 I'll cause meeting to order. Good evening. Welcome to the City of Montpelier Development Review Board. My name is Daniel Richardson. I serve as chair for this meeting Monday, September 16th, 2019. The other members for my right are Rob Goodwin, Michael Lazochek, Meredith Crandall, Staff, Kate McCarthy, Ryan Kane, Clay Rock. All right. The first order of business is approval of the agenda. We have one application before us tonight. Are there any additions or changes to the agenda? Hearing none, I will accept a motion to accept the agenda as drafted. So moved. Motion by Ryan. Do I have a second? Second. Second by Rob. All those in favor, please raise your right hand. We have an agenda. There are no comments from the chair this evening. The next item of business is the minutes from September 3rd. Myself, Kate, Rob, Michael were in 1, 2, 3, 4. We have just enough to approve the minutes. Do I have any additions, changes to the minutes? If not, I'll take a motion to accept the minutes of September 3rd. Motion to approve the minutes as drafted. Okay. Motion by Rob. Do I have a second? Second. Second by Kate. All those in favor, please raise your right hand. That are eligible to vote. And we have minutes for September the 3rd. Very excited. First item of business is and only item of business is 260 Elm Street. If the applicant will step forward to the table. So the way in which we do this, I'll have you introduce yourself and then I'll put you under oath and then I think it would be helpful in this particular situation for Meredith to start off because you're here for a very particular reason and she can help frame it. And then I'll turn the floor over to you to add any additional information that you think we should consider during our review. Okay, so if you'll state your name for the record. My name is Sarah Hoffman. Well, thank you. And you're the owner of this property. Oh, you're just the landscape designer for the project. Yeah. All right. If you'll raise your right hand. Do you solemnly swear or affirm that the evidence you're about to give for the matter under consideration shall be the truth, the whole truth and nothing but the truth under a paint's penalties of perjury. So Meredith, you want to tee this up? So the reason this is before the DRB is because the applicant wants to put up a six foot high fence along the Elm Street frontage. There is typically fences would just be an administrative approval, especially for a single family home. But the general allowance for front yard fences is only four and a half feet. So they need to ask for a waiver. The extra complication is that the way I interpret the waiver provision, fence heights are allowed no more than a 10% waiver, which here would out of four and a half feet would bring you up to five feet roughly. And they're asking for a six foot. So in addition to the waiver that has to go to the DRB, you've also got the asking for a waiver greater than what is supposed to be allowed. We've run into this before, but not with fences. So it's just it's something to pick through the particulars of. Okay. So my understanding is also this is covered by this in specific by law concerning fence heights. Right. So you have right. So you have the height waiver maximums in 3000 and two. Right. Is that the one? Yeah. But then you also have the fences and walls provisioned in section 3101D. And that's that's where we start. We're talking about the front yard fences or walls located within a front yard should not exceed a height. Microphones on the other side of you. I thought I was projecting. Is that you picking it up? Okay. So, okay. You got to just lean the other way. I understand. We're not only performing for ourselves but for the greater audience of Montpelier. So the 3101D says front yard and says fences or walls located within a front yard shall not exceed a height of four and a half feet. And the applicant shall demonstrate that the fence will not interfere with line of sight or of pedestrians, bicycles or vehicles in the right of way. And then there is a definition as well. Sorry, I was I was teeing it up and summarizing it. No, no, I understand. I just want to I'm not going to read that definition, but I just want us to sort of start from all the same chapter and verse. So you know, before we get to the and I'll get to some of the nuance in a second. So if you want to add to that at this point as to and in particular I think would be helpful to understand what are the what are the issues driving this need for a waiver and heightened fence? What are the contours of the project? When I first started working with Weston Allison, it was back in 2017. It's a long project, but that's partially my fault as a designer. I do try to slow people down when it comes to landscapes. But so at that time, they were still West had a pretty good idea of what the building renovations were going to be at that point. But he wanted more information on how that relates to the landscape. And so first time I met with them was in October of 2017. And I go through site analysis as part of what I do when coming up with designs. And because of the transition between a public space and a private space, site lines were really important. And so we look at that time the hedge for the Meadow Mart was still fully functional. The deer have now since eaten it, but on the vine street or on the Elm Street side there was an invasive hedge and then kind of just shrub plants. And so we knew we had to address that. But we looked a lot at the site lines. So coming from Birch Grove was the main driving force behind a fence. Actually West wanted to put in a vegetative hedge. And I talked him out of it and went instead with a fence so that he could have year round. Just that little buffer not just from site lines, but also we looked at noise and then also dust, believe it or not. So I looked at the dust line in the spring. And inches do make a difference. I think why we're here, why West, Alice and myself felt it was important to get the extra inches. Because for the site lines, people sitting at Birch Grove looking into the property, for solar gain they wanted to put a sunroom on that one site on the southwest. It used to be a porch and now it'll be a sunroom. And that's a great spot. I mean it's got great solar gain. It makes sense. But unfortunately it's in direct view when you take down all the vegetation for the people at Birch Grove who are sitting having coffee to look in. And so we talked about options. We looked at them all. And it's not just a privacy fence. The top 12 inches would be lattice. Something else we talked about were interrupted views. So they have a, in the design it was to have a gate. And that is, you know, across from nothing where people would be sitting looking right in. That's a movement area. But where there is sitting and looking, staring, is from Birch Grove. And so that's where the fence, six feet really made sense, even with having the lattice in the top part. So that was kind of the main driver of that. Softening the fence, too. They didn't, if you see on the Bind Street side, they have a four foot picket fence. So it's not about closing themselves off at all. It was about controlling views into the property, as well as controlling views out. But having, softening the fence by pulling it back the 30 inches from the sidewalk so that perennials can grow in vines. But then also softening the top part. So they're already in the design where to have trellises abutting the fence as part of the fence. And that was so that it wasn't just this, you know, really stark looking, built thing. That it was really kind of part of it. So it sounds as if there's a number of issues that are driving this need for this fence. Privacy, sight lines, dust, noise control. And can you explain from a noise perspective, is the extra, you know, assuming for a moment this is the front yard and assuming for a moment four and a half feet is what we're working off of. To what extent are these additional, you know, three and a half feet necessary for noise purposes? Or to prevent noise from one and a half feet? Well, sorry, one and a half feet. And here's where this is out of my expertise range. But I do know, so most noise is generated actually from tires. So it's truly the bottom 20 inches. If any of you are having problems with noise, you need to block the tires of anything. But that corridor of Elm Street, noise bounces off buildings. And so that's why I haven't done a noise analysis. But I know whatever you're getting up above that, you're helping to just soften it. And one of the main purposes of the fence, too, is to hold greenery in the growing season. But when everything's dying back, that's when noise can really, it's in the stick seasons. It's the mud season, fall when things are dying back, but people aren't inside with closed windows yet. And that's what the fence really serves that purpose. Yeah. And it's just extra inches. So I think I couldn't tell you how much noise it's going to help. But I know it'll soften it just a little bit more. And the Vine Street side, I mean, you can see they're not even worried about that because people are slowing to a stop. It's that if there's no one in the pedestrian cross, crosswalk, people are going 25 miles an hour, sometimes more. So you mentioned before that this porch on the Elm Street side is now being closed in. Right. So will there be an entrance or exit off of that porch or? Yes. Okay. Yeah, there will be a door on that side. And then it leads to a gate. And this, the Elm Street side is considered their secondary entrance. You just reminded me of another point. So to give the landscape cue that that isn't their primary entrance, they wanted it to be a little less welcoming than the Vine Street side. That's why the Vine Street side has lower fencing and the picket fence so that it's it's much more welcoming. It's like come in, whereas they want, you know, just people that really aren't familiar with them, that wouldn't know. Right. That's all of New England. I never know which door to go to. I don't know if you guys feel that way. What door do I go to? So we're trying to make it a little bit more obvious. Okay. And so and the Vine Street side is where their garage is where their cars will be coming in and out, where the front door is going to be for main the main entrance of the house. That's true. But it's still open on the on the Elm Street side. And the design had an arbor going over that. But it's a little less open than the Vine Street side. Right. But I'm trying to I just want to make and I think you've made it clear is just that, you know, this is going from a front porch to a sunroom and the side entrance that by design and intent will be a private side entrance, as opposed to the primary frontage facing the street, which is the historically, at least the way this house is situated. There is a good argument that visitors, strangers, male people, friends would have used this front porch entrance, as they do on any of these other houses up and down Elm Street, because that's the front facing. And they're shifting the owners are shifting this so that now the door on Elm on Vine Street becomes the primary entrance and all cues will lead to the Vine Street Street side. True. I'd have a little pushback on it in that many of the houses are renting or have tenants. And so entrances I've noticed on a lot of the buildings are really different or have additional entrances that I wouldn't say are traditional. Sure. I mean, obviously, when you deal with rental properties, yeah, but but when you look at the, you know, and that's a fair point. I'm not in this used to be a rental. Alison lived in it for she's one of the owners Alice in West. She rented for I think four or five years before buying it. And she never used the front the Elm Street side. It was always the Vine Street side. So we kind of kept with that. Okay, so really interesting discussion about the role of different entrances. And I'm actually interested. Even, even though sometimes those front formalized entrances don't get used, they still have a role to play in terms of the cohesiveness of the street. And that's true, sort of the way the houses side by side, along that street interact with each other and create the neighborhood character. So as I've looked at this house and I walk by it pretty frequently because of where I live. It really is oriented to Elm Street, its addresses Elm Street. So one thing to think about it's as we consider how this does or doesn't change the character is the way it changes the changes the relationship with the street, even though functionally, the front entrance, the new, the primary entrance will be off of Vine Street. And all of the functionality that you've described is extremely thoughtful. But as far as it's content within the overall context, what would this decision do to to that relation and going back to to in recent years, it had a six to 15 foot invasive hedge. Alison told me a story just last week that it used to be called the witches house when she rented there. I don't know if I mean, I lived in the meadow, I didn't know it's called the witches house. But it's because it had a pretty, you know, what's the word? It's, it just it kept people kind of having that having that feeling when you walk past it, and it's unkempt and overgrown of Halloween. Don't go in there. It's a Gothic style house. But so I think it was never welcoming as on the Elm Street side, right? And consciously through this design of a fence that has an interrupted lattice view for all walkers to be able to see in. And then a welcoming gate that it is actually more welcoming than what it was the past decade, I would think. But I do I do fully understand keeping the character. It's a it's a historic home. You know, a six foot high fence wouldn't have been there when this house was built that wouldn't have been in character with the times. But I do think one other quick point is, Alison and West are really conscientious people, and very much concerned with how people are feeling about their property. And I think when we took down the invasive hedge, they were really concerned that people and people were like, What are you doing? You're removing vegetation. So they made sure that I was on site and my husband, Alex, who's working on the property were on site when that happened to explain to people, just to educate that this actually was a really bad hedge. It's invasive. It's not something you should plan. So and that came from Alison, but she really wanted to make sure people weren't worried. I think just as far as the like, which is the front entrance, which is the front yard is not really the definition is actually defined that on corner lots, where you front on both streets, you have two yards. So regardless of which is the primary entrance or which was historically the primary entrance, I think the regulations are pretty clear that the front yard specific regulations apply both to Vine and Elm Street. I agree. I guess my remarks were more about the character evaluation than where the different heights applied, but that's a good clarification given that this is a corner lot and has that special definition. Yeah, no, I I don't disagree with your reading of the definition. You know, one thing, and I should say, at the same time, you know, this is clearly intended in some ways to denote a primary yard that is located between the street and the nearest line of principal building on the lot. You know, it's the idea that it has a it is the frontage, the primary entrance. But the way this is defined, you know, I don't think there's wiggle room for us to declare one to be the front yard and the other a side yard because it is a corner lot. I'll add to that that the way the fences and walls are drafted that there is no exception for the front yard four and a half foot fence under three one oh one D, you know, it says the walls located within a yard shall not exceed a height of four and a half feet in the outpatient shall demonstrate to the fence will not interfere with line of sight of pedestrians, bicycles or vehicles in the right of way. It's three one oh one E for side and rear yard that says they can go higher if there are certain conditions that allow or require the height to be a little bit higher. And so I don't read three one oh one D is allowing those same analyses to apply about allowing any waiver. No, no, but just is so I read I read three oh one three one oh one E as creating its own. So if you read three oh one one oh one E it says that it shall be six feet except one where higher fence is approved by the DRB or required under these regulations for buffer screening or security purposes, right? That's not where I got the waiver. Yeah, no, no, I'm not talking about the waiver. So I'm just saying that that in and of itself, it has its own standards to allow that. And so we're not talking about that. So that does force us to go then the fact that the planning commission included specific authorization for the DRB to raise the height of fences in a side yard. Side or rear yard indicates that they did not intend that we have that discretion with regard to a front yard beyond the general waiver that we're allowed, which is 10% of any of the dimensional standards within the regulations, which clearly this is a dimensional standard. And so our general waiver authority is available. But but again, very clearly capped at 10%. So I think the only way we get above that is through a variance. And I think as the staff report that sets out, there's I don't think anybody could say that this would prohibit your beneficial use of the property if you were limited to a five foot fence as opposed to a six foot fence. Does it make any difference that the design started before any of these zoning regulations came into play? It does not matter. What matters is the date on which the application was filed. Okay, so yeah, that's the triggering point. Yeah. And does it make any difference that I was the one that came before this owning board in 2017 to change the fence regulations? And it was this property. I worked with Sarah McShane on it. It doesn't. It came back to bite me. Yeah, this is a really poorly structured regulation. What's interesting to and this Oh, yeah, it is what one thing that Weston I talked about, because aesthetics are ultimately what we would like to be considered. There are ways around it, which aren't as great as this, the trellising. And so a trellis could go up to 10 feet. And that could be, I don't think there's a setback from what I read that it could be right up against the fence. You could have a 10 foot trellis, but it just wouldn't be as aesthetically pleasing. And then the other catch, if it's rhetoric, was that this fence was already designed to hold vegetation. And I think, at least in my line of work, the only the difference between a fence and a trellis is a trellis holds vegetation. And there were already vines designed in a already parts of the fence that he custom designed to hold vines. And so I could argue, if we planted a vine such that it was covered in vines, it would be one big trellis, not one big fence, rhetoric. But I, and again, that's just me picking it apart. That's not to say that we would do that. That would be ridiculous. And it would look silly. But I do think that this option looks better than some of the things the creative solutions that we've already talked about of what we do to figure out how to block the sight lines. And I wonder too about that latissing, the interrupted view on the front, if that, I mean, it's latissing. So if that's, you know, you could discount that as part of the fence, even though it's connected. These are just little details that I don't know if it makes a difference, but we've talked about it. So it's 12 inches of latissing, which takes it down to five feet of privacy fencing. Those five feet will be holding vegetation year round that will be vines that stay woody. So could you count that as trellising in those places? I'd probably be disinclined to do that because the function is so explicitly fencing. And I chewed on it before this meeting, and I looked up trellis. And I looked for pictures and a framework or light wooden or metal based bars chiefly used as a support for fruit trees or climbing plants. I really think it is intended as something different. There's a spot in the regulations that talks about things that apply to fences versus things that apply to ellis, trellises, arbors, and pergolas. The fact that those are separated makes me think we're supposed to think of them as different functions. Yeah, and Middlebury Fence Company has been installing trellises as much. I mean, that's also I think at the end of the day, what we're here to review is a fence application. If we ultimately say, you know, something less than six feet, what you do from that with your interpretation of the regulations is up to you if you believe you want to there's leniency around trellises, we don't I don't think we can offer an opinion on that because really all we're asked today is, will we approve a six foot tall fence? Oh, sure. So but it's good to think through what your what the options might be. Yeah. And really, we have played around with different options. That's very clear. The whole reason why we went through this process was this is the most attractive. Yeah. A question about. So we're just talking about the height. Ornarily, if this was a proposed to be a four and a half foot tall fence, you would make a determination that the sight lines were not adversely impacted under 3030 101 D. And it was a four and a half. Now I'm just like what I if it was four and a half feet tall, am I even looking at the sight lines? Yeah, I mean, that's what I for for me, if this were four and a half feet tall, I would do what I did here, which is go to Department of Public Works and get their opinion on the sight lines. And they are comfortable with the sight lines. You know, they're the in from my world, they're the experts on that. And because they didn't have any concerns, I would have checked off on that, and it would have been administratively approved if it was four and a half feet tall. Seems like we might have to decide tonight whether sight lines will be impacted. I mean, ultimately, you need to decide that now because the whole thing comes to you. But so I think that's right, Rob, is that the way the ordinance is written. You have a limitation on four and a half feet. And you have the obligation so that even if a four and a half foot fence was proposed, but it created some type of line of sight for pedestrians, bicycles or vehicles in the right of way, that would cause us not to grant. The permit for even a four and a half foot fence. And so if I'm understanding this, interfere with the line of sight for pedestrians, bicycles or vehicles, this is really something where does someone stopping at the intersection or turning at the intersection is their sight line affected by or people walking walking and then having to look around the corner to see if somebody's coming the other way. And I think we received a determination from the Department of Public Works that even for the six foot proposal, sight lines would not be adversely impacted. So it's at the very back. It's an email from staff report on page six. And on the corner, the fence actually goes back eight feet from the corner. So that there's plenty of room for sight lines. And they're going to step down five feet and it's stepped down. Yeah. As far as the kind of aesthetic cues that the Vine Street entrance, it's still even if it were five feet instead of six feet, you'd still propose the difference in fencing the kind of only obstructed view on Vine Street and still four feet. So would that still provide those cues even if the fence was capped at five feet along Elm Street? If it would, to a certain extent, but again, the sight line from Birch Grove in it's amazing what six inches even can do. And the traffic and the dust, it was those things that really they felt like four and a half wasn't enough protection that the space between the sunroom area and the edge of the sidewalk is roughly 22 feet, 23 feet. And then when you take into account, you know, not planting things right up against buildings and having a walkway, it really is a tighter space. And so I think that too was why I talked West out of the vegetative hedge and to get in a fence because it would just and without even going the whole way up to the sidewalk, having that set back, but to help maximize that front area, just because space was pretty tight. So with if you had a head there instead of a fence, what would be the impact on actual use of the sunroom? I mean, if you're talking six foot high hedge, you're not going to get that lattice work at the top to let in light necessarily in the summer or the winter is that the sun might not have as much of an effect. It's more of how that public to private transition space would be and people walking by, I think people are just naturally curious and want to see that's why we left like the latticing in the top of the fence was so you could have these peaks in because what they're designing in their backyard is incredible. It's beautiful. It's going to be really beautiful. And so I think they want people to have these little peaks in while not opening it up, you know, fully for people to feel like they can just kind of reach a hand over or walk in. Not so welcoming, but it's like yes, come. So they were really conscious about that. I think the main problem with hedges is the upkeep, the maintenance. I know the tree board was pruning that hedge years ago, same property. Dear, we saw this year that the dear pressure is unreal. And so I think we have to reassess and this goes further into policy, but reassess using vegetative hedges. I think we have a lot of factors coming in with pests and diseases that are really unusual, and they're happening faster every year. So I did talk him out of that that but we're still using vegetation intentionally in different areas so that you get these little views in but then there's these blocks of privacy. Yeah. Thanks. Yeah. So do we all agree that we're talking about a 10% waiver under 3002 J? Well, this is an interesting question because I think the applicant needs to agree that that's what they're the applicant is seeking. You know what I mean? If the application is we'd like a six foot fence. And I think we're in agreement that we don't have any discretion to grant a six foot fence under the regulations. Right. Unless we want to toss them out the window and fly. But again, and we've done that to be clear, there have been other provisions that where we've gone beyond that 10%. But there have been strongly compelling reasons to do so. Sure. What I'm hearing you say is that the higher the better. You know, we're trying not not but but every inch helps in minimizing the impacts of noise, dust and views from birch grove. Below six feet. To be clear, we would not have gone above six, even if there was an eight foot high maximum. Yeah. Yeah, wouldn't fit. But between anything above inches above four and a half maxed out at six. Yeah, help. But I don't I don't know that that for me personally is as compelling a reason to to deviate so clearly from regulations. Again, and those other situations too, I mean, I think it is important the fact that the regulations do say, Hey, DRB, look at side yards, you can go bigger and don't say that for front yards. I think it indicates a conscious choice on behalf of the Planning Commission to say, we do not want the DRB having the authority to, you know, go beyond that. And so I don't I'd be very hesitant to do that. But so back to my point is I think of the if the application is, we would like a six foot fence. I don't think we can say, well, we'll give you a five foot fence. I think we say either yes or no, you can have a six foot fence unless the applicant here is saying, reading the tea leaves, we'd like a five foot fence. And at that point, I would be happy. Well, I mean, I understood our review to be conducted in part in testimony in part to be geared towards the idea of a waiver. You know, they're asking for a six foot fence. But they have filled out the waiver variance application. So I guess that's probably sufficient. I just wanted to flag it to make sure that we're not going beyond our role of doing what's before us. I think to design a project. I mean, at least the way our, you know, waiver and variance forms are developed in the way an application like this reads out, you know, they're they're applying for a zoning permit for a six foot fence. And then recognizing that they would need a variant actually, it's not a waiver. You're asking for a variance. If I'm not, I'll look a little closer. I've analyzed it. But the analysis is gone and the testimony is gone under both. You know, and the way the form reads is it's it's very similar. You know, a variance just carries additional elements so that if you analyze it under a variance, you also get most of the waiver categories. So I don't think we're beyond what's permissible given the posture of the application. Can I ask one quick question? It was about the term hardship and how it was stated for the applicant. But going back to the public, people sitting at Birch Grove looking in, is it considered a hardship on them to look directly into someone's private area and have that be something that maybe should be avoided for the sake of the commercial business? No, no, no. That's an interesting question. Okay. Yeah, I was there was there was a note in here previous application for a porch. And I believe there was a waiver that was granted that exceeded the stated allowance. And I think it's worth maybe just considering that application and some of the kind of decision making went into that and how that would potentially apply to a situation like this just to make sure that the decisions we're making are kind of in alignment. Sure. I'm talking about the North Franklin Street or the Franklin Street application. Yes. Well, the difference in the North Franklin Street application was one we were dealing with a different set of ordinances. So as Ryan pointed out, we didn't have clear language that was allowing for certain waivers on one side and not allowing it on others. We didn't have that clear policy statement from the Planning Commission in the drafting of this ordinance. The second was you had clear evidence that this was a house that was largely situated by accident of its design and with the right of way in an area where the variance or the ordinance, the waiver was rendered somewhat meaningless because of just the function of this extensive right of way, notwithstanding the fact that, you know, if you measured from the sidewalk and yard, it would be nor it would have had a deeper porch allowed. And third, I think on top of all that, you also had clear evidence that every other house up and down this road was well within this right of way. And then fourth, you had DPW also saying we don't have a problem with this whatsoever. It doesn't affect any of the city health rights of way. So, you know, given that those pieces of evidence, you know, I think those are all distinguishable in situation here, except of course the DPW signed off and said we're okay with that. But, you know, here you have an ordinance that has stated some policy about what's allowed for extensions and granting some to side and rear, but very specifically not to front. You don't have evidence that this is a common problem up and down the street. In fact, you know, the testimony is notwithstanding the fact that, you know, there's a lot of secondary entrances, a lot of these fronts on along Elm Street have been preserved. And then, you know, you don't have this sort of but for situation of the funkiness of the lot, this is just a corner lot problem. So, I think all of those distinguish and are probably what are leading at least me and others to say those differences between these two. It's not a compelling, it's not the compelling case that Franklin Street was that the variant, sorry, the waiver was, you know, otherwise we're under meaningless if we didn't extend it. So, I think to the point of privacy, I mean, the whole idea of a front yard is that it's, you know, you're going to have views from front frontage into a residence, especially when the maximum height that you're allowed to have a fence is only four and a half feet. I mean, I think that we have to assume that that was taken to an account. And the fact that there's a very popular bakery with absolutely delicious baked goods across the street. I mean, that's part of downtown Montpelier. So, I don't and there's certainly there aren't any other six foot fences along the frontage of Allen Street. They're all rentals, though. That's the thing that I don't get called in on rental properties very often because people don't invest into landscapes. And so that's the big difference that this is a unique area or unique property in that they're investing in their landscape and you look all along the street and it truly is a lot of rentals that haven't been. So it's, you know, unique in that but, you know, notwithstanding my earlier editorializing, I mean, the Planning Commission has said we want clear views and sight lines along the front of properties and we want that to extend along the front, not just front, but one front, but if it's a corner lot along the total frontage. So, I mean, you know, if we had a different set of, you know, this is where, you know, the language of the bylaws do matter. If we had different language, if we had, you know, some of these these elements, we could certainly weigh those. You know, we're sort of talking about an extreme situation that was off what I would consider sort of off the norm with that Franklin Street property. But here we have a pretty clear decision by the Planning Commission to make that. And so, you know, you can argue and you can say, well, that's a good idea or bad idea. But at the end of the day, it is what they've adopted. And so, for us to impose or put a thumb on the scale on this, in this respect, goes against not just sort of, well, this is probably a gray area, but the clear intent. I mean, it's not a gray area. You know, you can argue that it would make sense, that it would make a beautiful project. I mean, clearly a lot of time and effort has gone into it, but it is, you know, we're left with a bylaw that doesn't, you know, that talks about side and rear, you know, having more, but very clearly leaving front to be left low. Yeah, what's, I think, just stepping back at the bigger picture, what's a bummer is that you have these properties adjacent in this property, too, that had unruly, way bigger, way thicker privacy hedges, and they have removed that with the intent of doing something better and more beautiful. And to have that disapproved of is kind of like, wow, we should have just left the hedge. It's not a motivation to other people to do this, which is kind of a bummer. I mean, you see that burning bush hedge that's two doors down, and it's huge, and it's an invasive species that is, you know, doing all these bad things, and they might say, well, we shouldn't take it down, because with them we only get four and a half feet. Why would we do that? Right. You know, and instead, I mean, that's part of it, too. Fencing. We're stuck with the regulations that we're stuck with. Oh, yeah, I totally get it. But I think, you know, to the extent that there's no limits on the size of plantings that you want to plant or hedges, then you're left with those options. I mean, I don't, but at the end of the day, it's, right, the regulations have said, if you're going to have a fence, as opposed to vegetation or trellis or lattice or whatever else, if you're going to have a fence in your front yard, it's only up to four and a half feet. And then we also have this general provision where we're allowed to extend dimensional things 10%, but that's, I mean, there's... No, I get it. I do. It just, you know... And I think your argument, I think that is, you know, and the vice chair does not like it when I say this, but when, you know, that's a great argument to make to the Planning Commission about this, this bylaw, because here's a situation where, you know, and if they vote, yeah, I mean, if it was made and they didn't accept it, then clearly they've held other compelling reasons control. But, you know, that's the board that can really make those type of changes. We can't impose those. I mean, what we're, our flexibility comes where, you know, there's a clear intent by an ordinance that's not met by a particular factual circumstance, as opposed to here where the intent is crystal clear and, you know... It doesn't make sense. Well, or it makes... It does with the site. I mean, if you analyze the property, it does make sense. I totally get why rules exist. Yeah. I see landscaping companies not following rules all the time, and it drives me bananas. So, as one of the landscaping companies that's trying to do the right thing, I do see the, you have to have rules. You have to. And it does, I mean, all of the rules that I've used and followed, I feel like, yes, they're there for that reason. This property happens to be one that I, 18 inches, it's 18 inches. And it does make a difference. And I get it, though, that when you don't have the space to budge, but... I'm not unsympathetic to your... Oh, thanks. It's made it well, and the designs are very thoughtful. No, that's okay. And we have creative solutions around it. So, it was just to present it and to say, I hope that if things like this come up, that, you know, you do hear people out, because smart design is really important, and a lot of people don't do it. A lot of people skip a lot of steps. And so, the fact that you're hearing us out, at least, is nice. Yeah. No, and if there are, I mean, you know, again, we're, you know, unfortunately we're bound to this, but yeah, you know, we are a quasi- adjudicative board in the sense that, you know, we're not a formal court, and we can hear these things to the greatest extent possible, and try, and we are empowered to implement the purposes of these to the extent that we can to get at the sense of it. But, you know, a case like this where there's a policy decision that was made that's baked in like this, unfortunately, that that ties our hands as to what direction and we can't, we have to be careful. And so, that said, is this, would you want us to go forward with a variance, sorry, we should, so essentially there's two choices. There's a waiver and a variance, and I think the board's sort of weather report was that a variance is probably unlikely because they're designed not to be granted. They're really for absolute hardships where, you know, you have the undersized parcel and you can't otherwise do what you would be allowed to do without this little adjustment. So that, that would put us in the land of waiver. And waiver is great because its standards are much lower. And as you can see, you know, from the application, it really talks about that it does not alter the essential character. The neighborhood or district in which a property is located substantially or permanently impairs the awful use or development of the adjacent property, reduce access to renewable energy resources, or be detrimental to public welfare. And then that the proposed land development is beneficial or necessary for the continued reasonable use of property. Those are the standards. And so, you know, but it comes with this cap of we can only go 10% up. So basically taking it from four and a half feet to six feet. I mean, it's like five feet. We'll take it if it takes, but we'll take it. Yeah, yeah. Wishful thinking. Keep in mind, 10% and then 10%. You know, we waivers would have to grant. Could I come back and apply again? Yeah, yeah, another waiver. That's like Achilles in the tortoise. You'd eventually never get to the finish line. That's right. It would be infinite. Zeno's paradoxes. So that's it. I mean, we can go that direction. We can also go further discussion on the variance if you feel that. No, I think you've made your case that yeah, it sounds like it's we don't have to make case, but you've laid it out for me. It's an optimistic, but we've borrowed that entrance or made it less inviting. It's a primary. It's less welcoming. Secondary entrance. I'd have to talk to West and see if you wanted an Allison to see if they wanted to do a waiver. We do have some backup plans. So I could see if they wanted to skip that and just go with a four and a half foot high fence. But then, you know, we did talk about berms and trellising and arbors and so that's an interesting question to create a 18 inch berm that then has a six foot fence on it or has a four and a half foot fence on it. Yes, don't give away. We've already talked about it. That is that is that is language that is silent. So that raises an interesting question. We have talked about that. So what I would suggest is one one way we can do this if you feel you've sort of exceeded your authority. I don't have authority. To go any further from your client. We can continue this for two weeks. What's our next meeting look like? The next meeting, depending on what happens between now and 11 o'clock tomorrow morning, could be pretty full. What I'll say is if we approve a waiver up to 10% and authorize you to build a five foot fence, you could still build a four foot fence. Yeah, I mean that's the thing. If the five foot fence, the waiver for the five foot fence would probably be pretty limited to this particular design and just shrink it down to five feet. Yeah. If you came back with a very different design, it would probably have to be limited to the four and a half feet. Right. If I was going to approve that administratively. But you would have the approval of a five foot fence into this application, but a different design, it would probably be a separate application. Right. So you have some options. Or it makes sense. Just to be really clear and make sure we all agree on this. Even if you came back with a different design, that five foot would probably remain the upper limit. So it really... Do you think even with a different design, the five foot would remain the upper limit? I wouldn't. Because our variance or our waiver authority is 10% regardless of the design. Right. I'm just saying that she changed the design. If the design has changed so dramatically that it's like a different application where I have to get new Department of Public Works review. Isn't that really a new application that they have to get a new waiver on? Sure. But if it's a if it's an application for a five and a half foot. You're just saying they still have to come and get... Wait, wait, wait. Sorry. Did I say five foot or just a four and a half foot? I think so. Yeah. I think we're just saying it's five foot no matter what. That I'm just letting... Yeah. Yes. That makes sense. To get transparent that it's not the design. Yeah. I mean that said, I'm only one board member, but I think the compelling reasons for the waiver, apart from a radical design to this, but another thoughtful plan, there's nothing I see on this site that would not, that would prevent at least the board from considering this another design in the same way under the waiver criteria. In other words, it's not the fence itself that's, but we would have to conduct that review. You know, this is also the question of, yeah, you have a number of different things. I mean we can continue this, which is what's nice about that is you don't have to necessarily reapply or rewarn or, you know, it just is continue to a date certain. And maybe it's not two weeks, maybe it's a month from now. And during that time you consider your options and if you need to make modifications, clarifications, and obviously if it's a four and a half foot fence, then you don't need us, by and large. You know, that's, those are your options and of course if you go forward, get the five foot waiver, you know, for this particular fence design as a sort of shrunk down version, reducing, you know, 12 inches at various points, that's another application. I mean that's a permit that you're largely not, I wouldn't say stuck with, but it is the permit. Sure. You couldn't then radically redesign a fence and use that permit for that. But that can be granted right now, that's something. Well, we would decide on it and then issue a written decision. Okay. Yeah. So you put it this juncture, so I don't have to come back and with a 10%. Right, you wouldn't, no, you wouldn't have to come back ever again. Is this, is this property in the flood plain? It is, it is not in the flood plain. It is outside of, it's in the historic district, which it wasn't in 2017, it was redistrict. In the historic district, not the design review district. So I'm thinking creatively and I guess going back to a kind of a question that I'd thrown out there about how do you measure the height of a fence? Right. So, I think it actually says 3101, so I think I would go with the height provision at 3002H, which generally they're talking about measuring height from yeah, it actually says structure. So height shall be measured as the vertical distance from the highest point of the structure to the average of the highest and lowest points, and it says where the exterior wall meets the finished grade. Yeah. For the fence, I think you would just say where the fence meets the finished grade versus the exterior wall. Because it's all about height of a structure, and a fence is a structure. If you had a fence that did not, was not resting on the ground, and the bottom of the fence was a foot above the ground. I think you know because you stop support posts. I'm going to cut this decision, I mean it's a discussion a little off only because we're liable to go into hypothetical land. True, true. But I think you know I think Meredith points in a helpful direction with the 3002H, and you know that's certainly a discussion that is probably best done in the specific, because there's all kinds of wild and crazy ideas that can spin. You've gone through a landing office. But you know, so I don't want to necessarily go on record as a board to answer a question we haven't been asked in a formal way. Fair enough. So that said, it's really in your court how you want us to proceed. I think it makes sense to get the waiver. Okay. No matter what. And if Weston Allison decide to do the four and a half foot fence, or lower than almost five feet. Yeah. Yeah. Be careful. Stay right under five. Fifty nine point four. Fifty nine point four, yes. Seven thirty seconds or something. It's something ridiculous. Yeah. Then we'll go from there. Okay. So what is, does the board have any other questions about the waiver? I mean I think there's been some compelling testimony as far as the criteria, and I'll just run through it for the purposes of the hearing. The variance of authorize shall not alter the essential character of the neighborhood or district in which the property is located. What? We're doing waiver, right? Waiver. Yeah. I'm sorry you just said variance. Sorry. I keep saying both of those things wrong. Actually you know what it says, it's because it says the variance right here on the piece of paper in front of me. The waiver if authorize shall not alter the essential character of the neighborhood or district in which property is located. I think we can all agree that this is not going to change the residential slash slightly commercial mixed-use neighborhood by putting out a slightly higher fence. Substantially or permanently impair the lawful use or development of the adjacent property. This fence lies along the right of way. There's really, you know, this isn't going to affect the Meadowmarts ability to use their property, and the other portions of the fence really touch the public right away, which the Department of Public Works says they have no objections or issues with. Reduce access to renewable energy resources. This isn't going to affect the installation of solar panels on the house if they show so desire or a wind turbine. And I'd like to acknowledge that more passively this still allows for solar gain through the windows that are constructed, which is another type of renewable energy for warmth. Or be detrimental to the public welfare. Again, this doesn't seem that we have any type of issue with that. So and then the other criteria being the proposed land development is beneficial or necessary for the continued reasonable use of the property. I think there's been an excessive amount of testimony showing that this will be beneficial to the property. It's an improvement. It does remove an invasive hedge and replace it with something that's more permanent, slightly, and perhaps easier to maintain over the long run. Does that make sense for everyone? So I will entertain them. Considering all those factors, I will make a motion that we approve a 10% waiver of the four and a half foot maximum height requirement for the front yard at 260 Elm Street along the Elm Street road frontage for the fence design as proposed in the application. Motion by Ryan. Do I have a second? Second that. Second by Rob. Just a quick question. Sure. Discussion? Discussion. Do we need to include the DPW spacing about requests about plantings along Elm and Vine Street, or is that just incorporated as... I think they were suggesting that they just was kind of a word of caution to the applicant to ensure that snow and as the plantings themselves or not... I don't think so. Yeah, but thank you. Okay, perfect. Yeah, I think that's right. So finding. Okay, any further discussion? Hearing none, all those in favor of the motion please raise your right hand. All right, you have your waiver. Ten percent. Sorry. Sorry we couldn't go further. No yours matters. I am sorry. I wish I did. I mean, I think you made some compelling points. It would have been, I would have at least liked to have been able to debate more detail with Kate about and consider more fully, but I just don't think we have... You have to retire to the three penny for that policy discussion. All right, well there'll be a written decision issued in the next, depending on merit, the schedule. As soon as I can. As soon as she can. Thanks. So. Thank you all for taking the time. I know that, you know, this is a lot of work and I appreciate it. It's a lot of work for you. Yeah, thanks very much. It's a good fight. All right, our other business. Next meeting is Monday, October 7th, 2000. It's three weeks from now, not two weeks. Right. Because we have that final week in September. So our next meeting is October 7th, 2019, 7 p.m. That's a Monday. Any other business? Hearing none, I'll take a motion to adjourn. A motion to adjourn. Motion by Rob. Do I have a second? I'll second that. Second by Claire. I knew we would get it. All those in favor, please raise your right hand. We are adjourned. Thank you very much.