 This conference will now be recorded to the Development Review Board meeting for the City of South Burlington for Wednesday night, January 20, 2021. I'm Matt Coda, the Chair of the Development Review Board. With me are my fellow Development Review Board members, Brian Sullivan, who's our Vice Chair, Mark Baer, Don Filibert, Alyssa Eyring, Jim Langen, and John Wilking. Also an attendance from the City of South Burlington is Marla Keen, South Burlington's Development Review Planner, and Delilah Hall, our Zoning Administrator. Thank you for joining us tonight. Anyone who would like to, we'll have an opportunity to listen and speak tonight. I ask you to do two things in this online format. One is to mute yourself, that's mostly so we don't hear the dog barking in the background or the doorbell or whatever, or the TV in the background. And also, if it's not an agenda item of which you're a participant, turn your camera off. That also saves bandwidth, but also allows us to see you if you turn your camera on if you need to make a comment and I can call upon you. So if it's a agenda item that you're not currently interested in, you can go ahead and turn your camera off and just listen in and mute yourself as well. That would be much appreciated. The first item on the agenda, is there any additions, deletions, or changes in the order of agenda items, listen to staff or the board members if they have any, not hearing any. I will go to agenda item number two, which is announcements. One of the things that if you're new to the online meeting, there is a chat function. Feel free to enter in questions during the meeting. If you want to announce yourself that you want to make a public comment during the appropriate time, you can also use the chat function to digitally sign in so we know you're there. Signing in is important because it allows you to get information about upcoming meetings and also get you status if you wish to object or appeal a decision later made by development review board. So you can sign in two different ways. One is by entering your name in the chat box, as we said, or by emailing Marla Keane at mkeane.com. So you should do that. Number three, our comments and questions from the public not related to agenda. I had an announcement. Oh, sure. Go ahead. So just quickly, the Recreation and Parks Committee has selected Michael Semino to be the DRB liaison, which is consistent with the DRB guidelines for committees. So he'll be representing the Recreation and Parks Committee. I believe the National Resource Conservation Committee is being represented by Ray Gonda. And then as has been the case for quite some time, Kathy Frank continues to represent the Vice Fed Committee. So we're really doing well with committee participation. Excellent. Thank you so much for that, Marla. Are there any other announcements that I would move to? Just in questions from the public not related to the agenda, if you do have a comment, you can go ahead and enter your name into the chat box or turn on your camera, raise your hand. Or if you're on the phone, just simply say your name, say, hey, Matt, I've got a comment. Hi, Matt, I'm Peg Palumbo. Hey, hold on one second, I'll call on you, make sure to see if there's anyone else out there. I'm going to look at the chat box now and I don't see anyone and I don't see anyone raising their hand in the public. So you've got the floor, Peg. Go ahead. Oh, geez, that's scary to me. I bet everybody's busy watching the news anyway. I am a neighbor of Paul Washburn and I've been quiet for all these years. So Peg. Yes. Can I interrupt you? So what this summit period is for is things not related to the agenda, and this is on the agenda. So that's me saying you will have an opportunity to speak, but the appropriate time to speak is when we bring this up on the agenda item. So you're good. Okay. You're just immorally. So if I could get you to go back on mute and then when the public comment period comes for that agenda item, you will absolutely be called upon. Does that make sense? Oh, yes, it does. Do you know how what that time period is? I'm on my little brand new cell phone. Okay. So let me, as I look at the agenda, it will be actually, there'll be, there's one, there's two before it, but one has been withdrawn. So there is a agenda number six, and then this one is agenda number seven. Agenda number six will probably move pretty, well, I can't guarantee it. I think it will move fairly quickly. So I would just hang tight for another 15 minutes. 15 minutes. Okay. We'll do. I'm sorry. I'm sorry. I, let me, let me back up. Marla, how long is Kevin's presentation tonight? I would say 10 to 15. Okay. So maybe 20 minutes at the most. Hang in there. Okay. Alrighty. Okay. Thank you very much. So no other comments and questions for the public, not related to the agenda, then I would move to agenda item number four, which is a presentation by Kevin Dorns, out building the city manager on the proposed tiff bond for Garden Street. Kevin. Thanks, Matt. Appreciate it. Um, uh, last night, the council approved, uh, taking a question to the voters on March 2nd to consider a four just above $4 million tiff funded debt to complete Garden Street. What Marla has pulled up or Delilah pulled up on the screen is a depiction of the project. It is, um, you'll see, uh, orienting new doors to street running up and down on the picture to the left, Rairston road along angled along the top. And then you'll see two orange segment, a blue segment and a yellow segment. The segment, uh, is currently under structure construction by, uh, South Burlington city center LLC, the blue section to the north of market street there that is unlabeled, but has blue, uh, is already completed. So what we are taking to the voters is authority to incur debt for sections A and C. So the westerly portion, the connection between, uh, right there between, uh, healthy living and, uh, Trader Joe's where some infrastructure work needs to be done. The road already exists, but some infrastructure work needs to be done there. And then section C, which is largely new construction, um, would connect to the northerly portion of the already built section of Garden Street over to Midas Drive and then infrastructure improvements on Midas Drive. He plans to come back to voters at some date in the future, uh, for funding for uh, item D, which is an improvement of the intersection there, the funky intersection at white street and at Heinzburg. So we have used tax increment financing three times before with the voters approval. One was for city center park. One was for just a small remaining portion of market street that we need to fund. And the third point and largest one was for the new South Burlington public library and City Hall at 180 market street. So that is the question going to the voters just very quickly for those who don't follow um, tax increment financing. This is a tool available to some communities apply for this right to be able to do this that is used to finance public infrastructure in designated areas of a community. So fundamentally all the property in the city of South Burlington is assessed for a particular value or appraised at a certain tax value and then assessed on that value by our city assessor. That's the value upon which you pay your property tax. In the district when property is improved, of course, you raise more taxes on that improved property that increment or that difference what you were originally paying in tax and what the improved property becomes once it's developed is the increment. The increment on that tax on that increment is stay in the community of South Burlington pay for public infrastructure. So think in terms of paying two types of taxes. One is your municipal tax for municipal services and the other is for the ed fund which largely goes to my payer and is redistributed to the community in this area of district, which is largely the screen you're looking at now, plus San Remo drive when property is improved and we get to all that incremental tax revenue stays in the community to pay for these public infrastructure projects. So many of you are familiar with what's going on on Market Street right now with Allard Square, the senior residential community being built with the Champlain Housing Trust building on the corner of Market Street and Garden Street on the David Shank properties at the beginning of Hindsburg Road East as all properties were developed we started to gain incremental tax and those revenues and the revenues to come in the rest of city centers built out will pay the debt on City Center Park Market Street part of the part of the debt on 180 Market Street and all of the debt on gardens. So it's a great tool that the state needs let's us use if we didn't have that tool the taxpayers or other revenue sources will need to pay for these improvements. So the bottom line in all this is this will have no impact on the South Burlington taxpayers. Now we also have a reserve to ensure that if our revenues are not coming in at the projected pace we have reserves to be able to pay the debt but the model shows and the plan is that there would be no additional impact on the taxpayers to pay for these connections. That's an overview Matt happy to answer any question we appreciate the DRB and the residents who've tuned in here letting us brief in on this this question goes to you as voters on the 2nd of March and and the council hopes that you vote for as a staff member I can't Kevin this Matt 2 questions for you one is the first tip is a creature of the legislature is this an existing legislative approved tiff that we're using or do we have to go back to the legislature to get a new tip this is an existing tip the restrictions on it Matt are that we must incurred debt by March 23 and there's a window of time during which we can incur debt and there is I believe a total window of 20 years to accumulate funds in the tiff district of which I believe we have a 17 years left right and then the second question I have Kevin is the the only risk is that nothing gets built and then taxpayers are on the hook for it 17 years from now or whatever that is right yes make no mistake the full faith and credit of the city of South Burlington stands behind this debt as always when we incurred debt and so I would say we have been very conservative model the only properties we're using in the model are those that are owned by us South Burlington City Center LLC all the properties along San Rico Drive that could be improved in some way are also eligible they're not not included in the model also included not included in the model our properties across Williston Road but still in the district such as the proposed new Hampton Inn and then and then one question maybe for Marla here and then and then I'll ask the board if they have any questions which is is all of the tip district in the form-based code or or is only some of it only some of the test only only the form-based code district is bigger than the TIF district right so the form-based district spreads across the interstate over to the I have about said the gains plaza over to the staples plaza John's laughing and the TIF district is quite a bit smaller than that the picture you have on your screen is pretty close to the boundaries of the TIF district if you included San Remo Drive okay but San Remo Drive is in in the form-based code is it oh it is okay it is okay does the board have any questions for Kevin about the the TIF district project I I don't have a question I just would say it's John and I'd say this is exactly what the TIF funding is for this is this is this in parks and and water water and sewer upgrades and things like that streets is but what is ideal for TIF district the financing and I fully support it thank you John and that's a really good point the roads are 100% financeable with TIF revenues other projects are financeable at different levels roads are 100% anyone else have a question well thank you very much Kevin appreciate that and we'll see you soon hopefully thank you all appreciate it appreciate your time yep okay that was agenda number four agenda item five is continued preliminary final application SD 2041 of the Snyder group however we have received notice that this application has been withdrawn so if you're here for agenda item number five but it has been withdrawn but there is no hearing regarding preliminary and final plot application SD 2041 of the Snyder group so moving on to agenda item number six agenda item number six is continued preliminary final plot application SD 2101 of Larkins LP to amend an existing planned unit development on 13.26 acres consisting of 121 room hotel 84 room hotel 60 room hotel a restaurant and a three unit multifamily building the amendment consists of converting the 84 unit hotel to a 78 unit multifamily building at 1720 Shelburne Road who is here for the applicant well now I'm not muted skip McClelland with Krebs and Lansing hey skip anybody here with you skip no just me I think I don't know somebody might be watching in the background but just me okay great and skip you you were sworn in last time and you're still sworn in are there any disclosures for the board where we start not for me there is okay hearing none we'll go right into it skip have you seen there was two outstanding issues that we talked about last time we met dealing with landscaping and doing with bicycle parking you've seen the staff notes regarding that about landscaping and do you have any comments about it no I don't I think that Marla and James from Wagner Hodgson worked out the details of that particular thing in staff recommends the board that we accept their viso landscaping plan to require a bond for $6500 for the trees and shrubs yes agreeable yes agreeable regards to bicycle parking the applicant has updated their plans thank you very much that recommends the board requires a condition of approval that the applicant update their plan to show all racks on stabilized services as required and in the interest of closing the hearing discuss to the applicant what sort of stabilization they prefer staff considers poor concrete pad pervious pavers or gravel pad with appropriate sub base and edging would be appropriate as many other options is there anything you would prefer of those three options or the the original proposal was for pervious pavers so we're going to continue with that there's a detail that was submitted in the first package and we will continue with that stabilized okay when we ask the detail that that we don't like apparently it's it's it would be on the engineering sheets there's a detail for the previous person and any other questions for the board for the applicant before I ask the public if they have a comment hearing none is there anyone in the public that would like to make a comment you can do so by either entering your name or your comment into the chat box by turning on your camera raising your hand or by shouting out your name if you're on the phone and saying hey Matt I got a comment regarding this project seeing none hearing none skip do you have any other questions for the board or staff before we or entertain a motion to close no I don't all right then I make a motion that we close sd 2101s of 1720 Shelburne Road preliminary final plot application for a second I'll second that seconded by Don roll call Ryan I mark I Don I I just listen I Jim I and chair votes I and we have closed this hearing 7.0 oh thank you skip thank you very much we're moving on we have a draft decision for this so if the board could hang on for a quick deliberation after the meeting we could get that taken care of okay we can hang on I can hang on but we are now going to move to agenda item number seven which is remanded conditional use application see you 1812 be a fall j washburn to amend a previously approved conditional use permit see you 1802 for construction of a 14 by 17 foot detached accessory structure to be used as 186 square foot accessory residential unit the application has been remanded due to changes in regulations governing accessory residential units the amendment consists of reducing the rear step back to five feet increasing the height to 15 feet and increasing the size to 248 square feet at 30 Myers court who is here for the applicant not only our disclosures oh yes disclosures versus any disclosures from the board that wish to announce now yes I have to refuse myself for the obvious reason that my partner is presenting this application so I'm going to turn off my camera and my mic but I'm not this okay thank you for that Brian are there any others okay hearing none I would ask who is here for the applicant attorney Alexander LaRosa MSK attorneys hey Alexander how are you call me AJ please I'm great thank you man AJ AJ could I have you I guess we do it here I guess I swear you in right remanded conditional use application yes could I have you raise your right hand AJ swear to tell the truth under penalty of perjury I do swear to tell the truth also Mr. Washburn under the pains of penalty and perjury Mr. Washburn is also here on the line participating but he's asked me to speak on his behalf tonight okay thank you thank you AJ thank you Paul okay so perhaps a little industry lesson for those in the public it is described in detail in the packet regarding Myers court why we're we're back here the environmental court our decision was appealed to the environmental court by the applicant the environmental court sent it back to us one of the reasons they sent it back to us or the reason they sent it back to us is that there was a change in the law on October 12th 2020 Governor Scott passed signed act 179 an act related to promoting affordable housing and the amendments relevant to this application act 170 mines x 179 amends 24 vsa section 4412 related to the bylaws for accessory dwelling units and these amendments set a regulatory floor for local bylaws when regularly when regulating accessory dwelling units and the full text of the act of the law is included in this packet the court on remand asked the board the development review board to make an determination whether these amendments invalidate any relevant LDR provisions to this application and if so whether that alters the board final decision on the matter essentially the environmental court heard this on appeal heard our decision on appeal and said throw it back to us and said take a second look if I have that correctly interpreted but I'm not a lawyer not exact but sort of all right well tell us tell us your your feeling out of DJ yeah so thanks so somewhat by way of history lesson CU 18-02 Mr Washburn gets a permit for a accessory structure housing and accessory dwelling unit to be 12 feet 9 inches tall and 7 feet off the property line the rear setback of 7 feet that's approved that's final in binding in October 2018 he gets a letter from Paul Connor saying you built it too close to the property line in the back and the height is taller than the the permanent height Mr Connor states the rear setback in the approval is 7 feet the reason you're closer than 7 feet is because there's a small utility bump out that takes it 1 foot 8 inches closer than so it makes it 5 feet 2 inches away from the rear property line so Paul in CU-18-12 proposes to raise the pre-construction grade of the permit of the of the permitted accessory structure housing and accessory residential unit that request requires conditional use review and is denied by this board that gets brought up on appeal Paul through consultation with myself decides to make some changes to bring the permanent to bring the structured measured height to 15 feet that gets brought back to this board last February setbacks aren't challenged because this board in its decision on CU-18-12 approved 5 foot setback it said that is acceptable so the only issue was the height that gets brought to this board last February this board says under conditional use review that the accessory structure housing accessory dwelling unit does not satisfy the conditional use review triggered by section 3.10 we take that on appeal we try to negotiate resolutions with the neighbors the cultural and the city we have positive discussions with the cultural I'm not going to go into substantive detail but they were generally positive and the city never really engages us so when in October the board the governor signs into law act 179 act 179 says for any accessory structure housing accessory unit the limitations on bylaws are that they can't be more restrictive than any provision applying to a single family residence so if a single family residence can be 25 28 feet tall an accessory structure housing and accessory dwelling unit can be 28 feet tall bylaws can be less restrictive under the amended statute i.e. if an accessory structure housing a dwelling unit can be five feet off the property line but a single family residence must be 15 the provision of bylaw that is less restrictive is acceptable but the provisions of bylaws that are more restrictive are invalid per state statute we brought this to the court's attention the court determined that it could not consider act 179 without a remand but felt it appropriate to remand the matter for this board to adopt to incorporate act 179 and its changes into its analysis of this matter so what you have before you is a remanded request the request is to approve the accessory structure as built uh we believe that it is both a accessory structure as it is a housing accessory dwelling unit that is a permitted use that is in a location that has already been permitted and approved and the only issue was the height but that height has now that height limitation has now been invalidated by act 179 um and i have a more formal statement to read later but that's the background history so to give you a quick summary aji we're saying is act 179 has has made parts of our land development regulations regarding accessory dwellings in your opinion um to be uh invalid that's correct ma'am chair correct good um is there any questions for aj regarding the act 179 issue um i have some other staff notes go ahead don well i'm not a lawyer but when when we reviewed this prior to the um enactment of the statute that you refer to um it my recollection and i don't want to seem like i'm a flexible person but it seemed like and john i think you were the one who said it the regulations were really clear and you didn't you violated them and that is not our problem that's your problem so what is what is our legal obligation to after we had reviewed that the law changes and do we need to then rethink and re reissue another opinion based on the new law or the new amendment to an existing law whatever it is um and maybe marla you're the one who can answer this i have you talked to legal counsel what's the legal that because this happened we spent a lot of time looking at this and we were really clear you didn't follow the regulations the regulations well i'll jump in here because the answer to your question i'm sorry aj i'd like to talk to the board first wait one second let marla answer the question um so the in layman's terms the law requires requires said this to matt when um he asked me if he understood the project um the law has changed and invalidates the portion of our regulations we are working to update our regulations but um haven't done so yet so the board is in this sort of strange position where they have to figure out what portions of regulations still stand so the law as quoted in the staff notes says a bit a bylaw may require um a single family dwelling with an accessory dwelling unit to be subject to the same review dimensional or other controls as required for a single family dwelling um we interpret this may in this statement to mean that it may be done that way or it may be done more permissively not that it's optional as to whether it's done at all um so if we reread that with that interpretation of bylaw must require a single family dwelling with an accessory dwelling unit to be subject to the same review dimensional other controls as required for a single family dwelling or other such bylaws that are more permissive so the staff notes are prepared though this application is for a single family dwelling um and so that's the way we would like the board to review it okay but back to the maybe I missed it but the the essential question here's my question and maybe Jim our lawyer that's still not recused here maybe could weigh in but when when the environmental court says back to you drb we could certainly say and back to you environmental court right this isn't this isn't a tennis match uh and then they say okay you you've reviewed it within the parameters of understanding there's a new law and you still think that your your ldr's uh when you pass them at the time are valid and then they could then they're not going to pass it back to us at that point they're gonna either say no drb you ruled an error or they're not or we could uh based on advice that we may receive from council later city council lawyers for the city uh determine that what our best course of action is um jim i'm struggling with the the legal terminology what what do you think i mean i i mean i i don't disagree with what you just said i mean i i don't represent the city so just be you know i'm you know eager to hear um you know the applicant um position and then um and then judge it um i'm not um so i like that i have a you know a right answer in line at this point well a j tell me if i got this wrong the applicant's position is the law has changed it says that uh the cities and towns can't have ldr's that are more restrictive with regards to accessory dwelling units and that's what you have so your ordinances are uh non-compliance with state law therefore your decision is not valid um yeah to a certain extent but it's not that your decision was not valid when issued it's that the law has changed we've brought it back and the project as it exists today before you um is a permitted use in a structure that under the ldr's as modified by acts 179 mandatory um is within the box if you will height wise setback wise permitted by the ldr's and and frankly there's really no drb review that should be afforded to this it really is a permitted use um if you read the ldr's textually a permitted use in a structure that's within the the permitted quote unquote not conditionally permitted but permitted um space and with the most respect to your your staff i think miss keen has got it wrong in looking at it as a single family residence it's not a single family residence i put a letter into the board today of january 20th 2021 which is in your record i'd ask you to review it but it explains why this is not single family residence the law does not say you must permit them as single family residences it says to the extent there's a provision of bylaw that is more restrictive than that which applies to a single family residence it's invalid if there's a provision of bylaw that is less restrictive it's valid permitting as a single family residence eliminates the less restrictive provisions um which is problematic it's how the setback issue arises so so so we're kind of resident right there ha an accessory dwelling hold on hold on hold on hold on hold on we're gonna maintain some order here uh right now i'm gonna get this conversation with staff that's all right peck uh have a conversation with staff and the board and the applicant um and then we'll get to public comments marla do i understand what you said before correctly in that you have written the staff notes um to interpret this existing building as a single family residence or as an accessory dwelling right and i think that that um what aj just said gets to the crux of the difference between what he's saying and what staff and our city attorney has advised um what aj is position position i'm going to restate it because it it illuminated what he's saying to me um is that he believes his team believes that act 179 does only the portions of the existing bylaw that would not be more restrictive than a single family residence are invalidated not that it should be reviewed as a single family residence um and so the interpretation that we have made is that this portion that delilah has up on the screen um a bylaw may require a single family dwelling with an accessory unit to be subject to the same reviewed dimension what other controls as required for a single family dwelling without an accessories dwelling unit we have interpreted that to me review it as though it is a single family dwelling so i appreciate aj clarifying where that point of difference is i didn't understand that up until now i don't know that i agree but i understand his position now marlis john so the city attorney our city attorney agrees with the language that's underlined as being our position so the portion that's underlined is from act 179 or yeah from act 17 right but but the intention the city attorney believes that we should look at it as a single family exactly okay well this is a legal argument and i i'm not going to play play attorney so if the city's attorney believes that to be the case i would go along with it and just to make it more clear i think this guy's trying to get around to something that's uh inappropriate and has been trying to ever since he screwed it up in the first place and so i i have a real uh intention to to say no and i i would agree with john i mean when this application was filed act 179 had not been passed we ruled based on the current um law and regulation and they violated what was clear in the regulations and um why do we have this process that takes everyone's time if people can just do what they want and ignore them so i i'm not a lawyer as i said but there's a fairness element to this that feels very real to me well i'm gonna just briefly comment on that wait wait wait wait just let me can i just let me go around the table and make sure every board member has a chance to speak go ahead mark yeah um i mean i i i hear what what john and don are saying but you know this i've been certainly doing this long enough and been on both sides of the table in these arguments um to say look there's going to be applications and projects that come before us that you know we don't like but meet the regulations and projects we love but don't meet the regulations and we can't approve i don't look at projects that way i kind of look at it with a black or white and you know if laws change then they change but this doesn't seem to meet that in my mind in reviewing it um you know this this new regulation or the new law that sounds like it's been remanded back to us to take a look at and what they're basically telling us is the laws have changed and we want you to look at the project in light of those new laws which your regulations haven't caught up to yet um so that's fine you know if that's why it's being remanded to us we get projects occasionally for remanding first very very minute reasons and for other reasons it sounds like that's why we're being asked to look at this the issue and i'm going to now flip and say why i have an issue with this is that um you know if we're supposed to look at it not and i understand aj is saying not purely as a single family but as an accessory dwelling unit um but you know we have a five foot setback which is in violation of the rear yard setbacks that we only didn't have an issue with when it was a 12 foot nine height um and then once you know it was built out of approval at 17 foot whatever six or whatever it was in a 15 foot district um then it became a major issue and now we're being said now we're being told well you already approved five feet so that's already your new line that you have to work with and the height isn't an issue anymore because you're now supposed to review it under single family height regulations and this kind of falls under you know you can't have your your cake you need it too and it can choose what you're going to use as the basis of our review and approval when it's remanded back to us and what we're kind of being told you have to use as your review if it was remanded back to us with a statement that five feet is fine and look at it as single family height regulations then i would say then fine we're wouldn't then we don't have much you know leeway in reviewing it but that wasn't what we were told and that five feet is not within the regulations for rear yard setback and so that's why i still continue to have an issue with this height fine you know but you still have to meet the other criteria and that's where i sort of kind of fall under the i still have an issue with this right okay uh listen jim this is jim i just want to clarify is is there a there's a january sixth letter in our packet is uh agent i thought you referenced the january 20th letter is there a second letter from your office there is i sent it in today um late late in the day that i believe marla was going to be sending out but it came after the deadline to share materials for review with the board so i think it came in before noon but it's fine it's it's part of the packet um or sorry it's not it didn't make it into the packet but it is in the supplemental um we can show it now and i can email it to members after the meeting um if there's any point in which you want to like point to a specific paragraph a j we do have it well i i do want to make one point though and that's to mr bear mark did i say your last name correctly is a bear and i and i would like to hear your point because that's the salient issue i have with this and the height no mr bear i appreciate the thing about the setback issue but but i it's not just five feet when this was originally permitted there was a seven foot setback for this structure that was final and binding if that if that's a breakpoint we're happy to meet the seven feet that was previously approved we can do that that is in our january 20th letter and i do want to comment on this so so that that seven feet that that's a collapse that's not that's not really um open for debate that that's that's an approval that was final in binding that nobody appealed and and that was the basis for an enforcement and if that if that's a breakpoint for you we'll meet the seven feet we can do that and and you do that excuse me how do you do that on well it's just it's just a utility bump out and we'll figure out a way to cut it out and and adjust it okay it's not the actual structure itself it's it's a bump out on the structure so if that's if that's a breakpoint for this board we'll meet that but but that seven feet is is a final and binding permit condition that was the basis for a violation so and and to miss filbert's point look i i sit in the same place you do i i understand that you guys spend a lot of time and a lot of effort with these things but i want to be very clear when we brought this up on appeal miss filbert in our statement of questions we clearly proposed lowering the building not just the eaves as was last time here but we clearly proposed lowering the building a full foot and doing the eaves and adjusting the tip nobody from the city was willing to discuss that as a resolution with us that is specifically what the board wanted us to do the last time we were there we were more than willing to entertain that discussion but council refused to engage us on that discussion when we were at the board mr bear said we want you to lower the peak height in the massing we were proposed we were ready to enter into that discussion but this city refused to engage us on that so if you want to talk about fairness the reason we're back here is because the law changed and we'd like to know what the impact of that is the law changed to make accessory units easier to permit and build that was the intent of the legislature we wouldn't be here if we got any traction from this city government this would have been resolved a long time ago so i appreciate your frustration and i appreciate your position but this is not the applicant trying to skirt the regulations the applicant was willing to make substantial improvements substantial alterations in including the placement of screening trees which are already there and work out a deal with the kutros this fell through because the city itself wouldn't engage so we're here now because the law may have given us an opportunity that didn't exist previously the court said consider it and if and if it has to go back up to the court it will but we were here we're here because nobody from the city was willing to engage us not the kutros we're happy to sit down with them at any time we're not you know we're not lovers but we can we can get along you know it's the city that never engaged us on this so that's why we're here and i think that's very important for you to understand this is not paul washburn's not some scallywag it is in permanency screwed up and we've been trying to fix the screwed up and if the city wants to engage us in a discussion we're all ears but that never happened so what you're saying a j is that you had put in a permit of construction per you you would move to cut the building jack it up well not no in our statement of questions we said is it is if this board ruled on a conditional use permit said look it's an undoing adverse impact we said as appropriate mitigation which is what you do for adverse impacts to prevent them from being a undo as appropriate mitigation would it be to lower the building by a foot that was clear in our statement of questions we had it pled right out there we were willing to enter discussions about that yeah we didn't want to go do it but we're willing to enter discussions nobody nobody from the city engages i don't know whether it ever got back to you or not but it was a dead stick you know the term so now we're here and so you're mad at paul for trying to take advantage of what possibly might be a legislative directive that's unfair that's wrong you know you can't and it's not right i couldn't disagree with more i understand that i appreciate i mean i mean if if this had come in front of us with a 30 foot setback at a full height we might have looked at it and said oh yeah the height will work as long as there's a 30 foot setback well this is a this is a whole different world now and you know i'm i'm i'm i'm i'm i think it represents bias and i think you've made a point it has nothing to do with bias it has to do with the fact that the guy built it wrong and you understand that yes i've made efforts to try to correct that pat can i weigh in again go ahead mark all right it's more of a question um marlo what what is your position that the if if they were coming before us with what they're determining with a jay saying is these new regulations that sounds like we're gonna have to update our ldr's what is a rear yard setback i'm not talking about the seven foot which is in the approval i meant saying what would be setback the for accessory dwelling unit taking away the height issue of 15 feet what would sort of our best case be for that so i'm going to answer your question um in my second sentence my first sentence is going to be that the original approval 12 feet 9 inches with a seven foot setback was not what was constructed what was constructed was in violation of that permit so they construct a 17 to 18 foot high building 70 from the setback so that is not a pre-existing non-conformity that's a violation of cu 1802 yeah they came to us today with building up to 30 up to 28 feet high they would be subject to a 30 foot rear setback if the law has been in existence since prior to february 28 1974 they would be entitled by right to 50 of that rear setback or 15 feet they would also be entitled by conditional use review to reduce that setback down to five feet but then we're back to where we started with conditional use review okay okay so with that information um you know that the issue again is the seven feet was based on a 12 foot nine height with the conditional use you know review um and so like you know if we were to say 15 feet is this new regulation possibility from lots before 74 which most likely this lot was pre-74 i don't know for certain but most likely so we would then be looking at 15 feet to get down to seven we would have to then take into consideration the issues of height you know and other issues that we would take neighborhood you know testimony to review we can't say seven feet is a binding you know distance because it was previously permitted it was previously permitted as marla said and i said it is under the cu whatever 1802 whatever it was that took into account the project before us which was seven feet and 12 foot nine which we determined as a board was going to have nominal impact for an accessory dwelling it what was built was in violation of that so in my opinion that seven feet is a null and void approval as well unless we get back to the you know 12 foot nine approved i can't speak to the issue of the city not engaging with you i don't have an issue with the applicant attempting to work within the new regulations to come up with the solution but i don't appreciate you telling me that seven foot is what we have to work with and then we have the height issue that is now a move point because of these new regulation just making a legal position i think the seven feet i'm not you obviously entitled to your opinion but the way i view it is if the seven feet was good enough for grounds for a zoning violation then it's final in binding to everybody that was also based on a certain height approval as well yeah but they're independent violations i think okay can the applicant go ahead mark no no i was just gonna say you know we we didn't know about this height reduction possibility you know i'd love to try to find a way to work with the applicant and if there is within our regulations that satisfies you know intent of the new regulations from uh the environmental court remand the neighbors issues i i'm well i'm because you know but until i'm satisfied with that you know i can't entertain anything okay i know i know this is not a fair statement but and i'm not again i don't understand the legal arguments but i i feel like we're being played which um undermines the whole purpose of this process and i i will look forward to hearing what the but the neighbors say because i would not be happy if i was a neighbor so so the um thank you for that don just want to sort of contextualize all this uh i don't think paul washburn hired a lobby team to change the law so what you get is two and a half foot accessory unit uh legal i think this is just a circumstance that happened and and and that and and there was a good legal argument that the environmental court listened to and now it's back in our hands well the purpose here tonight is to make sure that we collect as much information as possible um and if we have to continue we will but if we close that then we can go into deliberations and think about all these so with that in mind i'd like to step through the staff comments with the applicant um and the first comment is um can the applicant demonstrate when the lot was created the applicant can demonstrate that the lot was in existence prior to february 28 1974 staff considers the following analysis was applied so before we get to all that um can we establish when the lot was created we can but this you know i just want to make a comment that was in my letter mr chair coda yeah applying it this way these regulations ignores section 3.10 a3 of your regulations which say accessory structures shall be located a minimum of five feet from the rear and side lot lines this is an accessory structure so you know in our view this this conditional use review is not appropriate i mean it's in the rakes not making it up i'm not trying to play it's just there there is additional wording in the rakes regarding new construction on accessory residential units but i understand that with act 79 179 that that might have not changed but that's why it was originally conditional use yep we agree with that but we we think those positions those act 179 invalidates those provisions so i mean i so what i might suggest because we're not going to go we don't believe the conditional use criteria apply and and we're not trying to play you we this law surprised all of us you would have never seen us again if this law didn't come into an existence trust me if anyone else is in the property development space this law has created a lot of other problems but by rule you have to consider the impact of it before the court can so that's why we're here i'm not trying to play anybody i'm trying to have a legitimate question as to what the impact of this law is and so my suggestion is to determine what criteria apply and if you know our evidence is our evidence at this point if you think the conditional use criteria apply and we don't meet those standards then you have to issue that decision but you know we don't believe they apply if you think they apply and you want to continue it and ask us to try to meet them you know we're not really prepared to meet them today because we don't think they apply so so in other words a j if i get cut to the chase here the idea of discussing the staff points regarding when the law was created or about lighting shade and views don't apply because because this is this isn't we don't we shouldn't be doing a conditional use application here you shouldn't be doing it under you know you shouldn't be doing conditional use certainly as applied this way through section if you scroll up i forget the name number of it but yes and that if that's something the board wants to determine and take under deliberation again but yeah that's definitely something we'll take under deliberation question is is whether we we put a pin at it now here from the public then well but let me ask this of the board i could put a pin in this conversation here from the public uh continue so we can meet and deliver a session at a later day before we return but what does the board say to that your staff matt i have a alternative suggestion sure but um only slightly alternative suggestion how about taking public testimony and then continuing to discuss amongst the board to decide what you want to do you don't have to decide right now when i say what you're saying a good point yeah matt i just said i don't order yeah i would agree with that and i would also say you know continue to allow legal to weigh in in terms of the remanding and how it applies to because my big issue is the five foot setback you know if this new remanding says that you know the height issue is no longer an issue um it does drastically change our our ldrs and the intent of our ldrs so i'd like to get legal's opinion on it um and as with other regulations that have changed if they've changed then fine i'll review it under those conditions but i'd like to get some guidance in terms of that so the question is whether the act 179 invalid requires the accessory dwelling unit to be reviewed as a single family home or merely invalidate only conflicting provisions of the accessory that actually correct right and i i just want to comment this confusion is you are the first board that i'm aware of considering act 179 and its impact on the ldrs so oh we love making history is that what you're saying this is a historic d rb meaning to some extent yeah yeah okay and i i kind of recognize that so yeah that's why i'm sort of saying if if it does drastically change our ldrs then let's get a legal opinion on that before we render any decisions you know which which change how we normally would review it and how we would review the impacts of it and i'd love to hear from the neighbors okay so let's let's let's pause here with the staff comments and open it up to anyone from the public that would like to comment on this this issue and i know i heard from peg so peg just hold on one second and i'm going to go around and say if there's anyone else in the public that would like to comment you to turn on your camera and raise your hand or write your name in the chat box or just say hey mad i'd like to talk hey mad i'd like to talk okay who's this this is jeffrey messina okay i guess i got peg i got jeffrey is there anyone else besides peg and jeffrey all right yeah this is this is gary coach roll and i just want to make a quick comment after jeff's messina is done okay so i'm going to start with peg then i'm gonna go with jeffrey go with gary if there's anyone else after that um feel free to speak up but peg can you still hear me yes i can peg how do i spell your name for the minutes uh palom p o p o okay peg uh go ahead uh give me a three minutes i'm not going to hold you tight to it but but see if you can tell us your what you think okay three minutes well after listening to all of your discussion i feel like less of an idiot for being mind blown by reading the uh the documents about this case over and over and over i'm not no legal schmiegel by any means so i'm coming at this from a real personal um uh perspective uh uh i appreciate all the work you people do um and i love my neighborhood and i love the character of my neighborhood and i uh i uh my family we were all for our neighbor building a quote unquote uh tiny house and then all what you just went over and sued and we just kind of watched and thought oh well this is how it has to be but blah blah blah blah um just when reading the packet i understood that uh there was one segment where the board wants to understand what uh or needs to get a clearer definition of what views are um so as a neighbor uh i just want to say a view is you know what you look at when you're looking out your windows after you've purchased a piece of property and also the views that you look at when you're standing in your backyard that you also purchased when you bought into this neighborhood and i want to say that i love my neighborhood i love the character of my neighborhood and that's one of the um kind of guidelines about any kind of um accessory structures that they should be in character with the neighborhood and um kind of all those things uh my i personally have been feeling quite an impact um so i can't all this about this this foot that foot this foot i'm coming at at it from more of a kind of a real kind of a feely kind of a perspective but this is the wordage that i did read um so the privacy uh element of my backyard has been removed uh my husband and i are concerned about the devaluation of our property and we also weren't aware of the fact that after this um uh accessory dwelling was going to follow a quite a large garage and um pavement in the backyard of this um property to the left of us and it just that term is this in character with the neighborhood it's just like not in character with the neighborhood so it's um i've been quiet for quite a long time and i have just felt like oh my god i just need to tell these people how i feel about this um very complicated uh uh process that's been going on um so uh when this act 179 if more people within this neighborhood in south berlington want to add on accessory units i just hope that you guys do your absolute best work to protect everybody that is going to be impacted by that type of development um because i don't know it just it it just matters so i kind of don't know what to think about um you know bottom line yeah there were you said you were going to build this and then poof you didn't build that well i don't know and that's that's not what's supposed to happen so this uh act coming along to kind of change the the game if you want to call it that is a little i don't know it's just i don't know what i'm really trying to say except i'm just trying to let um the the people that are kind of in charge of this type of stuff understand how a neighbor feels that's about it hello hi peg thank you very much for that i appreciate your comments and i think there's one really important take away there's several important takeaways but the one that i really hit home which is if act 179 changes this the structure that has already been built changes our interpretations of it um it obviously also will have an effect on other accessory dwellings that may go up with the future and and for clarification and for you know all of our education you know we rule as mark eloquently says many times you know whether we like a project or not we have to interpret the ldr's because we're the judiciary branch and we just have to decide whether fits within the regulations uh the regulations are written by uh the south growington planning commission approved by the city council and you know this is one of those items that um yes we're making history here tonight but the reality is is the the good folks on the planning commission really need to take a look at act 179 and how it affects our accessory dwelling unit provisions in our ldr's because as you stated eloquently peg there will be other conversations before this board and we want to make sure that everyone knows what the rules are the people own the lot that want to build and the people that live next to them and of course the people that have to rule on them so thank you for that bring that to our attention now and wait and i'm sorry can i can i say one more thing that became to my mind uh real quick when something is built on the surface of the earth what has been in my mind too is what happens beneath the ground um my husband and i have been invested quite a lot in our basement with some sub pumps and uh french drains to uh have a dry basement which we have had for years now and whenever a piece of property gets regraded and retrograded and all that kind of nonsense and the earth is disturbed um so it's not only what's up above ground that gets changed but what's beneath ground and that really will it can't possibly not impact uh neighbors and um i just wanted to throw that in and again this is a really beautiful neighborhood i think it's one of the most um beautiful neighborhoods in south berlington and i do believe it needs you know just careful governance great thank you peg okay now jeffrey thank you um jeffrey mesina go ahead thank you please call me jeff um my name is jeff and you seen it for the record though i'm an attorney with birgeron perdison Fitzpatrick and i'm here on behalf of couture all family trust gary couture all and susan jones um i have been part of this storied adventure from the beginning as well i just have four points but before i make those four points just like to make sure that we're all on the same page procedurally that the court the environmental court remanded this on procedural or jurisdictional grounds it didn't find anything um it was not based on the merits the court just determined that it could not determine anything that had not already been determined by the drb so it's here on a procedural grounds because this happened in the middle of going to court and the drb had not had an opportunity to determine this so the court is saying you need to consider whether this new act um is applicable in the analysis our position is that the passage of act 179 does not change the fact that the accessory structure is in violation of the south berlington ldr's first and foremost there's nothing in the act in the new law that indicates it's retroactive and there are generally specific language that says a law is retroactive so our position is that it's only applicable for new bills in support of that there's a part of the law that says um the law will invalidate deed restriction and covenants after january 1st 2021 indicating that there's at least good basis to suggest that it is a proscriptive moving forward rather than a retroactive law um so you want to apply it to new builds sure but not this one um therefore to save time all of our historic arguments are still on the table and are still applicable however if the uh if the drb determines incorrectly as we would suggest that the new law is applicable it's important to realize that the law also says that changes the definition of an accessory structure to a distinct unit that is clearly subordinate to a single family dwelling i understand that this uh accessory dwelling is taller than the actual house which makes it not necessarily subordinate to the single family of family dwelling um the legislative intent generally for this new law is to enable subdivisions of small lots and residential zoning districts make it easier for duplexes and small multifamilies to create an atmosphere for uh affordable housing and while accessory units are provided for in it the spirit of it is not specific to accessory units so i think it's important for the board to review this within the spirit of the law as well finally though if this law is applicable then we have the setback argument and i don't believe that the applicant can have it both ways so either this new law is applicable and if this new law is applicable and you treat this accessory dwelling unit um as if it were a single family unit i'm not saying it is but part of the analysis appears to be as if it were the law provides for accessory structures height square footage access to municipal uh utilities but it doesn't provide for the idea that it can build anything anywhere and the drb or the city is now without any recourse whatsoever to dictate where in the envelope or where um it it can be built as it imposes on its neighbors so there's nothing in this law that speaks to setbacks and this unit is still in violation of the setback so our position is that this law is not applicable it is not retroactive but if it is retroactive just uh this unit is still in violation for the reasons we've said before thank you jeff appreciate it gary would you want to follow that up uh yes this is gary kutrol speaking i didn't want to get into any of the legalities uh uh jeff represents me in that regard although personally i don't believe the legislation is intended to be retroactive either i think that this building should be judged on the regulations that were in effect when it was constructed not not whatever laws is not equine 79 it's uh in effect today i just wanted to make the comment that you know our quality of life has been reduced by this thing this monstrosity looms over our backyard it completely dominates our backyard it has completely uh you know abrogated our privacy back there and it's not the structure that we thought was going to be built uh i never thought this was going to be a two-story thing like this it's 22 feet at the peak uh it's taller than the uh the main house and uh i invite anyone member of the board all the board to come over here and look at my backyard and experience this thing looking down on us the way it does so you know from from my perspective uh you know if i had seen that thing back there when i was looking at this home i would never have purchased the property uh so i'm concerned about reduction in my property values uh and and i just want to echo what peg said our privacy is shot and uh i just hope that you find uh that act 179 does not apply uh it's not retroactive and that you should apply the regulations as they were at the time this thing was built thank you thank you gary is there anyone else in the public that would like to make a comment before the board discusses next steps uh i see a j i just want to make sure there's no one in the public and i'm going to check the chat box oh i'm sorry this is gary kuchel can i just quick make one more comment okay rj had said that there are screening trees between the the the properties uh between kuchel and washburn's property that is not true there are no screening trees there are some very mature uh oaks back there but there's no screening conifers of any kind thank you okay thank you gary okay a j anything last before i turn to the board three points i did yeah first uh mr kuchel's correct we propose screening trees back there um number one um we're happy to if that matters we can discuss that again um certainly i would push back on mr mesina's comment that we are trying to build anything anywhere the city absolutely has a right for a box it has every right to dictate that box um what that box is shape and size can be has been modified by act 179 but in no way are we trying to build anything anywhere um that's one of those strawman arguments lawyers like to do to hyperboleize what's happening but we're not doing that we think we're in compliance with the regs as they exist today as modified by act 179 i understand miss keen some of the members of board may have a different opinion but we think that's what the law provides and we're here for you to determine one way or the other um as to retroactivity it's an inaccurate characterization of how retroactivity works in the zoning and land use context statute has changed effective immediately in october 24 vsa 4412 e has been changed it is immediate it statutory impact is immediate and so it's not a question of retroactivity as to old projects and new projects the law has changed there's clear environmental case law with that when a law changes if an applicant believes it is in their favor they can take advantage of that through a remand back to the board um that's the in re middlebury case i can certainly provide a citation so that's my comment on retroactivity that's what i got great thank you a j i turned to the board and staff uh given what we've heard here tonight my inclination is to continue um and uh that way we can meet in deliberations we can talk to an attorney that we need to we can request more information from the applicant or from others some other source is that agreeable to the rest of the board do you have any other thoughts or questions i'm agreeable i really want to hear uh the city attorneys take on the legal issues of retroactivity yep and i'm glad we heard this hearing tonight so that we could bring questions to amanda or whoever we talked to with the city um anyone else have any thoughts before i ask marla to pick a date on the calendar okay no marla i don't mean this is one of those it's already built so we're not what do you want to put it on the calendar to bring it back in case we could ask something more i think this is a case i'm sorry i'm going to be really in the size of here um this is the case where it's not really going to take up a lot of my time so since um it's more about the board's ability to focus for more than three hours on a single night um looking at the next agenda it's it's actually to to be honest with you it's more about a calendar of the person who's not here which is the city attorney yeah because this is what i don't know what her been with us or yeah to be able to absorb those i feel like it's either for second or not third this is the cat what's that what's that marla valia and i have our cats out sorry okay go ahead so so if we want a long night we'll do it for the next meeting if we don't want a long night and um i think maybe i would recommend not having a long night because then we can better focus on the issue um then we're looking at march third yeah i would choose march third that's not from dawn and something that elizabeth out that's it'll not from elizabeth all right i would uh uh given that i would move that we continue remand to continue to show use application c u 18 12 v apology washburn for march third do i have a second i'll second that oh seconded by dawn moral call uh brian solovan is recused um mark hi don hi lisa hi jim hi john hi and chair votes i and 601 and we'll be back on march third thank you very much everyone who attended this meeting now we go to agenda item number number eight sketch plan application sd 2105 of donis donald and lois curwin to amend a previously approved planning and development of two lots the amendment is to subdivide lot two point eight three acres into three lots of point two acres each and develop a single family home on each at 1420 heinsberg road are there any disclosures before i invite the applicant this is jim i'm recusing myself from this okay i'll be fine if you'll be you'll be back on on agenda number nine jim uh yeah so i guess if somebody could text me might be the best way to yeah i can do that i can do that i'll be the right solovan do we have you back so we're moving again we have brian back okay great yes yes um okay so we're at sketch plan as you may recall we we we had a subdivision what was it last year um who is here for the applicant for sketch plan sd 2105 dave marshal from civil engineering hey dave anyone else with you sorry just me tonight okay no problem uh and as you know but just to let the public know this is a sketch plan there's no swearing in this isn't a formal hearing there's going to be no vote we're here to help guide the applicant to see whether it fits into the parameters of our land development regulations and to provide guidance uh and the next formal stage of hearing will be a public hearing uh the preliminary plot or final plot application um so tell us a little bit about the project the sketch plan dave uh while you prefaced it well in the fact that we did appear before the board uh previously for a two lot subdivision the intent was to be able to uh the kurwins were downsizing and uh they're looking to sell their their home and they wanted to create a two-lot subdivision to enable the house which is on the west side of this particular plan to be sold it has been sold uh they did retain the uh second lot a lot on the east side uh where those three homes are shown on the plan on the screen and uh at the time um you know the thought was whether to go for a four lot subdivision as a part of the original application or not tdrs were an issue at the time so because we needed two tdrs in order to enable uh a total of four lots on this particular parent parcel so at the time the the decision was made just due to lots with the opportunity at some point in the future to come back and then perhaps resubdivide or shake application resubdivide the uh eastern half of this particular parent parcel so uh that's kind of the background we are back before the board today um for a sketch plan to review the concept of a three lot subdivision of that eastern half um do i love that i ask you a favor if you can actually go back to the cover page of the staff report what i wanted to do is just uh bring to attention the character of the area and perhaps if you can zoom in on both that law and three lots to the south if you can just move that up happens there you go so uh staff accurately identified that in the report that uh we've shown the buildings too far away and we haven't shown enough details indicate where the garages are and how they're situated in regards to the facade of the building but it also indicates that um you know that uh those lackings in the sketch plan is enough to basically uh make it impossible for the board to determine whether or not um we could actually make a three lot subdivision work the reason i asked lila to show you three lots to the south of the highlighted parcel is actually there's a three lot subdivision that was approved by the city recently um which is actually on a lot this 20 25 percent narrower than uh the one that we're proposing so when we do come back to the board as part of a the next stage beyond sketch plan we would be proposing something very similar to what's showing on the very bottom of your screen here where there's going to be three homes that are set no more than 25 feet back from the uh property line which is what the board allowed as part of a determination for the two lot subdivision on how the home on the eastern half of uh that that subdivision could be cited because again the ldr specifically talked about making sure that homes are not more than 25 feet back from the sidewalk while there are no sidewalks on highland terrace so uh the de facto decision was to basically utilize the uh property line or the rights away line as being that particular fact so anyways if you can just imagine the future that we would be coming back with something that uh is similar in nature to what is three lots data to the south here uh with with corrective measures uh going forward and i'd like to at least plant that scene with you uh as we go through the staff report okay thank you did um okay so this is the amendments to subdivide plot two into three lots permit history context matt can i put a finer point on sure um permit history a little bit um and this is in the top notes but i just want to make sure it's very clearly clear this is an amendment to an existing pud an existing pud establishes um a set of conditions for the project so this isn't like throw out everything and do a new pud this just and i'm not saying that we're necessarily going down that road but i want to make sure that we're clear that we're not going down that road this is this is amend the existing pud that already has certain restrictions on it and that's all i need to say okay thank you maryl um okay so regards to staff comments um number one deals with the homes are set back more than 55 feet from the front line there's no indication that the buildings can be oriented to the street in their proposed configuration appears that the applicant is not taking a consideration that required garage placement staff their court therefore considers this proposal specifically not in compliance with the already approved pud as marilla mentioned earlier staff recommends the board consider whether request the applicant to modify their sketch plan to allow the impacts of changing building placement and garage location to be evaluated staff considers giving the narrow lot width the impacts of this change may be significant further staff recommends the board discuss whether they require the applicant to provide some sample architectural elevations for building design standards at the next stage of review in order to demonstrate compliance with the requirement to provide homes of consistent architectural style um Dave what's your thoughts on the um on the placement of the garage and the buildings uh and well at this point in time um garages aren't even shown which would imply perhaps that they're equal to the facade of the building these um branded is um not what we would finally propose i apologize in regards to um having an application go in in this particular way it's just inconsistent with the original pool for the parcel so but on the other side of the coin i don't want to waste the board's time coming back another time with something that is going to look very similar to what was approved by the city three lots to the south so if you could imagine uh the plan that's in front of you with these particular buildings pushed closer to the street and reconfiguration uh with the garages sent back into the facade then that's very easy to achieve here granted and um at this point in time we'd prefer to just take those as advice on how to come back before the board in the future and not waste your time or staff's time with having to rewrite this so so the the the property they refer to which is not no no shared ownership here um what's the what's the setback from island terrace so there's a minimum setback and then there's a maximum setback and the challenge with some of these sites is that trying to get it too close to the street basically means that there is going to be no outside parking so what we prefer to proceed with is the same as what had been done essentially uh three lots to the south where the facade of the house is 25 feet back from the right subway line these are shown 55 feet back so again if you can imagine a 30 feet further to the right east on this plan then you would have a compliant structure as it relates to at least its real location uh the other concern of staff is that there's no way to actually get a garage set back eight feet from the facade of the building well in this particular case these lots have not been fully built out width wise or these buildings have not been shown fully built out width wise and uh what we're saying is that we can easily meet that particular standard so uh i guess i'm just not concerned about getting there as part of a proper next step before the board in regards to compliance with the standard set forth in the PUD approval so what i'm hearing Dave sorry just to summarize this put straight in my head these aren't going to be 55 feet these are going to be 25 feet similar to the ones to the south and you can work with the with the other comments made by staff here regarding um the width of the lots and regards to the architectural elevations will we see those at the next stage of review yeah yes you will so we had a hardy discussion last time as far as whether we should be trying to provide elevations for something that we didn't know what was actually going to be built we understand that the PUD standards require that we demonstrate a character of what is proposed and we will be doing that as part of the next step before the board yeah okay um staff comment number two um PUD and subdivision standards the applicants frozen to connect municipal sewer in a similar manner to what was approved in SD 1935 they're also continuing to propose private water supply wells to serve the homes as i understand that this is correct Dave where uh you can connect to city sewer but you cannot connect to city water because there's not enough pressure to get over the to that section of the city uh yes this this section of the city is too high in elevation so there's not adequate pressure to meet the water supply standards so um everybody in this particular neighborhood um basically is served by private wells so the question that the board wants the applicant to demonstrate is or that staff is recommending we we demand you demonstrate is whether or not there is enough water supply in the island terrace area to serve proposed homes without adversely affecting all the other homes um at the next stage of review um we have no problems this is something you can do so a couple a couple ways we can obviously provide information to yourself as far as what the existing wells in the neighborhood provide as far as capacity it's they're extraordinary uh or you could condition this which statute allows you to do um to basically have the applicant produce a state water supply uh wastewater disposal permit which would be also another demonstration of state or Vermont who independently regulates these things would agree that there's adequate water here so either way we're happy to provide those demonstrations um i would like to suggest that um the board provides specific feedback on that question but perhaps we until the end of the discussion because i think that there may be some um questions on that later but i think that i think it would be good for Dave to have some direction before before he walked away today well uh so he basically offered there's two ideas here one is that um they provide a technical report to the board showing um that they believe they can provide water supply and the second option is that they um get a permit that shows that they have approval for the water supply um in the second option that wouldn't occur that would be a condition of approval rather than something demonstrated at final plot so i think it's important for Dave to know what he needs to do going into final plan well if they can't build without getting a permit proving that they can um that means they put all the risk in doing all the work i would say water supply permit makes total sense but i want you guys to think of there may be additional testimony about water supply i want you to maybe revisit at the end we can do that right number three staff calls the board's attention to the comments in the city's one more section we're pertaining to wetland delineation as noted the board did not require well into lineation as part of st 1935 because the proposed development was located such a way that the wetland impacts were unlikely to occur however with the revised configuration it's likely that impacts would occur if in fact wetlands are present now is this the configuration that we're seeing with the 55 feet that's not going to change or is this is this something different so the background well background issues are one this particular project received interim zoning approval from the city to move forward a little less than two years ago we actually discussed this particular issue with staff previously and they they concurred that there are no wetlands there we also recognize that the statement from the water excuse me the storm water section is inconsistent with the state mapping the state mapping doesn't say it's wetland doesn't even identify it as a significant wetland area it doesn't even identify it as being a hydric soil what we discussed with the state or excuse me the staff was that the reason this was likely identified as an injury was the fact that there were trees or on the backside of the lot and somebody guessed that it was freeze there because it was wet now it was trees there because these people just preferred to have some separation from the highway so long for a short there was no issue at the zintern zoning level and we're happy to basically provide that information again okay um staffer go ahead ask the question I sure would it be all right if someone did a site visit I I want to believe you Dave but I also can't force the storm water section to let this go would it be okay if they took a walk out there oh that's fine I mean I'm happy to to speak with with uh with the storm water section too okay that was going to be my plan was to basically bring them up to speed on the discussions that were handled during the interim zoning stage thank you so much yep and the director of public works reviewed the plans and made some comments staff recommends the board directed applicant to meet the city culvert requirements or provide an alternative swale crossing such as approved in the adjacent property of sd 2004 is that agreeable we we are very agreeable um you know the engineer and us said we wanted to put culvers in but um the the properties on either side actually did not have any culvert so uh we may end up there okay um well that's it for for staff comments on sketch plan uh do you want to return is the board have any comments about whether they prefer the proving of the water you know assurances before we get started or or as a condition don't forget about public comment no I won't but okay that's where I think you're concerned coming from uh thank you and I could be wrong um okay so I'll pause right there and this is where there's anyone else on the phone or watching at home that would like to comment on this project to um to either turn on your camera wave your hand at me or to enter some comments in the chat box your name just say you'd like to make a comment um or to just say hey matt I want to talk and I'm not hearing any right now I'm checking the chat box not seeing any one more chance I'm looking at the pictures I don't see anyone if anyone's on mute and you want to talk I can't hear you you gotta click the mic button and not hearing any then I'll guess I'll go back to the board and say um do you have a opinion and whether you want to hear at the front end whether or not they got the enough water or if they you trust that they'll uh you know wouldn't go through all this if they can't do it without getting a permit from the state saying they have enough water do you have an opinion on which way did it rather go yep can I go ahead sir in regards to the water issue I this has always been this area of development has always been a big issue in terms of the water supply um and I I want to say and I certainly deferred to Marla or Dave better that I think when we've asked for tests to prove water adequacy in the past it's you know it's been relatively I don't I want to say relatively easy to supply that information and it's always come back pretty pretty good you know the wells with good good pump return um and so I would I but I don't want to take that as it's still the same way but I'd say I'd rather see especially for not providing municipal water uh the evidence ahead of time rather than it's a condition um that you know three lots with three wells there's going to be adequate supply that won't affect neighboring houses because obviously that's always an issue when you're doing wells but like I said in the past I think we've always seen evidence that it's it's pretty high in that area so we're advocating for telling doing the test first yep and showing that there's adequate for these three lots and that it won't affect the adjacent parcels okay Brian, Alyssa, Dawn, Jim, John yeah I'm fine with that okay testing first okay anyone else sounds good to me all right are there any other questions that the board has for the applicant hearing done I see no reason to continue and then perhaps we'll see you back at uh preliminary or preliminary final plot Dave I appreciate your time thank you very much yep thank you our next item on the agenda is item number nine which is site plan application SB 2101 of the granite group to amend a previously approved plan for a 16,272 square foot wholesale use building the amendment consists of expanding the fenced outdoor storage area at 20 Gregory Drive before I ask who's here for the applicant I'll ask for disclosures and I'll offer one for me first as some of you may know I run a non-profit trade association that represents heating fuel and heating service companies and companies that sell heating equipment I also train heating technicians throughout the state of Vermont the granite group is a member of that organization a supporter of that organization and if the board or the applicant or the staff thought it was important that I step aside I can however I do feel I can review this project without any biases Matt I also have a potential conflict just so the granite group understands this I have as tenants uh lodged supply and their sister company CED commercial electric distributors and am about to close on a building that has Ferguson plumbing distributors in it not none of them are in the state I don't think I have an issue with conflict but again I would allow to step aside if if need be okay any other board members on shaky ground here with the granite group pun pun intended who's here for the applicant Peter Mazuric of Apex Engineering hey Peter how are you good and you good you have any problems with having John or myself continue on or would you request that we recuse I don't have any problem and I think Daniel Cotter of the granite group might also be on the line yeah I'm trying to unmute him I'm muting you guys hear me oh there he is yes I have no issue at all okay thank you Daniel yeah okay this is um this is a let me find the agenda here use me one second number number nine okay this is a site plan application so I'd ask both of you to raise your hand and swallow tell truth under penalty of perjury yep you're on mute but I take it as I do I do yep you're good okay can you tell us a little bit about what you've got planned for this project for the site plan so we're planning to expand the outdoor storage area they use the outdoor storage area that's currently there to to store pipes and other large objects that they sell that can't fit in the building mostly pipes they've outgrown that storage area and they they would like to make it larger and they would also like to place a new overhead door on the back side of the building so that would be the side of the building facing towards the brook that way that that door would open into the expanded storage area it would create a safer situation if the um forklifts could come out of the building on that side of the building and then just get into the storage area rather than driving through the parking area into the storage area so it's it's a safety concern and a need for additional outdoor storage we're proposing a combination of pervious surface and impervious surface for this storage area and we're going to modify the fence that's in place and put the fence back up on the sides of the increased storage area okay have you had a chance to review the staff comments Peter yes I have okay so we're going to step okay so we're going to step through those um and the first one deals with standards for wetland protections um and self-development and the land development regulations say that encroachment into class three wetlands and class three wetland buffers may be permitted by the drb uh upon finding of the projects overall development erosion control stormwater treatment system provisions for stream buffering and landscaping plan achieve the following standards for wetland protection that the encroachment will not adversely affect the ability of the property to carry or store flood waters adequately so the comment is that the buffer proposed to be impacted is directly connected to the pod axe brook therefore staff consider to be potentially a flood storage area applicants proposing as much as four feet of fill in this buffer area to the volume of fill has not been quantified staff considers the more information is needed to determine whether the proposed encroachment has an adverse effect on flood storage um do you do you have more information is that something that you can uh that you anticipate gathering or you have now I think I can speak to that currently the the site of the proposed improvements has a continuous gradual slope away from the building towards the wetland area due to that slope there's actually no detainment of stormwater in the area of the proposed expansion and immediately around it but it's basically a mowed lawn outside of the current storage area and a mowed lawn where we're going to be putting the expansion and it's all on a slight slope towards the side of the lot where the wetland is so there's really no stormwater detainment in the area that we're proposing this expansion there is an existing stormwater detainment system further down on the lot so it would be on like the southeast corner of the lot near the wetlands and the the parking lot drainage and other drainage from the lot does enter that detainment area and we're not going to affect that in any way we're actually going to increase the size of the riprap entrance to that stormwater detainment area which will allow more infiltration so i i don't really think um i don't think we're going to have any adverse effect on the wetland and we're not going to have any adverse effect on on stormwater storage because there's really no stormwater being stored where the improvements are going to be proposed so one of the other criteria is that the encroachment will not adversely affect the ability to post stormwater treatment system to reduce sedimentation according to state standards and staff interprets this to mean the encroachment shall not adversely impact the erosion of settlement can you provide more testimony on this criteria we do not expect any extra sediment because all of the areas are either covered in grass riprap pervious hardscape or pavement so we're not going to leave any any open earth for any extended periods period of time and as i had said the existing stone line trench which leads to the stormwater the existing stormwater detainment area will be expanded and that will actually allow for more water to settle out before it reaches that detainment area and we're gonna we're proposing a section of geogrid with crushed stone below it i did infiltration testing on the site in the the soils infiltrate infiltrate well there'll be a good distance to the groundwater table so we're actually going to be able to store stormwater in that pervious hardscape area okay staff considers the applicant should prepare a written response demonstrating compliance with this another criteria of the section based on the identified functions and values and purpose of mitigation avoidance measures to offset the impacts um so um a written response to staff is free yes okay so while the state does not regulate this wetland we are proposing proper construction practices in continued maintenance of the stormwater system at the site and that will in our opinion protect the wetland area so we're not going to be discharging um sediment uh we're we feel we're far enough away from the wetland we're going to stabilize all the all the surfaces with either grass or riprap so we don't um i really don't feel i need a written response if we talk about it now and well if you put it in writing and then we can and then we can all just do it i mean i think that's the the purpose of putting in writing okay could that be a condition of approval tonight thank you that's really clear on what it was that you were um proposing as minimization and mitigation um and if you can articulate that we can take really good notes and um you know put a condition that it shall match your testimony but that does need to be really specific in order to do that so did you have some proposed language that you would be comfortable with because you talked about maintenance measures um and then mitigation clear um stabilization did you have that in a way that you can just read out to me um what we're planning to to have all grass surfaces uh we're going to have that increased riprap area so there's there's not going to be any exposed earth we don't feel there'll be any adverse effects of the to the existing stormwater pond um um i don't really see any other explanation of it besides that not changing the the areas that will drain to that pond so i think that would be about it how can you speak to the specific functions and values of that in in the wetland we like i said the state doesn't wetland but the the city does um and then we had a letter from the from the state that said that the the wetland did not have any significant function and values that were protecting muddy brook so we're not really doing anything different than what that state letter had allowed at that time so i'm going to read out from the letter it's in the pocket it's page four um sorry i guess it's not page four it's page four but it's from keena heath um june 10th 2016 as pertain and keep in mind this is not a prepared by the applicant this is a report prepared by the state uh one paragraph and the secretary has determined based on that the on an evaluation the wetland that it does not provide function or value that is significant enough to merit protection under the wetland rule at this time um so you know i think you can read that as it does not warrant protection under the wetland protection rules therefore we are not going any farther um doesn't necessarily say that it has no functions or values it says that it has no functions or values that they regularly and so that's all they have to say about it but i'm not disagreeing with you but it doesn't have you know it doesn't have major significance major functions and values but um it's a slightly different nuance because just because the state dismissed it doesn't mean that the city dismissed it have you correctly stated we're not trying to dismiss the um the functions if there are any of the wetland but we we don't feel that we're going to have any adverse effects on the functions of the wetland i mean it obviously will further detain and run off from the lot but if we're not increasing sediment to that wetland um and we are augmenting the the existing riprap area i feel we're going to improve the situation of the with the water going into that wetland and not have any adverse effects on the wetland itself what a procedural question here this is a site plan application does is the expectation that that gets closed tonight or will this be continued that's entirely up to you guys and what you feel there's no there's no time limit to the board's review okay but when we talk about asking them to provide written statements that implies that we wouldn't be closing this tonight correct right and it's and so if you would like to ask them to provide written statements this would not close um peter's arguing that he would prefer not to provide a written statement right because in order to speed things up if he provides information specific information that we can make as a condition um then we can close we can then then deliberate and then issue a ruling but absence of specific specifics on how they're going to treat it the other option is to continue to and ask for a written explanation so this is sort of a chance that to move things along as long as the information is is there in order for marlota craft to condition for us to approve so i am very far from a wetland expert um however i did just do a quick google search on Vermont wetlands functions and values just to understand what they are and it seems there are 10 of them they are water storage for flood and storm water law surface and groundwater protection fish habitat wildlife habitat exemplary wetland natural community education and research and natural sciences recreational value and economic benefits open space and aesthetics and erosion control through bringing and fertilizing the soil so peter's testimony now is that he doesn't believe that their project has any adverse impact on any of those 10 different potential functions and values peter it's uh john wilking i i uh i own a property i own two properties that are about a half a mile to your west uh that went through dramatic problems with the potash brook uh i just forewarn you you can have what you think is an absolutely perfect system and uh it doesn't matter uh if you are adding an area that has potential runoff you open the door that is dramatically uh can be dramatically uh difficult to close so um i wish you luck but i think i think you're heading into a a quagmire so looking at those 10 functions and values uh there's really not very much water storage i've i walked the wetland area from the site down to the brook if a continuous slope it doesn't store very much water there's a small channel that starts on the site and then fans out over a larger area which the channel almost just kind of disappears uh so i mean there could be some water storage in the ground which also would be water quality protection so if any runoff went across there any sediment may be caught in it but i don't think there's any fish habitat i mean there's not enough of a stream the the wildlife habitat there may be some birds but it's so close to a roadway um it's definitely i looked at the state maps there's no exemplary communities there's no sensitive species per the state apps really not much there for recreation or education and research peter john wilkin again have you met with dave wheeler i did talk to dave on the phone and i and have emailed us dave i would strongly suggest you meet him at the site okay all right i can meet you right so let's put a pin in that for right now go to step to comment number four which is um reviewing the uh city stormwater section chief has reviewed the expanded storage area and not be adequately designed to remain pervious over time specifically the applicant is proposing 12 inches of one and a half inch clean drainage stone which staff is assuming is saying 12 inches of one and one and a half inch crushed crushed gravel top of the forest geo cell ground grade product generally gravel is considered to be impervious over time and is therefore treated as impervious surface unless it can be specifically demonstrated that it's installed in a way such that compaction and subsequent loss of permeability will not occur based on available information the specified prior does not appear to be designed to remain permeable staff recommends the board request the applicant to demonstrate the proposed system will remain permeable over time and if not either specify a different system or propose stormwater treatment for the expanded impervious peter so i did talk to dave wheeler a couple of times as i had said and we went over the requirements for the site and he did agree that uh having an area of pervious uh hardscape is an acceptable practice i also worked with win wilson from the state stormwater division and win wilson uh signed off on the design even though we didn't need a state permit we met the exemption by proposing this permeable area the required test the site revealed that the underlying soil was permeable and that the runoff to be stored in the one foot thick stone layer would be elevated above the existing groundwater table this is an accepted and proven method of providing a pervious surface the geogrid product which would sit on top of that one foot thick stone layer would be filled with a three quarter inch crushed stone so there is some concern that gravel can become impervious over time but that's generally more of a fine gravel or a packed gravel that you would put on a road surface for this we're proposing a three quarter inch crushed stone which generally the only thing driving over is forklifts that's why we didn't propose pavers we thought the pavers might peel up using forklifts but with the forklifts driving over the three quarter inch stone we feel that three quarter inch stone will be loose enough that it will stay as a pervious surface we also I don't think there's going to be more sediment running over this pervious surface because the majority of the storm water that runs off the parking area so that's the west of the existing storage area it drains to the southwest corner of that parking area so there's like a little and a narrow spot at the southeast corner of that parking area and that drains over a small stone area and then goes down towards the detention basin so this situation in the grades of that parking area are going to remain the same after construction of the expanded storage area and so I don't I don't really see a lot of debris running over this pervious surface that would clog it up and if we found this the stone was to become clogged that three quarter inch stone could it could be removed and replaced to allow the infiltration has designed so you'd be open to a maintenance agreement I'm used to three quarter inch stone again it's John Wilking I'm used to three quarter inch stone being three quarter inch minus meaning there's an awful lot of fines in there and you're right initially it's fine and but but then you know you run over it enough with your your forklift or whatever else is going on out there and you know it gets it gets packed down and it holds water you know I think I think a maintenance agreement might be a way to get around that we'd be okay with the maintenance agreement and we're going to use a loose stone we're not going to use a three quarter minus because that that would have too many fines in it it's not going to be like a dense graded stone it's going to be three quarter stone but it's going to be a looser stone but the the geogrid cells it's it's four inches tall and it has cells that that hold the stone together to create the surface that the forklift can drive on a surface that's strong enough for a forklift to drive on if the geogrid wasn't there you the the stone would move around too much so we're okay with the maintenance agreement thank you peter there's no other questions about water moved to lighting is there any lighting proposed to be modified as part of this application peter we're not proposing to modify any of the lighting that's on the building or on the parking lot but we would like to put one building mounted downcast lighting fixture above the proposed overhead door on the back of the building so the overhead door will be lined up with the ramp section so we would like to put a light there building mount downcast okay that needs to be part of your plan yeah i can add that to the plan do you know what height you want to put that up peter well the door might be 12 by 12 so it would probably be up 13 feet um i feel like we can probably condition that mount yeah so then that's fine thank you marla so the only question is before we make it this is before i hear from the public is uh regarding the conditions regarding water and i'm not quite sure what to do there board do you have any comments this is brian i would think that if we're going to rely on marla to potentially draft the language for conditions regarding to that water issue that marla should be satisfied that she's heard enough tonight to be able to write clear conditions and if she hasn't then i think the idea that was floated in the staff comments about getting something more specific and writing from the applicant makes sense that's a very good point brice anyone else yeah it's john i i i have no problem with the the entire concept of this and i have no problem with with the uh the setback um i just think he's going to run into issues uh with stormwater uh runoff into the potash brook so um yeah i'd rather see this with dav wieler's comments attached saying yeah you know you know we've reviewed and feel good so that implies in a continuance right right marla yeah i think that's both brian and john's comments um we had just the same end because i would be meaning pretty heavily on the stormwater brooks to help me the written uh conditions regarding mitigation and um whatever the other anymore sorry um so if we can get the stormwater section together on the site i think we can agree okay so that involves the continuance uh first is there anyone in the public that would like to make a comment regarding this site plan application if you do so turn on your camera or enter your name in the chat box or just shout out hey man i want to talk not seeing none hearing any and marla what would be an appropriate date to continue what's that let's do March 3rd March 3rd is my new favorite thing March 3rd hey yeah uh yes could be mine too um all right i would move that we continue site plan application sp 21 001 or March 3rd is there a second hold second jim okay second by jim uh roll call brian hi mark hi don hi melissa hi jim hi john hi and chair votes i 7 oh we have continued this hearing until March 3rd thank you peter thank you very much everybody and you too and we will next go to agenda item number 10 which are the minutes the minutes from January 5th uh i have reviewed the minutes i think sue did an excellent job i don't have any edits does anyone else have any edits to the minutes the item on the agenda should read 2021 not 20 i'm sure the minutes are right the agenda says 2020 oh well we can't yeah okay well the minutes are right that's what we care about yeah so yep nice to hear from you sue yes i'm glad you're still awake here with us late at night um okay i would move that we approve the agenda excuse me the minutes from January 5th 2021 is there a second a second second by don we can do this by voice vote all those in favor of approving the minutes from January 5th say hi hi hi hi i was opposed i abstained i abstained i wasn't there by john wilking uh let the record flow six and yes and no nose and john abstained okay um any other items uh any other business for the development we were to discuss do we have the energy to do a quick decision on 1720 shelman road i think we do so this is where we say goodbye and we stop recording thank you for attending the self-reliance developer review board meeting for wednesday january 20th 2021 good night everybody except for the drb members hang on this conference is off