TOWN OF HINESBURG

DEVELOPMENT REVIEW BOARD MINUTES

 

October 16, 2007
Approved November 6, 2007

 

DRB Members Present:  Tom McGlenn, Ted Bloomhardt, Dick Jordan, Dennis Place, Zoë Wainer, Greg Waples.

 

DRB Members Absent:  Lisa Godfrey, George Munson.

 

Also Present:  Alex Weinhagen (Director of Zoning and Planning), Peter Erb (Zoning Administrator), Karen Cornish (Recording Secretary), Carrie Fenn, Louis Prue, Brent Francis, Richard Francis, Fiona Fenwick, Gary Fenwick, Paul MacCluskey, Jim Collins, Kristi Brown, Tim Brown, Tonia Bouchard, David Bouchard, Judy LaBerge (Charlotte), Louis LaBerge, Judy LaBerge (Hinesburg), Matt Laberge, Lisa Foley, Bill Snyder, Todd Morris, Tony St. Hilaire, Brock Francis, Pam Francis, Richard Goldsborough, Matt Francis, Diane Moore.

 

The meeting began at approximately 7:30 p.m.

 

Stormwater System Maintenance discussion

Millie Archer, Water Quality Coordinator with the Vermont League of Cities and Towns, gave a presentation on the subject of stormwater, “where state regulations begin and end, and where the gaps are and where the local communities can fill the gaps.”  Materials outlining the presentation are available for review in the Planning and Zoning office.  Topics covered were:

- Construction vs. operations permits

- Stormwater discharge associated with construction activities, new development

- Erosion prevention and sediment control guidelines

- The adoption of low impact development strategies for stormwater control

- Riparian buffers, landscaping standards for riparian buffers

- Act 250 guidance and jurisdiction

 

Millie explained a rain garden is a bowl shaped, constructed depression where plant varieties that do well in wet or dry locations are planted.  Ted asked how a low risk vs. high risk site is determined; Millie said there is a decision-tree method that is available from the state.  Dick asked why a mowed lawn was not a suitable riparian buffer.  Millie said it does not allow for the benefits a riparian buffer will offer (the absorption of phosphorous and sediment run-off; does not allow for habitat).  Tom asked how many other towns are getting involved with this issue.  Millie said she is assisting with bylaw review and revision for quite a few towns.  Ted asked about hay bales; Millie said they are no longer typically used.

 

Tom asked about recommendations for the ongoing monitoring of a stormwater system.  Millie said although she had not worked specifically with towns on that issue, she thought terms could be written into homeowners associations’ bylaws.  She also described inspection requirements of more complex systems that would fall under state permitting.  She described South Burlington’s unique stormwater utility, a function overseen by the town to inspect and maintain systems.

 

Alex noted a recent DRB discussion on whether to include in all DRB decisions, a boilerplate provision addressing stormwater system failure.  He said he and Peter agreed projects requiring a state permit don’t need such a provision (because their proposed stormwater systems require regular state inspection), but that the issue is less clear with other projects.  Ted said he liked the language drafted for the Francis decision, noting the Francis proposal included an engineer-designed system.  Alex described that applicant’s concerns including a benchmark assessment for a land area, who would determine stormwater damage, its source or cause, and whether a system was not working.  Greg thought requiring a system to perform to a certain standard seemed appropriate as a condition of approval, but that enforcement was the issue.  Tom said he would like to see a public works official from the Town get involved in those situations.

 

Peter thought it was easy to assess how a new system may be failing but that no baseline information exists to determine if that new system created a new problem or made an existing problem worse.  Greg thought engineers should be responsible for establishing a baseline.

 

Alex said he would like to understand to what extent the town can be proactive on the review side, rather than reactive on the zoning violation side.  He talked about the possibility of retaining a consultant with stormwater expertise on a routine basis.  Peter thought a baseline study of an area’s conditions would offer a recorded public statement but noted such a process would be complex.  Millie offered to look at other towns’ bylaws and review decisions dealing with stormwater systems from a development review standpoint.  She suggested a stormwater review checklist, both for the Planning Commission and the DRB.

 

Revision  of Approved Final Plat – Hinesburg Auto Sales – Route 116 – Applicants: Paul and Lisa MacCluskey and the Giroux Family Trusts

Paul MacCluskey said he had reached an agreement with the neighboring property owners regarding the boundary.  Greg asked Paul whether a revised site plan would be submitted to the DRB; Paul said yes.  Zoë noted a typo in FOF #2.  Ted MOVED to close the public hearing and to approve the draft decision as amended.  Greg SECONDED the motion.  The motion PASSED 6-0.

 

Appeal of Notice of Violation – Hayden Hill Road West – Appellants: Matt and Judy LaBerge

Alex passed out correspondence he received regarding the issue.  Rick Goldsborough, an attorney, spoke on behalf of the LaBerge’s.  He said they do not agree with the violation regarding Section 5.12 of the Town Bylaws, that noise from dirt bikes on an 18-acre property in a rural district does not constitute a non-conforming use nor is it unreasonable.  He said the Hinesburg Town Plan states a goal to “maintain and embrace rural small town character”; he said the LaBerge’s believe this use on one’s own property fits in with that objective.

He described the LaBerge 18-acre property (Hayden Hill Road West, Rural Residential II) as open but surrounded by trees, with a track built to the north (closest to Hayden Hill Road).  He described typical use of the track as follows: it is used by the LaBerge children and an invited, select group of friends and relatives; it is not a racing track; it is for personal use only; the public can’t use it; and there are no fees nor are there races there.  He said the family has limited the time and frequency of riding to Tuesdays and Thursdays from 5:30 pm to 8:00 pm, with sporadic weekend use, in use from May to September.  He noted the family is normally not home on weekends as they travel to Derby to use a track there.  Greg asked if it was in use now; Matt said not during the week due to light conditions, and only occasionally on weekends in October due to weather, leaves and mud.

 

Rick noted that Gary and Fiona Fenwick have a home 1000 to 1200 feet away from the track.  He said the Fenwicks (the party who raised the issue) describe this case as similar to the Ackerman appeal (a decision on file in the town of Fairfax).  Rick pointed out what he thought were differences in the cases, stating they are different procedurally, the precise question before the town of Fairfax was not the same question in this matter, and the facts were different, such as the difference in neighbors’ house sites.

 

Rick said the LaBerge’s felt motorbike riding constituted usual and customary residential activity.  He said the RRII district does not have dense residential neighborhoods.  He said the LaBerge’s welcomed a site visit to the property, stating visitors would see that the track was not professionally constructed but is a small dirt track.  He said the children would ride bikes in order for visitors to assess noise.  Greg asked if current ground conditions were similar to those when bikes are used in the summer, for comparison’s sake.  Rick said yes, but that tree conditions (foliage) would change and suggested doing a site visit soon.  Matt said conditions may be muddy and was not sure if bikes could be ridden in the same way.

 

Ted said he wished to understand if any limitations on the use of the bikes existed, noting the limitation of the number of hours and riders offered by the LaBerges was voluntary.  Judy felt neighbors could work together to agree on a schedule; Ted noted that does not always work, as evidenced by the hearing.  Greg thought the issue needed to be based on “reasonableness”.  Dick Jordan thought a site visit would provide the most objective evidence.  Judy said riders are the homeowners and their kids, that they are not holding riding schools or clinics.

 

Greg thought defining the threshold of “a customary residential activity within the meaning of the bylaw” was important; if that question could be answered, the question of reasonableness may not have to be answered.  He said he did some research and found the approaches taken by various towns in the New England region to be inconsistent.  He asked Rick if he knew of any specific ruling on a similar issue.  Rick said he needed more time to research the issue, but a preliminary search turned up nothing in the state of Vermont.

 

Rick said regardless of other cases, this appeal pertains to this property owner.  He passed out a statement signed by most of the abutting neighbors around the LaBerges, with the exception of the Fenwick and Foley/Snyder households, and possibly others. He read from the statement, which supported the LaBerges in their appeal.

 

Tonia Bouchard, who lives on Birchwood Drive, said her son rides his motor bike at the LaBerge house.  She said because her own home is on less than one acre of land within a 52-house development, her son can’t ride on his own property.  She said the kids ride as an enjoyable hobby.  She noted that with 800 motocross members in Vermont, it is reasonable to expect ATV and off-road motorcycle use on private property.  She said her son’s bike is not made for racing.

 

Gary Fenwick said bikes are designed and engineered for racing, emitting noise not comparable to that of a farm tractor which emits a more monotone sound quality.  He described the constant revving of the vehicles as a unique aspect of motorbike noise.  He said he counted 37 different days between June 10th and September 30th during which he could hear the bikes.  He said if 20% of a town’s households engaged in an activity, one could reasonably call that activity “usual and customary”.  If one applied that statistical reasoning to the current number of households in Hinesburg (1800), the number of households riding dirt bikes would have to be 360 to constitute “usual and customary”.

 

Greg asked if there were other dirt bike tracks in town.  Tim Brown of Magee Hill Road said a track has existed on his family’s 175 acres for 20 years.  He thought people who did not like the noise should either close their doors or move into town.  He said dirt bikes were admittedly noisy but they only ride them a few hours a day, even though they are allowed from 6 am to 10 pm.

 

Lisa Foley, a nearby resident on Chickadee Lane, said although she moved from a metropolitan area, she has lived in rural areas before and is used to the sound of chainsaws, ATV’s, farm equipment, etc.  She said she thinks it’s reasonable for the kids to ride, but is concerned that more people could come.  She is also concerned that the size of the bikes will grow as the kids grow and love their sport and hobby.  She said she does not want to close her doors and windows in July.  She said Judy and Matt have been open to limiting the noise by request (for certain events taking place at the Foley house, for instance).  She said she would not expect their kids to not be able to do this, that it is a matter of limiting the number of riders and hours.  She said a resident from Lincoln Hill (a hill road south of Hayden Hill) called her asking about the sound.

 

Bill Snyder, a nearby resident on Chickadee Lane, said Matt had proposed creating a formal agreement between neighbors that set up a riding schedule, although (Bill) did not see that come to fruition.  He asked who would be responsible for monitoring/enforcing something like that.

 

Greg noted decibel measurements taken at the property line, and asked if any neighbors could provide decibel readings at the house site or inside the house.  Gary Fenwick said he took decibel readings of 75 at his house and 96 at the property line, which he noted was 8 times the acceptable level in Williston.  Judy said they also took readings and found spikes of 55 at the property line near the back of the parcel.  There was some question whether readings at this location could be compared to the Fenwick reading taken at another location.  She said at time the noise disappears altogether, when bikes go around a corner.  She suggested taking an average of readings over one hour; readings between 0 and the 55 decibel spike would average to a low number.

 

Matt Francis, an adjacent neighbor, said Matt LaBerge came to his house to take noise measurements while one adult on a mid-size bike rode alongside the kids’ bikes; he said the noise meter registered 76 decibels.  He questioned how the Fenwicks could get a reading of 96 if their house (at 1200 feet) is further from the LaBerge’s track than his own (400 feet).  He said the noise doesn’t bother him and he hears it only occasionally.  Greg said he reviewed traditional decisions from other states and found statements that indicated hearing over motocross activity can be a problem.

 

Brock Francis, an area neighbor, said he had no problem with the track.  He said he has visited the track, carried on conversations there during motorcycle activity, and had no problem hearing. 

Kristi Brown of Magee Hill Road said sometimes 15-20 adults riding larger bikes at their house at the same time, but she has no issue with noise.

 

Dick Francis, an adjacent neighbor, said noise traveled uphill in the area.  He questioned how there could be a decibel reading higher than what is allowed under federal motorbike production regulations. He asked if anyone knew what those federal requirements for decibel limits were.

 

Fiona Fenwick agreed that noise traveled uphill, noting her house is located directly uphill from the LaBerge’s.  She said the noise is loud and unreasonable, and called the bikes “race-ready”.  Although she did not have an answer to Dick’s question, she thought she had read that regulations had recently been decreased from 98 to 96.

 

Tonia Bouchard said her son’s bike is a 100 % regular-stock bike, describing exhaust and carburetor details, and measures she had taken to bring the bike noise emission to a stand-still standard rate of 72.  She said she measured a neighbor’s trumpet playing at 110 decibels, but has not pursued a noise issue with him.

 

Lisa Foley said the LaBerges have taken measures to try to improve the situation.  She thought if a decibel reading was done by a third party it would be hard to measure for a number of reasons (# of bikes, types of bikes).  Matt Francis said a special license is not needed to ride the bikes, which he said are stock dirt bikes anyone can buy.  He said they do take stock bikes and go to race in Derby.  Peter Erb said he took the first decibel readings which measured in the 70’s, with spikes in the 80’s.  Jim Collins, a resident at the lower end of Hayden Hill, said he has lived there thirty years, and has seen/heard a range of vehicles including mud-bogging trucks without mufflers and dirt bikes.  He thinks Peter has some reservations about the normal use of these vehicles. 

 

Brent Francis said he thought the decision should be based on whether this activity was considered normal use in a rural residential area.  He thought that could be decided without a site visit, as people know essentially know what dirt bikes are.

 

Tony St. Hilaire noted the use of other equipment and off-road vehicles that he felt was acceptable.  He said he was concerned about the board making a subjective decision.  Tim Brown said he attended the previous night’s Select Board meeting, and noted the chief of police’s comments.  He said Chief Morrell said he received about 5 calls a year to address noise in the village, mostly complaints about music.  Gary Fenwick said it was Deputy Chief  Silber who visited their property, and noted that Chief Morrell did not say the LaBerge issue was not an issue, only that noise complaints in general are low for the town.

 

Matt LaBerge said he has made corrective provisions on his own bike, installing an after-market exhaust.  He said he invited Peter to make a second visit to re-test decibel readings, but he did not come (and thus the 1st readings by the Fenwicks remained un-challenged.)  Matt Francis thinks Gary may have been hearing his motorcycle in the 37 days he recorded.  Tonia noted riders in the town forest may have also been recorded in Gary’s notes. 

 

Brent Francis said the board should be careful about information that has been provided, as data may be erroneous.  He suggested steering the issue back to the reasonable use of dirt bikes in a rural area, not whether the sound level is appropriate.  Greg said he thought a site visit was important, recognizing there are constraints in truly replicating what goes on in periods of arguable objectionable use.

 

Tom MOVED to schedule a site visit for October 27th at 9:00 am, and to continue the public hearing until the November 6th meeting.  Greg SECONDED the motion.  The motion PASSED 6-0.

Ce Variance – Garage Construction - Hidden Pasture Road – Applicants: Louis and Jennifer Prue

Louis Prue explained he purchased land and built his house 10 years ago.  He would now like to build an attached garage with a finished space above.  He described a large easement ROW of 250 x 50 feet, described other natural and legal property constraints, including wetlands, grade and setbacks.  He said he thinks the only suitable location for a garage is the one proposed.

 

The group discussed the large ROW and its significance for the neighboring Neu property, stating it was more a benefit for the Prue’s.  Tom asked Louis to explain map lines.  Ted questioned whether the ROW could be truncated to eliminate that particular setback issue. 

 

It was agreed that even if the issue related to the large ROW were resolved, an issue with the property line could not be resolved.  Louis said he told neighbors of his plans at an association meeting, and that all were agreeable to them (he noted none were at the DRB meeting).  The size of the garage was discussed; Ted thought a thought a 16 ft garage was possible.

 

Ted said he thought the problem at hand was created by the siting of the house by the present owner/applicant.  Greg noted variance criterion #2 regarding whether the property has already been reasonably developed.  He thought that if this passed by the DRB and appealed by a neighbor, criterion #2 could not be satisfied.  Board members then voted on variances criteria, with the following results:

 

#1:       Tom Y; Ted Y; Dick Y; Zoë Y; Greg N; Dennis Y

#2:       Tom Y; Ted N; Dick Y; Zoë N; Greg N; Dennis Y

#3:       Tom N; Ted N; Dick N; Zoë N; Greg N; Dennis N

#4:       Tom Y; Ted Y; Dick Y; Zoë Y; Greg Y; Dennis Y

#5:       Tom N; Ted N; Dick N; Zoë N; Greg N; Dennis N

 

Tom MOVED to close the public hearing and to deny the variance request.  Greg SECONDED the motion.  The motion passed 6-0.

 

Minutes of the October 2, 2007 Meeting:

Greg MOVED to approve the October 2, 2007 meeting minutes as amended.  Zoë SECONDED the motion.  The motion PASSED 6– 0.

 

Other Business:

 

Baldwin subdivision sketch plan

Greg proposed an addition to Conclusion #3 regarding a unique family situation but group agreed to leave the statement as written.  Dick discussed language in Order #3d.  Ted asked whether decision language should more clearly tie the applicants to their interest in the neighboring parcel.  Dick had concerns about the house location for Lot #2.

 

Tom MOVED to approve the draft decision as written (approval).  Greg SECONDED the motion.  The motion PASSED 6-0.

 

Bedard subdivision sketch plan

Regarding FOF #6, Greg thought the fact that the original parcel had already been extensively subdivided previously should be recorded in the decision; group discussed previous subdivisions.  No further action was taken.

 

Blittersdorf subdivision sketch plan

Order #3a and the precise location of the soil line referred to in the decision were discussed.  Tom MOVED to approve the draft decision as written (approval).  Ted SECONDED the motion.  The motion PASSED 6-0.

 

Ketcham subdivision sketch plan

Tom MOVED to extend the sketch plan review for 6 months. Greg SECONDED the motion.  The motion passed 6-0

 

The next DRB meeting is November 6th.  A site visit to the LaBerge property is scheduled for October 27th at 9:00 am and is open to the public.  The meeting adjourned at 10:30 p.m.

 

 

Respectfully Submitted:  

 

Karen Cornish

Recording Secretary