Sharp (Shelburne News).

·        Design Review, Skylights, 22 McCabe Circle, Hartman (DR08-21)

·        Design Review & Sketch Plan Review, Mixed Use PUD, 5059 Shelburne Road and 82 Shelburnewood Drive, Shelburnewood, LLC (DR08-13 & SUB08-03)

·        Subdivision Final Plan Amendment, Building Envelope Location, 823 Shelburne-Hinesburg Road, Hollenbeck (SUB03-04R3)

·        Conditional Use Application, Seawall, 4327 Harbor Road, Tony Handy (CU08-11)

·        Appeal, Excavation and Fill Permit for 76 Rivervale Road, Andrew Marks (A08-13)

Chairman Reg Gignoux called the meeting to order at 7 p.m.

 

There were no comments from the public at this time.

 

The function of the Development Review Board as a quasi-judicial board and the hearing procedure were explained. Individuals to give testimony before the Board were sworn in.

 

Diane Hartman appeared on behalf of the application.

 

APPLICANT COMMENTS

The applicant had no further comments to the information in the staff report. The skylights will be of the same type installed in other houses in the neighborhood.

 

STAFF REPORT

The DRB received a written staff report on the application, dated 11/5/08. John Adams noted the Design Review Committee recommended approval of the skylights.

 

PUBLIC COMMENT

There were no comments from the public. The evidentiary portion of the application was closed.

 

DELIBERATION/DECISION

 

 

The application was withdrawn by the applicant.

 

Ron Bushnell appeared on behalf of the application. Kay Kraushaar recused herself.

 

APPLICANT COMMENTS

Ron Bushnell stated substantially revised drawings have been submitted showing removal of the blocks and a shortened and lowered concrete wall (to 106’). There will be rip-rap up to elevation 100’ on the face of the wall and then dyed slate grey concrete wall on a vertical slope. The wall will mimic the look of the wall at Shelburne Farms (big dimensional stones). Wave action will eventually move the flat stones, stated Mr. Bushnell, as will occur at Shelburne Farms as well. Water will hit the rip-rap in front of the wall unless there is direct wave action or a 100-year flood at the 102’ water level.

 

Peter Gibbs asked about the waste blocks. Ron Bushnell explained the waste blocks are in an area where there is the greatest mass. Without the blocks the wall would need to be farther out. There was mention of the coffer dam which will be the same material and is a temporary structure. The dry laid big block stone wall will be grey quarry rock (natural rock).

 

STAFF REPORT

The DRB received a memorandum from staff, dated 10/28/08. There was mention of the rip-rap permit issued to Mr. Handy on 10/15/07. The addition of the concrete wall is the only change from the original permit application. The permit term is two years.

 

PUBLIC COMMENT

Donal Curley, Harborwood Shores Association, asked about the painted marks to show the location of the wall. Reg Gignoux explained the revised wall will be closer to the shore line than the wall previously proposed. Mr. Curley asked about erosion of adjacent properties due to wave action off the proposed wall. Mr. Curley suggested there be an independent review of the proposed wall. Reg Gignoux noted the applicant’s engineer reviewed the plans. The town’s engineer could also review the plans if requested by the Board. Peter Gibbs advised the DRB needs to be clear what to ask the town engineer (i.e. the wall being an effective way to stop erosion or whether the wall will cause erosion on adjacent properties). Mr. Bushnell suggested John Higgins be contacted for expert advice on wave action.

 

Gail Albert, Shelburne Natural Resources Committee, said the committee had concern that the solution proposed for the beach should be reviewed by a professional so erosion is not being pushed along the beach. Ms. Albert asked if there are Clean Water Act, town zoning, or Corps. of Engineers issues to be addressed. Mr. Bushnell stated the Corps. of Engineers only gets involved if the elevation is 92’ or below. The Vermont Agency of Natural Resources did not require a permit.

 

There was continued discussion of the proposed seawall. Mr. Gibbs observed the existing natural geometry dissipates wave energy in all directions and does not cause excessive erosion in any one area. If the geometry of the proposed wall mimics the existing geometry (all the in/out points) it is probable impact on adjacent properties may be lessened. Mr. Gibbs questioned what is being protected with the proposed wall – the base (toe) from erosion or that plus more. Ron Bushnell stated the property owner at his expense wants to protect the base and prevent further erosion. Mr. Handy has a permit to do this and is trying to prevent further erosion in a less obtrusive manner while making the structure more durable than rip-rap all the way up the slope face. Mr. Gibbs questioned if the colored wall meets the requirements of the code (Section 1750.3.a.i) which says “...cannot be concrete, metal, manmade materials unless faced with naturally occurring colors in the area.” Mr. Gibbs disagreed the proposed color matches the area. Rather, naturally occurring materials should be used. Jim Washburn questioned if the erosion requires the size of seawall proposed. Ron Bushnell pointed out the wall will not be higher than the seawall at Shelburne Farms, but the wall will be roughly twice the length. Reg Gignoux advised it would be good to try to mitigate the expanse of the wall as much as possible. Dick Elkins asked if the beach to the north will be impacted and if the wall can be modified to avoid this. Mark Sammut stated with a hard bottom (shale) beach there is not the potential to impact the adjacent beach. Ron Bushnell stated the ledge is shale. Waves break on the shale ledge and then will be hitting the rip-rap stone so energy is dispersed.

 

Kay Kraushaar, neighbor, requested the markings show clearly where the wall will be located for visual reference to see distances. Also, compliance with Section 1751 should be confirmed with the relocated contour. The DRB confirmed the wall is less than 5,000 s.f. which does not exceed the 10,000 s.f. allowance.

 

 

The Board entered deliberative session at 7:50 p.m. and reconvened the regular meeting at 8:10 p.m.

 

Donal Curley asked that new markings be made to identify the location of the wall. Reg Gignoux reiterated the wall will be inside the previous markings and the end of the wall is 150’ from the adjacent property. Kay Kraushaar questioned if the previous markings were accurate due to the high water.

 

There were no further comments.

 

 

DELIBERATON/DECISION

The DRB will render a decision on the proposal within 45 days.  Kay Kraushaar returned to the Board.

 

Andrew Marks, Steve Vock, David and Jesusa Krag appeared on behalf of the appeal.

 

Dean Pierce outlined the appeal. In October, 2007 an excavation and fill permit was issued to David Krag for a pond. In July, 2008 a permit was issued to David Krag for a berm. There were no appeals to the permits. In September, 2008, David Krag submitted an application for modification to the berm and an appeal was filed by the neighbor, Andrew Marks.

 

Andrew Marks said he is not opposed to the berm or the culvert, but both have changed the natural drainage of the area resulting in the lower portion of his property being flooded. Mr. Marks is seeking a solution that avoids water draining onto his property. The permit was issued under Section 1720.2 of the regulations, but Section 1720.1 may more appropriately apply, opined Mr. Marks. Town staff should have reviewed where the berm and culvert were installed to see the impact.

 

Steve Vock, Civil Engineering Associates, said he reviewed the town permits relative to the case and found all in order. The information provided with the application makes it difficult to understand the problem at hand. The Krags have the right to do the work on their property provided there is not an adverse impact on adjacent properties. Mr. Vock reviewed an ortho map showing expansion of the existing pond and construction of the berm. The main watershed eventually drains to the LaPlatte River. The drainage system picks up water and drains to the south side of the berm (18’ off the property line). The berm and collection to the south has changed the drainage pattern. Corps. of Engineers confirmed the applicant went through all the appropriate steps. Class 2 wetlands were not involved and the impact is less than 3,000 s.f. so a permit is not required. Expansion of existing wetlands is likely now because the water is trapped. The drainage has an adverse impact on the Marks property, stated Mr. Vock, adding the best fix would be to discharge water from the pond to the north (this will replenish the other pond on the Krag property) and to have a berm with a small culvert to allow natural drainage.

 

David Krag showed pictures of his property including the 70’x 30’ pond with a sand beach. The pond has an outflow pipe. There is an upper and lower area on the property separated by a ridge. Natural water flow is from the upper level to the lower level of the property and then to the LaPlatte River. Water does not flow uphill to the Marks property.  The outflow pipe follows the natural course of water, upper to lower. The pipe is on the Krag property only, located 20’ and downhill from the Marks property. There is another collection pipe that was installed by Mr. Marks when he built his house. The pipe is 12’ from the Krag property and drains onto the Krag property. Also, there is a culvert and swale on the Marks property that collects and directs water downhill onto the Krag property. Mr. Krag showed a picture of the pipe on the Marks property which drains onto the Krag property.  A picture showing surface water drainage from the Marks property designed to flow downhill onto the Krag property was reviewed. The Marks culvert leads storm water directly to the Krag property. A picture showing the natural course of water relative to the property line with the Marks property was also shown. Mr. Krag reviewed permits for ponds per Section 1720.2 on other properties including the Sutton Farm and properties on Harbor Road, Spear Street, Dorset Street, and Thompson Road. The aforementioned ponds are all larger than the Krag’s pond.

 

Andrew Marks suggested the DRB do a site visit to view the situation. Mr. Marks stated his house is uphill from the drainage pipe, but the property slopes downhill. Water from the 15” culvert has flooded the lower backyard area. The berm does not allow water to flow to the north. Steve Vock added the drainage from south to southeast has been diverted. Where the water is now draining is not the natural drainage area. Mr. Mark expressed concern about creating wetlands from the accumulating water drainage from the Krag property. Different plants are growing in the area. Additionally, the water inhibits what can be done on the property.

 

There was discussion of the contour maps. It was confirmed the maps are accurate. Reg Gignoux mentioned the unusually wet summer possibly having an impact on the amount of water in the area. Steve Vock conceded there are seasonal impacts, but the fall has been relatively dry and in a properly draining area the water should have dissipated.

 

Dick Elkins asked the purpose of the berm. David Krag said the berm allows access from the upper field to the lower field. A tractor can be driven on the berm. Mr. Marks interjected there was a roadway built for access by tractor prior to the berm being installed.

 

Mark Sammut asked about installing the outflow from the pond on the north side. David Krag said it was easier logistically to locate the outfall on the north side of the pond. The berm pushes water to the north. Mr. Marks stated the flow has always been to the north. The base of the hill is ditched around the pond to the north to the river. When the first pond was built the flow of water was inhibited. David Krag stated the water flow has been the way it is for nearly 20 years. All the necessary oversight was secured for the ponds. The ponds were installed 15 years before Mr. Marks built his house. Mr. Marks countered the berm has only been in place for a couple of months and the berm has changed the flow of water. Mr. Sammut asked which permit applies to the pond and drainage to the northeast corner of the Marks property. David Krag said the first permit was for construction of the pond (pond by the house was permitted in 2007). A permit was not needed for the outflow from the pond. Mr. Marks said the berm was built with material from the pond and the permit was sought after the berm was built. The culvert was then installed and the permit was applied for after the fact as well. The outflow is from the new pond. Mr. Marks said he does not oppose the pond or berm, but does oppose the culvert and water flowing onto his property. Steve Vock pointed out the culvert is concentrating water flow and moving it in a different direction. David Krag reiterated the outflow has been as such for nearly 20 years (since the Krags have lived at their residence).  There is flood control to the north of the large pond. All ponds must have an outflow. Another option is to create a swale and “dump” the water. David Krag said surface water from the Marks property was a concern to them. The desire was to maintain the natural course of water flow. Before the culvert was installed the water would overflow the slope and go where it is going today. Mr. Marks interjected the water did not flow onto his property as it does since the pipe was installed.

 

Kay Kraushaar reviewed the chronology of permits: October 23, 2007 permit for pond, July, 2008 permit for berm, culvert permit being contested presently. David Krag pointed out if the culvert is blocked then the water will not be able to move in its natural direction. Andrew Marks showed where water drainage onto his property contrasts with the argument that water flows to the LaPlatte River.  The top of the berm is level with the cut area for the (smaller) pond by the house. Kay Kraushaar asked about the purpose of the berm. David Krag stated the construction of the Marks house built up the property more than 10’ and redirected the contour area so water flows straight down to the pond. Surface water from the Marks property has damaged the pond so it is no longer usable. The pond has turned into a cesspool with scum covering the surface. Prior to this change the pond was greatly used and enjoyed by the family. Photographs of the pond before and after were shown. There is a foot thick coating of scum around the pond, David Krag said, adding he offered at his expense to install a trench around the perimeter of the Marks driveway to redirect the flow of water to the river which would improve the water in the pond. The permit process with the town was followed. The berm was built because the Marks house is built up high and culverts onto the Krag’s property.

 

Dick Elkins asked about making the berm solid and directing water toward the bridge. David Krag said blocking the berm has improved the pond water though the outer pond is now turning into a scum pond. There is a septic system nearby (Marks) and annual quality control reports should be filed, but research could not locate any of these reports. There was discussion of the Marks house (built on fill, amount of water from the drain pipes, degree of impact on historic drainage patterns). Mr. Marks said before his house was built the flow was south to north. There was a continuous slope to the lower pond area. In the process of building the house high and low spots were discovered. The water that was going into the pond was diverted away. The house was built four years ago. Civil Engineering Associates was involved in building the roads in the development.

 

There was discussion of the permit being issued under Section 1720.2 or Section 1720.1. The lower pond was an expansion of the existing water area in 1991 as an excavation, stated David Krag. Reg Gignoux mentioned eutrophication relative to the lower pond. Jim Washburn asked if more water would be flowing onto the Marks property without the berm. Steve Vock reviewed a map showing the historic flow of water in the area, noting a large watershed is good to recharge the pond. David Krag interjected the old map referred to by Mr. Vock is not applicable since the water flow has not been as shown for the past 20 years (since the Krags have lived at their residence) and there have been changes to the old map. Mr. Dunham did fill work many years ago which changed the water flow.  Jesusa Krag pointed out there was an oxbow at one point and there are low areas on the property. Mrs. Krag showed where the family would have bonfires and ice skate in the winter.  Mr. Marks stated the concern is water flow in the spring time through the 15” culvert. The berm was not in place last spring.

 

DELIBERATION/DECISION

 

 

Presentation on November 12, 2008 at 7 p.m. in the Town Hall.

 

 

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

MEMBERS PRESENT:       Reg Gignoux (Chairman); Peter Gibbs, Mark Sammut, Dick Elkins, Kay Kraushaar, Claude LaPierre, Jim Washburn.

STAFF PRESENT:                John Adams, Zoning Administrator.

OTHERS PRESENT:            Tom Koerner, Stuart Bennett, Don Rendall, Chris Galipeau, David Conard, Steve Vock, Kathleen O’Brien, Stephen Selin, Amy Saar, Marge Sharp (Shelburne News).

·        Design Review, Window Replacement, 5203 Shelburne Road, Bennett (DR08-20)

·        Conditional Use, Modify Noncomplying Structure, 3735 Harbor Road, Saar (CU08-12)

·        Sketch Plan Review, Four Lot Subdivision, 335 Tamarack Shores, Spillane/Mitiguy (SUB94-8R1)

·        Final Plan Review, Six Lot Subdivision, 2100 Harbor Rd., Cabot (SUB03-07)

Chairman Reg Gignoux called the meeting to order at 7 p.m.

 

There were no comments from the public at this time.

 

The function of the Development Review Board as a quasi-judicial board and the hearing procedure were explained. Individuals to give testimony before the Board were sworn in.

 

Stuart Bennett appeared on behalf of the application.

 

APPLICANT COMMENTS

The applicant had no additional comments except “halleluiah”.

 

STAFF REPORT

The DRB received a written staff report on the application, dated 11/19/08.

 

PUBLIC COMMENT

There were no comments from the public. The evidentiary portion of the application was closed.

 

DELIBERATION/DECISION

 

David Conard appeared on behalf of the application. Reg Gignoux recused himself. Peter Gibbs assumed the duties of chairman.

 

APPLICANT COMMENTS

David Conard opined the DRB has the authority to approve relocation of a noncomplying structure without requiring the structure to be complying. New construction must comply with regulations currently in place, but alteration of existing noncomplying construction does not have to comply. There is past evidence the town’s zoning board/development review board considered a relocated structure as an alteration (Crooks property and Drumheller property). Documentation was given to the DRB in support of the relocation of a structure fitting with the definition of an alteration and evidence that the overlapping of an existing footprint is still considered an alteration (Susan McLennan house at the corner of Dorset Street and Irish Hill Road). A copy of an email to the Town Attorney from David Conard, dated 10/21/08, regarding the matter was also provided (a reply from the Town Attorney has not yet been received). Mr. Conard said the state zoning ordinance and land use regulations should be construed to make sense and be in favor of the landowner so the DRB does have the authority to approve the relocation of the cabin. The existing structure is at the edge of the bank and next to the side property line. The new location will conform to the side yard setback and be farther away from the lake.

 

Peter Gibbs asked if Susan McLennan’s lot was nonconforming in 1995 when the permit was granted. Tom Koerner, former chairman of the Shelburne Zoning Board, confirmed the lot was nonconforming and the house could have been located on the lot to meet the side and front setbacks. Peter Gibbs noted the Crook situation (in 2008) involved the house as an existing nonconforming use and rebuilding that did not make the structure more nonconforming.

 

STAFF REPORT

The DRB received a memo on the application from John Adams dated 11/19/08. Mr. Adams noted a legal opinion from the Town Attorney was provided to the DRB, but not the applicant (attorney/client privilege). The application must meet the conditional use criteria and the DRB may want to consider what will be in place of the structure relative to vegetation and landscaping. Amy Saar mentioned the intention with vegetation is to have grass and shrubbery where the cottage was located. At the proposed location there is a row of trees along the edge of the cliff. There is a small beach below. Invasive buckthorn will be selectively removed.

 

PUBLIC COMMENT

Tom Koerner, abutting property owner, endorsed the proposal, noting the structure is currently not in a good location. Mr. Koerner recalled while serving on the Shelburne Zoning Board of Adjustment there were incidences of additions to buildings and relocation of buildings that did not increase the nonconformity. As well there are examples of tear downs and rebuilds that used some of the existing foundation (Orchard Road, Quaker Smith Point).

 

DELIBERATION DECISION

 

Reg Gignoux returned to the DRB and resumed the duties of chairman.

 

Mendy Mitiguy appeared on behalf of the application.

 

APPLICANT COMMENTS

Mendy Mitiguy explained the proposal to subdivide existing Lot 3 (5.67 acres) to create Lot 4 and to build a house on Lot 4. Lots 1, 2, and 3 are existing lots with houses. Lot 3 is presently “u” shaped.  An easement for water will be created. Lot 4 will stop at the railroad tracks. The parcel east of the railroad tracks is a separate lot and not part of the application.

 

STAFF REPORT

The DRB received a memorandum from staff, dated 11/19/08. Jim Washburn asked if lots will meet lot size requirements. John Adams stated all the lots meet the basic dimensional requirements for the zone. The new lot is in the Lakeshore Overlay District. Dick Elkins asked if there are any restrictions on the railroad crossing and if the 60’ easement continues across the tracks to Route 7. Also, the building envelope should be shown on the site plan.

 

PUBLIC COMMENT

There were no comments from the public.

 

DELIBERATON/DECISION

 

 

David Conard, Chris Galipeau, and Steve Vock, appeared on behalf of the application.

 

APPLICANT COMMENTS

David Conard stated in the decision rendered by the DRB there were a number of conditions in the Findings and Conclusions that were not acceptable to the applicant. There is a paradigm shift from what the DRB has the authority to do to what modifications to the permit issued would work. Per the directive of the Environmental Court the application has been remanded to the DRB to work out the issues with the applicant.  With regard to which town plan is applicable, the sketch plan application was submitted in 2006 (under the former town plan) and if sketch plan approval is granted then the same process will continue. If the sketch plan is denied then a new application must be submitted (under the current town plan). With regard to wildlife habitat and views, per the JAM Golf, LLC appeal the court ruled there are no standards for these held by the town. Mr. Conard cited a court case in South Burlington pertaining to the same issues.

 

Mr. Conard reviewed clarifications and changes to the conditions including the fence not being constructed to deter wildlife movement. The fence was to protect the property from the trail system built by the town. Another item is the two alternate building envelopes on Lot 1 are no longer requested. Regarding lots with waivers, there is a vegetative buffer on the east side of the property as well as the Harbor Road fields. Removing the fence is a construction activity and requires approval under the design review covenants. The applicable town plan is the prior version, but if the conditions as proposed are accepted then the point is moot. The original proposal specified the size of oak trees that cannot be removed at 24” diameter. The compromise is 16” diameter or with a forest management plan approved by a professional forester. The temperate red cedar woodland is preserved unless there is disturbance for roads, driveways, buildings, or utilities. The bedrock areas are greater than 50’ from the structure and cannot be filled in. Noxious weeds can be removed, but if removing the weeds creates view corridors on lots 1, 4, or 5 there will be replanting done. The applicant will comply with state law on storm water and wetlands issues. The east and south boundary fences are more wildlife friendly. Fences need a permit from the town, but agricultural fences are not under town jurisdiction. The applicant prefers a 250’ vegetative buffer on the east side of the property rather than a 425’ vegetative buffer. The building envelope on Lot 5 is smaller than previously proposed. Lot owners are not required to do reforestation of the east buffer that is currently not wooded. The area along the fence can be cleared to allow maintenance of the fence. Mowing the grassland and bird habitat will be done only if the area is not being used by an activity that keeps the land open. The requirement for a half acre building envelope of at least 200’ on all sides mathematically cannot happen.

 

The proposed covenants for the development are in concert with the changes to the permit conditions, continued Mr. Conard. State law says the town has no jurisdiction on agricultural structures in the Harbor Road fields, but the applicant is willing to have enforceable covenants mandating no buildings in the fields. The applicant has tried to present a project compatible with the area, including Shelburne Farms. It is hoped the DRB will look at the application in the spirit of trying to work out the issues rather than battling in Environmental Court.

 

STAFF REPORT

The DRB received a copy of the Stipulated Motion to Dismiss Proceeding and Remand and Findings of Fact drafted by staff.

 

PUBLIC COMMENT

Don Rendall, Shelburne Natural Resources and Conservation Committee, requested the opportunity to review and comment on the proposed changes.

 

Marshall Webb for Alec Webb, President of Shelburne Farms, spoke in support of the proposal due to interest in protecting the open land.

 

There were no further comments.

 

DELIBERATION/DECISION

 

 

None.

 

 

The meeting was adjourned at 8:40 p.m.