 on the chair of the Burlington Development Review Board. We have a quorum. I'm gonna call our Tuesday, October 18th, 2022 meeting to order. We're taking this meeting over Zoom. And the first thing on our agenda today is our agenda itself. I am recused on an item later. It is item 164 North Willard Street, ZAP 22-3. And so I am going to amend the agenda so that we move that item down after the other three items on our public hearing or certificate of appropriateness proceedings. I'm gonna move that after 251 South Union. So we're gonna take that out of order tonight. With that, we have a couple of other changes to our agenda. I don't wanna say changes, but notes on our agenda that I wanna address. First, ZP 22-251 11 Flynn Avenue was already approved by the Burlington Development Review Board previously. So it will not be on our consent agenda tonight. Scott, do I have that right? You have it right. Okay. I guess it was part of the other project that we approved. Yeah, something weird always happens when I'm away and that weird happened while I was away. All right. That was already approved. So that's not gonna be on our agenda. Also, 323 to 325 college, right, Scott? Was, has asked to be continued. Correct. So do we need to formally move to continue that? So Ryan, did the applicants request a date on that? I think I put, yeah, let me just, don't check this down. I believe so. You just pulled up, I'm sorry. We had on November 15th. I think that the memo, if the memo says the date otherwise, I think it was a date certain. Yeah, memo says November 15th. Yeah, okay. November 15th it was. So, is there anyone here in the audience to speak on that agenda item? No, it's not. I'm gonna raise your hand then drop it. All right. So then I move that we continue 323, 325 to November 15th. I can't, I can't. All right. All those in favor? Aye. All right. So then our first agenda item tonight for public hearing is 175 to 177 South Prospect Street, ZP 22520. The Eleanor Lannahan Trust and Bob Duncan Project Applicant Convert Existing Living Space into New Apartment. Scott, do we have the applicant here for us? Or Mr. Yeah, the applicant, Eleanor. Eleanor, is there anyone? Hello, can anyone hear me? Yep, we have you. Oh, Nancy, I'm calling you because I don't think I'm in the Zoom meeting and I can see Brad, but I don't see myself. Can you see me? Anyone? We don't see you, but we see your name and we hear you. That's the way we've done our Zoom. Oh, okay. Okay. Bye-bye. Thank you. Okay. Thank you for her help. Yeah. I'm sorry, I've been trying to get into a meeting. I logged in and out and in and out. Here I am. You're here now. Hey, Jerry, just for the record, I just want to note that I do know the applicant and the architect. I don't think that has any influence on whether I participate or not. So I'm comfortable. Appreciate that. Okay. Can you hear me, Scott and everybody? Bob Duncan? Yeah, Bob. Are you waiting for us to speak? Yeah, I just want to make sure you're both available. So we obviously have the staff report and this is a public hearing item. So I need to give you an oath. Please raise your right hand and state that anything you say here tonight will be true under the pains and penalties of perjury. I do. I do. Great. So tell us about your project. What are you looking to do? So this is a, Bobby, would you like me to proceed or? Yes, I would. That'd be great. So this is a very straightforward application. It's an existing house that's a duplex that had an addition built in 2008. The addition that was built was connected to the original duplex via a bridge over the driveway. Due to circumstances of the passing of Bobby's steer partner, the addition to the house that was built in 2008, which was extra living space for them is suitable to be an apartment. And in the zoning ordinance, there is a stipulation that allows for an addition of a unit to any duplex that was in effect before I think it's 2007. This duplex was in effected in 1991. So what we're proposing to do is to turn that living space that was built in 2008, which has its own water service, its own sewer service, its own electrical service, its own gas service to become an apartment that will be basically a two bedroom apartment with living space, kitchen and one and a half baths. There'll be no exterior changes. The only interior change will be the addition of the kitchen at the living room level and the closure of the bridge that connects the two spaces at the upper level. So that bridge will maintain, will be part of Bobby's house and the rest of the, and that'll be closed off by a rated wall and door. So no exterior changes. That's all interior. A lot easily accommodates three units based on its size, but we're opting for the stipulation, the zoning orders that allows for the addition of a unit when there's an existing duplex. I mean, I have to say, I'm pretty familiar with the ordinance. I haven't dealt with that provision. So good on you to find that one. Okay, give me one second. No, no, no, you don't have to find it. I see it now, but yeah, good on you for finding that. I trust it's in there. I saw it in the staff report and I went and found it. I hadn't been familiar with it. In the conditions of approval that were proposed for us, there was a closing out on old permit. Did you see that? Yes, and that's been scheduled. Okay, and there's also a need for wastewater septic approval. Yes, so we have that approval from the department of public works from Steve Roy, and there was some question, and we don't take exception to that condition, but there's some question he mentioned in the communication with us. I don't think it was ever communicated to your office that a letter from an engineer stipulating that the water service works was gonna be necessary, and we've been back and forth about that because I don't think that he realized at the time that when the addition that was built in 2008 was built, it had its own water service and its own sewer service. So I think that may solve his questions about there's some stipulation about why a letter might be needed. If it is needed, we'll get an engineer to stipulate that the service is fine, but it clearly serves, it's big enough service to serve a single family house and the existing service that serves the duplex has been in serving that duplex since 1991. So I don't think there's any issue about this capability of serving that. Okay, but that condition, you're okay, you understand and we understand it. Yeah, we actually already have the letter from him that the city has sufficient capacity, but there's something about a state wastewater that might require this letter. So we're just waiting to hear back from him on that. I emailed him actually earlier today and hadn't heard back yet. Does anyone on the board have any questions for the applicant? All right, is anyone in the audience here to speak on this application? I'd like to speak on this application, raise your hand now please. So like it's just the applicant, AJ. What'd you say? Just the applicant. All right, well, hearing no further, I vote that we close the public hearing on this item. I'm wondering if the board needs to deliberate on this item or if we can entertain a motion to approve it subject to those conditions. It seems relatively simple. No one was here to speak on it. It seems relatively well-designed. And I'm curious if the board would entertain just closing this one out now. Someone, do I hear it as a motion then? So moved. Seconded? Seconded. All right, all those in favor? Aye. Aye. All right. Cross that off the list. Thank you. Thank you. The next one we have is 251 South Union, ZP 22488, sorry, ZP 22489, Daisy Properties LLC, construction of five unit, addition utilizing adaptive reuse of a historic structure. It's the applicant here for this one. I am. All right. The James, is anyone else here? Like you're actually here. Unfortunately, Steve Crudell was not able to make it tonight, so hopefully I'll be able to speak eloquently as he can to the project. I'll do my best. Okay, I have to give you an oath. Raise your right hand and state anything you say here tonight will be true under the pains and penalties of perjury. I do. Okay. Now, we approved some development on this project previously this year, and I understand that this is essentially an amendment to that or changes to that. Do you wanna walk us through what's different or what we're seeing that is different tonight from what we previously saw? Sure. So previously we permitted the conversion of this previous law firm into eight residential units, which we are approaching the completion of. As part of the adaptive reuse bonus, we were not able to complete all of the permitting in the given construction and financing timelines. We're adding this now as an amendment to the permit under that 25% bonus. So the project is a five unit studio building that is subordinate to the main building. It'll be decarbonized net zero and yeah. So maybe I have a little understanding something. Sure. We approved eight residential units and this is adding five dwelling units for a total of 13. Do I have that right? Yes. Okay. And are those five residential units adaptive reuse? I mean, inclusionary Scott, can you help me with that? Two of them. It's a little bit wonky and the approval was granted for the eight units, right? And that approval is still live, applicants coming back to amend it basically under the same standards. Adaptive reuse has been relocated to be a historic building bonus, but it essentially gets you the same thing. So yeah, we're going from eight units to 13. Density limitations per acre are out the window. Density is limited by the 125% gross four area provision. The applicants have demonstrated compliance with that. There's two things that come into play with the 13 that didn't come into play with just the eight and that's inclusionary housing. I think two units are required. There's no information on that. And the other thing that comes into play is the transportation demand management plan. And we don't have any information on that. I'm sorry, before we go any further, the recommendation on this is initial review and continuation. Is that our intent tonight to do a plan review or to potentially approve? Well, my understanding was to talk to the app. My intent was to talk to the applicant, understand the project, discuss the outstanding items and see where we came out. I think it's wise that we don't approve anything before we have a full understanding of both the transportation demand management and the inclusionary point. I think that's likely where I would come out, but we haven't heard the presentation and I wanted to understand what had changed. Sure. We do not have an inclusionary plan at this point. Per the conditions approval, we have to get it approved by the city as a trust fund manager. I think we would probably split the inclusionary units between one of the ones in the existing building and the proposed building at such time as received or stuck in the documents. Then we make plans to fulfill those obligations according to my, and as far as transportation demand management, we have not submitted that yet. That's correct, but we obviously will. Regarding the other points in the conditions of approval, I think we largely agree with all of them. We have submitted additional plans with the cut sheets for the lighting, and the consistency among the project plans and the sheltered exterior entries. But I think they came in rather late today so they weren't able to be added to this project. Bike parking per the climate of Burlington right now will be interior of the units. Scott, when you say details as to the affordability of these units are needed and not yet have been provided, can you help me? What have we done with inclusionary before? I know we've dealt with it many times. Have we designated units specifically to be inclusionary ones as part of the application? I feel like we have. We have an understanding of which ones are and which ones aren't. Typically we haven't, and the standard is actually a lot of forefloating, meaning inclusionary unit can move around in a building. And that's especially common when there are rentals less common, I guess, when it's condos, but still possible. And really what it comes down to is a demonstration that the inclusionary units are basically on par with the market rate units in terms of size and amenity. And leave the affordability mat to CEDA. And so we need to see that, either CEDA's concurrence or independently, is that right? Yeah, yeah. And the quality of all these units is similar. They all have the same appliances, the same heating systems, the same finishes. And the sizes in the proposed building are all the same. And relatively similar to the diversity of sizes available in the existing building. Given that it was a renovation, the units are not that consistent size. Okay. Do you have anything else you wanna add about the project? I guess the only thing that I feel like is a bit of a gray area that can be either addressed now or later is the repetition of the window pattern in the North base of the building. We've been working with the National Park Service in the state of Vermont as historical consultants to certify this building. National Park Service is a historic landmark. And we wanna keep that back building matching or in consistent with the guidelines from National Park Service, that's detailed in that attachment to the agenda today. Is that different than what we approved previously? We're not making any changes to the existing building. It's just the proposed building's window pattern on the North side. But I mean, we're certainly willing to work with it. Okay. Supplemental information, yeah. Yeah, I see it. Members of the board have any questions? Ask the applicant anything? I have a couple, AJ. Good. One of them is the original application had a paving on the adjoining property that was noted to be turned back into lawn. And then this application is shown as parking spaces for the property to the North. Is that an intentional change or? That's not it. There was an unintentional change in the past one. We have to work with the North neighbor to secure access to the building. So we at present have not made any chance changes to that parking. But once we negotiate that or fail to negotiate that, we will either remove that parking or use it. Well, the current approval has that parking going away. I guess we're adding it in this case. So that's something you're requesting is to add that parking model. I don't know why is it back. I'm not sure how that's handled. No, the parking's there, Fred, like physically there. The current approval had it removed. Right. And now it's back again and the plan is being retained. So they're putting it back. Well, it hasn't really gone anywhere yet. Well, the plans you give us have some reality, so. Yeah, yeah. I agree. I think that was an oversight in the past plans. They were supposed to stay in the plans. It was an oversight of my part, so. I was trying to look at the difference between the revised plan and the original plans. And is the difference the connector between the buildings? Yeah, yeah, the connector has changed slightly to accommodate the HVAC on the revised building. I'm sorry, the existing building. Okay. It's unusual that there's no floor plan submitted with this. I believe there are, aren't there? Not that I've seen. No, I didn't see them either. We have plans, we have elevations. We have elevations, but I mean, there's five units. We have no idea how many bedrooms are each unit or what the, you know, it's, it just seems unusual not to have a... There are an open floor plan. So if you look down in the South Union amendments, Friday, August 26th, Architectural Drawing 3-2, which is on page seven, there is an elevation of the interior, but they are just open concept. They are studios with a mezzanine. You're saying this 3.2 is the plan? Yeah. It doesn't tell us much. Okay. I can certainly have Steve submit the vertical, but if you're failing that, just to describe it briefly, they are basically an open rectangle with a stairway and an upstairs water closet and bed area. One bedroom? More of a studio really because the bedroom is not separated. To those studios, five units, studios, okay. Isn't that in the revised plan sheet? No. Look at the document that South Union Street revised elevation plans. It is there. Thank you. My apologies for not knowing that I was there. Yeah. I thought we'd be submitting. Oh, that's helpful. Thank you, Jeff. Oh, come on, look at that. The coloring makes it hard to interpret. The other thing that is odd about the application is there's nothing about the color rendering or any of that on the exterior of the building. You show materials, but there's not really an indication of what the colors are gonna be or how it relates to the existing building one way or the other. I mean, I think we'd be choosing a color that part of your architectural guidelines were subordinate and not detracting from the main building. We're not gonna be painting it bright green. Does that mean beige? Is that what that means? No, no, no. I think more of a dark gray, but we haven't specified it. We could specify it if we needed to. Oh, okay. I think we wanna keep something that, as I said, is architecturally distinct but subordinate to the main building. Clearly it has to look like an addition and not reflect the epoch during which this building was constructed because it was certainly a building that was built over many generations and iterations. So we want to complement it rather than mimic it. I think we're doing that with the massing of the building and the positioning. Are there any ADA units? I would have to ask Steve about that. Regional application had ADA units in it. I don't know if it's sufficient, but I remember there being some in there. And also, were you suggesting that the window pattern might change or what were you saying about that? I'm saying that we would like to keep the window pattern as proposed, but we respect the guidance of the board and realize it's a relatively subjective matter, but we wanna create something that is acceptable. So we would be willing to change the north window pattern if that was the desire. We think the vertical double window provides better lighting for the mezzanine unit. And who gave you the opinion that it should change? It wasn't a strong opinion, it was just a comment and the conditions are approval. Here's just a recommendation, Jeff, to try and have some sort of relationship between the two structures. It's not a huge deal, but made the comment. Yeah, I mean, I think it's certainly worth considering and discussing. I'm looking at the elevations, the building sections that we were looking at a bit earlier and I don't see access to the basement. Is there access to the basement for the residents? There's no external access to the basement, there'll be internal access to the basement. That should be in the plans. It's largely just a storage area because there are relatively small units, so storage and mechanical. On the bike parking, you said it was all gonna be inside. Scott, the coordinates require short and long-term bike parking, so they do need to have some access. So we can add some external parking. But I think the exterior and the parking ratio for short-term is such that the additional bike units didn't affect what was included in the prior approval. As somebody presently lives downtown, I hope nobody parks their bikes outside right now. But we can certainly add that to the mezzanine drawings as well, the drawings of the external entryways. So it sounds like we're still waiting on a little additional information that hasn't changed from Scott's recommendation. Are there members of the audience here to speak on this application? We have Sharon Busher has raised her hand. AJ. Sharon, did you take an oath? I didn't one because I didn't know if I was gonna speak, but so you need to administer it, sorry. Raise your right hand. I have. I swear that the testimony I give will be true to the best of my knowledge and the pains and penalties of perjury. I do. All right, great. Go for it. Okay, thank you. I have some questions, and I guess the board also has raised some questions. And I wasn't clear about all of the criteria that apply here. And I flounder a little bit. I don't find that a comfortable place to be in, but so with historic buildings, you can go 125% of the original footprint, F floor area ratio, whatever it is, I think. I'm not sure, but not that. I don't think that's the right phraseology. And so that allows them to add these additional units as I understand. I wasn't quite sure if, how lot coverage fit in, if at all, because if parking now has been, was to be removed and green space added and now parking is maintained, I wasn't sure if that was relevant in any of the criteria that address this particular parcel. So I had questions as the conversation went on and wanted to understand as a member of the public what was being approved and what the criteria were. Sometimes that's really hard for someone to ascertain. The other piece that I, when I was on the city council and I haven't given up on this, I really feel pretty strongly about historic structures and the materials that are used to replace and repair historic structures. I applaud the applicant for the addition of trying to make it sort of subtle and not take away from the historic nature of the primary structure. I understand why the comment or the thought to continue the pattern of the windows in the new structure is relevant. Although I too like to have light in my living space but I'm glad that they're considering that because I think externally, I mean, we don't control anything internally but we, so it's all sort of a sod but I do like the idea of the continuation of the windows or the pattern of the size of the windows. So those were my comments about the surface parking, the lot coverage at all relevant, historic nature of the addition and the windows. And certainly I understand what the applicant said about water and wastewater. To me, that is something that's just detail. But as far as the affordability, inclusionary zoning, I thought these were rental and not owner occupied. Scott referenced the difference between if it was a condo versus a rental and how you don't have to delineate particular units that are inclusionary, that those units can move around. But I do believe that if they're owner occupied then in order to keep them affordable, there are criteria, so I'm not sure you can move those around. But my understanding is that these are all rental. And if I'm incorrect, I will look to the other side to the application to verify that. But thank you so much for listening to my concerns and I'll look forward to seeing the information that is added to this application. Thanks. Thank you, Scott. I think the owner occupancy relates to deed covenants in certain situations, right? Yeah, for the inclusionary, yep. Okay, all right. So if they're rental, there wouldn't be deed covenants. Yeah, it's basically a different instrument. But would there be a deed covenant in general? The property is approved in the permit. It's a condition of the permit which runs with the land, right? So it's sort of a deed restriction no matter what, ultimately. You know, I guess. Don't go down that road. Yeah, I got it. Okay. I'll give you the applicant. Does the applicant want to take an opportunity to respond to anything Sharon said? I wasn't sure what she was saying about the wastewater, but yeah, they're all rentals. And I think that about covers that response. Did I miss anything? AJ, I have one other question. And that has to do with lot coverage. And this is in two different zoning districts, right? And so is the lot coverage that's listed is that for the one zoning district that the building is in right now? That's not for the overall property, is that correct? The lot coverage standard differs between the two districts. As I understand it, 50% is for the RL portion. That's right, it's a lot, okay. Anybody else on the board? So Scott, if we were to close the public hearing, we'd have to reopen it for additional information, right? Yep. So I would move that we continue this application and request further and additional information from the applicant as put forth in the staff report. And Brad, some of the architectural details, do you still want any more of those? You're on mute, no? Still on mute. You're on mute there, Brad. Yes, sir, the record, I'm okay with the windows. Okay. Thanks, Brad. But there's still some other stuff. I would like to see the details about the inclusionary and make sure that C does approve that. Yeah, I'm certainly happy to provide those additional details. I think we agree with all the other conditions of approval. Okay. So I move that we continue this application. Do we have room on our next meeting, Scott? That's what I'm looking at right now. I think there's three items on November one. We'd have to amend the agenda, but we could. This would just be a fourth. Oreo can have the 15th. I'd like to tackle this. I think the applicant deserves that we move quickly. We're not looking for a lot of additional information. And if they could submit it by the first, I think it would be appropriate to hear it on the first. Okay. Let them move forward. So I'd move that we continue it to the first. Caitlin seconds that, Jeff seconds that too. All those in favor? All right. That's unanimous. Thanks everyone. Have a great night. All right. So the last item on our agenda tonight is 164 North Willard Street. And that is ZP, Z AP 22 dash three, appeal of adverse determination in ZP 22, 389. I am recused on this item. And so I will be handing it over to Caitlin in my steed and we'll be signing off. So good luck. Okay. So I think just to keep us organized, it would be helpful if anyone who wanted to speak on this matter raised their hand. So we have, it looks like there's three people. On one, Luke Purvis, Christina Waterback, Phil Bowler, Joe Snyderman, Joe Cleary, and Kim Syverson. Once we let all of those people into speak, I'm going to swear all of you in at once. If you would raise your right hand and swear that the testimony you give today is going to be true under pain and penalty of perjury. Say yes. Yes. Yes. Okay. And since this is an appeal of an adverse determination, Scott, is that right that the city goes first? Yeah. Yep. Okay. You've got the floor. Okay. So I saw the Helen had, I got the little error message in Zoom, about an old version of Zoom. So I just made it up panelists so that you can speak. They can speak. Just to apply. Okay. So fundamentally, this is a pretty simple matter of the prior owner, prior to a Hulu Purvis, install gravel on both sides of the driveway without zoning permits. The appeal has been trying to legitimize those areas ever since and continues today with the so-called Southern parking area and now the easement, which is also to the south on 158 North Willough Street. It's already been decided and litigated and or settled that the item in question are not preexisting non-conformities or unenforceable zoning violations. Both of them contribute to access locked coverage and they're in the setbacks. So they can't be permitted. But here we are again, except that finality applies this time around. I have a summary of dates to go through and then we can hand it off to the board for the appellate. Yeah, I definitely want to make sure you outline the timeliness aspect first, because I do wanna make sure we are not talking about elements that have already been settled and timeliness needs to be addressed first. Okay, so timeliness of the current appeal? Yes. Okay, well, so there's two pieces to that. The fence permit was issued May 26th of 2022, some three months and a couple of weeks prior to the attempted appeal before you tonight. There's a 15-day appeal period on that. That appeal is very untimely as to this appeal. This was filed September 9th, 2022. The appeal period wasn't completed until September 19th of 2022. And that was six days after the completion of the appeal period. Recall that there was a technical glitch in the permit system with the chat feature. So the original determination was basically reopened to allow reconsideration and additional information. I think that was four days into the appeal. So when the appeal period resumed, there were 11 days left. But the punchline is the appeal wasn't completed until six days after the appeal period had run. What elements of the appeal were not completed until that date, just for clarity? The short answer is the items on the appeal checklist. So basically, what exactly is being appealed? What are the grounds for your appeal? What are the pertinent sessions of the code and what's the relief requesting? Basically spelling out what you're appealing and why. And why you're right and the office is wrong. I want to ask a question about that. Sure. If we interpreted the 15-day appeal period to start from when the second adverse determination was issued, is it still untimely? Yes. Right. When the second, when the reconsidered determination was issued, the appeal period picked up on day five. Okay. I'm not sure I've heard us dividing the appeal period like that before. In my mind, it would be a decisions issued, reconsiderations requested, a new decision is issued, and then the appeal period runs from when the new decision was issued, or it's confirmed that you're not issuing a new decision. So what I'm, and that may not be right, but in my mind, that's the way I'm thinking about it right now. If that was correct, and the 15 days ran from when the final decision was issued, the appeal period, is the appeal still untimely? I think it's still untimely, Jeff, because it was six days, right? And it picked up on day five. So it still would have been a day or two late. Okay. But to your point of dividing the appeal period, that's something that I remember from, it wasn't, I don't think it came up in the most recent League of Cities and Towns training we had, I think it was a prior training where we had talked about deliberations. And that question was asked and answered directly, and I did confirm with attorney Sturgeon, who's on the call tonight, that when reconsideration is entertained, it pauses the clock, but doesn't reset it. And so that's what I did here. I think I remember it as clearly because there's news to me at that time. Okay. Well, it might be good to hear from Kim on that, although what I'm hearing you say is it doesn't really matter because the appeal still would have been to be on the 15th day. Right, it's still a day or two past now. Okay. Thank you. Do you want to get into a summary or prior actions, Caitlin? And then we can end it off. Yes, a question just for clarity. Yep. Refused on one aspect here is the adverse determination was requested by the applicant or the termination was requested by the applicant. And that's where the adverse determination came in and that's the appeal period we're talking about, right? You know, yes, I'll say, I'll keep it at yes, but then the caveat, Brad, is that the appellant is trying to wrap in the fence permit that was approved in there. I understand that. And so I'm looking for the date of that adverse determination. I'm not really easily seeing that. Is that July 29th? Is that what that is? Let me, let me pull it up. So the determination under the appeal right now was issued September 2nd, 2022. The findings and your write-ups say an adverse determination was issued July 29th, 2022. Then due to a technical problem, the determination was reconsidered at the applicant's request on day four of the 15 day appeal period. Following the reopened application period, the submission additional information by the applicant and adverse determination was issued September 2nd, 2022. So that's the September 2nd date is the final date, correct? Anything, would it be helpful for the board for Scott to go over some of the other issues on this property for context? I think if we're gonna hear from the applicant or neighbors about it, it might be helpful. This has been long, long running. And if it's, I hate to ask Scott to do the impossible, but if it's quick to give a summary of the timeline, that would be helpful. Yeah, thanks. It also does seem there is a question whether how much of that is relevant to what we're doing tonight. Finality, but here's the dates. I think I've got six or seven key points and then we can go into more detail if you'd like. So June 28th, 2019, TRB decided on a prior determination, adverse determination and appeal with respect to the so-called Northern and Southern parking areas and the duplex versus triplex use per the stipulation order from the court of January 4th of 2021, those adverse determinations became final. And specifically, they found that the gravel on both the North and South side were not preexisting non-conformities or unenforceable violations. So I posted the stipulation order, it says pretty clearly that DRB decision is final for that. Administrative determination just prior to the one under repealed tonight, dated November 12th, 2021, addressed the gravel South of the barn among other things and found that it was not a preexisting non-conformity. That was appealed to DRB, but it was withdrawn before you ever considered on the merits per the revised settlement agreement from this past April, April 4th. That April 4th, 2022 revised settlement agreement extended the timeline for retaining the triplex and allowed retention of the uncommitted patio and resulted in issuance of the fence permit a few weeks later in early May. It also required removal of the gravel in the so-called Southern parking area by August 1st, 2022 and allowed for an installation of a turnaround. The gravel has not been removed. The fence permit was issued May 26th, 2022, some three months prior to the appeal before you tonight. Trying to wrap that into this appeal is super untimely. On September 2nd, 2022, the appellant filed a determination request for the neighboring property at 158 North Willers Street without the owner's written consent. He was advised to get that, didn't get it. And in fact, the owners of the property 158 withdrew that application September 7th, 2022. So I'll say that again, the owners of the property withdrew that application and there is nothing to appeal. The last item I'd note, and we just touched on this briefly, the latest appeal was filed September 9th, 2022. The appeal wasn't completed until September 19th. And that was after the completion of the appeal period. The last time an appeal, Mr. Fervis was in front of you. He also did not file a timely appeal, but you gave him the benefit of the doubt and let it be timely. So that's a quick overview of the timelines. Can you also clarify for me the area in question of this? Is it on the property of this address? So it in the easement or is it both? It's both. So the so-called Southern parking area is about a two-foot wide strip of gravel alongside the driveway on 164. The gravel just south of the barn is also on 164, but everything in the easement is actually on 158, North Wheeler, separate property. So the only thing that is really within our discussion is what is on this property. Correct. And relevant to the Southern parking because that's what this appeal is for in. Well, he's pointing out the Southern parking area, which again has already been litigated and the gravel south of the barn, which was already addressed in the prior determination, which is appealed and withdrawn and the fence appeal, which is super late. Any other questions from the board for staff before we hear from the appellant? General question is, shouldn't we be determined that timeliness first before anything else? My concern with that, I have a tendency to agree with you is how do we achieve that without deliberative? Well, something else I learned from the LCT is you can deliberate that stream, something that's not common, but you can. Can you repeat that, Scott? I didn't understand that. So again, going back to a prior training with the League of Cities and Towns about board decisions and deliberations is that the board can deliberate during the course of an application. You don't need to complete review to have a deliberative and typically it's done to see where board members are on application before then following up with, for example, request for additional information on X, Y, or Z. So we could go into deliberative on the timeliness and then come out of that? Yes. So if that is something that we're considering, what I suggest we do is we definitely want to go to the appellant to discuss timeliness and then once we hear that, we can discuss if that's a route we wanna take before we further the discussion into any of the merits of the appeal itself. So with that, Mr. Purvis, I will open the floor to you to talk specifically about the timeliness and any evidence you have contrary to what's got just laid out on the timeliness timeline for this appeal in particular. You are on mute just so you know, if you unmute yourself. Hello. Thank you for hearing me today again and I appreciate you saving the best for last. So in terms of the timeliness, this has this strange intermix between something that was supposed to occur based on the settlement and having it be linked to a permit. And so the settlement agreement that I signed with the city in April of 2022 set an outcome of that was that I would finally have a complete site plan for my property. And that's been a really big problem that I've experienced through the multiple times I've been in front of you and how the enforcement is unfolded is that I don't have a site plan. And so what happened was I submitted a site plan per the settlement and there was a second piece of information that request that was, sorry. And so I submitted that site plan and I thought it was the wrong site plan was chosen. And so I pursued it within the settlement comments or within the permit comments that, hey, something wrong happened here and it's wrong about the settlement and it's not really, it's important to the permit to be right but this is about getting a correct site plan on my property and the approval of this permit was related to the site plan that I submitted. And so the wrong site plan was chosen. And so within the 15 days I brought up the issue about the wrong site plan. It took Mr. Guston about a month and a half to even respond to that concern. I thought we were still talking about kind of a settlement issue, not a permit issue. It took him additional two months to even acknowledge that an appeal to this permit was the way to correct my settlement site plan. And so that's just kind of strange and how these things are joined administratively. And so really this is an appeal about getting, the appeal for the fence is an appeal about getting the settlement back on track and having the site plan that represents the current conditions of my property. In terms of the appeal, the timeliness of this, of the overall appeal. I do disagree that this is untimely, mostly because there was, if with the disruption of the appeal period there was one or two, I joined in the ZP 21275, I joined in the non-conforming use determination and then on September 7th, the third part of this was the appeal, the determination on the 158 property, which Mr. Guston told me that I needed to submit. And so I submitted that and it was delayed on, withdrawn on September 7th maybe. And so that was the third leg of this appeal of this appeal tripod. And so then I completed the appeal on September 19th, 10 days after the third leg of the appeal, had a, of these combined issues has had a decision. And so within 10 days is actually, should actually be considered timely. And so, you know, this is pretty complicated. You can see a level of effort that you're breaking up. I think we lost the audio for you, Mr. Pervis. For instance, in this program. And so, you know, if you consider all of the decisions and the completion of the final permit in the timeline, the 158 permit, it is within that 15 days of that permit's completion. And so it should be considered timely because this is one giant issue, not three separate issues. Does the board have questions for the appellant? Well, you guys just to be clear about the third permit at issue here is that that's not your property, correct? And that's not, that permit was withdrawn. So there's no appeal there. Incorrect. And so that's a strange thing because the, this particular owner has previously given code enforcement approval to issue a decision on that property. And no decision was issued as part of the complaint. And so now he doesn't want a decision because it prevents me from accessing the portions of the ordinance that would allow me to demonstrate the legal nature of the use there. And so by issuing a complaint, not receiving a decision and then disissuing a complaint in 2014, no decision getting issued. And then withdrawing permission to try to get the decision that should have been issued back in 2014. Well, then it just leaves this as the no man's land and zoning where no decision is ever reached. And even though it's requested by both the easement owner through a complaint and the easement user through a determination. I do want to be clear. There is a decision here. It's not, but there is no decision. And I do want to narrow the conversation to this property because that is really the only thing that we can consider today. Brad, did you have a question? Well, I'm just, no, I mean, I don't think that the time in this issue was really addressed just now but I think that the other thing I just want to understand what Mr. Purvis is saying is he's really submitting this site plan as representing the settlement agreement, right? Is that, am I correct about that? Yes, that this is a site plan that's supposed to represent the settlement agreement. And Mr. Gustin has made a choice that doesn't represent the current conditions of my property. Okay. That was my other question. This is the settlement agreement plan. And that's really what your position is that this plan you submitted on 164 is the settlement agreement from your point of view. Yes, it is the settlement agreement that I'm trying to get back on track. And I'm then submitting these other things to validate its historical use for why- Well, we're not dealing with that at this point. We're just dealing with the appeal right now. So. Any other questions from the board particularly on timeliness? Can I make one other point? And I know Mr. Gustin it has been represented that I'm a familiar appealer. And so, but what happens is there's these nuances each time and that they're compounded by these technical issues. And so that's the third or fourth time I've experienced the technical issues where the step has been reset yet some constraint around the timeliness doesn't jive with, doesn't get communicated, doesn't jive with the step getting reset and restarted. And so that's just the one thing. And in terms of ZP 21275, it says this the permit system as my appeal period ended in May of 2021. Right, when you go to the appeal section within the permitting, it says 2021 of May, which is over a year prior to the decision, the approval. So when you look in the permit system and it tells the wrong date, it's really hard, especially when you're working my working relationship with Scott is challenging and we don't communicate very well. And so it says the wrong date and you're believing the permit system because your communication is a challenge with the principal planner. Scott, I wanna give you a chance to reply and maybe it will be helpful if you could talk about the notice and communication related to the option for appeal that goes out to the applicant. I understand we can't have an ongoing dialogue, but just wanted to point out that each permit or decision requires its own appeal, appeal. The most recent one, it doesn't come up that often, usually comes up with applications that involve more than one property. The most recent one that I can think of was actually Burton down on Queen City Park Road. They were making some slight improvements across both properties and there was a neighborhood organization looked to appeal. And so two permits were issued and it has required two appeals for filed. So Mr. Purvis is trying to wrap in the fence 158 and the determination here into one. That doesn't work, each one needs its own appeal. In terms of folks receiving notice of appeal rights, that is noted in each set of permit conditions that's issued in permit denials, as the case may be. It's right there in the black and white. I posted it here, it's there. And also in the chat, which goes directly to the applicant in the form that an email says, hey, the permit was approved today as in the 15 day appeal period. So there's a couple of ways that the applicant has notified. I didn't know anything about what Mr. Purvis said about the system showing the wrong date. The system doesn't do dates, which is one of the shortcomings of it. The 15 days has noted and the conditions are in this case, the adverse determination as well as the fence permit approval. I got it. Thank you. I want to check in with the other folks who have asked to speak. Joe Sinderman, Joe Cleary, if there is anything in particular on timeliness that you want to share at this point, keep your hand raised if it is not about timeliness, if you could put your hand down. Okay, I'm going to go to Joe Sinderman first. Again, please try to keep your comments specific to timeliness at this point. You are free to speak. It looks like you're unmuted, but we're not hearing you. Okay, we're gonna come back then. I'll go to Joseph Cleary. If you unmute yourself, you can share your comments related to timeliness and depending where we go with this, we'll come back for additional comments. Okay, thanks. Can you hear me okay? Yes. Great. Well, there are a couple of things I want to note. One, I think maybe it's just Mr. Rabinowitz who was here in 2014 and Scott, this is how far back this goes that does relate to timeliness in a certain sense. It's a long running issue that we have with a neighbor who's trying to park cars on our property and his and the lawn related to the specifics. I do want to remind the board as Scott did that Mr. Purvis tried to pull this same stunt last year, about a year ago and was given the benefit of the doubt. He did miss the appeals deadline, yet the DRB allowed the appeal to continue. It was finally resolved in the April settlement which he's trying to renegotiate now, I think improperly because this is not a venue for renegotiating a settlement agreement between parties. So I think it's important that Mr. Purvis simply comply with the rules that govern zoning appeals. The fact that he's flaunted zoning decisions for eight years and then misses this deadline, I think that should inform and prejudice the board's decision. According to the staff report, the appeal you hear tonight was not properly filed. And I quote, the appellant is very familiar with the zoning appeals process and missed the deadline for filing a complete appeal. Therefore, the appeal should be dismissed as untimely. And further point I just would like to make is that Mr. Purvis really has wasted the city's time, staff time, the city attorney's time, your time since 2014 on this issue. And I would appreciate the board considering that it's not appropriate to give him another chance on this issue. Thanks so much. Thank you. I saw that Mr. Purvis put a comment in there addressing this. So I just wanna recognize that, but I am going to move back to Joe Schneiderman. If you are able to unmute and speak now, we will hear your comments on timeliness. Doesn't look like she's on from that comment. Okay. And Caitlin, we should probably just so the record is clear either read into the record what Mr. Purvis put as a comment. I don't know what his plan is going forward. So I just wanna make sure whatever he has to say is part of the record rather than just mentioning a comment that he made. Yeah, for sure. So Luke wrote in the chat, I'd like to share that I was not informed that I needed to submit multiple appeals related to both the fence permit appeal and the appeal of the non-conforming use appeal. Does the board have questions at this time? The last thing I'd request, this constant chatting that Mr. Purvis is doing isn't constructive, it's actually not productive at all. I think he's had his opportunity, but I'll defer to the chair, but whatever he does, I just wanna make sure that the complete record is clear going forward. Yeah, just procedurally, Caitlin, I'll underline procedurally because it's an appeal of my decision. What Brooks is pointing out hadn't occurred to me. I had to make him a panelist to speak because of his version of Zoom, which also means he in chat, which is a problem with adding to the public record through the chat as opposed to during the open hearing. So he shouldn't be using the chat. Thank you. So with that, I did want to clarify on Mr. Purvis's question, which permit the untimely appeal applies to. This appeal that we are hearing right now is specific to ZAP-22-3. That is what we are talking about. That is the timeliness discussion we are having today. I just wanted to make sure that is very clear. Brad, you had a question? Well, I'm wondering if it would be helpful to hear from Kim Sternifant on this timeliness question as well. You know, I admit that given that what we're dealing with is an adverse determination of something having to do with a settlement agreement, it just seems odd that we're here at all, but maybe I'm listening to more. You're all silent. I can go ahead and speak to both of those. I mean, I've reviewed Scott's staff report and agree with it. There is a concern to the timeliness, you know, beyond that there's concerns to finality. This is an odd procedural predicament with the settlement. And that's another issue I think for our office beyond this, as there certainly were, you know, provisions of the settlement that required for appeals to be dismissed and such, and also for other appeals not to be brought. But, you know, as far as what you have before you, I believe Scott's laid out the timeliness issue and, you know, the site plan and the defense permit were both approved back in March, sorry, May 26th. So that was certainly more than 15 days prior to September 2nd, even if you go by the September 2nd date. And as far as the other questions, they as well fall beyond the 15 day appeal period. Thank you. Welcome. Caitlin, I'd like to move that we move into deliberative. Will we close public hearing and move to deliberative? Hi, excuse me, sorry. This is Christina Lodderback and I am part of it. There's a motion on the floor, so we need to handle that. Thank you. Is there a motion on the floor? Is that a completed motion, Jeff? I was trying to move that we move to deliberative to discuss the timeliness and make a decision on that point. And then if necessary, I can return for further testimony. A second, yeah. Chase seconds. All those in favor? Opposed? Leah, okay. Recording stopped. So we are moving into deliberative. I just want to make sure this is very clear. It looks like you moved great Mr. Purvis out from being a panelist. Thank you. Okay. Brad, you want to start? Hey, Scott. Purvis, I still see Joseph Cleary and Arm Morison and Joe Schneiderman as panelists. They're not panelists. Okay, I can't hear you. Well, it seems one could take this as a pretty straightforward kind of thing that timeliness matters. It's hard not to think about that in terms of the actual application, which is appealing something that already has a core stipulation agreement on it. Trying to ignore that. And it is admittedly a tight window on the timeliness issue, but I think it exists. I think for me too, the other point is we have given this appellant the benefit of the doubt very recently on a very similar matter. And so it's hard for me to believe that misunderstanding of the system and the way that it works is still in play. And you can't argue with the dates and the timeline there. I think the other issue about it too is that if his goal, as he says, is to end up with an approved site plan that matches his settlement agreement, he still has the opportunity to try to do that, but it's just not gonna be coming out of this application and this appeal. And if I understand correctly, there was an approved site plan along with the settlement already. It seems like a... Yeah, I'm not clear on that Chase, but I think it's kind of without outside of our purview at the moment with Brad, like if there's something else that comes forward from that settlement agreement, but the settlement agreement just says, shall submit a site plan. It doesn't say to us, it could be to the court. We can't get into it. I do think too, given us our attempts to keep the evidence and discussion limited to timeliness, we should try to keep our discussion limited to timeliness because once we decide, if we decide it was timely, we can go back and discuss the rest of the matters. I think there's a reason we don't have a lot of information on that. Yeah, and I'm in the camp of if it doesn't appear timely. I think that the dividing of the appeal period is a little strange, but it does look like the appeal, the final appeal materials were filed later after 15 days from September 2nd. So even if you take that later date and run 15 days, it's still on timeline. Agreed, yeah. So I'll make a motion, unless anyone has any other comments. Recording in progress. I move that we deny the appeal and uphold the staff decision and find that the appeal was filed in untimely manner. Brad seconds. All those in favor? unanimous. Recording stopped. I think we need to go back to the meeting just to close it out, right Scott? Do you need to start the recording for that? Recording in progress. Yes, there you go. So with that, that we've closed the public hearing that concludes our agenda for today. And we do not have any other deliberative items before us. Okay, see you next time. Thank you all.