 Once in a while, once or twice a year, once or twice a year, they have it on a river drop. Not this week. Oh, not this week. Okay. Thank you very much. So she's going to refrain from bringing it up again this week, but I'm not going to spoil her yet, but I'll give her a project that's going forward. Cool. You're done. You're done. You're done. Okay. You want to spend the day and leave more. This was fun, but one time I waited. You're welcome. I thought I was serving a little party. You did all the things, all the things we used to do, you'd be exhausted. I wasn't. Sorry, no, you've done that. Huh? Okay, that's the wrong word. Sign and check. Put that you're on. Great. Sorry. Somebody check a microphone for me. So mine's not working, Charlie. You already don't like the way I talk so much anyway. Oh, you can really lean back with that one. That's right. Don't worry about it. You can have mine. Share. Nobody wants it. Okay. Okay. Welcome to the south bulletin development review board for Tuesday, October 2nd, 2018. First item on the agenda, directions on emergency evacuation procedures from the conference room. If there is an emergency, we can either go out the doors that you came in or these two doors here. And we should meet in the south parking lot, which is right behind us here in front of you to make sure that everyone is safe. Additions, changes or deletions in the order of agenda items. Looks like since Marcel Bowden is not here, we will move that to whenever he shows up. Comments and questions from the public not related to the agenda. Does anyone have a comment or question on items not related to the agenda? Hearing none. Announcements. Well, Delilah was here last week in the audience, but she's now joining us. Delilah is our new zoning administrative officer. Hello. Thanks very much for being here, Delilah. That's great. Any more announcements? Hearing none. Let's move on to item number six. The continued miscellaneous permit application. MS-18-04 of Alexandra Fogg for stormwater upgrades within the Velcro property. The upgrades consist of construction of a gravel wetland permit and treatment for four bays on Nesty Drive. Who was here for the apricot? No. Yes. Please. Yep. Come on up. Hi. Good evening. And I'm here representing the applicant, as well as... My name is Jim Peas. I'm with the Department of Environmental Conservation. I'm working with the town of Shelburne on this project. Miscellaneous permit application. So please raise your right hand. I promise to have the truth, the whole truth, and nothing but the truth. I'm a penalty of perjury. I do. Okay. And are there any conflicts of interest? Hearing none, go ahead. Please describe the project. Sure. Do you want to give it a go, Jim, or do you need to? So we're talking about two properties here. One is the Velcro property on the city town line, Shelburne City, South Burlington line, and then the property adjacent to that, which is the Burlington self-storage property. There's a third property also involved with this project, but it's in Shelburne. So we have to go through this process with Shelburne as well. This project is proposing to construct a gravel wetland stormwater system. I think you might be familiar. I've seen a few of those in South Burlington. The most recent one was on Cury Lane about two or three years ago. You must have approved it. But it's a sort of underground gravel based wetland structure that treats runoff and filters it through an anaerobic condition basin. It has a very high phosphorus removal rate and a sediment removal rate. We typically assume that if it's capturing sediment, it's capturing most, but not all other pollutants that would typically be conveyed in stormwater runoff. It does hold it as well for a bit? This pond is designed to hold about one acre feet, I believe. Yeah, it's designed to manage... Two and a half acre feet. It's designed to manage the one inch storm, which is... One year storm, about two inches. One and a half acre from both Shelburne and South Burlington. And just to give the board some history on it as well, the whole siting and designing of this system was based on years. We've been at doing this since 2012. My team, I was the lead designer from the start when we were hired by the DEC to look at this. So we started this process by an alternatives analysis to look at several different options. And we went into detail in terms of lining out several different options for treatment. Looking at doing this system, looking at doing this system, plus doing work downstream on the other side of the railroad tracks, looking at potentially diverting this water out of the watershed to the north. We looked at those options in detail. We developed plans, we developed costs, and looked at all the permitting implications of that, the different options. And we arrived at this option being the best option in terms of water quality and also feasibility related to the permitting constraints. So that's where we arrived with this right now. And this is basically slated for construction in 2019. Right. This is being funded through a combination of grants. Predominantly, the Department of Transportation and the Agency of Natural Resources and the projected construction date would be next summer fall. And you've seen the staff comment on the proposal? We were just reviewing the staff comment, yes. Well, we're talking about two different properties, I believe, right? So right now we're on MS-1804. So can you direct me to this specific comment here? Page three, comment one, it's in red. This is building self-storage. 18-04. Can you, yeah, thank you. Yeah, so... I was used to watching the video, I thought you were doing it last week. Thanks. So what can I provide? I can tell the Board the history of this. We had the state wetlands, the DEC wetlands person out to the site to review. And we had an opinion from her in an email related to the classification of the wetland. We did also have the wetland delineated because we went through Army Corps of Engineers to get the proposed impacts permitted through Army Corps of Engineers. So the wetland itself is small and isolated and of low value. This was based on the feedback that I received from the state wetlands person. And so I think that replacing this isolated wetland with a much larger, more robust treatment system with native vegetation is far outweighs the impact of eliminating this wetland. And the current wetland there is basically a Fragmite's bed. If you're familiar with Fragmite's, it's sort of an aquatic perterrestrial nuisance plant that's going to have to be removed if we proceed with this project. And we were required by the Agency of Natural Resources to come up with a disposal plan for that material and also to make sure we avoided any. There is on the Velco property, there's supposed to be a rare species of rush. We did have the state biologists look for the plant. We couldn't find it. But they've given us a clearance that the construction area is not where they believe the plant is. And there is a sign on the property indicating where it might be, but they still don't know if it's there. Only grows at a certain season or something? The fourth year? I don't know. This stuff is really tolerant. It's known to grow over. There's a stormwater pond on Feral Street where it grows. It used to grow over the old board was in the parking lot. It's fairly tolerant, but we couldn't find it when we look for it. And they've given us. But the existing wetland is pretty much a Fragmite's bed. So Marla and Delilah, will you guys be happy with an email from the ANR person saying it's a lower impact? I've seen the email that Andre's provided. It's up to the board to determine whether to accept the impacts. This wasn't intended to be a value judgment either way. Comments from the board on whether this is kind of impact on this wetland is. I should clarify, the email was brief and not particularly eliminating, which is why I didn't include it for the board. It basically just said what Andre told us. So I didn't feel like we needed to also include it. It's Jim, right? Having Jim here from the state watershed. I mean, these are the guys we normally count on to tell us whether we're going the right direction. So I have no problem with accepting this as a recommendation. What was the outcome of the Army Corps process? So it was like their class one permit, which is basically the lowest risk permit. So we filed the application and you don't hear from them. It's basically just a self-certification because the impacts are so small. That was filed, I believe, last year with the Army Corps. Okay. So that okay, Brian? Yes. Good. So there is a letter from Mr. Nesty. Yes, Francis Nesty, who has several things to say. Have you read that letter? Yes. Okay. And she's here. Yep. Francis Nesty? Yes. Okay. Oh, not yet. Not yet. Right, exactly. Thank you. So would you like to respond to the points in the letter? Sure. I guess, you know, I think one of the most important points to bring to the board's attention is that the project as is, is not bringing in any additional runoff to this area. There's already a lot of uncontrolled stormwater runoff flowing down this drainage way. Once it flows through where we're building the facility, it flows under the railroad and it continues down a very eroded gully past Ms. Nesty's home and into Shelburne Bay. And as a part of the initial feasibility, we actually looked at doing some work down in that lower gully next to her house. And it was determined that down there, there was concern of having it be more of a naturalized water course. And so it was not feasible to actually do work in that drainage way itself. We also looked extensively at bringing the water out of the watershed to the north, which would bring it into an impaired watershed, Bartlett Brook. And we did a plan, we did a detailed plan showing the engineering of what that would look like. And I talked with the person in the watershed division about the implications of doing that and we have a memo from Emily Shelley, who's the technical person who deals with impaired watersheds, advising us against doing that for a number of different reasons, mainly because the whole intention of what the city has to do under their stormwater permit is to reduce flows in Bartlett Brook. This would actually be increasing flows to a stormwater impaired watershed that already has way too much flow. So just right off the bat was not a good idea to divert the water out. So really I think this is only a benefit to the gully and to Ms. Nessie's property because we're basically just controlling all this existing water flow and slowly releasing it and treating it without bringing additional flow in. So it's, the way I see it's just totally a mitigation measure. Yeah, there's no doubt that there would be a reduction in the frequency of runoff events going across Francis' property as well as into Shelvern Bay. And it will be cleaner water as well. But we can't eliminate the water from doing what it's currently doing. I don't think even, as Andre said, it's problematic to divert it to Bartlett Brook for I'm sure you're familiar with the problems in Bartlett Brook. But it's equally problematic from the Army Corps of Engineers point of view because because even though when Francis moved there, I believe, or when they purchased the land, there wasn't a stream there. There is a stream of sorts there now and they consider it a water of the state or a federal water. And so, which is why we had to get the Army Corps permit. We actually had to have Fish and Wildlife, Vermont Fish and Wildlife, take a look at the property or the stream and basically exercise their jurisdiction on the property west of the railroad. So sort of the permitting is all kind of kicking in west of the railroad, east of the railroad, they're less concerned. So it would have been difficult to permit a relocation of that stream because we were essentially drying up the stream. Even if it wasn't a stream 30 years ago, it is a stream today. We'll take comments from the public after we get done. So are you saying, so Ms. Nesty's letter says that she will not accept the flow which this plan shows to discharge in the southeast section of her property in the west of the railroad track. And what you're saying is that there, that the flow is already there and that after this project is done, it will be cleaner and less frequent. That's correct. Okay. The culvert underneath Vermont Rail is been there for at least 100 years, I believe. Whether there was water flowing through it or not, there's always been a drainage way there at least allowed by the railroad. But yes, that's exactly correct. I have a question. Are you going to change the volume of flow or the rate? The rate will be changed. This isn't an infiltration type feature which actually would remove the water because the soils are heavy enough to where we're not going to be infiltrating to the native soil. I mean, there's going to be a lot of plants and the water is going to be sitting in that wetland. So some of it will be taken up by the plants and removed. So, I mean, to an extent, there'll be a small amount of volume reduction, but really this is about rate reduction. So reducing, making that water pass through a very small hole at the outlet. Specific reference to your neighbor. You're not going to increase either the rate of flow or the volume of flow into her land. No, the rate will be significantly reduced. And the volume will not be increased? Will not be increased. Your letter, Mrs. Nesty's letter, shows that, Mrs. Nesty's letter, shows that the plants show a discharged conduit to be enlarged from 24 to 36 inches. The pipes are undersized presently. And so, you know, as part of the engineering practice of designing this, we wanted to make sure that the pipes leading into the structure are properly sized to handle the storms. So yes, that's true. But pretty much everything is backed up behind one concrete control structure. So all that flow, even though we're upsizing those pipes, it's all being held back in that wetland and controlled through this one control structure. All right. So the increase in that specific conduit is not the deciding factor in the volume of... Okay. All right. Other questions from the board? Comments from the board? Before we open up to the public. Hearing none. Mrs. Nesty? Is this just in regard to the specific area? How should I speak about the whole project? It's the whole project, the whole project. You can talk about anything you want with regard to the project. Mr. Chairman, I'm Frances Nesty. And in regard to agenda number six and seven, there are three major problems with the proposed construction. I'm delighted the stormwater is being worked on, but these problems must be resolved prior to construction. One, I will not accept the discharge flow in the southeast section of my property, which is immediately the rest of the area. There are doable viable alternatives. Number two, it is illegal for impaired water to run into unimpaired water. There are numerous monitoring wells on the Belco property. Numerous tests have been done on the Belco property and in the Peacore swale. In fact, today they've spent in excess of 356,000 on testing the Belco property and the Peacore swale. These are all impaired. These construction plans proposed will not remedy the impairment. And number three, discharging impaired water is shown on these plans into Shelburne Bay, which is about 800 feet south of an approved discharge regulated monitoring monitoring discharge area for impaired water is 800 feet north of where they plan to discharge it. And discharging in this area is just a circumventing and defeating the purpose of the law. Discharging here is a clear and present danger of life, health, and property. So it's mandatory that these three problems be just solved before construction proceeds. So what do we have authority over? So we have to decide how much of what you're saying we have authority over. So it looks like number one, which has to do with directional flow. We do have minimal authority over that. You know, I think there is authority over whether the flow is directed onto your property. Mostly it's a state stormwater issue, but there are impacts on neighbors that we get to consider. So we do have some authority over that. And second, illegal for impaired water to join unimpaired water. We don't know from impaired. So, I mean, we don't have jurisdiction over that, right? Correct. Okay. Number three, discharging impaired water into Shelburne Bay is circumventing the law. So once again, I don't think we have, that's a state function and there must be, I'm saying there must be state agencies that you could make those two points to that would be better forums to hear those things than us. So with the first thing we can address, which is the flow and it sounds to me as though the flow is already going from this area onto your property and that the construction plan is going to reduce it and make it cleaner. If I may add. Sure, please, yeah. No, it didn't always be discharged there. No, I don't mean always, but now. The local area has been added to it. The Bartlett Bay Shedwater area has been added to it. The Allen Road Shedwater has been added to it. Way down to Penny Lane has been added to it. All along Shelburne Road has been added to it. So it's not just simple stormwater. It's the different communities and all the multiple businesses there trying to discharge their water. Of course, everybody objects to having water discharged on their land and it is not politically expedient to go against all these businesses, et cetera. So the line of least resistance is followed and I will not let it be discharged on my property. So the way I understand it and you may be right that over the decades there has been development that increased the flow through this particular area onto your property. The fact is that now today all that stuff is going through your property and that this project is going to reduce it and clean it up. If I interpret the plans correctly, there are more discharged conduits. True, one has been enlarged from 24 to 36, but they are on the plans. There are additional conduits being directed to this discharge site. That's unacceptable. So it looks like you'd like to respond? No, there are certainly other pipes. But just to be clear, there's still one ultimate discharge point which is the railroad culvert and all the flow is being held back, restricted by that one final outlet structure that we have from the gravel wetland. So yes, there's definitely more pipes because we're making sure that that water makes its way into the wetland where it's supposed to be. That's why there's more pipes, but there's still ultimately one discharge and we're not picking up any more land and bringing it down. It's all the existing land which is flowing through that culvert. The culvert is not being increased. The culvert under the railroad is not being touched. Not the railroad culvert, but there are additional culverts on the galco property that you are placing that will direct more water. But the overall result, Francis, would be a lower frequency, a lower rate of flow across your property. Then you're perfectly... I looked up Bravo Wetlands and I spoke with James Donaldson at Vermont State and I understand these gravel wetlands and four bays, which are all with clay underneath the base because that's essentially blue clay in that area where the marsh is. We'll have little negligible impact on contamination and it's debatable whether flow of water will be cut down according to the studies they've done with wetland gravel and with these three little four bays that are pictured on the construction plan. That's an engineering debate. That's an engineering debate that's way above my pay grade. It's just what I read. Thank you very much. And gentlemen, the back had comments? Please identify yourself. William Murray, my name is George Lane. I just wanted to correct that there's always been water in that river along either side of the railroad tracks because there was always water there too. Okay, thank you very much. I would add that we have tried to work with Francis for a long time and we have been working on the drainage through DC and we have gone back and tried to where we could address the runoff from other sources. So the Pepsi facility, as some of you may remember, we didn't do such a great job enforcing our stormwater permits for a long time and some of those facilities kind of went by the wayside even though they were built in the 80s by 10 years. So we went back to Pepsi. Pepsi, they've all been re-corrected and then in Shelburne Locust Hill has been re-corrected. There's a pretty substantial ditch behind the Jolly gas station that belongs to Pepsi. We've tried to decrease the erosion there. As you know with Shelburne Road, when it was widened, the collection system was upgraded and the stone riprap was put in. We are working with the Erlington Self Storage Prop to clean up that swale. So we have kind of tried to go back and then your municipality and I believe as well as Shelburne has required some additional controls and some of the other properties. So we have been trying to get back at some of these sources that were maybe, you know, unfortunately misaligned and directed to that culvert. So that all of them, or not all of them, but a lot of them have reduced their impacts not to say that they've been eliminated. Great. Thank you very much. Comments, other comments from the public on this item? Other comments from the board? Questions from the board? Staff? Hearing none. I will maintain a motion to close. Thank you very much, again. Move that we close. Continue miscellaneous permit application, MS-1804 of Alexander Fogg. Second. So we'll move from the second. We'll close this application. All in favour, say aye. Aye. Opposed? Thank you very much. And next is continued site plan application, SP-18-43 of Chamberlain Construction to amend a previously approved plan for a temperature controlled self storage and 35,850 square feet of self storage in eight buildings. The amendment consists of constructing conveyance, well in pre-treatment forebay, the pre-treatment forebay discharges to a gravel wetland proposed to be located at the adjacent part of that one parcel, 123 Nesty Drive. Who is here with the applicant? Hello again. Hi again. So this is continued. It's continued because no one came to represent the applicant at the one we were at the police station. Okay. All right. So if you please raise your right hand and promise to have a truth, hold truth, nothing but the truth and no penalty of perjury. I do. Anyone have any conflicts of interest? Does Nigel Muklow have something to do with this? I saw Nigel Muklow's name attached to it somehow. Yep. Nigel Muklow was listed as the applicant. Okay. I do business with the type. Okay. All right. Anyone else think that's a conflict? I don't. It doesn't sound like it is to me. Okay. Please describe this just the same as the previous, right? Sure. So the question that this parcel is wrapped up with this application is that the drainage from this parcel currently drains into this whole area that we've been describing with the gravel wetland. And basically we're improving that discharge by creating a fore bay on the BSS property, which is basically going to serve as a pretreatment area so that when that water flow runs off of the storage facility, it's going to go into this fore bay trap, which is going to help retain the sediment and the heavier stuff, which can then be removed before it goes into the main gravel wetland feature. Okay. And so that is the modification basically to the site layout is creating, basically doing away with a smaller kind of defunct little pocket fore bay on the property. Making a larger stone line fore bay with more of a defined outlet pipe to the main gravel wetland. Staff comments. Yeah. This one you have. We have seen it. Yeah. Okay. And it looks like it's an opportunity to fix your floodlight fixtures and bike racks. Right. So we talked with the owner about that and he had a specific question because we, to his knowledge, I guess, there wasn't floodlights. Yeah. So we were just curious if you had other evidence that there was. Because it's a gated site, I looked at it from afar and I said, those might be floodlights. That's about the extent of it. He thought most of them were LEDs, but we can. LED or not, they still have to be downcast and shielded. It's about how the fixture operates, not about what kind of light bulb it uses. Where it casts shadows. Right. Where it casts this light and where it doesn't. So I think he's happy to work, to do what's necessary. He didn't think that that was going to be an issue. Would you, would he prefer to replace them or remove them just so we can write the condition correctly? I'm guessing because security is an issue there that he probably would replace them. That's fine. It's just a technicality that we want to get sorted out so that when we do the CO inspection, we can actually expect it to match what it says in the decision. And bike racks. So the bike rack, apparently that the bike rack was hit by the plow and removed and he knows where the bike rack is and can put it back to its permitted location. I'm a baller to protect me. So the bike rack does need to meet the current standards. Okay. I don't know what type of bike rack he has. I don't either. But he only needs to provide two bicycle parking spaces. So there are some provisions for using, reusing the existing bike rack. If it meets certain criteria as we bolt it to the ground, as to support the frame, as to allow the frame to be locked. We can just say that the applicant must place a bicycle rack which allows parking for two bicycles in the location that previously approved rack and work with it when we go out for a CO inspection. Okay. If that makes sense to you guys. I think that makes sense. Yeah. Are those standards described in your standards? They are. Yes, they are. I didn't have mine. 1311? Is that right? 1311. No, 13.14. 1314, yeah. And in our appendix, there's a graph graphic that shows approved versus preferred. 1311 is the section. 1311. 1314. 1314. Yep. And actually in the staff notes, it references the exact section. 1314B1B. Yeah. Yep. Okay. Yep. Okay. Other questions from the board on this application? Okay. Hearing none. Velvet, yes, please. Identify yourself again. I'm sorry. But all this water around, is it continually flowing? I'm concerned about the steam. You sang through the main gravel welling? Good. Well, all the air. Through the structure. So, there's groundwater, and that would, there would be water flowing through it, but there wouldn't necessarily be, in the main wetland itself, it would just be able to plant the surface. Yeah. It would just be continual flows that we're not getting. Sand, stagnant water. Yeah. Right. I mean, in the main, in the forebays themselves, I mean, those are pretty small. There could be some standing water. However, in the wetland itself, all that water would be below the surface. So, it would just be like a marsh, not like a pond. Yeah. Thanks very much. Other comments, questions from the public? Okay. Hearing none, I'll entertain a motion to close. Mr. Chairman. Yeah. Except, I just wanted, I would like to please add, that I believe most of the sediment is coming from my property, which is west of the rear attack. So, the sediment, any sediment that might come, east of the rear attack would be minimal. And I understand the wetland gravel and the pre-treatment forebays, they can take care of sediment, but it's not going to take care of the sediment, going into Shelburne Bay. Well, I don't disagree with the references. We did some modeling of the sediment and the phosphorus going into the bay in a substantial amount of the sediment phosphorus is being eroded off of her property. Basically, her property is somewhat slumping into this gully, including her driveway. And we had proposed to you that we would stabilize that to the degree that we were allowed to stabilize it. If I sign over my land. No, you didn't need to sign over your land. You needed to sign a permit application to the Army Corps of Engineers, which we are obligated to do. And we were going to pay for that stabilization within the limits that we were allowed to buy the Army Corps and the Fish and Wildlife Department. And also, I noticed on the construction plans, the forebays and the wetland gravel, it's not going to take care of only debris and Shelburne up by the main and the senior. Well, the Shelburne Bay Retirement Home has its own storm motor pond that discharges along the railroad tracks underneath Barla Bay Road, the Piney-Vinchors Road. But this plan will treat the runoff from Blue Lynx, which is Georgia Pacific. That's right, it won't take care of the construction debris that comes down from Georgia Pacific. No, no, it will. There is a collection system that will be built on the parking lot at Blue Lynx. It's Blue Lynx now. And that will have a pretreatment structure which will then discharge into this wetland. So all of the runoff from upstream of the railroad, except for the stream that comes out of Shelburne Bay Retirement, will be captured in this treatment structure. In other words, the southern section of Shelburne Road, the retirement centers, the trailer parks, et cetera, all those places will not be affected by this. Well, right, the trailer park, I don't believe, is in the drainage. But, yeah, I mean, we're doing the best we can with the available end. We were very lucky that Velco was willing to basically give this land to the town of Shelburne, and basically give a license to the town of Shelburne. They actually wanted to give the land, but neither community wanted the land off their tax rolls. So they have high tension power line right here, which is kind of a strategic piece of property, but they didn't see any need to own it. But they've been willing to give the town of Shelburne a 30-year license to manage, a 25-year license to manage this system at no charge other than the fees and legal fees and the process to get it here. Good. Thank you very much. I move that we close. All in favor say aye. Aye. Opposed? Thank you very much. Thank you. Take care. And now going backwards to number five, conditional use application CU18-10 of Marcel Bowden to reconstruct an existing timber retaining wall and add a handrail at 36 Brigham Road. We're here for the applicant. Didn't I see Marcel Bowden? Marcel hasn't walked in. No, we're not going backwards. We're going forwards. You can do it without him. You know, I don't mind doing that. Do it without him. Yeah. I'm happy to close this. We have the opinion that we were lacking, which I saw during the video. You want to open it first? I just did, I think. Oh, okay. Yep. So, I haven't closed it. So, and you noted in red that we got the erosion control plan that is not needed, right? You gave it to the arborist. The arborist said the erosion control plan is needed? The arborist weighed in on the landscaping and whether there was any concern about the landscaping did not weigh in on whether it substituted for an erosion control plan. Staff feels that the amount of exposed earth will be limited to the point that no particular erosion control is needed. All they're doing is removing that station so they can get the machine up to the wall to install the wall. Okay. So the reason for continuing last time was the arborist weighing in on the flat species or something? Right. Yep. And we didn't get the erosion control. We didn't get those materials until just before the hearing. Gotcha. Okay. So comments, questions from the board? Are there any motion to close? Oh, comments or questions to the public? All in motion to close. Thank you. I move we close. Continued conditional use applications. 1810 of Marcel Bowden. Second. Second. The closest application. All in favor say aye. Aye. Opposed? And finally, continued sketch plan application SD 18-16 of RL Valley Incorporated to demolish an existing hotel in a portion of the existing service station and create a planned unit development consisting of an expanded service station with four additional fueling positions, four total of 12 and associated 9,000 square foot retail sales building at 793 and 907 Shelburne Road who is here for the applicant. More again. So, I think we came to listen. Please. Oh, yeah. I know we know who you are. Yeah. Right. I'm, go ahead. I'm Johnny Anderson. I represent RL Valley. I'm Chris Gallapo, civil engineer. And we're the civil engineer in the project. And I am auto handsome with RL Valley. Well, we begin. I'd like to disclose that when I'm not volunteering for South Burlington on my professional life, I run a trade association of fuel dealers. I know auto and RL Valley well. I don't believe that requires me to recuse myself, but I would if at the request of the applicant or of the board members. And we should note also that Brian Sullivan has recused himself. He just left. Exactly. Okay. So we have, I thought the purpose of tonight's meeting was to hear any reaction there may be to the positions that we've taken. I couldn't quite tell from the information that we got, whether you got a reaction and were not and considered at privilege or whether you didn't get the reaction. We did. We did get reactions. And our response to the several reactions we got, my response anyway as chair of the board and we have briefly discussed it is that we just don't think it's a good project because and Frank and John have the exact word and I'm not going to try to get it because their wording is much better than mine. It's a performing use problem. Exactly. You have non-performing use issues. We don't see a way. I don't see a way. I don't think the board as a whole believes there's a good way to get around these non-conforming use problems and are not swayed by your arguments to date. I feel something of a moral duty to go a little further because I made a commitment to you to read your letter and consider your cases which I did. I have specific reasons that I don't think the project is viable. I have a memo. There's specific reasons that I don't think the project is viable. And I'm willing to share them with you if you want it. No. Look, I'll take all the information I can get. I focused after considering everything, including I read your cases. Well, I read your Vermont cases. I got far enough along so I didn't think that the out-of-state cases were relevant. I didn't read them. I read the memo itself very carefully and I read all the Vermont cases. And both you and the cases you cite for the most part focus on the meaning of expansion of non-conforming use. With respect and particularly with respect to all the work you did, I came to the conclusion that wasn't the issue. The issue is the enlargement of a structure, housing and non-conforming use, which is distinct, a distinct separate subsection of the regulation. And I don't think that's overcomeable. I think the structures involved are the fuel islands. I think you're enlarging them. And I think that's impermissible. Categorically, there's no percentage limitation or anything like that. I have two other problems with the project. That's the central one. I don't think it qualifies for PUD review at all, although the board never got that far. I think the board is obliged, if it were interested in going forward in making the determination whether it qualifies for PUD review, I think it's mandatory that we make that determination. And why don't you take these? Seriously, because if you're going to pursue this any further and there's a rebuttal, that's fine. I don't expect you to be part of the day. I apologize for the typos. They don't change the meaning. And finally, your proposal for overcoming your lot coverage just strikes me as a non-starter. I put a flower pot on the concrete. I don't care how big the flower pot is. It's still concrete. But I thought I owed you the work, and there's my work product. And I want to emphasize something. It doesn't speak for the board. It speaks only for me. The board also has confidential information from another privilege information that is not sharing with you. But I'm not under that constraint. They don't necessarily take my advice. Usually they don't. And I don't know whether they have, in this case or not. Well, I understand that... Let me try to, if I can, try to take... I have many questions, and I'd love to take them up. Are you... I understand that you may have gotten an opinion from the city attorney. Is, are you willing to share... Is the board willing to share that? I understand that that is... probably needs a vote of the board to share that. I'm wondering if the board would be willing to share that. We... Go ahead, John. Typically, the advice of the city attorney is not to share that is privileged information, and we do not typically share those things. Okay, so then... And let me see if I understand. You're saying that the ordinance, as I understand it, the ordinance says that we can reconstruct a structure up to 100% of the structure. Are you saying that you took that into account? You think that doesn't allow us to... I think that has anything to do with what I'm talking about. Okay. The service station is the islands, as far as I'm concerned. Okay. The gas dispensing islands with the pumps, they are the service station. Okay. You're enlarging those. That's not permitted. And the specific citation is 311B2 of the regulation. Take a look at it. Because that's the heart of that objection. That's independent of the other two maybe objections. I mean, maybe I could be convinced that if you're within a PUD, that you qualify for PUD review, I don't see it myself, but we never. I haven't heard that argued. And finally, your lot coverage issue, I don't think you could ever convince me unless you've stuck a Supreme Court opinion in my face that said so. I don't want to... The worst thing I think we can do, we talked about this, is to argue something that we haven't studied. Exactly. I wasn't suggesting you should. I just didn't want to... I'm just trying to understand, is the PUD discussion in here? Yeah, very briefly. There's three items in there. The one around which people have hovered for the most part as a nonconforming use. And that's why I highlighted that. And I have a different take on it than I had heard up until the point at which I sat down to study this more closely. I have to present options to the client based on what you're saying. If we weren't adding pumps, then it would be okay. No. If you weren't adding pumps, if you were adding nothing to the islands, or increasing the number of pumps, then I wouldn't have that objection. That objection, okay. I didn't mean to... I tried to express it in a short way. You expressed it much more accurately. Anything else? Sir? Okay. Thank you very much. Well, I guess my other question is on behalf of RL Valley, I think what I'm understanding for Valley is they would like to consider the memo, take a step back and think about it. So I don't know if it makes sense to continue the sketch plan. And that way, we can... I don't know what your interest would be. It almost seems like to me, rather than closing sketch plan and then having RL Valley submit a preliminary plan and you guys look at it and say, this doesn't make sense, it might make sense to continue the sketch plan again. But if you're open to that, and at least it gives them a chance to respond to the memo if they can or they can't. So they come back to you and say, well, we agree and we choose to move forward or we're agreeing we're not moving forward. Let's be clear, that memo doesn't represent the board. No, yeah. That's a memo that Frank has put together. We've reviewed... I mean, I think all of us have read it. We... I think we all come to... I'm speaking out of turn here. Let's speak up if you disagree. But I think the board feels like what you've presented us with is a non-starter. I mean, the non-conforming problems here are significant enough that there's no point in going further unless you're planning to change the plan. If you're going to come back to us again and you think that there's a likelihood that you'll change the plan so that the non-conforming problems disappear like you build something conforming or you don't expand upon structures that are non-conforming, then I think we're all happy to see it. But if all you want to do is come back and argue some more about what we've already been arguing, we're there. Or I'm there, at least, clearly in my head that it's not working. You're at a non-starting point. Can I just say that... I'm trying to get as much information as I can. And your... I believe that the attorney-client privilege is yours to waive. It's not the attorneys to claim or waive. If I had that information, though, I might be able to do a better job of advising my client on how to give you guys a conforming project. If without that information, I'm sort of playing 20... I don't mean to be flip, but I'm sort of playing 20 questions. You really not. You have the LDRs, and you can read the LDRs and see... We've been dancing around this from day one. Right, John? The non-conforming issues of these two sites have been significant from day one. And you've tried to find some... I don't know, a creative way to get around them. And I think as a group, we don't see that working to date. And do you see it working because of what Frank says in his memo? Or in addition, do you not see it working because you've received legal advice that my arguments don't work? The advice we have received leads to the same conclusion we have non-conforming issues and problems. We have not, as a group, spoken about the PUD. So what you're seeing from Frank there is, again, Frank's opinion. And we haven't discussed it here as a group or in private. And coverage is an issue generally. We all understand that one, but that may be solvable in another way. But I think, again, I'm speaking for myself, disagree if you disagree, but I think the real non-starter here is the non-conforming problems that you're facing. And we've seen two directions on why that's the case, Frank's being one of them. But I think we all agreed, I've agreed that we, I've agreed for every time you've come that we're just trying to find creative ways around it. And it's just not working for me. It doesn't seem to be working for the board. So sketch plan is for you to hear our issues, hear our concepts. What you've come to us with so far is not likely to get off the ground. And that's what we're telling you. I think if you want to come back, if you want to continue and come back with a revised plan so that your sketch stays open. Look, I'm speaking without authority from Maro Valley, but from what I'm hearing, I'm aware of now three, aware of four or five problems. Three are in Frank's memo. There is a, there is another issue associated with whether we're expanding the nonconforming use. And there's another issue as to whether our office use works. That's true. So what I think I have heard you say is that you think we're expanding the nonconforming use because we're adding pumps. I think you're expanding the nonconforming structures. Okay. I think the nonconforming use in the structures that are the pumps are being expanded. The pump stations, the structures themselves, which are nonconforming today would be expanded to add four additional stations. I need to correct something because I'm sorry, John. No, you go ahead. He's much more practiced at this. What was confusing about this, again, I'm speaking for me. I've got to be careful about that. Is the constant reference to expanding the nonconforming use. I look back at this because that 11-3-B-2 is written kind of funny. The syntax of the sentence is peculiar. You kind of do a double take. But on reflection, it's clear what it means. And in particular, it becomes clear her if you look at the statute, the authorizing statute for that at the time it was originally invented. Now that statute was cited in Pearl Street Mobile. It's a former 24VSA 4408. And that statute says what you can do about nonconformities. You can say you can regulate to forbid the expansion of enlargement of nonconforming use. That's what the heck, you know. Well, reproduci... But separately from that, it says you can prohibit the enlargement of a structure containing a nonconforming use. And it's categorical. Not one inch, not 25%, not 2%, not 62%. As I read the ordinance specific to South Burlington, which none of your cases touch, you know, that's what we have here. We have structures that contain a nonconforming use that is quite distinct from the other uses on the lot. And you want to expand those structures. And that all by itself violates, would violate 311B2, independent of 311B6, which forbids the expansion or enlargement of a nonconforming use. So there's nothing nonconforming about these structures that I know. That's where we've been stumbling to some extent. As far as I know, the islands as structures are not nonconforming structures. They are structures containing a nonconforming use. They're also a nonconforming structure because of setback issues. Okay, well, that could be, but that's not what I was focused on, right? So there's just one other issue that I'm trying to understand. And that is, we've argued that accepting payment on the, what's now the hotel lot is an off issues. Have you, that's not in your memo, is how do you feel about that issue? I was fine with that. In fact, as far as I'm concerned, from where I was coming from, it cuts against your case. You are very clear that you're saying, hey, what's going on in the office? It's not a service station. It's an office, right? And I think that's consistent with the definition of service station, by the way. And I disagree completely. So you're hearing, you would have one person saying the office concept is fine, and the guy who says the convenience store is collecting money for the service station says no. You are crossing a boundary. The problem is, he's got Westcoe that kind of rolls with him on this one. Okay, so that's an issue that there's division on the board over. Apparently. We haven't talked about it except here. I'll just bring this down to thank you very much, but let's just bring it down. If we're expanding structures, and that's why you have a problem with what we're doing. Well, I'm hearing that that's pretty broadly shared, but if we're not expanding structures on the gas station lot, then is there an additional problem that we're taking payment for for sales on the gas station lot at the store? Well, it's interesting because the answer, the suggestion of the answer is in Westcoe where they went back and I think Westcoe is pretty close to that situation and the Supreme Court decided not to interfere with the discretion of the environmental court on that point which went kind of your way in Westcoe. Whether we have discretion to disregard that, I don't know. It wasn't a determinative issue for me so I didn't focus it on it that tightly. I was willing to accept argument that the office use was independent, but you know, it's not conclusive. What I wanted to, I want you to look carefully. Well, I will. Like a language of B2 and see if you can possibly come from any rational interpretation other than what I've told you. I couldn't. Not necessarily now. No, trust me, I'll study it very carefully. Okay. Anything else? Anything else? Okay. Well, so now do you want to adjourn so we can come back to... You mean continue? Do you want to continue to come back? Yeah. Totally. So one thing I want to bring up is that if the application is going to be revised so that differs from the project description we need to re-warn it. So we may be able to I mean, it's pretty broad, right? We didn't itemize every tree, bush, and shrub, but if the application differs it's not a continued hearing it's a new hearing. So for example if you don't, so the description has with four additional fueling positions so if you come back and say without four additional fueling positions that would have to be re-warned, right? We've never interpreted it that if the project is reduced in scope it has to be re-warned. So if it were without four additional fueling positions that would probably be okay. If it were swapping the convenience store to the upper lot and the fueling positions in the lower lot maybe that would be re-warned. But if we continue at say and RO Valley decides to withdraw and submit a new application that's different we can just send you guys a memo at the next meeting you guys can open it and close at the same meeting and we'll submit a new application. It seems like from our perspective there's no harm in continuing it and we can just communicate with staff. It just gives us another rock. You'll come back or Yeah, so at the next meeting if they decide to submit something new we can log we can let Marlon know in advance if they choose to come back and discuss items further then they can, you know we'll have a date set for that. That makes sense. So, is the 16th possible? I mean, do we want it that soon? Can you do anything by that soon? You'd have to have stuff done by this Friday. That would be tough. Yeah. Next would be the 6th of November. Next Is it okay? Yeah, sure. Getting a little dicey already but that's okay. I'm not here. Does that cause any problems? Is anyone else? Mark could be back. Mark might be back. There's quorum without Mark. Anybody else have a conflict for November 6th? I'm good. Yeah. And? Yeah. The 6th is two weeks later. No, the 6th is fine. I'm just going to be traveling on Friday. Okay, so continue to November 6th or do you want to go later to the 20th? The 20th. Sounds like Thanksgiving week. Yeah, the 6th is great. I move that we continue sketch plan application SD1816 of RL Valley Incorporated 2nd. Moving 2nd, continue this to November 6th. All in favor say aye. Aye. Opposed? Thank you very much. Last item on the agenda. Minutes for September 18th. Everyone has had a chance to look through. And on page 3 Sue, I had a question. In the fourth line down there is Mr. Marshall showed a landscape planned and indicated vegetation to the retained. To be retained. Or something. Or to the retaining wall or something. Page 3. Page 3, very fourth line down. Oh yeah, to be retained. To be retained? Yes. Yeah, because he was showing the plan that the court ordered vegetation. And he goes on to say he also showed the rock retaining wall. Those are the minutes for August 21st. So I'm looking at the minutes for September 18th. I only saw the minutes from the 18th. Right. So Marley, you think it should be to be retained? To be retained. Sounds good to me. Because that means that some vegetation will be retained. Thank you very much. Congratulations to be retained. To be retained. Okay, all right. Thank you. Are there corrections or modifications to the minutes? I move that we approve the minutes from September 18th. I've been moving second to approve the minutes to September 18th. I'll say aye. Aye. Opposed? Not present. Not present, exactly. Right. Yes, thank you very much. And that's the... Even without looking at the video or anything. In that case, I'll go along with my colleagues tonight. They're fabulous. That's the end of the Southbrook Development Review Board for September 18th at 8.14pm. Thanks all. Yes.