 Welcome to the South Burlington Development Review Board for Tuesday, November 20, 2018. First item on the agenda is directions on emergency evacuation procedures. If there's an emergency, we're all supposed to meet in the South Parking Lock, which is right behind us. And so those two doors there are the best ways to get out, but you could go out the same way we came in if pressed. So additions, deletions, or changes in the order of agenda items, we're going to move South Village to number five because they are asking for a continuous, so people who are here for South Village can come back later. Other changes in the order? Hearing none. Questions and comments from the public not related to the agenda. Anybody have any questions or comments not related to the agenda? Hearing none. Announcements. Hearing none. Item number now moved to five. The sketch plan application SD 18-31 on South Village Community's LLC to amend a previously approved master plan for a multi-phase 234 unit plan unit development. The amendment consists of reducing the total number of units to 278, converting lot 11 currently approved as educational to residential, and converting lot 11A currently approved as residential to limited neighborhood commercial 1840 Spear Street. We have a note from Robin Jeffers saying that she would like, she requests to withdraw the current sketch plan amendment and she will resubmit at a later date to provide better clarifications for the project. Also in that packet is some comment letters that I received from neighbors on the application. I just didn't think it was fair if they didn't get to the board. There they are. They came in after the packet was published. What date would be a good day to continue this to? They would like to withdraw. So none. Okay. Loose sketch. Another date. Right. Right. So that's the end of that. Now number six. Appeal AO-18-01 of Tom and Donna and Fuso at all. Appealing the decisions of the administrative officer that the master plan application MP 18-01 and preliminary plan application SD 18-29 of Dorset Meadows Associates LLC were complete as submitted on September 26, 2018, 1505 Dorset Street. Who is here for the applicant? For the appellant. Good evening. Daniel Seth, MSK Attorneys for the appellants. Oh, right. Thank you. Charlie reminds me that I should make sure that everyone knows that one of our board members is attending by telephone tonight. He's on the go to meeting so he can see what's going on. The little eye of Sauron there is, lets him know what people are saying and who's saying it. Brian, right? It's Brian. Right. Brian Sullivan. And Brian Sullivan of course recuses himself for this item. Don't you Brian? Absolutely. Okay. Thank you. So I guess we'll call you back. Does that make sense? Or do we just mute him? Just mute him. If you could just mute, that would be fine. I wouldn't mind hearing it. Okay. I can mute myself. I think. I'd like to hear me. I'd like to hear the hearing if that's possible. I don't think that's appropriate, Brian. If you're recused, you're out of here. Well, that's not been the practice since I've been on the board. I noticed that another board member was recused from this very item and sat in the back of the room, but okay. It should be the practice. I'm sorry? It should be the practice. Okay. If it should be the practice, then it will be the practice. All right. Marla, would you cut off it? Would you cut him off? Yeah. We'll call you back. Okay. Or mute it. If your mute is good enough, if he can't hear us, that's fine. I'm going to hang up because I don't know how this phone works. Okay. Now you can probably leave that and just stop sharing. Turn off the two buttons on the top. The two green. Yep, all of those. There you go. You did and blind. Okay. Okay. And to start this off, Mr. Seff, I think you've done a great job in presenting the argument. So if you could just be very brief in presenting what you'd like to say tonight. Oh, actually I have a handout if that's okay. In addition to what you submitted. Yeah. Great. Good evening, everybody. Happy holidays. Good evening. My name is Daniel Seff. I'm an attorney in Burlington and I represent the appellants to save time. I won't list them all, but there are 15 names on the notice of appeal and those are the appellants in this matter. So this is an appeal from an actor decision of the administrative officer pursuant to Vermont statutes and the land development regs. And in section a on page one there, I've quoted the statutory sections and the LDR section there just for reference. The appellants are all considered interested persons with standing to appeal and I've quoted the two statutory sections under which we maintain that we have standing to prosecute this appeal. Now, the main argument as you know from the notices of appeal and Mr. Chairman, I'm assuming an understanding that this appeal is concerning or this hearing is concerning both appeals, the appeal concerning Miss Keen and Mr. Conner, is that correct? Okay, great. So it's LDR section 15.05c3 that mandates that the DRB, this is at the top of page two, shall determine if the proposed application meets the purposes of the land development regulations. And in a recent case from the environmental court, which was actually cited by Miss Keen in one of her November 9th memos, this is the Saxon partners case. The environmental court held that the, and it's concerned South Burlington, that the DRB must issue quote a final decision unquote concerning a sketch plan. And that is consistent with state statute, and in particular it's quoted there in the third bullet point on page two, 24 Vermont statutes annotated 4461A. And basically what that section says in the bolded portion is the panel shall keep minutes of its proceedings and showing the vote of each member upon each question. So the question for the DRB in a sketch hearing or sketch meeting is whether the proposed application meets the purposes of the land development regulations. And pursuant to the Saxon case, and there are, I didn't bring them and I can provide them if asked, but there's a litany of cases out there from DRBs around the state court cases that indicate that the DRBs made a decision on sketch one way or the other. So that's the practice in the state and as it should be it's because it's required by state law. So I have studied the minutes of the August 7th DRB meeting and I've studied the CCTV video of that meeting. I studied that video like it was the Zapruder film. And there is, there was no determination that the sketch application met the requirements of the LDR. There was no vote to accept or reject the proposed sketch plan as required by the LDR's state statute and the Saxon case. So what is the significance of that? And by the way, that's not a criticism of this board at all. It's just a statement of what we believe to be the legal state of affairs. The sketch hearing was not closed and there was no final decision on whether or not to approve it. The legal significance of that is in section D on page two, which is that a developer or an applicant cannot file a master plan application or a preliminary plaid application until after the sketch proceedings have concluded. And once the formal final decision on sketch proceedings is concluded, the applicant then has six months in which to file preliminary plaid or master plans. So that's one of the important reasons why a formal roll call vote is so important is to notify the applicant, the developer, of when the clock starts running for him or her or it to get going on the master plan and preliminary plaid applications. There's another reason though why it's so important, why there's an important policy behind the law that there has to be a vote on sketch. And that is that the public has a right to know where a project is in the permitting process as well as the right to know how DRB members are voting on particular projects. So the main argument in our two appeals is that this board never closed the sketch hearing and that therefore Paul and Marla, to the extent that they can be considered the administrative officer, and hard-working dedicated public servants assumed inadvertently, and we say respectfully incorrectly, that the sketch hearing had been closed, that a decision had been made by this board to approve it, and that an application for preliminary plaid and master plan was timely. Not ascribing any evil intent or maliciousness to it, it was a misunderstanding, we believe, and an honest one. But the fact is that those applications were not ripe to be approved and therefore we're asking this board to reverse those approvals. Now, we have a second argument which is let's assume for the sake of this discussion that the DRB did close the sketch hearing on August 7th and did approve the sketch application. As just discussed and as detailed in our notices of appeal, we don't think that's the case, but let's assume for the moment that that's what happened. Then the question is, who has the authority to approve the applications, that is the master plan and preliminary plaid applications? What happened here was, and I suspect, I don't know, but I have a suspicion that there may have been some confusion here because this happened in the vicinity of the time that Ray Belaire retired. So this is the chronology as I understand it, and I hope that Paul or Marla or anybody here will correct me if I have anything incorrect here. According to the minutes of the August 6th City Council meeting that Marla submitted with her November 9th memoranda, Paul Connor was appointed as the zoning administrative officer on that date by the City Council August 6th. And again, I think my guess is the reason that that happened at that time was that Ray was in the process of phasing out, not having retired as of that date. However, according to the minutes of the September 17th 2018 City Council meeting, is it Delilah? Delilah Hall was appointed as the acting zoning administrative officer on that date. And here again, I'm reading into this a little bit that perhaps what happened here is that Paul was appointed to cover the interim period in between Ray's retirement and the arrival of Delilah. But as of September 17th, Delilah was officially the administrative officer. And in fact, Ms. Keane introduced Delilah at the September 18th 2018 DRB meeting as the quote new zoning administrative zoning administrator. That's that's from the minutes. So it's our position that on September 26th and October 12th, which were the dates that Marla and Paul respectively attempted to deem the preliminary Platt and master plan applications as complete. They were respectfully not the administrative officer with the power to do that. So Ms. Hall, as far as I know, we have not seen any documentation that she approved either application, which frankly is a bit of a head scratcher to me because if she started on the 17th, she was in position on the 17th of September on the September 26th to be able to do that. So I just don't understand chronologically why that's the case. In any event, Ms. Keane last point on this Ms. Keane submitted two memoranda to the DRB in conjunction with this hearing and she signed one of them as assistant administrative officer and the other one as assistant zoning administrative officer. So I'm going to assume that Ms. Keane was the quote assistant administrative officer on September 26th, which was the date that she signed the applications as complete. It's unclear whether she had even assuming that's the case it's unclear whether she had the authority to do that, because according to state law and I've got a quote from the statute here it's 24 Vermont statutes annotated 448B. From municipalities that established the position of an assistant administrative officer and at least on the service it appears that South Burlington is one of those municipalities quote there shall be clear policies regarding the authority of the administrative officer in relation to the acting or assistant officer. So just to summarize quickly, it's appellants position that this board never closed the sketch hearing that the sketch hearing was still open and that therefore approvals of those two applications was not timely or ripe. And even assuming for the sake of argument that the board did close the hearing, we submit with the utmost respect that neither Paul nor Marla were the person with the authority to approve the applications. And I'm happy to answer any questions or attempt to if anybody has any. And I realize that I went out of order I should have allowed the administrative officer to testify first. So, but in response to your comments, does the board have any questions of Mr. Seff? Let's start from the second argument because I consider it. Not a serious argument, but we're going to discuss why and then we'll look at one a little bit and see if that's more serious. Is it your contention that the application was not in fact complete on September 26 or that whoever said that it was didn't have binding authority to say so? It's, thank you for asking that question. That's a good and fair question. What I think happened here, okay, is. That's an A or B question. Well, it's, it is an A or B question, but I think it's an A plus. You're going to give me a C answer. I'm going to give you an A plus C. What I think happened here is, as we all know, it's no secret that it was right around this time that the city council was considering adopting interim zoning, which in fact it did. And it appears to me and my clients that this was a rushed preliminary plan and master plan application to try to get in under the wire of to beat administrative interim zoning. So it's quite possible that the applications themselves have some deficiencies in terms of their completeness because of the expedited way in which they were filed. I'm not interested in part two of your answer. Okay, you know, is there some insufficiency that you are here to point to tonight? The insufficiency that we have pointed out. In the items submitted as part of the application. That's a very narrow question. We have not appealed on that basis. Okay. Thank you. And you wouldn't contest the right of this board to rely on what it's told by its staff, would you? Are you saying they have that the the assistant administrative officer has so little authority that we can't turn to our staff and rely on what they say? I'm not sure, Frank, what you're getting at. I can say that. Well, you know, if the staff member said, for example, this application complies with the setback requirements. Can we rely on that? If it's not contested by the applicant, I understand if the applicant comes in or this does not comply with the setback requirements. Let's say the administrator officer said that or the person writing the memo to us said that. My understanding of the let me finish. Oh, sorry. Let's let's try to get for the question. But it does not comply with the setback requirements and the applicant is entirely silent on the issue. Can we go forward on the supposition that it does not comply with the setback requirements and then and then make a ruling or we required in the absence of any challenge to inquire further into our staff members fund. I mean, I think that I'll be honest with you, Frank. I don't understand how this question relates to the appeal tonight, but I want to try to respond to it. I think that ultimately the decision of this board, the board members are responsible for their decision. And if they rely on erroneous advice, whether it's from a staff member, a city attorney, an applicants attorney, a neighbor opposers attorney, and it turns out to be wrong on the law. Then it's reversed. Then it's wrong. Or if it's wrong on the facts and therefore wrong on the law, then it's wrong, right? But you don't dispute the right of a board to rely on its staff for subordinate facts that lead to the major decision. But the but the threshold in the absence of a challenge. Okay, so in the absence of a challenge, you mean when the administrative officer makes a decision and nobody appeals it. Not makes a decision, makes a fight. In other words, you understand the practice here, right? Voluminous papers come in, the very hardworking staff who you correctly call the very hardworking staff, right, spends a lot of time reviewing it. And we get memoranda that says what the staff thinks. Usually the applicant gets a copy of that memoranda or I think virtually all the time and can challenge what's in it. And then either we do or don't look more deeply past what the staff member has found, depending on what the applicant has to say. Or unless we see something suspect or fishy or not quite right in what the staff has said. I mean, that's the way it works. You're familiar with that, right? So what I'm saying is the staff member says doesn't meet the setback requirements. The applicant is silent on the point. Naturally we would rely on that, right? To decline the application. Pardon? To decline the application. Right. Okay. The staff member comes and says, well, the application is complete. You can go ahead with the preliminary plan, right? Unless there's some overriding reason of law, we're going to rely on that. So for point two, right, with a reason I find it not a serious argument to be clear is that they don't need any authority to tell us the application is complete. You need to come in and show us why the application is not complete. That's my view. Okay. I have a slightly different view on that point, okay? And there is state law on administrative officers and powers of administrative officers. If it turns out that we're correct that neither Paul nor Marla were the administrative officer with the authority at that time. The fact that they signed the application is ultra vires. It has no legal significance, and that's the point, too, of the argument. As far as I know, this board has not acted on the preliminary plat application. I haven't heard from anyone or seen any notices that there's been a hearing schedule on the preliminary plat application. The issue is whether, in point two, whether there was legal authority to approve the applications. And if you're saying we have the burden of proof to show that they didn't have legal authority, you may be correct. They don't approve the application. We approve the application. As complete. What we're talking about is there's only one question. Was the application complete sufficient to vest the review date, the effective review date, or the effective review regulations? That's all you're here about. Well, there's that question, and then there's the question of whether it was complete and whether the individuals involved had the authority to deem it complete. Well, we're going to reject that. They had the authority to tell us what they thought. And you have every right to tell us that they were wrong. And you're here with nothing on that point so far. So that takes care of issue number two for me. For me, I don't know if anybody else would persuade me. Issue number one is a different kettle of fish. You understand this board has always taken a position that it doesn't make formal findings on sketch plans. It tells the applicant informally what it thinks and the applicant, you know, acts on that or not. And if it doesn't, when it comes with it, if it ignores what the board is thinking, which it's pretty open about, right? And in public, then if it doesn't incorporate those thoughts into its preliminary application, then it perceives that it's parallel. And we've always regarded that as notice, and that's our precedent. Am I correct about that? So it's unlikely because of that precedent that this board is rightly or wrongly. I mean, I see what you're citing, and I don't think it's a trivial argument. Thank you. But rightly or wrongly, this board has a well-established precedent that the LDRs, which is what we follow, don't require us to make the kind of formal finding you're talking about and to quote, close the sketch plan hearing. Comes in for sketch plan, we say what we have to say. The applicant says what he has to say. He says, anything else? He says, no. Applicants aren't sworn in. Pardon? Applicants aren't sworn in. Applicants are not sworn in also at the sketch plan meeting. That's what happens. That's the precedent of this board. You need to save your argument. Probably. I mean, we're going to rule on your appeal, right? But I think forecasting for you what the result is likely to be, we could be wrong. But it's likely we'll follow our precedent on that point. Because if you're right, then we went wrong. Evidently. For years. Not necessarily, right? Not necessarily, because as I tried to, we're all neighbors here. I've tried to present this in as diplomatic a fashion as I could. What I'm saying is, and what the appellants are saying is, this board, according to the law, both the LDR's state statute and case law, case cited by Ms. Keene, needs to make a decision on the sketch. I'm saying, based on our review of the minutes and the video, no decision was made. That's not a criticism of this board. Well, the question is, does that preclude the filing of a preliminary PLAT application? We say yes. Well, where does it say that? Well, it says it in... Even if you're, I'm not conceding that you're correct. Right. But even if you are, where does it say that the failure to make that decision precludes the filing of a preliminary application? Okay. In the bullet point section D on page two, I cite two sections of the LDR's. The first one is section 15.07 C1. And what that says is that the master plan application must be filed, quote, within six months after the final DRB meeting on the sketch plan. Yeah. I read both of those. I think either of them have the effect that you say they have. Now, going back to your first point, whether will you require to make a formal decision? If you're right about that, then you're right. But if you're wrong about that, your argument has no further force. Because everybody knows when we've had our final meeting on the sketch plan. It's on the public record, say, okay, we're done with the sketch plan. We look forward to your preliminary application. Or your preliminary application better include X, Y, or Z, or you're dead in the water. Well, the LDR's do say, and this is at the first bullet point on the top of that same page in section 15.05 C3. The DRB, quote, shall determine if the proposed application meets the purposes of the LDR's. And that's why your appeal is not trivial. Thank you. I concede that that is an arguable point. What I'm telling you is the reason it loses at this level is likely to lose at this level. I don't speak for the board, but I'm guessing, right, is that the precedent is so well-established here. What is the harm? I understand, and I've been aware of what's happened in other meetings. But what is the harm of saying at the end of the meeting something to the effect of, okay, do I have a motion to close the sketch application because the application meets the purposes of the LDR's? Motion seconded. All in favor? Aye. I'm not saying there's any harm. What I'm saying is that for us retroactively to say, gee, you're stuck for the next nine months or the next year to this applicant because we followed our precedent is unfair. The applicant, well, I'm not going to speculate beyond that. You understand what the force, you perfectly well understand what the force of precedent is. The applicant comes in with certain expectations of the board in part because of its precedent. The board could be wrong. A lower court could be wrong. Any administrative body could be wrong. The applicant was here on the night of August 7th. If the applicant wanted, the applicant could have said, can we please have a vote that our sketch application meets the purposes of the LDR's and close this so we can move on to preliminary plan. That didn't happen. I understand it didn't happen, and it never happens in my three years, I think, of experience. And in the experience of those who have been on long, that's not what happens. That's what I mean by precedent. With respect? I think that... We could overturn our precedent. I'm predicting for you that we're not going to overturn our precedent. That's my guess, but I'm only one voice. And you will be free to raise that particular argument when you want. By the way, I haven't read the case Paul cited in his memo. And I'd like to hear actually from Paul about his response to precisely that argument. And actually that gets back to the order that I blew. We're supposed to have the administrator office here testify first. So I blew that point of order. And so I'd like to, if we can, if there's no more questions, let's move to... You want to conclude any questions that you've got first, that's fine. Any final questions? I'm fine. Thank you. Okay. Thanks. Thank you, Chairman Miller, Miller board members. I'd thank you for the opportunity to speak. I'll be brief. Most of what we had to say is in our memo, but I did want to go over them for orally as well. The submissions that we provided to you were also given to the applicant on November 13th. For the record, my name is Paul Conner. This is Marlekeen. I've served as the city's planning zoning director since 2008. And as of August 18th and the city's zoning administrative officer, I'll speak to that in a moment. I'd like to briefly address two main points that were raised in the appeal. Regarding point A, as to whether the sketch plan review was properly concluded, I'd like to make two brief notes. First is, and importantly, sketch plan review, as the board has noted in its practice, is not a public hearing in the LDRs. Nowhere does it say public hearing. It says it's a meeting. With no public hearing open, there's no public hearing to close. The action of completing an item and or concluding the evening barring a continuous choice by the board is the end of an item. The LDRs do not include a written or voted upon decision for a sketch plan. Paragraph that was just being read section 1505 section, subsection C3 says review by the DRB, the development review board shall determine whether the sketch plan meets the purposes of these regulations and shall where it deems necessary make specific suggestions to be incorporated by the applicant in subsequent submissions. The board has always treated this as suggestions. The purpose of sketch plan is to provide non-binding guidance. A couple of notes were just raised that I wanted to speak to briefly. One in there is regarding state law. State law does not specifically reference sketch plan. It speaks about complete applications, but that's in reference to preliminary and final plots. There is no state law statement that I'm aware of sketch plan and different communities around the state have employed that tool differently. Some have binding elements, some like ours have nothing binding to come from it. The purpose of sketch plan is to give oral guidance at a very broad level. Oral guidance was provided by the board on two meetings on July 17th and August 7th. A question was also raised on would there be any harm in the board taking a vote that the project meets the regulations at sketch, but the way that the regulations are written would suggest yes, that there would be harm associated with that, because that would create an appealable action, which could then be appealed into the environmental court. The board would have made a formal voted decision on whether the regulations have been met without having seen anything more than a single page of an application. That's why it's just a sketch and why vesting takes place at a later stage. So, that's what I had to say on that point. Regarding point B, staff members authority to deem the application complete. Again, I'd like to make two brief notes. I think that essentially that was just covered. But first, staff doesn't agree that the action of deeming an application is complete is necessary under Vermont law. An application containing all the required submission elements is complete when it's submitted, regardless of whether we determine that it is. It is complete. Appellant has indicated this evening that they're not appealing on the basis of anything not being there. Second, and regardless of the first item, staff were authorized in their actions. As shown in the city council minutes in your packet. Marlequin was appointed as assistant zoning administrative officer on March 7th. And on August 6th, I was appointed as zoning administrative officer pursuant to the city charter. I did want to speak to the question of September 17th and whether there was any confusion. In the minutes attached to the minutes that are posted on the website is the staff memo that was provided to the council on that date. I'm going to read a brief section of that. This is memo that I drafted to the city council that's included in the minutes through if you click on the hyperlink. In order to provide the public with the greatest customer service and to help bring Delilah up to speed, staff is seeking that she be appointed as an acting zoning administrative officer, acting code officer and acting telecommunication officer. With the time being, at least staff is requesting that she be appointed under the title acting under the overall authority of zoning administrative officer, Paul Connor. Kathy Ann LaRose and Marlequin will also retain their authority as acting zoning administrative officers and acting code officers to be able to issue permits, etc. The appointment would be effective until the council's next round of annual appointments in March. So that's what the council took its action on with that staff memo. That's essentially all we have to say. Board questions? No. Okay, so the next in the order that Marla supplied is the applicant or the applicant's attorney, Robert Rushford, should be invited to present testimony and not required to, but if you'd like to say something. Thank you. I'll be very brief. We certainly agree with the staff's memorandum and the rationale that was provided. I would say from my own personal experience that I've, the board's precedent on sketch is something I've experienced before and I've been, I was in the Saxon case. So I understand that and was in the Spear Meadows case where this precise argument came up before. And in that hearing, when there was a challenge to whether sketch was a final decision, we had a quote from Mr. Dinklage, the chair at the time, who at that point, this was the minutes of July 6, 2010, and was answering a question about sketch and was asked when, when, when is there going to be a final decision made. And he said, quote, the formal hearing occurs at preliminary plat and that that was the understanding that the sketches really is the meeting, not a hearing. The, the other thing I just want to point out is just the, the kind of why are we here. Vested rights, we've talked a little bit about that. There's a, there's a classic case under Vermont law, which is Smith versus Winhall Planning, which was a case in 1981. And in that case, the Supreme Court set up the rule, which was supposed to be a bright line rule about when does an applicant get vested under the law. And there had been a number of cases before then where an applicant would file an application and a community would try to change the regulations while the application was pending. And the Supreme Court had a decision to make, are they, when, when would somebody who is a landowner seeking a permit, when would they have a vested right. The Supreme Court determined that that vested right would occur when a complete application was filed. And the policy behind that I think is important to keep in mind. The Supreme Court said they chose that rule because it serves to avoid a great deal at least of extended litigation. It makes for greater certainty in the law and its administration, and it avoids much the protracted maneuvering which too often characterizes zoning controversies in our communities. That's the purpose of the rule, and we ask that you just honor that rule tonight. Thank you. Great. Board of questions. Yeah, just curiosity. You heard Mr. Sepp's reading of 15.05c3. Without changing an iota, my statement about board precedent, can you refute his proposition or comment on his proposition that there's an obligation to take a formal vote? In other words, do you agree with Mr. Dinklage? Of course I do. He's a very wise man. You have a view of 15.03c3. Well, I think it's consistent with the goal of sketch plan which is provide feedback to the applicant. And so part of that feedback is determining whether you meet the purposes of the LDR. And one of the kind of the catch-22s when we were doing the Saxon case, the feedback was you don't comply with the regs, and the applicant had a difficult situation because what do you do with that? It's not a final decision that you can appeal because it's a meeting with feedback. And so that's where that got caught, but it was an opportunity for the applicant to understand where you headed here and are you heading towards troubled waters because you're seeking something that's not going to get approved. The actual language in the sentence on the sketch plan is whether the sketch plan meets the purposes of these regulations. It doesn't say whether it meets the criteria of the regulations. It's not a pre-judgment of the ultimate merits of the application. And where I always, I'm interested in being educated because I haven't thought about this. Where I found that relevant is in PUD applications that has a statement of purpose in the front. I think it's 15.01. It says it has to be innovative or whatever the heck else it was, you know. And that's what I relate that to. A bold statement, well, there's nothing innovative here, so we doubt this will be a PUD. We would say informally based on our precedent. That's all I think it means. But I had another question for you. You were involved in Saxon. That's cited here by Paul. Mr. Siff seems to feel it stands for something other than what Paul is using it for. If you were involved, what does Saxon hold? The quote is in Paul's memo. What's the ultimate holding in the case? It's that the sketch was not a final decision. That was at least in South Burlington. The determination by the board that you're not meeting the purposes of the zoning district was not something that was a final binding decision. So the court says, for the reasons explained more fully in the entry order that accompanies this judgment order, the court agrees that 24VSA 4471 only authorizes appeals of final and binding decisions and that the DRB's comments in this case, which were at sketch, are not final and binding because the city of South Burlington's land development regulations do not authorize a DRB to finally determine whether a project isn't allowed use at the sketch plane phase. Is there anything in the case that in fact supports Mr. Siff's contention that the board is supposed to take a formal vote on what it's supposed to determine at sketch plane? We didn't prevail on that argument. We were making it. In other words, we were trying to argue that we had a right to appeal as a applicant. I'm not talking about whether it's a final decision. I'm talking about just a pure matter of procedure. Is there anything in the case that says the board erred or should have taken a formal vote regarding whether the application complied with the purposes? That I'm aware of and I don't think it was procedurally the posture of it wasn't in a way that that issue came up. I don't believe. You can reserve the right to comment on that because I want to get to something else. But whether or not it did, let's assume the board just blew it and has been blowing it for years at sketch plane. Does that control? Because do you have a copy of Mr. Siff's handout? Yes. Take a look at page two. I asked him whether it mattered. The only thing at issue here is whether there's a complete application and therefore a vestment. That's really what's going on. And the gravamen of what he seems to be saying is, well, if you messed up the sketch plan hearing, then there could not have been. But this needs to be the gravamen of his argument, whether it is or it isn't. If you messed up the sketch plan hearing, then there could not have been, no way, no how, a completed application as of September 26. And when I asked him the question, he cites to, yes, 07C1 and 15.08A, which simply say that you have a certain amount of time after the final DRB meeting. Now, we think it's pretty clear when we've had the final DRB meeting, excuse me, for the final sketch plan meeting. We think it's always pretty clear because we say, well, we're done with sketch plan. We look forward to your application. Do you read either of these sections as precluding the filing of a preliminary application assuming that we messed up the sketch plan hearing? Do you understand the question? Not entirely, but... Let's assume we messed up the sketch plan hearing. But you went ahead and filed a master plan application anyway. Excuse me, a preliminary application package anyway. And it was complete. Is there any relation between the two events? That is, we messed up, we had a legally messed up sketch plan hearing, but you filed a timely preliminary plan application. Is that, quote, legal? Is there an objection on those grounds to the effectiveness of your application? I don't believe so, and for the following reasons. So, as we know, zoning is in derogation of common law property rights and the Supreme Court has created standards on how you interpret zoning ordinances. And so, zoning ordinances are supposed to be strictly construed in favor of the landowner applicant. If there's an ambiguity, it's construed in favor of the applicant. In addition, the staff's interpretation of the regulations that it worked on drafting is given effect on appeal and given effect by this board, which you've already indicated. And so, to the extent that there's an ambiguity in the ordinance about when you can file a preliminary plan, any of those ambiguities are to be construed in favor of the landowner to be able to do what they did. And in addition to that, the actual words used here in the 1507C1 talk about a DRB meeting, not hearing, which has been pointed out, that sketches a meeting. And I think that the precedent that's occurred here, the applicant reasonably relied on. You had a reserve point to make, which was what Saxon Hill says or doesn't say. So, that will be in order. The order of this hearing is that after the applicant testifies, then interested people, interested persons testify, and then there's an opportunity for responses. I defer to the Chair. So, we'll get to you. Next, more questions of the applicant. Okay. Interested persons. So, if anyone has comments or questions from interested persons, I ask that this be about the specific item on the agenda and that it not be repetitive, that it not duplicate what's already been said, but if people want to testify as interested persons, please come up and identify yourself, and we'll figure out if you're an interested person. Yes. Everybody who wishes to provide testimony must first demonstrate whether they're interested. Right. So, two separate things. So, one, everyone states that the board will make a determination, then comments. For the precision point, is this just speaking of the appeal itself or of the project in general? So, the comments, we should limit the comments to the appeal. Correct. Right, not the project. So, if you please come up and identify yourself, and then we will determine if you are an interested person. All right. Everyone here is an interesting person. Thanks, Jack. Thank you. I think I qualify as an interested person. This is my attorney. So, I'm part of this case. My name is Daryl. I'm Peter's. I live in South Burlington. And on what basis do you claim you're an interested party? Pardon me? On what basis do you claim you're an interested party? I'm a party to the suit. Party to the suit. Is that not making me an interested person? No. Could solve with your attorney. Oh. You're an appellate. I'm an appellate. Sorry. Right. And so, you're one of, so you're not in a butler? I am both. Oh, you are in a butler? Okay. Well, that's all we need to know. Because your butler is the simple definition of, otherwise you have to be part of a group of ten. Oh dear. All right. Thank you. Yeah. Mike. Okay. So that she is an interested party. Yep. Okay. All right. My question is really very simple. And my, our attorney may actually be surprised. Because my question is, I've just been reading in the other paper. And I read these things about what the DRB is doing or whatever. And it seems like they're taking votes, et cetera. And I think what I'm hearing tonight is you never take a vote on a sketch plan. Is that correct? Correct. So the things that I'm reading in the other paper where you actually take a vote are on other things like PLAT or whatever. Right. Site plan. Why is it that you never take a vote? May I ask that? As Paul pointed out in the land development regulations, the sketch plan is a meeting, not a hearing. A meeting is an informal process where we provide guidance to an applicant. And we say, you know, if you tweak this, we don't like this. Got too many trees over here. We want more trees over here. We want a, you know, bigger setback, smaller setback. So we're providing general guidance to, so that when the actual hearing takes place on the site plan application or the preliminary PLAT application, if I don't plan this plan, all those things. So that they can be guided so they don't waste time trying things that we've already told them, that's not going to work. I see. But the clock starts ticking at this point at which you haven't taken a vote. It's just. Right. Within six months. An informal activity. Right. Assuming that the quote here is accurate that within six months there has to be either a master plan or a preliminary plan application. If there are projects that are brought to us on which there is no vote, a sketch plan comes forward. We look at, may look at a project and determine that it doesn't comply with LDRs. The applicant walks away and we never see them again. No vote taken. Right. Thank you. Thanks very much. Next. Yes, please. My name is Andrew Chalmick. Dan is also my attorney. I'm a butter. You're in a butter. Very good. So we agree that. Yes. Very good. Thank you. I'm also an attorney, but I'm not an expert in land development regulation. So leave the legal analysis to Dan. But the only comment I wanted to make is that I was at the sketch plan hearing. And it was interesting that the meaning kind of ended, which I guess the meanings kind of do without anyone actually saying, okay, you were approved or anything. The meaning just kind of ended. And I was left wondering what happened, honestly, not having been through a lot of these. And then Dan emailed us and said, don't reveal any attorney client communications. We're all wondering what happened. We didn't know how to communicate what happened because we didn't really know what happened. And I guess it just strikes me as a matter of process and policy that there's a reason why there should be a vote because this way people know what happened. And you can tell they voted this way or they voted that way because we actually all left in a state of confusion. I left in a state of confusion and everyone did. We just looked at each other. Is there another meeting? Did it go through a sketch? What happened? So that's all I wanted to comment. Okay. Thanks very much. Next. No more. Okay. Time for responses. So let's go out of order again. We'll allow Mr. Sath and then the administrative officer and then the applicant. Thank you, Mr. Chairman. First of all, on this supposed distinction between what's that? Staxon Hill. You were going to come to that. Come to that very, very quickly. On the supposed distinction between meetings and hearings. If you look at, please, page two of the handout. Section C third bullet point. I quote the state statute 24 Vermont statutes annotated section four, four, six, one a quote meetings of any appropriate municipal panel shall be held at the call of the chairperson. Doesn't speak in terms of hearings. It speaks in terms of meetings. So if we want to call the sketch meeting or the sketch proceedings a meeting. So be it state law says meeting at a meeting that quote meeting the panel shall keep minutes of its proceedings and show the vote of each member upon each question. Okay. So I think the distinction between a meeting, the attempted distinction between a meeting and a hearing for the purposes of the legal issue on this appeal is a distinction without a difference. As far as the Saxon case goes, Mr. Rushford, who I consider a friend and a colleague and an outstanding lawyer quoted a statement by Mr. Dinklage from 2010 in the Sphere Meadows matter where we were on opposite sides, continue to be on opposite sides, but the Saxon case is from 2016. And that's a court without the utmost respect to this board and the chair. Hang on a minute. Let me just interrupt you real briefly. I assume that Paul's quote from the case is accurate. It doesn't answer my question. It says, the city of Southbrook understands something when we talk about precedent. The city of Southbrook and land development regulations do not authorize the DRB to finally determine whether a project doesn't allow use of the sketch plan phase. That's an accurate quote, right? I think he's quoting from the case, actually. There's a reference in his quote to the entry order. And it's the entry order, I think, that governs. It's the entry order that I quoted and it's the entry order that I have here. So that's not a quote from the court? I don't believe it's a quote from the decision of the court. I think it's the judgment order. Oh, it's in the judgment order? I think that's what they said. It's from the judgment order because the way it's, I'm not looking at it right now, but the quote says, it says, as more fully explained in the accompanying entry order, is that what that quote says? It says, for a reason to explain more fully in the entry order. Okay, so it's the entry order. Okay, so I'm holding the entry order. All right, but this is the judgment, right? Okay. But the detailed explanation is in the entry order, as that quote just says. I think we need to look at the entry order to determine what happened and what the court held. And I can summarize it very briefly. I think it's the right... But I'm not looking for a total... I'll let you do that, but I just got a narrow question. There's the court in the entry order. Does the environmental court we're talking about, not the Supreme Court? That's correct. All right. Does the environmental court say that contravene our practice? Does it say we have an obligation to make a determination on a point by point for it to read it to me? Okay. So what happened here, and again, Mr. Rushford was a counsel in that case. I was not. So if I say something inadvertently and correct, I hope he will, and I know he'll correct me. What happened here was he was representing an applicant before this board, and he was trying to get sketch approval. The applicant was trying to get sketch approval. And the board permitted use, it is a quote, shopping center, unquote, inside one building. That's what he appealed. He appealed that comment from this board. Okay. And what the environmental court said in the Saxon case in rejecting that appeal, as not allowed, is, and this is at the top of page three of the entry order, the DRB's comments in this case do not fall into any of the categories of final decision. The DRB is allowed to make a sketch plan review. So the comment, the attempt, the comment that this doesn't meet the LDR's was not appealable because it was not one of the categories of quote, final decision, unquote, that the DRB is allowed to make. It's clear from this ruling that this board, when it's passing somebody out of sketch so that they can proceed on to the next stages, has to make a final decision. It's not clear from what you just read. No, it is. It is. Because he cites, George Walsh cites. You asked about 1505C3. Here's the quote. The DRB's comments in this case do not fall into any of the categories of final decision. DRB is allowed to make a sketch plan review. C regulations section 15.05C1,3. So he reads, George Walsh reads, and that the precedent from the e-court is binding on this board, that under 15.05C3, the board does need to make a final decision to pass somebody out of sketch. It didn't happen in the Saxon case. With the utmost respect, it didn't happen here. I won't argue with you. You're making a little bit more of a leap than George Walsh. George Walsh is stating there in any event. Just so you're clear we're on that when we get through it. There's some stuff that Paul said I don't agree with. There's some stuff that you've said I don't agree with. Ultimately, your point about 15.05C3, again, is not trivial for what you're really here for. I don't believe it matters because I don't believe it controls whether someone can file a complete application. I just, I've read it. I've heard you. I just don't think so. Think about why it should, though. And this is a classic example of why it should. This is what happened here in this case, more so than Saxon. Okay. People knew. People in the development community and the DRB community, in the neighbor community, knew that interim zoning was being discussed. There was no final decision, and that's a quote from the Equal Case. These were on sketch. The applicant and applicant in that situation would be concerned that if interim zoning goes into effect before the DRB makes its final decision on sketch, it's not going to be vested. So what would an applicant in that situation do? They would rush and file, potentially, rush and file a preliminary plan and master plan application before they had gotten sketch approval. That's not appropriate. That's not appropriate. That's bad. We would consider that to be a bad faith filing. You don't get to rush to the DRB. But that's not what happened here. We all knew, quote, we all knew from years of precedent and practice before this board that the sketch, the sketch plan hearing was over. Just heard Mr. Chalmick say, he's a very bright man. He went to law school, practiced law for years. He didn't know. You may have known collectively subconsciously, but the people in the room didn't know. I can tell you, I'm not going to get into specific communications, but I had multiple people inform me that they didn't know what happened. Very intelligent, well-meaning, smart people did not know what happened at that meeting. And we, I suppose, could consider changing that practice going forward. But it doesn't. It's not there for your benefit, right? You're arguing at the two sides of your mouth. You say the applicant deserves to know when it's over, right? I'm saying that there are policies for the rule that there needs to be a final decision. Some of which are designed to help the applicant so it knows when to file its next application. And some of which are there to help neighbors know what's going on in the process. It's not two sides of the mouth. And as a matter of policy, you know, I don't necessarily argue with you. I think it's been clear in our and in our sketch plans when it's over. Now, if it wasn't in particular cases, you know, I regret that. Of course, it doesn't matter much if you're just out of butter because you can't appeal the decision anyway, really. The reason it matters is and you've identified this, you understand it completely. The reason it matters is that you need your ticket punched in sketch before you can file your master plan and preliminary plan. No, you don't. That didn't happen here. No, you don't. You can you can foolishly proceed if your ticket's not punched. But but but I don't think you need it punched. You could do whatever you want. But for it to be valid, not you, an applicant can do whatever it wants. But for it to be valid, they need, as Judge Walsh refers to the final decision from sketch. So I think we disagree on that. I don't think the law says that. Yeah, right. And I don't think the decision says that. So and we're going to hold comments until we're, you know, like up here making comments as an official present for testifier. And there will be a time for interested parties to respond. So if there's more response to the comments that have been said by Mr. South. More response for me. Yes. I don't have any more comments to my comments. Next, I'm continuing in the out of order fashion. The Minister of Officer comments. Just provide if the board is interested. We just printed copies of the Saxon Partners entry order so that if you want it in the record, it's there. Would you would you like a copy? I'd like a copy. Sure. Thank you. Thanks very much. Otherwise, the last board members have any questions. I don't think we have anything else to add. Okay. Applicant questions or responses to this? I guess I should say is there anything else that you'd like as part of this? Right. It'll take us a couple of minutes to look at this. Do we want to take the time now? To look at the... We just wanted it to be in the record so that if you choose to close the hearing, you can deliberate based on that information. Exactly. Right. So I'd recommend that we move on to the applicants responses. Okay. I have no further comments unless you have questions for me. Okay. Interactive Parties. Anybody else like to make some comments? Come up and make comments, please. As Interactive Parties in response. Robert Brinkerhoff. Yep. And basis for... I'm with a butter. Very good. Okay. And we all agree that the butter is... I'm with a butter. Very good. Okay. And we all agree that the butter is... Okay. We all agree that the butter is the perfect basis. Thank you. I'm with an appellate. Yep. Okay. I've been listening to this hearing. And I'm not a lawyer. But there's clearly procedures that should be followed. And my reaction to this is just because you haven't been following the procedure, does it make it right? You need to follow the procedure. That's all I'm going to say. And I don't think you can just change the rule as there's law. That's it. Thank you very much. So, do we need to go into deliberative session or can we just close this? Yeah. You guys want to deliberate? We can go into deliberative session if you want. Otherwise, we can just close. Second. To move in second, we'll close this application. All in favor? Say aye. Aye. Opposed? Thank you all very much. Appreciate your time. Appreciate your time. Thanks for giving everybody. Same to you. Thank you. Next, on the agenda... I'll turn those things back to Greenland. All on you two. Okay. The whole thing's on you two. Great. Great. Okay. Thanks, Charlie. Next. You know, we could... What's that? We could deliberate. Audio again. So, we have a couple more applications that need to be heard. We could deliberate tonight. Yeah. We could deliberate. Right. Next on the agenda, conditional use application CU18-12 of Paul J. Washburn to amend a previously approved use permit for construction of a 14-by-17-foot detached accessory structure to be used as a 186-square-foot accessory residential unit. The amendment consists... We got to get... Did we lose them? Off a mute? Yeah, I closed them if I didn't know how to mute. The amendment consists of reducing the rear setbacks to five feet and increasing the height to 15 feet at 30 Myers Court. Who is here for the applicant? Hi. Paul Washburn, here to... Hello? Can you just... Just wait a second. Brian, we're starting... We just finished up the appeal and now we are on to the conditional use application. Paul Washburn... Yeah, I see it on my screen. Paul Washburn is representing himself. Okay. That's as far as we've gotten. Good evening. Good evening. So, just to kind of preface this, I was here back in, I believe it was Mark, for my initial. We've now gone through construction phase and there were some minor changes and some misinterpretations on my part of what the code were. So, we're trying to get this straightened around so that everybody's happy. So, I'm handing out an illustration that Paul sent me today that is relevant to the application. Brian, Delilah, we'll show it on the screen. Okay. And then we can just flip to this, I guess, when we get to that point we'll talk about it immediately. I just wanted to make sure the board had it. So, when we get to it, flip back to it for Brian's sake. Yeah, I see it. You can see it? Okay. Yep. And we will get to that as staff comment number four. So, yeah, so we'll talk about that later. So, let's go on. So, you have a copy of staff comments? I do, yes. Okay. So, if we'd like to start with number two. Number five. The, that one, okay. Well, the loft comes to his living space. Is that what you're asking for? Yep. Okay. All right. So, the, the drawing that Marla just handed you is a, sort of a section, if you will, of the loft space. The ceiling height, maximum height is six foot five inches. That covers an area of 51 and a half inches in the middle and then it slopes down to the sides where the height is 36 and a half inches. I've looked online to try to find a definition of living space. I found some that say six foot five inches constitute living space or above. I found some that say seven feet or above constitute living space. I do have a website that I found. It's from the, it's like a home inspection site where they, they show that I can hand this to you guys. I didn't make a copy of this. I wasn't sure how this debate was going to work, so I've done this. This shows sort of a graph and in the description it describes that any part of the room has to be at least seven feet high and that you can what you constitute as being part of the room space. But none of this area that's a loft is above six foot, the highest, the highest height is six foot five. It's like here if I stand in the middle and then it slopes down. So, I think in the definitions that you have within the LDR that the closest thing it comes to is the way you define seller. So, you define a seller as a level, of course it's below ground which this isn't below ground with a floor to ceiling height of less than six and one half feet. Right, so this has a height of less than six and one half feet which you, the LDR differentiates a seller versus a basement based on that. Like a basement can be taller and then it's considered living space the way I read it. I would say this is also an attic which is within the roof framing. This space is entirely within the roof framing. And the section that I see that talks about that being living space is on page 41 where you talk about a half story. And you said it'll be a habitable floor when the attic is made habitable by dormers. There are no dormers on this building. So, I look at it as not living space as it's less than six foot five based on the based on what I've seen elsewhere and what I see in the LDR. So, yeah, I mean I like a staff's comment that any word or phrase not defined in the section have it's plain and commonly accepted meaning applicant represented that the proposed habitable area is 186. Which is the ground floor if you will, not the loft space. So, 60 feet additional, 60 square feet additional space. So, so, staff, so what? So, unfortunately, this is a situation where staff wants to defer to the board to form a judgment on whether the loft should be considered habitable space. So, there's no question, it's a habitable space. It's silly not to say it's how it's not a, it's not a, so if it were three foot tall, a rabbit hutch, you know, I'd say, yeah, it's not habitable space. I couldn't live there. Even my wife couldn't live there, my short wife. So, so it's habitable. You can't stand up in it. I don't know that you can stand up in it. I'm six foot four. So, I could barely stand up. So, I mean, if you have to crouch around in an area and be on your knees, that's living space. I just don't, I don't know. So, I mean, what is it otherwise used for? You know, I'm just determining that it's not habitable area is that this accessory dwelling unit does not meet the maximum allowable size. It does not meet the maximum allowable size. The LDR is because, because Mr. Washburn has a small house to begin with, the LDR is limit the maximum size of an accessory dwelling unit, accessory residential unit to 30% of the size of the primary structure. Got it. So, I'm just determining that that loft is part of the habitable area of the accessory residential unit then his accessory residential unit is too large and therefore should not be approved. Well, what's the square footage of the house? This house is 634 square feet. But the main house is, this house is 168. Is that the question? The main house is 634. And what is the 30% applied to? The 634? No, no, no, 30% the tiny house is 186 habitable. It's a small house and a tiny house. It's a small house with a tiny house as an accessory residential unit. And the tiny house, if this is included as habitable, that means that the tiny house is too big. Essentially. But if we say that this is inhabitable, then the tiny house is fine. It's okay to be tiny. What are you going to do in this large area? I mean, it's a small house. Where do you put stuff? Right. There's clothes up there. There's, you know. Yeah, but, you know, I had a loft. When we went down, I had a loft was about three and a half feet high. Kids slept up there. Yeah. Was that habitable? I don't know. Six feet five inches is tall enough for me to walk around. Well, you can only walk about this far because it's a nine pitch roof. So you could basically On my peripheral vision is not that good anyway. You might be able to stuff that. So what are the consequences at this point? So the state statutes and city LDRs, you know, have the goal of allowing accessory residential units. Staff's position is that, you know, I'm going a little off topic here. This isn't you know, staff's position is that the building has been minimized. You know, he started with a very small house with which to measure his 30%. And he sort of made his tiny house as small as he could to have it be habitable. And he's really up against the hard place because his primary house was so small. So the consequences of determining that the accessory residential unit is over the 30% and not allowable is that he can't have it. You know, maybe he has to take off the roof and build it without the loft or maybe he has to take out the loft or maybe he has to take the whole thing down altogether. But basically if the board can't approve this, he can't have it as constructed. Is the loft already there and he's coming in after the fact? It's already built. So in the staff the dashboard has some additional information on the reasoning for why this is after the fact, but essentially there was some miscommunication about what the dimensions were when he got his original approval and so he's coming in to correct those deficiencies. It's part of the process the loft was noted by them and I had never considered that as even part of the process because I considered it not habitable space based on everything we have at the 6 foot 6 at the lowest and 7 feet generally regarded as defined in most municipalities as habitable. The ceiling height is less than 7 feet. Most municipalities or municipalities that define it do not consider that habitable space. Just out of curiosity are there any butters here? There are. So just to back up a few more steps from time to time projects are not built the way they were approved. Typically it's something like they fail to install a parking space. They put the dumpster somewhere else. Typically those sort of changes don't rise to the level of coming back before the board. There are minor amendments we do them administratively. This the staff determined had to come before the board because the two issues are height and setback. This is something I mentioned a little bit earlier today in our staff's position is that to amend it it needs to come back in front of the board. Minutes from the meeting that Mr. Washburn was here for talked about height. I remember Jen asking a question about height which is why staff felt that it was important that this come back in front of the board but this isn't out of the ordinary for somebody to come in and say may a culpa I want an adjustment of a foot because I misunderstood in the first place. If this there's other issues too. Right. Yes. Right. If assuming all the other issues taken care of. Let's let's start with that one. So you're measuring 77 inches that runs from where to where. The floor of the loft to the ceiling of the loft. Well and if we find it is happening you got to take it down. Or I can block it off. Well could he block it off. It becomes not habitable. If the board what if he lower what if he lowered the ceiling six inches will the board determine that to be not. It would be less. Well the the the shorter it gets the less habitable it becomes. And at a certain point the board would determine it to be not habitable and therefore not contributing towards the square footage and therefore provable. But this one this definition habitable and go to the other issues first. Is that all right Mr. Chair. Great. So the other issue is the height which is comment four pre-construction grade. So when I designed this building so there's there's two things going on here. I designed on graph paper as you can see I kind of like my graph paper and when I did the floor I did the floor the fact that it had a 16 inch floor choice basically. So that added to the building height as constructed and it was something that I never really considered until this issue came up. Like now all of a sudden I'm like why is it so tall? That's one issue. The other issue is where it's located in the yard far far in the back as approved by the board at seven the foundation is seven over seven feet off the line. Sewage doesn't flow uphill it needs to go downhill. So that had the base of the foundation had to be high enough to allow that gravity. There was some talk of maybe putting a cistern in but there's a few sort of canopy oaks back there they're huge huge trees and those cisterns are five or six feet by five or six feet by five or six feet and the hole is going to be 10 feet deep and so we decided that we would rather use gravity than basically kill those trees. We thought that was a reasonable thing to do foundation again this is where I made a total mistake when I was putting it all together I thought final grade height was based on the frontage against the road not the pre-existing grade so the way it was built was the slab was poor basically the top of the slab was that grade and then there was a 16 inch crawl space so that's additional space so the building to the top of the crawl space measures about 14 feet three inches stand off now that we take nine inches out of it we're still too tall so how far over the allowable height is he? Marla how far over the allowable height is he? about 16 inches about 16 inches so just look at the consequence here so the consequence of us finding that we're not going to prove what you've done would be at least are there other issues too? those are the rear offset I think is pretty minor because that was it's seven foot five is the foundation and we have a utility box that approaches five feet but it's not over five it's outside of five feet it's five foot three but we can that box would be easy to cut back if we needed to or whatever so let's assume you could that's a setback problem is it? yeah we got three issues one is the is that right three issues so the setback he asked for seven the maximum allowable or the minimum I'm asking for five because we're not asking for a variance of any kind we've got two real issues one is 16 inches over height 16 inches over height we could solve so telling you that we're not going to help you keep it as it is doesn't mean you've got to destroy your whole structure it means you've got to reduce its height by 16 inches I don't know how to do that without basically destroying the structure I mean it's it's a it's effectively built as an A-frame so we would basically it'd be a complete tear down we'd lose our life savings if we did that so I know that's a consequence but that's really here's the problem you know when you do result-based decision-making it's not it's not good practice I understand I totally understand and I like I said I totally misinterpreted I probably should have hired somebody or whatever we just didn't it just didn't happen so there is a remedy that staff suggests as we've seen on some other recent applications the board has the ability to as part of an alteration of grade approve a new pre-construction grade effectively meaning if the applicant needs to change the pre-construction grade for whatever reason precedent is that board approves it when it's or board tends to look favorably on it when it's because of physical necessity then they can use that new newly defined pre-existing grade from which to measure their height if the board looking at that figure again Delilah please if the board were to grant where Paul has written grade with that squiggly line on the side as the new pre-construction grade and as Paul said he needed to do that in order to get positive drainage for the sewer then he meets the 15 feet height we're actually under by 7 inches more than 7 I think it's 14-3 isn't that it looks like it's 14 yeah 14-3 yeah 14-3 so we'd be 9 inches under at that point so we don't need 16 we need we need 7 so the big question to me is the habitable space question this I don't have a problem with this I mean we'll hear from the butters and see if there's other issues that we're not thinking of but I don't have a problem with this anybody else have a problem with it I'd like to hear from the butters first yep so am I do we have any comments on the habitable space area before hearing from the butter I'm not sure I agree with you that would be my comment I'm sorry I'm not sure I'm not sure I don't have a problem with you 6 foot 5 oh no no I haven't decided on the habitable space now I want to come back and you're saying with the grade you can give me a problem yeah I don't have a problem with the grade problem with the grade either yeah okay so let's hear from the butters and anybody else that has comments and then let's come back to the habitable space thank you Geoffrey Messina I'm an attorney with Bergeron Paradis and Fitzpatrick and I am here on behalf of GF Kurcherall Family Investment LLC who is the actual owner of the property the member of the property is Gary Kurcherall who is at 26 Suburban Square and a butter just on the exact other side of the fence now the issues that my clients have is that they did not contest the original permit based on the plan as submitted and the language as intended to be approved whether it was a simple mistake an actual misrepresentation is relatively moot for these purposes but it is our position that the conditional use permit that has been submitted is also actually inaccurate and that the midpoint as measured is closer to 18 feet rather than 15 feet my clients have had hired TCE to do a measurement and I apologize I don't have enough copies for the entire board but I do have some copies for the board so my clients seek denial of the permit based on the inaccuracies in this subsequent permit but at the very least would seek third party confirmation of the actual numbers that exist right now because there has been discrepancies in the measurements as first proposed and then as proposed now so the idea is to actually have all of the facts and have the board have all of the facts before it made its decision I can understand what you said okay what don't you understand do you understand what you said wait a minute they understand what you said that's good enough but I'd like you to understand it if I can make it clear our issue part of it of course is that we didn't have a chance to contest something to begin with because we had no problem with it wait wait hang on a minute he came in he asked for permit you didn't contest it because you didn't object to what he was asking for you had an opportunity to object to what he was asking for but you didn't because you thought he would build it the way he asked for it and as permitted then he got a permit to get what he was asking for and he went beyond what the permit allowed and now you're here objecting correct fine okay but what you're saying is that the measurement we're not 18 inches off we're a magnitude greater than 18 inches off we're saying that he's going from the 12 to the 15 and we're saying that it actually is 18 rather than 15 based on measurements that TCE had made did they measure to the halfway point of the roof I believe so that's as defined in South Burlington it is 18 feet of the peak I will give you that all day long I believe TCE says that it's 21 to the peak 18 to the half I am not an engineer by any means considering the track record of how to get on a property right in the house I'm sorry how did your engineer to the measurement sure TCE did a laser measurement they did not get on the property and but I do have a field report if I may again I don't have copies up to the board but I do have one I may submit do you have a copy you can leave with us have this copy what you don't have here is the engineer to be closer to them I'm well aware of that I know so your proposal just so we understand is to have a third party and I'm not making a value judgment at all but to have a third party verify the measurements that Mr. Washburn has presented for this application is that correct yes in the alternative our first is just to deny the permit for the conditional use permit in and of itself to not allow him to amend it I recognize that that will mean that he is not in compliance with the other permit and I understand the consequences there but to the extent that the board is not comfortable doing that at the very least have a third party independent person who's neither side to actually confirm the measurements that he is now submitting or misunderstandings that he had to begin with from that position so with regard to the height it's a bit of a nuanced issue because height is measured from pre-existing grade the site has been disturbed for construction staff is having the same problem looking at the site we were invited to go out to the site and take a field visit and establishing pre-existing grade does your engineer have a suggestion you don't have to tell me what the answer is but did they have a plan for dealing with how to evaluate what the pre-existing grade was not that I am aware of at this time okay so would you stop me if I'm I'm not putting words in the board's mouth I'm just asking the questions that I think are important for the board to make a decision if the board indeed chooses to establish a new pre-construction grade then that's the point from which TC Trudell would be making the measurement that sounds reasonable to me again I'm not an engineer and I can appreciate not having the engineer here to cross-examine so then I guess it's important for the board to determine if they're going to recommend this be taken this action be taken of having an independent person prior to closing the hearing it would be important for the board to first determine how to measure what's the base grade establish a new grade yes I agree with that because those measurements were taken from the other side of the fence so it wasn't even if you're going to come up and speak we just need you to identify yourself right my clients wanted me to share some pictures with the board of what the structure looks like from their home by the way I'm Kelly Shepard and I live in this house in the process of being this is as of I believe either yesterday or this morning I have we could beat this pretty hard right here my sense of the matter is it ought to be continued and the reason I think it ought to be continued is because I want to see how the board feels about the issue of inadvertence here on the one hand it's a real hardship we all understand the hardship of a tear down at the same time we understand the bad policy of the result already in a decision and I think we ought to be weighing that in a deliberative session continue to hearing for that purpose decide whether we're going to grant this this idea of a third party can I make one more just one more point on to the the pregrade the top of the foundation which is where we would probably request the new grade be from is still at least 18 inches lower than the grade on the main house so this house is still would be measured from a lower point than the main house even with an adjustment so from the standpoint of the abutter it's a different perspective but there's a lot of stuff in the LDR that talks about from the perspective of the street so that's where I got I guess caught up I'm fine with the fact suggestion and I'll wait to hear from anyone else before we I just don't understand how seven six inches could make a difference their next door neighbor on the other side of them is closer to my third their house than my houses when we plan the location of this house we were very respectful about the neighbors we could have put a dead center in the backyard put it out in the corner so we weren't next to anybody there's a big fence there's two he mentioned the two big oak trees so all the windows are low on the backside of the house we have done everything to make sure that our neighbors were accepting of this our other neighbors can't wait to come over and see it because they think it's so cool so I was really confused on how something like that could affect somebody else's life that drastically and I guess the other thing is I'm not sure when the picture with the green board on was taken but this frame went up on June 23 so they've known how tall this thing is for six months and we've been nonstop construction no notice from them hey what you doing anything like that I mean I think we all understand the hardship argument the question is I think and everybody here I think understands what the questions are the hardship argument versus what we're talking about how are we willing to interpret the law with regard to having an ability that's a legitimate issue hardship doesn't necessarily prevail I understand so let's get the pictures over so Brian can see them so I just want to make sure if the board does choose to continue we're very clear about what if anything the applicant needs to do for the purposes of the board deliberation Brian can you see yeah that's better thank you thanks Delilah I don't think we'd be asking the applicant to do anything well I think that I think the idea of having an accurate measurement made by a competent engineering firm is a good idea I'm 15 18.2 it looks like you're two tenths of a foot difference from what he says he says it's 18 feet you say it's 18.2 to the peak no no halfway how can you tell halfway from outside the building I'm not saying it's 18.2 18.2 half from pre-existing grade is that what you're saying that's probably about correct TCE says it's 21.2 at the top and you say it's 21 so this is .2 difference that's what I'm seeing is it's like two inch two and a half inch you say it's 21 at the peak well it depends on the overall structure yes but not from pre-existing grade right so I'm going to just bring this to Mr. Washburn for a minute so he can read it and then I think the rest of the board because he needs to know what it says in order to respond to it I'd like to just go on the record of as perhaps Mr. Washburn was being glib that I would be concerned if I could just knock it down into my yeah that was just it's just frustration yeah the only thing I would say is they're saying 21.2 feet from the peak what is there from where 21.2 from where that's not clear on here to me and because they're so from I was explaining to Marla earlier on the fall the back of my yard before construction to a low point that was about 35 or 40 feet off the fence and then it went back up in kind of a roll I don't know why that was there it was been there I've lived in the house for 26 years I don't know why it was there but water would collect in the middle so somebody at some point must have done that so if it's from their perspective of their backyard it actually slopes down into their backyard a little bit there so you know there could be 12 or 16 inches of difference if they're using that as the height I don't know so that could explain some of that 18 versus 21 what is the height of the main house height of the main house is 8 it's 17 but on the back it's exposed by 4 sets of bricks so that's another 40 so 21 and that's to the midpoint of the height I believe so yeah okay from existing grade or from existing grade right so just to clarify because this may become relevant in the future I'm going to read a section of the LDR's accessory structures exceeding the height of the principal structure on the property shall require approval by the DRB as a conditional use so not a problem we're asking for a conditional use but it is a different criteria that we haven't necessarily looked at the other thing in the current permit is a garage that if there's any height issue that's going to be resolved because it's going to be the garage is taller than the house yeah okay so you wouldn't be necessarily triggering that standard okay and the foundation for the garage is in so so the one thing I want is an accurate measurement of all everything you know what the existing grade is what the revised pre-construction grade might be if we agreed to bring up to the slab so just accurate measurements that's good and then we can talk about stuff and operations I'm kind of leaning toward reducing the height of this loft so that it's down to four feet so just to make sure that it's okay not you know I couldn't live there so we're not snokers right right got it yeah yeah so bring it down to kind of four feet that's where I'm leaning and then yeah let's talk about it again so get measurements and we'll deliberate and bring the height of the loft you want the loft fixed first so I think you gotta wait until we figure stuff out so are we closing or continuing continuing we're continuing so that we can get additional measurements so we're continuing to decide whether we're going to allow for additional measurements so from my perspective I think we need to know where we're measuring from to get the correct measurement so I think it's everything you gotta measure everything so measure from the slab now yep and then how hard the slab is above the ground right but the ground is changed right they've done construction they've excavated they've backfilled it's all moved around so there's no there's no there's no way to determine it's what the ground is now it's what the ground is now okay that's fine well but you also wanted to measure in case we want to do it from the top of the foundation slab on the front of the foundation it is backfilled to the top of the of the of the crawl space right now do you want us to pull up the pictures I didn't want to I would say bring them up because I don't know what your pictures show I tried really carefully to not invade your privacy I took pictures of the very bottom of everything that's in the back where we haven't backfilled yet that's a tall foundation so such a little building that's the slab is on the bottom and then there's crawl space above it so the pre-existing grade was about halfway up the slab overall it comes all the way out of the porch yeah well so I can show you on this but you can see it right here but the dirt currently is right right here the bottom of the foundation there so there's six inches between here and here as of now on the grave on the front of the house and from that back to the halfway point is 14 feet 3 inches according to your measurements you can do the calculations the wall is 131 it's a 912th bitch on 7 feet you can calculate it out pretty easily when we say we want measurements we have I'm a little concerned about the competing measurements issue what do we want to see do we want to see the applicant come back in with a sheet of paper or do we want to see an individual come in here testifying as to what some qualified individual come in and test if you'll bring up this picture there we go so I want this but I want it done by our profession because the grade that's on there now illustrates the grade as it is now where I have the little grade lines on the left and right in the lower corners okay you want to sign by a profession but you don't need the profession I don't need the profession and who is deciding who that professional you have a recommended list of professional measure groups I guess that's the question I need to ask the board do you want it to be an independent technical review or do you want the applicant to hire an engineer or a professional a builder perhaps who is not an engineer the idea would be for the independent that's what I think that would be our preference as well especially because some of the confusion and the issues of what the measuring spots are going to be in the first place we'd like to have somebody who doesn't have a skin in the game can you leave me your contact information so I can confirm that whoever we select doesn't have conflict with you I'm on the sign-up sheet that's perfect no I don't need anything else if you're on the sign-up sheet what great, fair enough I think that's because that is what it is if we measure from the front in that way right fair enough okay see you 1812 for so just to understand you'll find somebody higher than I came is that what we're talking about here and I'll give you an estimate to approve before we authorize it to work sounds good so we need a date so December 4th has openings but I'm not sure we can get some on that quickly is that happy by this Friday I need to have to get somebody out there well I mean I could scramble not that big a deal to incorporate what's December 18th look like and then December 18th it's pretty full which puts us into what is it January 15th 15th so it's not like we're holding up construction right but so the only I travel for work and I have an upcoming trip to India for at least two weeks I'm not sure if it's going to be the 20th or it's going to be the second two weeks of January but I think I can send her as a delegate no matter what we end up so if I have to postpone it would that be a possible if we pick one of those days in January and I'm not here I move that we continue conditional use application CU 1812 Paul J. Washborn for January 15th of 2019 and I can just like Marla know if I can make that one and we can push it out we continue this to January 15th 2019 all in favor say aye aye aye thank you Brian all opposed thanks very much take care next on the agenda is site plan application site plan application SP 18-51 of NFI Vermont Incorporated to amend a previously approved site plan for a group home the amendment is to construct a building addition for new parking spaces and pedestrian walkway at 102 Allen Road who is here for the applicant Larry Burke civil associates my name is Dr. Chuck Myers I'm executive director for NFI Vermont site plan application so would you please both raise your right hand do you promise all the truth whole truth and nothing about the truth under penalty of perjury yes thank you so much please describe the project I'm going to let Chuck just start and just tell you what NFI is well keep it real short because of the late hour but those of you who don't know number one I'm a resident of South Brunck and myself so first thanks for your hard work and making sure we have a beautiful town to live in I enjoy it and have for the last 20 years so our NFI Vermont is licensed to the state of Vermont as a 501 C3 so we're a non-profit we provide mental health services and specialized education services many of the kids that we serve are in DCF custody so often times there are very few connections between kids and parents this particular program Allenbrook house is the house that we're trying to do some renovations to was donated to the Allenbrook foundation probably close to 20 probably close 30 years ago and the Allenbrook foundation ran this program as a sole program foundation for my understanding is about 30 years they were running some financial troubles and operational struggles and so about 10 years ago they gave it to NFI Vermont with the agreement we would continue to run it as it had been operated we've been able to successfully do that for the most part we've had to make some changes funding for the program comes from the state we go through the PMI the private non-medical institution rate setting funding process so our funds are limited by the rate centers through the legislature at the state of Vermont the program serves eight kids in the past it's been four girls and four boys because the bedroom wing has two floors upstairs and downstairs girls on one floor boys on the other hopefully none of the two mix that's a struggle and we've received feedback from our licensing so this program is licensed through DCF department of children family they have a licensing special investigation that license program even before we took over the Elmbrook foundation and subsequently since we've taken over gotten feedback from licensing the bedrooms are very small so they're so small that there's really not much closet these rooms so they meet the minimum requirements we've really been encouraged to expand a bit so we're trying to do that as efficiently as a cost efficiently as we can just moving the walls in the room it was an expensive option and we still have boys on one floor girls in the other the kind of kids that we're having referred now are different than the kids that had been referred historically in the past the kids that were referred historically after bedtime they mostly stayed in the room you don't have to worry too much about it the kids we're receiving now they come to us with an awful lot more problematic experience before they get to us oftentimes significantly experiencing a significant amount of developmental trauma so we find that we need to a staff member all night long actually watching making sure that the boys stay in the boys rooms and the girls in the girls room and nobody in anybody else's room so because of that it's going to be much more efficient going out for us to have all the kids on one floor so we can one person can see all the bedrooms and make sure everybody stays in the room they need to go to the potty at night they get up go to the potty go back so that's really the general work we're trying to do here and if you have questions I'm glad to answer it but I don't want to belabor anything so the parcel is a little bit less than five acres there's three existing residences on the parcel two in the front and what we're looking for is the parcel on the back we're looking to add a 1600 square foot two-story addition so basically as simple as adding the addition we're also running a new gas line to the back of it and we need to increase the size of the waterline so we're running a new waterline from the main road back to the building there is a sidewalk that we're adding on the west side of the property the sidewalk and some of the grading infringes into this watercourse that runs through the property right here it's intermittent and there's an existing driveway and a culvert that crosses here but further south going can regs there's a 50 foot setback from that watercourse so maybe we could go to the bigger scale plan the next one so we can see that a little bit better there we go so in the dark is the addition this is a new sidewalk that we're proposing along with four new parking spaces here but you can see there's a blue line on the plan right here and this is the 50 foot setback from the seasonal watercourse that runs through here so we have a little bit of encroachment into that 50 feet for some of the grading that's required for the walk and that will come up in the staff notes as we go as we go down through them but fairly simple fairly straightforward application the addition to the building four new parking spaces a new gas main and a new waterline and if nothing else I'll just jump to the staff notes a new furnace that's why the new gas line likely is so the existing furnace won't can't upgrade it we need to add we need to add because the additional square footage not in my business but it's an older furnace so that's fuel oil and it's going to be more efficient certainly natural gas is much less expensive than any alternative that you have currently are you increasing you know that my employer is I'm a little unclear why the preamble was so extensive are you increasing the population no so there's no use issue whatsoever just a pure building issue yeah I think the preamble is just to give you a feel for what the property is and to understand that it's a non-profit and that certainly cost is a major consideration when they do any sort of expansion like this so in the existing building there's two floors and the bedrooms are kind of someplace huh like off to the west or in the main on the west yes or the two floors for the bedroom wings two floors actually yeah two floors the whole building and on the west wing is the other bedrooms it's kind of a raised ranch structure the first floor half a flight walk up a half a flight to the second floor so the new the new addition is going to be the elevations are the elevations yet there's no elevations this is not a design refute district so they're not required to provide elevations staff didn't have any concerns with the elevations of the building the property is pretty well screened the property is I may eat my hat on that if somebody isn't a butter and has a concern but staff didn't have any concerns about the elevations of the building this is a highly sloped area right right and then the stream the perennial stream not intermittent stream runs the property is a tributary to Barlett Brook which is a stormwater impaired water body whether that matters or not in fact a perennial stream okay so if there's any other question before we dive into staff notes let's just go ahead and dive into staff notes okay all right item number one staff considers these numbers seem inaccurate and approximately a higher percentage building and overall coverage based on the provided plans though the coverage appeared to be well within the allowable maximums staff recommends the board require the applicant to correct these numbers by closing the hearing we did provide staff with some updated numbers today they're essentially the same we believe the numbers are correct as as shown on staff they provided me with an updated number it's in the supplemental if you want to show it so it goes from 14.0 for existing and 14.7 to it's like 3.9 you're in the right place so the last thing in there yep just have some updated numbers where they double checked everything and the numbers changed by .1 in a couple places so they've our staff is concerned that comments have been addressed great thank you number two item two staff considers the proposed earthwork necessary for construction of the expanded walkway staff recommends the board require the applicant to re vegetate this area after construction and allow it to regrow in an unmanaged manner so here we're talking about the stream buffer and we're fine with condition number two number three staff considers this standard to represent the minimum landscaping requirement and recommends the board require more robust landscaping as discussed above in order to meet the objectives of the stream buffer standards we're also fine with that condition number four see discussion above again talking about the stream buffers number five areas within stream buffers not permitted to affect the date number five the placing of vegetation within stream buffer is prohibited as a conditional approval we are fine with that item number six on the utility services staff considers the extent that given the extent of disturbance required to install the new utilities that would be the gas line and the water line the board should require the applicant to relocate the existing wire utilities underground as well now we currently have overhead power that comes in from the street there's two poles and then it runs to a weather head on the building and that would be a sizable investment for us to have to put all that underground and again being a non-profit budget is very important to us we would ask the board to allow us to continue to have the building served by the existing overhead power how's the board feel about that my view is that we should at least get an estimate of how much it would cost what do you guys feel or you care don't care don't care three or one don't care telephone cable they all have to go underground sorry so it's not just power because you know because you have power you have cable and you have telephone service all comes in overhead so it's actually there's three separate conduits you know three separate structures yep it's a sizable investment for it Ryan I'm having a little trouble here so I said that I wanted a cost estimate to plant those three types of cabling in the ground the rest of the board said they didn't care and they would not insist on I'm interpreting the comment don't care to mean that you don't really need to see these things buried underground right okay so that's what we are Brian does that make sense okay yeah so I'm looking at the standard in section 1513 as it's quoted in these proposed findings and it says that the utility lines shall be underground meaning must be underground in so far as feasible so I think there needs to be a finding of infeasibility if they're not going to be underground to my point of a cost estimate so precedent a little bit on this is that for new buildings the board requires utilities to be underground period for existing buildings building additions the board uses that feasibility as sort of is there a nexus for the utility of the underground staff's position is that the board could find the nexus because they're already digging trenches along the whole driveway staff doesn't have a lot of skin in this game yeah so it would be the charge from the utility because they would have to then take it from poles because it's going to be on a pole and it hits the edge of the property and then it's going to go down the pole so they have to lengthen the cabling and so on so it has to be new cabling and then essentially if you start from the street you've got to serve the first house there has to be a vault put in to put the transformer then you need a connecting cabinet then it's got to go to the next pole where you need another vault and another transformer so we're likely talking $20,000 $30,000 it could easily be a $250,000 to give you a sense of scale okay could I ask a question of the applicant's engineer go for it okay so given that cost which I thought I heard was in the range of $25,000 to $30,000 yes given that cost is it your testimony that putting those utility lines underground would be infeasible for this project yes okay thank you I'm going to reverse myself because I didn't see this regulation I'm reading the I'm reading 1513E we all agree that that's what applies here new electric telephone outdoor lighting and cable TV distribution system shall be underground period well no it says new distribution systems is this a new distribution system it comes to the building now okay if you don't make us put it underground we don't have to spend any money on a new power line cable you had a new building that had no electric service it wouldn't be asking a question if it was a new building it's not a new distribution system is what you're saying that's correct the question is to bury what's there or not but you're also extending are you not no we have a fully functional system that comes right to the corner of the building we're not extending that corner you're not extending the exterior at all no we're extending the building but not the service comes to the closest corner it's going to stay there I hear you objection withdrawn super thank you very much continue item 7 is on the landscaping staff recommends the board require the applicant to install an additional $4,000 in landscape value and further recommends the board require the applicant to inventory and replace on a caliper basis the trees proposed to be cleared staff suggests the board consider requiring landscaping to be installed in the areas that are proposed to be cleared particularly in the stream buffer staff further recommends the board discuss with the applicant the opportunity to use a portion of the required budget for site plan improvements other than tree planting as long as the objective of the landscaping standards to result in a mix of large canopy tree species is met we're agreeable with that condition that was the John Wilkins condition yes I'm sad he wasn't here exactly item 8 staff recommends the board require the applicant to revise the plans to provide silt fence protection for the entire area downgrading of the soils to be disturbed particularly as the downstream receptor is Bartlett Brooke a storm water impaired stream will make that change to the plans so if I can just step back to 7 for a second because it occurs to me this is about the landscaping and occurs to me that the board probably can't close until I see the revised landscaping plan because the board can't be specific enough about what that landscaping plan would be so you have to approve a plan and unless you can say what that plan looks like we don't have a landscaping plan well we do we have a landscaping plan but it doesn't short by $4,000 the applicant said they will amend to address staff comment number 7 but because we don't have a specific plan the board can't approve a specific plan and therefore shouldn't close the hearing I got it alright so but we can as soon as you submit a plan next to it it will be a 5 minute thing we can deliver that night very good number 8 8 with staff recommends the board require the applicant to revise the plans to provide silt fence protection I did that didn't I'm sorry number 9 the applicant has shown an existing bike rack on the plan but indicates that it will be replaced by the project staff recommends the board require the applicant to place one inverted U type bicycle rack on the plan providing parking for two bicycles the racks must meet the minimum spacing and siting standards of LER section 13.14B2 the applicant will be required to replace the remainder of the required bicycle parking spaces as part of the next site plan approval we are fine with condition number 9 10 staff recommends the board require the applicant to update the plans to reflect the stabilization timelines of 16.03B and the topsoil requirements of 16.04A we are fine with 10 staff recommends the board require the applicant submit a letter from their engineer confirming no additional water or wastewater is needed for the project staff recommends the board require the applicant to submit an application for wastewater connection prior to the issuance of a zoning permit proposing any additional students use the building so we would expect the water and wastewater usage would remain the same which would mean we would not require a wastewater permit from the states Paul questions from the board Ryan anybody could you just sum up for me because I kind of lost the audio where did we wind up on the question of the underground utilities not necessary not necessary at all okay good well not mandated let's put it that way not mandated so we don't have to take evidence on whether it's feasible or not that's a moot question right okay good comments questions from the public anyone have anything to say yes I'm wondering the frontage on Allen Road of that property does not have part of the gap in the sidewalk on Allen Road it comes by Tillsbury Tillsbury complex and then there's a gap that goes up to the beginning of the bayfront welcome to come up and point if you'd like north side of the road yes north side Tillsbury about here it comes across here then there's a gap to here where it goes up and one of the concerns is to get a sidewalk that continues all the way down to here there's huge there are two gaps and so I don't want to suggest that something like this costs a nonprofit money but is there a way to make sure or facilitate that there is an easement or something that the sidewalk could go across at some point when it can be built isn't there public right away right there Kathy actually gave me a heads up on this question and I tried to look into it today but I wasn't able to connect with EPW the sidewalk is a priority project I looked at the aerial quickly and it looks like there's likely to already be a way but I understand that it's in scoping so I should be able to get a more definite answer on whether any additional easement is needed whether there's a nexus for the board to require an easement of the applicant at this time would have to be for up to the board to decide so you know if there were a nexus I'm not saying that there is or isn't either way but if there were I think it would be great if we could kill two parts with one stone here so I would really like to find out if there is an easement needed but I would urge the board to consider whether there's a nexus to require an easement how could how will we have the authority to require an easement yeah that's the nexus right there's just building an additional on the back of their building one in the plant the other one that shows the sidewalk better another one are there any objections on the applicant for an easement for a sidewalk would it cost and if I anything great we've talked about this before with someone else at another time that's fine what I will just alert folks to is that sidewalk would go up to where the road comes under Allen Road and the bridge over Allen Road there is not very wide area of the road I actually know that pretty well because I run down to that corner in front of the apartments there and there's a small house there and then the apartments so there need to be some kind of widening of whatever is there the culvert or whatever it would be great if we could have a sidewalk all the way up in favor of that so there's no problem but imposing burden on the private owner seems to me to be way outside thank you I appreciate that but for somebody if there's some way that public we could do that as a town I think that would be great and so I think so go ahead and talk to our friend no that's all so providing an easement you're not saying that asking the applicant for an easement is an inappropriate burden yeah I am it's part of the approval yeah it's part of the approval we could say gee we hope you help her out if she needs it if you can do it but I don't think it's got anything to do with the application whatsoever and to condition it in any way on the easement would be a pretty serious overstep this is a city problem a city should make it work within the public right away and if they need a little help in the private owner they go ask if I can just say it's part of the record I'm glad to be a good neighbor so let's figure it out thanks very much let's go ahead Matt okay Jennifer, Brian no further comment we still got Brian yeah I didn't hear a lot of that discussion I heard about the easement in the public right away I didn't hear the consensus of the board was that the consensus of the board we agree with Frank that it's an inappropriate requirement to condition the approval on but the applicant has said that he's very happy to work with bike and ped committee on helping the city get that easement so that's where we're going to go that's fine I would have a question that Frank had in terms of requiring applicants to obtain easements of conditions of comments that's great, thanks Brian other comments, questions from the public okay so we are continuing this are we continuing this we need a landscape we need a landscape can you get that by what we can do it quickly we'd like to be continued to the next available meeting on December 4th so if you can get it to me Monday or Tuesday we can continue that application if you want to do December 4th moved and seconded we continue this to December 4th all in favor say aye opposed thank you Brian thank you very much appreciate your hard work vice versa so there are no minutes in the packet so I will just close the meeting thank you all very much take care good night