 Okay, and who do we have in the room? Is that Jeff and? Yeah, Jeff and Leo. All right. We have a single applicant present as well for our 15th Congress. Yeah, 15. Okay. So good evening. This is the December 21st Perelantin Development Review Board meeting. I'm A. J. LaRosa, and I'll be sharing the meeting and Brad or Ben and which is absent tonight. We have a quorum of members here, and so we're going to call the meeting to order. We're being this is being conducted via zoom and in person. The zoom is being recorded. Scott, that correct? That's correct. And there's in person recording of minutes being taken on. So we have an agenda in front of us. I don't know if there's any changes to that agenda. I see one item in the public hearing continuance requested by applicant. We can deal with that when it comes up. That's on 164 North Willard. Scott, are there any additional communications that aren't posted that we should be aware of? Yeah, everything's online. Okay. And A. J., the continuance is more of a, well, we can get into it. They're seeking an extension of the time period to hear the case on its merits. Okay, that, okay. We'll talk about that. So no communications, minutes from the last board meeting. If anyone has any changes, they should make them otherwise. We'll prove them at our deliberative. And then so first up is our, actually, let me do this. Let me give you the oath. If anyone is here to provide testimony tonight, they should raise their right hand. Just this application, A. J., or everyone, because I'll have to unmute. Well, let's just do it on everyone. All right, so I'm going to let everyone talk. All those who made the testimony tonight, do you swear to tell the whole truth and nothing but the truth under pains and penalties approachery? All right. So first up is 15 Conger Avenue, ZP-19567. That's been marked on our consent agenda item. Is the applicant here? Yes. Okay. Are there any board members that would object to treating this as consent? Nope. Any questions? Nope. So, Ms. Stratman, have you read the staff report on this? I sir, my name's Ed Monturkovich. I'm Ms. Stratman's brother-in-law and unfortunately, I'm unable to be here tonight and asked me to come and represent them. I have no chance to look at the comments yet. The applicant, Frank Monturkovich, has reviewed them and was fine with them and indicated to me that his brother-in-law would be here tonight in the event there were questions. Okay. Well, if they're fine with it and no one else has any questions, can I get a motion to approve this one? Okay. I think I'm open on ZP-19567, 15 Conger Avenue that we have recommendations and accept the time extension. Second? Second. I'm actually going to recuse myself from this one. I didn't realize the applicant's relationship to someone else, so I should recuse. Okay. Jeff's recused. Did somebody second that? I didn't hear it. I seconded it. Okay. Enjoy your time extension, right? So, next on the agenda is 164 North Willard Street, appeal of zoning application denial for installation offense and related gates, continuance request requested by applicant. So, she disclosed that my firm has previously been involved with this applicant, but not on this project, and I don't feel I have any bias for objection when reviewing it, but I should disclose that. So, is the applicant here? Hi, this is Luke Purvis and I'm Christina Waterback, and we represent 164 North Willard Street together. Okay. And Scott, this isn't appeal of an administrative denial. So, we've usually asked the city to present first in those types of cases. I think it's your project. Do you want to tell us what this is about? I can. Jeff, I just hand up Jeff's in person here. No, I'm fine. Fine. Okay. Never mind. So, AJ, we have the applicant of comment here as well as at least one neighbor. Except why I'm both on Zoom. Okay. There's two pieces here tonight. One is the pending defense permit denial. It's at a six-month outer limit for pending, and so the applicant is requesting an initial three-month extension. We would likely schedule this in January or February, depending on availability, to hear it on the merits, and staff supports that. The other piece is a little more complicated. The defense permit denial appeal was deferred in large part for the applicant to pursue an administrative determination as to southern parking area. Basically, gravel strip alongside the driveway. To determine whether or not it was a pre-existing, non-conformity, waste directly impacted the defense denial. So, it was put on hold when we worked through the determination. Fast forward to today. The administrative determination as to the southern parking area. In adverse, the administrative determination was issued. And the applicant is asserting that was appeal. Staff is saying, well, you didn't really appeal it. It seems like you asked a number of times whether it was appealable. So the second piece tonight is just this very limited question of whether or not the applicants appeal of the adverse determination was appealed properly. If yes, then we would combine that matter with the defense denial appeal into one item for you all to consider on the merits really next year. If you find that it wasn't properly filed, then it's dismissed, and we would move forward with just the defense denial appeal. So is that clear? There's two pieces. One is the easy three month extension. That's fine. The other piece here is was that second appeal actually properly filed. And I can get into that. That's that's that's is the outline of what's in front of you tonight. Scott, can you walk through the timing of the appeal? And I think there's, it seems like the question on the second issue is whether an appeal was filed in a timely manner. Yeah, that seems to be the crux of it. And so maybe you can just help us understand from your perspective the sequence of when the when the determination was made when the appeal period ran and any communications that occurred either up up to and before the appeal period why that wasn't an appeal and what happened after the appeal period. Okay, so as to the adverse determination as I mentioned this was sought because of its relationship to the fence denial. The determination request was specifically asked for the pre-existing non-conforming status or not of the physical strip of gravel on the southern side of the paved driveway. So they have been filed that request provided evidence over the course of a few months. And just to be clear the applicant in this case is Mr. Purvis. That's correct. Right, Mr. Purvis. I'm just getting the timelines in front of me. So the request, the termination requested may complete in July of 2021. Again, number of meetings, correspondence, emails with the applicant about that termination request. October 8th of 2021 an adverse determination was issued on that request. Adverse administrative determination. And the applicant did file a timely appeal of that within 15 days. The paperwork and payment, but also concurrently requested reconsideration. So staff may follow in consultation with the city attorney granted that reconsideration request. So we go back into this is a live pending request. So we review everything that submitted was anything additional that the applicant wished to submit. During that reconsideration time period, we mail back the physical piece of paper and check that we got for the initial appeal. Right, because that initial determination became moved because we granted the reconsideration. So let's look at this again and whatever else you have to submit. So fast forward to November 2021. A subsequent different although similar administrative determination adverse was issued. And following that there was correspondence and I did post that with a packet from the applicant. And my responses. The applicant requested whether or inquired whether this was appealable. And yes, the answer is it is appealable. There's a subsequent email asking you about can this go to the DRB and follow up correspondence to the permit system again asking you about whether it's appealable. And staff answered that yes, it is appealable even into the day beyond the appeal period. So I'm not going to read the comments over again. Yeah, but I think if you want to get into the details about interpretation, we can. I had taken those. It's a correspondence as is this appealable. Is this appealable? And I said yes. And the first response about yes, I noted that we're coming up against the last day of the appeal period. And then there's subsequent correspondence. Is this appealable again from the applicant? At that point I didn't see it until day 16 after the appeal period. I said yes, it was appealable. The appeal period ended yesterday. So, you know, you read the correspondence and seemingly the applicant was interested in appealing. And there's no magic formula here. There is an appeal process and that wasn't followed. I will point out that I did say to the applicant early on understanding that the determination was going to be adverse or affirmative. And if it was adverse, I said, look, you've got this pending fence appeal. Yeah, it makes sense to simply combine that if you want to appeal this adverse determination and we can review it concurrently. Which kind of gets to the other matter of putting the fence out. I didn't see in any of that correspondence from the applicant. I'm appealing this. Yeah, I mean I think the communication that I'm focused on is the one on November 26th which is before the appeal period deadline. It says, please make sure I'm able to have a DRV hearing on this decision. So I know we didn't use the word appeal, but in substance it seemed pretty clear to me that he was asking for an appeal. So I guess what I'm trying to understand is if we interpreted that to be an appeal. Does that on its own, is that enough on its own? I'm looking at the section of the administrative appeal section of the ordinance. It seems like we have most of those shall include pieces but not all of them. So are we denying the appeal because it didn't sort of meet the letter of this appeal determination? Or because you didn't view that email as actually an appeal request. Does that make sense? I think it does make sense. I'm looking at the correspondence now. I don't see November 26th. I see November 12th and I jumped to the 29th. Are you referring to November 29th perhaps? I'm looking at your summary and I saw it in my email. It says the applicant email dated November 26th, 2025. So there was a separate email outside of the chat. Please make sure I'm able to have a DRB hearing on this motion. Yeah. So it's pretty clear that the appeal process noted in Article 10 wasn't followed the second time around. So the choice in front of the DRB tonight is, well, is this correspondence close enough that we'll say it's an appeal. Yeah. Right. Next why it's a pretty appeal process wasn't followed. But is this close enough? A question on that. What's the appeal process followed on the first appeal pretty closely? In your view, the applicant, do you perceive the appeal process? Yes. So, yes, Galen. The initial appeal. Yes, the applicant understands the appeal process. This property has a long litigation history. And the first time around it was followed clearly and we acknowledged that as much. The only twist there was that we received the concurrent request for reconsideration and we granted it. So that initial appeal became moot because we re-reviewed everything that issued another determination. Do you think that could have been caused for confusion? In other words, the applicant knew what the process was, filed an appeal, understood, he also asked for reconsideration. But then when it came back around again on the reconsideration may have felt like I already filed the appeal and I'm just making sure I get to have a hearing. That's kind of how I read the correspondence. And that's basically what the applicant has said to me. Yeah. That's, I don't think that passes muster. That's a little like, well, the determination that was issued was appealed. That went away. It's like you got approval for or you got denied for something, a permit, right? You appeal that but then you totally revamp your project plans and that gets approved, right? The adverse administrative determination provide the 15-day appeal language clearly in it? The appeal language is noted in the permit system and I think that's captured in what I posted. I think it's pretty clear that the appeal period was noted up to and including the last day of it. I think this is really about is this correspondence from the applicant close enough to constitute an actual appeal? Yeah, right. Yeah, I think looking through their supplement, see if I had any questions for Scott. Scott, does the online system clearly reference or explain how to file an appeal? I've done the online permitting system for an appeal. The system doesn't explain it but neither did our prior system. We have on the website information about how to file an appeal and of course in the ordinance itself information on how to file one. The permit system itself has a portal, I'll call it for filing an appeal. That's a portal that you can find and click on. There was in that in the staff report there's the mention of a call on the where you said as I told you yesterday. Do you remember that? What is that referencing? I think that was just in the chat AJ where I'd said yes it's appealable. I'm not looking at it now but I think I said yes it's appealable and today is the last day. And then there was another correspondence from the applicant after the close of business. Saw at the following day day 16 where I mentioned as I mentioned this was appealable and yesterday was the last day. And does he have any point say I'm appealing this? Well you can see in the chat it gets into yeah you know I really meant to be appealing this. You know it's a technicality. Again as Caitlin pointed out you know he did file an appeal properly the first time so it's not like it was a mystery how to do it. Another question just on the relationship between the two issues. The fence denial that we're going to have to consider is related to the parking area on which there's now an adverse determination. Yes. The adverse determination is not appealable it's final. Does that limit what we can consider on the related fence portion of the appeal? Does it limit? It affects what you can consider. If an affirmative determination was issued that would basically clear the way for approving the fence permit. What's hinging on here is whether or not this strip of gravel is a legit non-conformity or not. Applicant AJ? I'm just giving us time. So Luke you have heard the city on this one and we'd like you to comment on whatever you think is appropriate for us to understand you heard our questions. We've reviewed your filings. You're under oath so please share with us your position. Hi so Luke and Christina are here. I'm not on the applicant but I've been a part of the conversations with Luke and with Scott and what Scott laid out as sort of the process. The outline of the timeline we certainly agree with. We feel confused too about this missed deadline. Partially because Scott told us to file the reconsideration at the same time that we put in our appeal that was then mysteriously returned to us with no documentation in the permit notes to say. The reconsideration nullifies your appeal so there was no communication there. Scott mentioned that he did offer for us to combine these two to you know save some money streamline the process. Yet right at the end in that email from Luke where he says please make sure I can appeal this. There's no conversation from Scott to say well to combine two of two appeals you need to do this. I don't know how to combine two appeals if I was if we were told by Scott that we could combine them. And then all of a sudden the appeal period is pulled out from underneath of us. We don't know what that process is. And the reconsideration and appeal of Richard appeal timing is important to appeal based off of the city policy on how they handle non conformities. And Scott had taken a sentence out of an affidavit out of context that was not meant to not tended to talk about the history. And so we knew based on how this policy was implemented that we would be appealing. And so what we undertook the reconsideration process because it was a golden bullet. It was a chance to get the affirmative decision on this determination by pursuing grab a carbon dating the gravel trying to use a technological scientific solution to find when they exact date when that gravel was laid. And it was a suggestion that Scott had said hey that would be something that could allow me to grant the administrative approval. And so we pursued that unbeknownst that somehow that would impact the appeal. The appeal that we submitted was to say hey you know we have six neighbors that can speak to the gravel existing prior to when Scott acknowledges. And we think it's important for the DRB to hear from them because a single sentence out of context shouldn't overrule or at least should allow the DRB to weigh in on which you know what is what should be given more weight. Scott's given very strict you know has to follow that policy very strictly to deny. And so when I write you know on 1126 on an email say hey please make sure I'm able to have a DRB hearing my permit that I or my appeal that I had submitted I still don't know that it's been returned to me at that point. There's no documentation in the permitting system that says your appeal was nullified. I did not request that my appeal be nullified or rescinded. The fundamental nature or the fundamental reason for my appeal to allow those neighbors to participate was not addressed by searching for the golden bullet technological solution. And we knew that that if that if that method wasn't even possible that I'd still want my those neighbors to be able to participate. And so fundamentally we're here just to get this fence so that we can have some protection and some security for our family. And we now are kind of stuck in this administrative game. And on 1112 when this reconsideration decision was issued Scott and I had a phone conversation earlier that day where he you know we again discussed combining the appeals. He said if you if you file the three month extension to extend the fence permit. I will be able to do what is needed to combine them and that three month extension was needed because we're on this outer limit that Scott referenced for the fence permit and the we had timing constraints to logistical constraints on bringing these six elderly neighbors to this hearing. And so we were frankly surprised when he issued the decision on 1112 at 8pm that evening because we had just talked about extending this extending and how the fact that Scott was going to be away from the week of 11 you know the next week and then I was out of town the week of Thanksgiving. And so this whole two week appeal period we had discussed that neither of us we would each be away and unavailable for a big portion of it. And so we were asked that he issued the decision after Thanksgiving so that we would all be here but instead he issued it at 8pm that night and put it this put it so that Monday the 29th was the last day of the appeal period and the first business day that we have returned from our vacation. And so we didn't know the appeal had been returned and rescinded it was sent in common mail. There was no there was no discussion from Scott that the reconsideration would would alter the appeal or nullify it. It was a complete surprise. And so we feel like we've had you know this is just kind of an administrative mistake that should just be acknowledged as such. But here we are putting a lot of time and energy during this holiday season to explain all this. And we believe that what we know that we submitted an appeal for this and we believe that appeal is the most important thing. And we have no knowledge that we would have to reconsider reappeal the reconsideration. So let me ask you this question. You're Caitlyn asked you know how to follow follow the appeal procedures in prior appeals and Scott said yes. So it's fair to say that you know what those procedures are right. Correct. So why not follow or file them here. Why try to correspond to what you did because Scott had told us that we could combine the two. And there is no process that we are aware of how to combine two appeals and we had submitted an appeal that was returned to us without any documentation. We had mail delivered to us for weeks at a time. Five days in a row we will not get mail delivered to us. So to have this return to us with not certified mail no communication or documentation that that appeal was nullified made us very confused. Those communications from 1126 and 1129 were under the impression that we had to appeal avenues available to us one the appeal that the city was should have still been in possession of. And two the ad hoc special process that Scott was offering to us to roll the second the child appeal with the parent with the parent and not have the second fee. I mean I think like we have had a lot of conversations with Scott about this. And so we really feel that the conversations we have with him on the phone what ends up getting documented is different than the understanding we leave our conversations with him having been. And so that I mean it is frustrating and we again yes we have done a lot of litigation of this property and we know the process. We don't know the process for how to combine to Scott says that we didn't ask to combine them but I don't know what the magic words are to to take him up on his offer. Yeah like we like so the only reason we are here to extend the fence permit was to bring in these long term neighbors. And so now we've now it's kind of been split in half of okay well you asked for an extension or that but there's no tie to the reason why we asked for the extension. And so this makes it really challenging when your project manager talks to you about logistics over the phone doesn't use the permit system to document his logistics expectations because if it's documented there we would have definitely been able to respond in the manner that we that whatever was appropriate. However it was on the phone and it was okay well you know you're we can combine these two just just just file for the extension since that's what you need to accommodate the participation and we're at the outer limit so that's what I. And so then now we're just kind of at this like this you know the reason for why we extended has now been pulled out from under us and is no longer being acknowledged. If I had a question on that to the to the best of your recollection number those phone conversations before the email and the online system correspondence or or after. They were they were threw out and particularly with these like you know make sure that I can appeal these were. Were before yeah we have a bunch of conversations like up until like 1112 roughly. And that's when Scott issued the reconsideration decision and we specifically requested to do the extension based on the conversation that we just had with him. And then there was a break in conversations because he was he was unavailable now for personal time the next week and we were away the following week and then. Then when I you know I when I write in an email please make sure I'm able to have a DRP hearing that's to me a directive it's not an interview. And if as a project manager I would have I would have hoped he would have then said OK you know well you just hear you know this is what's the next step is. But instead of the project manager who you know I as would think should have a goal of helping you achieve success if your project is feasible. Instead it seemed like we got the Scott Dustin who spent the last seven years trying to end this trying to try to end do zoning enforcement against us. And this was a rough tool to just allow this this additional you know this appeal to achieve that goal from 70 pro over the course of seven years rather than allow the project to succeed. Luke this is Jeff and I know this is a challenging and frustrating case. I'm going to ask you to refrain from accusing Scott of any improper intent here. Scott's a public official. He's doing his job to the very best of his ability. We know that I want to focus on the facts and not personal accusations towards Scott. So I've heard what you had to say. I do have some more questions for Scott just about the facts. But let's keep this at a level where we're talking about facts and not allegations. OK I hear you. I was not my intention to to manage Scott's character. But we have a series of events that just lead us to this field. So Scott I'm sorry. And I do not mean to the measure here. Hey did you mind if I ask Scott a few questions. Well let's see. Does anyone else have any further questions for Luke. OK. Yeah. Scott. I'm just trying to understand what happens in in our new permit system with this reconsideration because I hear what Christina and Luke are saying and I guess I could find it confusing if the reconsideration is granted. But there's not a clear indication that that means their prior appeal is therefore void. That it could be confusing if they feel like they've already lodged an appeal. And after the reconsideration they're just making sure that they're still able to appeal. So I don't know if you can. It's hard not to be able to see the permitting system. Why we're talking about it. But I'm interested in that piece. Well as Christina and Luke have noted we've had conversations on the phone throughout this. Because as I'm sure all of us know just talking to someone can be a lot more effective than chatting back and forth through the permit system had nausea and more or emails. So Luke and I had talked about the possibility of reconsideration. I don't know 100 percent but I'm going to say even before the adverse determination was issued. I think that was because that we were coming up against this deadline where he was away and I was away as a way to hopefully tie up some loose ends. So granting the reconsideration in my recollection I had that discussion with Luke as to the effect the effect being reopening this thing. To reevaluate everything and whatever else new comes in to then issue another determination which could be thumbs up or it could be a thumbs down. But the punchline there was to reopen things. And I think there was a mutual understanding there and issue another decision. Is there a formal maybe that we need just as a group to look at permitting system particularly as it relates to appeals. We had a couple of these now where folks are expressing confusion about what's happening with their appeal. And like is there I've done a permit through the system worked really well for getting the permit I didn't have to do an appeal though. So when you file an appeal does the system log it as an appeal and you see like an entry in the system that there is an appeal. When you grant a reconsideration does the system then indicate that the appeal is like not there any longer or that it's it's has been has been mooted out or voided. It would if we got as far as entering in the appeal that Luke had provided initially we didn't. He was away. I was away. I came back. Granted the reconsideration. The paper form that Luke had submitted with the check was on my desk. So we didn't enter it because I granted the reconsideration thereby making a move. But yeah if you had gone through the system we would have pressed the buttons to make that move. That's all I have. Scott you said we had a neighbor. Yes we do. Do you want to introduce or who's here I can't tell. Joe Cleary and I'll say anyone else who wants to speak to this item in Zoom raise your hand please. But Joe I'll enable you to speak. Looks like it's just Joe Cleary who wants to speak to it. Hello can you hear me now. Yeah. Sure. OK. Well let's see. So wait Mr. Cleary before you begin I really want to focus this discussion on the one we've been having about the request to appeal and the timeliness of that. I know you and Mr. Purvis may have other issues but I really would like to focus on the one we have to decide in this debate. OK. OK well since we are next door neighbors one comment that I would just like to start with I think Christina said we don't get mail for weeks. And I know there has been trouble with the post office but that clearly not the case. I think Lou corrected and said we don't get mail for five days at a time. I don't believe that's the case either. But that's just you know since we're on the record I think we should try to be factual and accurate here. It's clear to us that there were two determinations made. They showed up on the the second one showed up on the system. I obviously was not privy to the discussions between Mr. Purvis and Mr. Custom. But they were published on the on the website. There was a second one with a new issuance date. A second adverse decision that it can be noted was backed up now by Supreme Court decision as well as other superior court decisions. That should not be lost here on the board. There have been seven years of litigation here. So this is not a person that is unfamiliar with the system. This is not a person that is new to making appeals. And the it's a person who has actually requested this determination in the past. In fact in 2019 an adverse determination was issued by zoning staff on this very same plot of land. At that time it was not determined to be properly under consideration by the board. But it was brought in as a motion in lemonade by the appellant. And that motion was denied by the judge. And that judge referred to the decision made by the Vermont Supreme Court again. That limits what Mr. Purvis can bring up as far as evidence going back that he's trying to provide going back to 2015. He cannot retry the case because he didn't appeal that to the United States Supreme Court. So he can't retry that case. Again that's been upheld in more recent decisions. The motion eliminated that I attached. And you'll note in both the Supreme Court decision and the motion eliminate. They refer to the structure not just the use of parking the same question that Mr. Purvis is asking. And they refer to the structure and they that should be considered a subtle precedent. Now I'm wondering if conversations with staff would ever constitute an appeal. I don't believe they would. There seems to be a clear five point process that's laid out in city code that was not followed. And I would question whether the board should be willing to set a precedent that an appeal can be made in this way. And again especially in this situation it's basically a Trojan horse that Mr. Purvis has attached onto his fence permit. If he really wanted a fence he could submit a clean permit. He simply has to move his car the way he has committed to in the past with contractual settlements that he's signed with the city. He's failed to fulfill those. Joe. If you submit the correct appeal. Joe I think if you did not file this appeal. Sorry. Go ahead. I think you were kind of going beyond just the question of whether the appeal was proper. So I was hoping we could just stay focused on that. But it sounds like they finished. I'm sorry. I think it's important for the board to consider the entire context though not especially the seven year period here. And the fact that this is at least the second time that zoning staff has issued an adverse ruling on this. So it's not a new appeal in that sense. So he got another two shots out of here. And it seems like those are all arguments you could raise if we consider the appeal. But I think this question is more about the timing of whether an appeal was properly made. Right. I would say that no further consideration should be extended to Mr. Purvis because of his familiarity with this board. He's been in front of the board and made appeals numerous times at least four if not more. And the again I think this was a strange precedent to say well we have ways that you make an appeal. But sometimes if you say you didn't get it we'll let it slide. In this case there is some complication that there were two determinations but it was Mr. Purvis that asked for a reconsideration. And a reconsideration is not a continuance. As Mr. Gustin said the reconsideration essentially ended the first appeal and was a new decision to be made. After receiving that adverse decision Mr. Purvis it was incumbent upon him to make the appeal of that new decision. Why even you know where is your property? Why do you want this relief? What is the relief? What do you do? Yeah I think we got that. I appreciate those comments. Does the board have any questions for Mr. Cleary? So I feel like I've got enough for us to chat about the liberation. Does anybody on the board feel like they need to ask more questions about this? Can I just look here and make one more comment? You may. Thank you I'm sorry it's going to roll. No no it's okay. So there's just three points here. When I did the reconsideration this is linked to the parent fence permit. And the second prong of the reconsideration request was the fact that I was asking for clarity from Scott and city attorney Sturteven about why the first DRB decision from 2015. That says no violation is now interpreted by Scott to mean ongoing violation. And there's just the English reading the plain English of the set of the decisions it didn't add up to me. And I've been asking that question since about April. And so the reconsideration that Scott mentioned in part with consultation with city attorney Sturteven was to allow her to have that extra time to weigh in on this. We felt that that particular clarification might even make this appeal move because it says no violation. And so maybe it means there really is no violation. So that was the major problem of that. The second thing is the I think if this appeal had been entered into the permitting system we would have known it had been returned. But it wasn't entered into the permitting system. And finally just on the record we do have a settlement agreement with Mr. Cleary where we're supposed to be able to discuss this issue. Yeah. I would like to state this on the record that it says that he should not be participating in this. And so we do question as to whether or not that's legitimate just for the record. Fine. OK. Thank you. So with that I'm going to close the public hearing on this agenda item. We will probably deliberate on this tonight will be my guess. The next item on our agenda. Seventy two seventy six. Michael Alvino construct three unit detached residential building on site of former Methodist Church. That's ZP 21509 is the applicant here on that item. The applicant is not obvious if you're here for this application raise your hand please and zoom. I'm not seeing any hands go up AJ might want to defer this till later in the meeting. OK. Scott. Obviously no communications. I didn't ask to defer this. No. Let's save that. This is the next request is ZP 21759 77 Pine Street. Nettie Pine LLC. This is a request for a specific reconsideration of conditional 22 rooftop mechanical shall be screened. I do have to recuse myself on this one. I actively represent Nettie real estate. So I'm going to have to step aside from this one. But it's the applicant here Scott. Yeah we have Doug Nettie and Grace Sifo here. All right. So I'm going to step aside and I'm going to let somebody here serve in my stead as the chair. Jeff do you want to do that since you're in the room. That's fine. OK. So I'm going to recuse myself Jeff go ahead. OK great. So let me just start with anyone who's going to be speaking on this matter. Did you get sworn in earlier. I guess this is Doug Nettie. I have not been sworn in. This is Grace Sifo. I have not been sworn in. So why don't we do the swearing in again. So for this matter for ZP 21-759 if you're going to be speaking tonight you can raise your right hand. And swear under the pains of penalty and perjury that you will tell the whole truth. And nothing but the truth. Yes. Yes. OK. So I'm not sure who's going to take the lead here but do you want to just give us a quick walk through of what you're requesting with the reconsideration. Sure. This is Doug Nettie again. So the good news is that we did break round on 79 Pine Street which is called the nest and so no surprise the project was majorly over budget and we went through a lot of volume engineering for this project talking about removing trees and planters and decks and using less expensive bricks and less expensive windows. But we know the main there's two main reasons I'm doing this project. One is that I think it's a really beautiful building. The second one is I think it's a grain building for for downtown Brillington for housing. And so normally your your your requirement for screening would add kind of value to our building. But because our building is hundred and four feet high it really detracts the value of what I think is a beautiful building. It makes it a little less attractive and doesn't back doesn't even doesn't even screen HB with HB HB AC equipment because you can't see it because the building is hundred and four feet high. So so we're here to ask the DRB to reconsider taking away the screening because as we asked our architects to do a study from I think four or five different street levels that the screening actually just adds to the height of the building and it kind of takes away some of the architectural value of the building. And in fact without the screening you cannot see any of the HB AC equipment. So that's so again it's kind of a common sense approach that we'd like to not spend money on something that will make this building less attractive. But we're really dedicated and focused on spending money on things on this building which will be added value to the city. And I think that we I think my architect Chris was going to take us through the study that we did but he wasn't sworn in. So a little bit concerned that we decided to go jump in a snow bank after hearing your last hearing applicant. Do you want to walk? I mean we have the renderings. Scott has them up here on the on the screen and they're in on the website. Do you want to just walk us through those? So I guess I could talk you through this. So this is from Porter Bank and Pine. So this picture shows our building with no with no screening. Chris are you there? We're here and we were sworn in. Oh yeah sorry about that. So I just want you to take once you review the study that you completed. Okay for the board of office is our great gossip and falls out of GDA. Great. Okay go ahead. Thank you. So this is Chris. I'll kind of walk through the images that you have. Just a quick note. So yes as Doug mentioned what we did is we took the 3D model that we had developed drum processes and construction drawings. And we dropped it into Google Earth so that we could take some snapshots around the neighborhood. We were limited to snapshots that were available in our Google Street view. But that's what we've done here and each view is a series of two pictures. One showing the building without the roof screen. And for the record the roof top equipment is modeled in this building. So the first image shows it without the roof screen and the second image shows the roof screen and we've highlighted it in yellow. So depending on how big the image is on your screen you should be able to see a little bit of yellow peeking out on the top of the building. And that's to show that the roof screen is visible although the roof top equipment is not visible. And that has to do with the clearances needed around the roof top equipment when we put a screen up there. We obviously can't hold it tight for the equipment. So it pushes the screen closer to the edge of the building than the roof top equipment is. So those first two images were from Pine and Bang. And then if you were to scroll to the next image. Can you tell me what the screening material is supposed is actually going to be? It's obviously not going to be a yellow block. How does it compare? The screening material would be a metal panel system of a similar color to the building. The yellow was just to highlight. Indicated. Thanks. Everything in the image is pretty self-explanatory. This is from Pine and College. Again, without the roof screen on, nothing is visible. And then if the roof screen were placed on the building, you'd see a couple of corners of it peeking out. And I think we have maybe two more shots. This is a pretty prominent view from College. The prominent corner of the building. Once again, no roof top equipment is visible. But the next image will show you that the screen itself is visible. So if I can interject, that last picture really kind of shows how the screen kind of takes away the lines of the building. The lines of the building continue up and then there's these weird jobs up on the roof that really take away the architecture of the building. And to what Doug is saying, based on his warm base code and also through the design of the building, step backs are intended to slender the building up on the roof screen. And obviously kind of brings that right down to the end. Thanks to both of them. The lucky year on top. If you could scroll down to the next view. Our view of the building. Looking out to College. There you can see the screen really stands out on that particular view. Okay. I think there's one or two more to say that. On the roof plan, there's many small red blocks. I'm wondering what those are. The red, the smaller red box are the mini split and the bigger red blocks are ERU and other ventilation items. So the small items are very easily not seen. But the tall, the bigger pieces of equipment is what would determine the overall height of our roof screen. So we have to screen those, those three bigger items. When you modeled the rooftop equipment, did you include the curves in them? Yes, yes we did. So any board members have questions for the applicant? Other questions? I guess before we go to the public, I've got a question for staff. It's interesting that a lot of the photos they provided of buildings adjacent to this building don't have screening for the mechanical equipment. Some of which were fairly recently redone, like that one right on the corner of Pine and College. Did they get a waiver? Did this condition just not apply? The building on the corner of College and Pine which was permitted just before the plan BTV downtown code was adopted. If you remember we had the original code which was just for the core of the urban area. And that building was permitted prior to the form base code. Are we aware of any other exceptions since the form base code has gone into place? I mean I guess staffs, staffs recommending a denial based on a language that just says exposed mechanical equipment shall be fully screened to the full height. In Article 14 which is the Burlington downtown form base code it tells, it guides us on what sections of the comprehensive development ordinance are required to be reviewed as well as Article 14. And that includes Article 5 Part 2 and that is specifically where this condition comes from. If I'm reading the script it says it shall be fully screened on all sides to the full height of the equipment and position on the roof to be unseen from view at the street level. It's to be screened so that it is unseen. Is it a two part standard? It shall be fully screened on all sides and not visible from, is it from the pedestrian way? This is Doug, can I say something? I guess we would argue or we've just proven that our building is not showing you the screen for this equipment. That adding additional screening beyond what our building provides really takes away from, doesn't do anything for one thing. But it takes away from the architectural building. So I think if it was in a nine storey building I would think now we wouldn't be here asking for removing some screening because I think our building would not effectively screen that equipment. But I don't see that we need additional screening on top of this building based on our study. I don't. Any other board members have questions for staff about this? And if not, Scott, do we have any members of the public? We have Jay White looking to speak. Anyone else wants to speak on this item? Raise your hand. Jay, you can speak now. Can you hear me now? Yep. Okay, I just wanted to make sure that the screening we're doing from the college of battery is adequate to shield the equipment. I like the part that the code says that it requires all where around, not just from the street level. I think we need to remember that the upper floor of our building are eight storeys tall from Battery Street, six storeys tall from this point. And I think we would be able to see those of that equipment from the upper floor of our building as would the health and hotel and as would your neighbors across the street. So I think when you do a high-bytes building and you have the issue of screening, it's not just from the street level, but it's also from the neighbors. And we are a prime neighbor to your west. And I'm the president of Votiation. I'm authorized to speak on behalf of the homeowners here. And we would want to request that the equipment be fully screened. And the way that it is as least noticeable as possible, that could have affected what color the screening is or whatever. It certainly should not be yellow, but I know you're not trying to show that it is. But so far most of this project had been presented from the view of Pine Street. And obviously all of our residents are more concerned about the view from the west. And I just want to make sure that we don't lose an important part of the code requirement that requires screening on all sides of the building, especially on the west side. I can see maybe you don't need it on the east side because of the height of the building. But I think you need it on all sides because your neighbors are as tall as you are. Okay, thank you. Any other members of the public or any questions? That was Jay for Jay from the board. No one else is raising their hand. Jeff applicant have any, anything you want to respond to that's been said. Well, I do think we did a study from the west. I think I'm not someone to go down, but we didn't do it to elevation of the top level of battery. And so that's right there is a, that is coming, that is a view from college and batteries back yard, I suppose. Sort of the parking below, like, yeah, it's not from the building itself, but from the entrance to the city parking lot next to the building. Yeah, great fact of your building. Yep. So, you know, I think the way we read the code, it was from street level. It wasn't, you know, screening from, it wasn't from screening from tall buildings around it. I mean, so that's, that's, that was our view of what the code, code required. And based on what, based on the view from the street level, from the public, we again feel that our building screens the equipment probably well. Okay, thank you. If there are no further comments, I think we can close the public hearing. And AJ, I'll turn it back over to you. So, Scott, our next agenda item is a certificate of appropriateness. I'm wondering, do you see the applicant for the north, for the Elmwood Avenue project? I do not see the applicant for Elmwood Avenue yet. Well, then let's go to for 10 apple tree point demolition of existing camp and construction of new single family home ZP 21541. Is the applicant here? Yeah, the applicant, a whole applicant team. So, Charlie, who, who do you want to speak and do you want to present or should I just screen share? I think you can screen share. Okay. I think for our team, we should have the client or is there Liz from our office, Liz from his office. And then run the landscape architect should be there as well. Not quite sure else we may have Seth Goddard. So I'm going to do what Jeff did. Have you all been sworn in already? No, I know. All right, so let's do it this way. All of those people who want to speak on this application, can you raise your right hand? Do you under the pains and penalty of perjury swear to tell the whole truth and nothing about the truth from this application? Yes. Yes. So Scott, who was presenting first? I can give a brief background and they in the applicant can pipe in with what they wish. Yeah. So I would point out that the applicant did submit a revised site plan that addresses the parking concern that was noted in the staff report. That was the single largest item to address and that has been addressed and reflected on the revised site plan that I've shown here. It's simply tear down the existing home is relatively smaller and a lot closer to the lake that would be torn down and mostly converted to green space except for terrorists, I believe. With the new home constructed further inland away from the lake. And this has been reviewed by Conservation Board and Design Advisory Board and both boards recommended approval of it. DAB with condition that the guest parking spaces be eliminated and they have been. Yeah, it seems like a nice project. I would love to hear the applicant talk about it a little bit. Just walk us through it. It's not on the consent agenda. I'm not sure if the board has any questions about it. Well, it could have been except for the parking. We didn't receive the revised plans until after the report went out. Let me try this way. Does the board have any questions about the application? It seems pretty complete. I agree with the agents. It was complete. Looks like a great project. Are there any? Is there anything the applicant wants to share with us? I'm happy to pipe in. This is Elizabeth Tarmant with Elizabeth Tarmant Architecture and Design. We need architects on the projects. I'll just say, yeah, I think. You know, as far as I know, there are no outstanding issues on the project. You know, we have a single story home. Kind of nestled in the neighborhood designed to sort of fit within the context of the neighborhood. You know, really, as far as I know, the only outstanding thing, and I'm not sure if this is in your purview right now or not, is finalizing the details about bringing power to the site. Apparently there's been a lot of back and forth with the power company about that. And I don't know if we have a final decision that has been made about that. I know that the board has requested that we bury power. Is that something that we should talk about here in today's meeting? Maybe actually, Scott, is that a standard? Where would that fall under? That is a standard. And it was included in the design advisory board report and these revised site plans do show power line being buried in a couple of poles being removed. And is the issue that power company won't let you bury it or what? I don't know. Is Seth on here, Seth Goddard? I don't know. If not, I'm going to make an attempt and Charlie chime in anytime if you think that I'm not speaking correctly. But my understanding is that they have been in discussions with the power company and that moving those poles is quite a bit more expensive than more complicated than we originally thought. We know for sure that it's quite feasible and affordable to bury from the last pole. I believe there are two poles that need to be moved. And burying from the closest pole to the house is fairly straightforward and easy. The other pole involves not just this residence but others who are supplied by that same power line. And so apparently it's more complicated. If the board would accept our, I mean, I think in an ideal world, you know, the owner would love to bury it the full length, but I'm not sure that that's actually possible due to the potential expense. So I guess what I would propose is that if we can commit to burying from that last pole to the house, which is a substantial amount of the line, and then if you could let us kind of continue to work things through with the power company to see whether or not burying it the full way is feasible, that would, I think, make us all very happy. And sorry, this is Seth Goddard with perhaps an answer. Okay, Seth, sorry, I hope I didn't speak out of turn there. You know much more about this than I do, so take it away. No, you summed it up perfectly and we are setting up a meeting with Relentless Electric Department to go out there, but just as Liz summarized there, the pole that is just to the east of the proposed house actually has connections to both the southern neighbor and the northern neighbor. So to bury that underground is obviously a significant additional cost for Laura. Yep. We've had to have requests like this in the past. But I don't remember any though. Clearly if the power company is like you can't bury it, that's an issue. What is the city down in this kind of situation in the past before I turn it over to the board? You know I can't think of a particular address, but I do know at least once when things got complicated for a new home construction, the existing power line was allowed to be retained. I forget the details in the address. There is precedent, the standard is to bury it. If all we can bury is part of it, you know that's better than the existing condition. We'd at least reduce that non-conformity. Right. Members, thoughts? We can deliberate on this obviously. Questions? When was your meeting with the power company? We haven't had one yet. We've just had phone communications and applications submitted. So now it's just scheduling a meeting. But I don't have a firm date for that yet. All right. Well, I think we can close the application on this. Close the public hearing on this and deliberate on it. Looks like a great project. It's an interesting question you're raising that we'll have to talk about. So we'll probably deliberate on it. Tonight, I imagine we would. So that brings us back to the other project. Scott is the applicant here. Last call for 72 76 Elmwood. If you're the applicant, raise your hand. Looks like the applicant is striking out tonight. So what does the board want to do? My suggestion would be to continue this till a date certain later. We could deny it, but I don't know that doesn't really act sort of more complicated than it needs to be, I think, and creates a bunch more issues for appeals and things like that. So my preference would just be to make a motion to continue this until the second January meeting. If the applicant doesn't show then doesn't show, but I don't know. December 21st stuff happens, agreeing to mess people get confused. Yeah, thoughts on the board. If you make that motion, I'll second it. All right, I'm moving to continue the application of 72 76 Elmwood Avenue to the second January meeting. I'm going to ask for Scott to just quickly discuss. Is that do we have time on that agenda, Scott? I was just looking. Hold your thought on that. I think the second meeting in January is full because this is a public hearing. You can recess it to a date and time certain. Yeah, definitely don't do the second meeting in January. That's a bad idea. The first meeting in January has room because of some cancellation. So January 4th could work. Sounds good. I'll amend my motion to make it January 4th. Works still seconds. All in favor? Aye. Okay. So that wraps up our agenda for the evening, I think. And with that, I will close the public hearing. Okay. Board one. Yeah, why don't we deliberate? Okay. Let's we have four items to deliberate on with 77 on street.