TOWN OF HINESBURG

DEVELOPMENT REVIEW BOARD MINUTES

 

May 20, 2008

Approved June 3, 2008

 

DRB Members Present:  Tom McGlenn, Ted Bloomhardt, Lisa Godfrey, Richard (Dick) Jordan, George Munson, Dennis Place, Zoë Wainer, Greg Waples.

 

DRB Members Absent:  None.

 

Also Present:  Alex Weinhagen (Director of Zoning and Planning), Peter Erb (Zoning Administrator), Karen Cornish (Recording Secretary), Roger Kohn, Gary and Rebecca Fournier, David and Dawn Morgan, Kristin Miskavage, Debbie and Andy Seaton, Fred Spencer, Greg Glade, Barb Galgon, Martha Gray, Anne Broussard, Clifford and Sally Brody, Sheri Hanlon, Brian Hanlon, James Burnett, Alison H. Dennison, Landon Dennison, Denise Guttler, Cheryl Park, Mark Delaney, Kim Hazelrigg, Steve Finn, Paula Brennan, Beth Sengle, Maria Sengle, Allison Cleary, Richard Watt, Tim Richmond, Will Dodge, Brian Frazier, Scott Shumway, Kitty Frazier, Jane Douglas, Ken Douglas, Charles Kogge, Kim Sears, Dianne and David Deforge, James Burnett, Andrea Morgante, Zak Griefen, Jamie Carroll, Steven and Carol Palmer, John Kiedaisch.

 

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

 

Minutes of the May 6, 2008 Meeting:

Zoë MOVED to approve the meeting minutes as amended.  Lisa SECONDED the motion.  The motion PASSED 6–0, with Dennis abstaining.

 

Conditional Use Permit – Home Occupation (Doggy Daycare) – Pond Brook Road – Applicants: Gary and Rebecca Fournier

** continued from the April 15th and May 6th meetings

 

A site visit took place before the DRB meeting.  Board members in attendance were Tom, Lisa, Dennis, Dick, Ted and Zoë; George visited the site on his own.  Peter and Alex (staff), Gary Fournier, Kristen Miskavage, Roger Kohn, Greg Blade, Dan Cook, Dave and Dawn Morgan, Anne Broussard and Marty Gray (neighbors) also attended.  Tom said they visited the shed portion off the existing building and that Gary explained how he would alter that structure.  They saw the new building site and fenced-in area, as outlined in the grass.  Gary pointed out wetlands to the north of the existing building, and property boundaries.  The group then went to Orchard Commons, saw the meadow and well head that serves 11 houses and noted the proximity of the houses to the property line.   The group listened to noise coming from the Fournier property, as Peter and Gary slammed car doors and started a tractor.  Neighbors said they can also hear noise coming from CVU soccer fields.  Lisa said they saw a rise in topography between where the dogs would be and the meadow/wellhead/wetland areas on the OC property.  She said the land where the dogs would be allowed runs off in a different direction.  She also noted a large number of mixed-species trees in between the two properties.  Zoë said they heard a dog barking to the east and another to the west from unknown locations.  She said they also heard a lot of traffic that was easily discernable from all locations.  Marty Gray noted that various hillsides in the area create a natural amphitheatre for sound between the Fourniers and OC.  Roger Kohn said there are a number of other residents in the area that would be affected.  Dick said he was concerned about the ability to insulate the shed for sound and maintain an effective air supply for the animals.

 

Gary said he wished to respond to comments made at the last meeting regarding three major concerns.  He does not think the character of the neighborhood would be affected with the addition of his business, noting the houses, the OC development and other businesses (the church, CVU and Annette’s daycare).  He said those businesses all have car traffic (“trips” with slamming doors) and many residents have dogs as well.  He did not think pollution was a major concern, with contamination of area water sources not feasible given the location of the fenced-in area.  He said they are taking dog barking very seriously, that dogs would be monitored 100% of the time while they are outside.  He said they will deal with consistent barking and offered to install a video/audio surveillance system to monitor and assess individual dogs.

 

Roger Kohn said activities at a business (car trips, multiple dogs barking) are very different from residential activities in the same neighborhood.  He referred to his memo, which states there is no way the Board could find the potential for impact to be minimal, nor that the applicant could prove that impacts would be minimal or absent (dog barking at night, for example). He thought the applicants had not fully analyzed the situation; he discussed state permits needed for this type of business and passed out a letter received from a state waste water management regional engineer regarding the need for permits.

 

Tom MOVED to close the public hearing and take the matter up in deliberative session. George SECONDED the motion.  The motion PASSED 7-0.

 

Conditional Use Permit – Replace an existing non-conforming structure – 310 Pine Shore Road – Applicant: Fred Spencer

** continued from the April 15th  and May 6th meetings

 

Fred said he reviewed possible changes with his architect.  He said she proposed a more radical change (turning the house 90 degrees) than he wanted to make.  He reviewed other possible alterations that would either minimize or remove the siting of the proposed sunroom in the lake setback.  He did not wish to move the house back as that would encroach on a hillside and possible spring.  He did not wish to swap square footage off the deck, as he thought it was already at minimum size.  He said he would reluctantly eliminate the sunroom if needed.  Tom asked about the side deck, whether that could be removed.  Fred said it provided access from the back to the front but that narrowing it would be an option. 

 

Tom explained the main problem with the proposal, in terms of DRB review, is the amount of the structure that is in the lake setback.  Alex said the Board uses criteria to review non-complying structures that state any further non-compliance of a structure needs to be the “least amount practicable”.  Lisa said she was having trouble with that point as the sunroom is an addition to the original footprint and the whole project a complete rebuild.  Ted agreed, stating it was difficult to find changes to be the least amount practicable as the whole building could be moved back if a new foundation was to be used anyway.

 

Fred asked if a conditional use permit is transferable to a buyer; Alex said yes but that permits have expiration dates.  Fred asked if stone patios would be treated differently; Alex said they are considered pedestrian walkways and do not count toward square footage or lot coverage.  Alex suggested altering the configuration and materials of the side deck and Fred said he would be willing to look at that.  Ted asked if the lot was level; Fred said yes.  Zoë suggested siting the house back three feet in order to keep the sundeck.  Fred said moving west, the house would be pushed into the slope and into a wet area.  He added that the current house’s chimney and the portion of the foundation that is slab could not be re-used if the house were moved.  Fred agreed he would be willing to replace the side deck on the south with a stone walk.

 

Tom MOVED to close the public hearing and take the matter up in deliberative session.  Zoë SECONDED the motion.  The motion PASSED 7-0.

 

Request for a De Minimus Determination/Sketch Plan Review – Subdivision approval for commercial lease – Leavensworth Road - Applicant: RCC Atlantic, Inc. (“Unicel”)

Dick Jordan left the board and Greg Waples joined the board at this time (8:15pm).  Alex passed out copies of a letter submitted by the applicant responding to the neighbor’s attorney.  Alex explained that Peter Erb determined that the application to install a cellular tower on private property needed subdivision approval for a lease area, in addition to the conditional use approval already received (see Feb. 5th and 19th DRB meeting minutes).  He said the applicant has requested a de minimus (DM) impact review of the application to precede any subdivision hearing.  De minimus review under Vermont State statute Act 79 is a process that determines if a telecommunications proposal has minimal or no impact on its surroundings.  If a local board determines a project to have minimal or no impact, they may approve a proposal without further review.  Alex said if the DRB reviews the application under this statute and finds impacts are not minimal (ie. there is an impact), they would then review the proposal as a subdivision, as it contains a lease provision that requires subdivision review.  Alex added Hinesburg regulations have not been amended since the statute came into effect in 2007 (http://www.telecomvt.org/mission.php).

 

Will Dodge, an attorney for Unicel, said the conditional use permit granted by the DRB is currently under appeal in Vermont Environmental Court.  He said in reviewing the proposal under the subdivision regulations, he thought none of the criteria for review applied to his proposal, or to the extent that it did, the board had already made a decision at the conditional use hearing.  He said Act 79 was designed to encourage carriers to avoid building large new towers, that the legislature and Douglas administration believed that if there was going to be wireless and broadband coverage in this state, it was desirable to allow sites with existing infrastructure within a pleasant setting.  He said he thought DM review could apply to a review of subdivision criteria, in the same way it applies to zoning regulation review.  He said he thinks this application had minimal or no effect at all.

 

Greg asked Will why he did not appeal Peter Erb’s March 21st determination regarding the necessity for a subdivision review.  Will said they were not convinced Peter’s determination was incorrect or completely flawed, and that in requesting DM review they were not contesting subdivision jurisdiction, only invoking the state statute that seems to apply in this case.  Greg said parties opposed to the project have suggested that not appealing the determination had certain consequences and have likened the DM review request to a “back door” attack.  Will said while they have requested use of the statute, if either the board or the ZA does not wish to review it in that manner, they are requesting it then be treated as a request for a waiver, according to Hinesburg subdivision regulations Section 7.4.

 

Alex said the request is novel; normally DM determination is used to obtain a zoning permit, but in this case, the applicant is requesting its use to obtain subdivision approval.  Will generally agreed except to state that the board would be granting a DM determination that eliminated the need for a subdivision approval.  Alex asked if the board could attach appropriate conditions to a DM determination; Will said his understanding was yes, citing a Burlington DM review that required the applicant to post a removal bond and screening.  He also cited a Cabot DM review that required the analysis of radio frequencies after a cellular tower installation to make sure the facility complied with FCC regulations.  Tom then opened the discussion to the public.

 

Richard Watt introduced Zach Griefen as the attorney representing a group of neighbors living next to or near the proposed tower.  Zach reviewed three major points contained in his letter regarding RCC’s DM request:  (1) He said because Hinesburg has not adopted any telecommunications bylaws, no standards existed to provide guidelines to this board.  Greg said the board was required to review the proposal, whether the Select Board has not chosen to adopt standards for the board’s use or not.  He said he agreed that without standards specifically related to telecommunications issues, there may be an attack on any decision the board makes, but that local governments have been told by the statute that they have to review proposals.  Zach responded that without standards, any review may constitute “unbridled discretion” and therefore, the safest course would be to deny the DM request and proceed via the subdivision process.  Greg disagreed.

 

(2) Zach said the ZA has rendered a final determination that subdivision review is required.  He said he heard tonight that Will said he agreed, but then he said the DM exists so that his application would not have to be reviewed as a subdivision.  Greg asked Zach for his rationale on how Act 79 does not trump 24 V.S.A Chapter 117 (Vermont rules on local land use planning and regulation), stating it was his understanding that the Act 79 de minimus review statute requires a local board to forget about everything else.  Zach said he thought DM was meant to be applied at the beginning of a process.  He said he thought the applicants decided to go the ACT 79 route only when their application appeared in jeopardy; he said he did not think taking that course was in keeping with the original intention/process of the DM.

 

(3) Zach said Hinesburg zoning regulations prohibit multiple uses in the agricultural district.  He said although Section 2.5.5, titled “Multiple Structures and Uses”, describes multiple “principle” structure but does not include the word “principle” as it pertains to uses, he feels that word is implied (and that this application would constitute a multiple principle use).  He said furthermore, regulations list only three districts in which multiple uses are allowed, with the agricultural district conspicuously not listed and therefore not included.

 

Charles Kogge, a Beecher Hill Road resident, expressed support for the proposal, stating he found no substantive research that this level of radiation effects anyone.  Steve Finn, a Leavensworth Road resident, said he had no issue with the health effects of the proposed tower but thought it affected the character of the neighborhood.  He asked what the board would base their decision on, given the lack of town standards specifically dealing with cellular towers.  He added that he felt the intense strife experienced by the neighborhood over the proposal was a significant impact on it character and should constitute a non-de minimus decision.

 

Clifford Brody, one of the owners of Hillcrest Farm where the tower is to be located, asked the board to move ahead with the project.  He said the town, through various efforts and entities including the Farm and Forest Conservation task force, encourages the support of the farm industry.  He said the financial burden of maintaining an active farm in Hinesburg is intense and would be eased with revenue generated from this project.  He added that the timing of project approval was becoming critical to the viability of the farm.  He also spoke about the need of the community as a whole for this service, noting many areas received marginal cell phone coverage, putting them at risk in the event of dangerous situations.  Allison Cleary, an abutting neighbor, said no one is contesting the need for coverage.  She said other sites that would be just as useful and effective have not been thoroughly explored.  Sally Brody said the farm provides a community service by doing a good job with caring for horses and providing training for children at the farm.  She said the facility would constitute just one panel placed on the side of a silo.

 

Will responded to comments, stating he disagreed that the board was “floating” without the use of standards specifically written to address telecommunications facilities and/or DM review requests.  He said that Act 79 DM was not meant to have boards create new regulations, but to look at existing land use and development standards to see if the project has little or no impact on those standards.  He also disagreed that DM had to be invoked at the onset of the process.  He said his firm thought it was important to go through conditional use first and said if the board finds “yes” for DM, then the project is applicable; if “no”, then a sketch plan would be in place for immediate review.  He said a determination regarding Zoning Regulations section 2.5.5 has already been made and thus the board could not now say they were in violation of that section.

 

Zach said any subdivision hearing should be treated as a major subdivision, due either to its status as a PUD or a non-residential application.  As to the lack of standards, he thinks the lack of guidelines specifically dealing with how to decide DM is problematic.  Greg said the DRB is obligated to make the review, with or without the type of guidelines Zach is describing.  Zach said the board can decide to deny it and felt that as any DM decision is highly appeal-able, it would be best to review the application under the regular regulation process.

 

Ted asked whether the board was essentially hearing both the arguments for DM and a sketch plan application.  The group discussed how to proceed; Alex said any decision must be delivered in writing.  Greg thought it was best to close the public hearing, discuss the application under DM review, proceed in deliberative session, then proceed from there.  Alex said one application is contingent on another, and that neither requires a warned public hearing.

 

Greg MOVED to close the public hearing and take the matter up in deliberative session.  Ted SECONDED the motion.  The motion PASSED 7-0.

 

Sketch Plan Review – 5-lot, 4-house Subdivision – Gilman Road – Applicant:  Hinesburg Land Trust

Lisa recused herself from the board and Dick rejoined the board at this time (9:05pm).  John Kiedaisch spoke as a representative of the Hinesburg Land Trust, and also a member of their building committee for this project.  He said this proposal is the final piece of the larger Bissonette conservation project and stated that HLT would manage the project, with no developer or contractor involved in this step of the sub-process.  He said HLT is not proposing to build the houses or put in the utilities.  The 22+ acre parcel off Gilman Road is east of the new 300-acre town forest.  The application is a proposal for a 5-lot, 4-house subdivision; one lot will contain a ROW access to the town forest and will eventually be joined with the town land.  1 house lot (1D) is to the north end of the parcel, and the remaining three (1A-B-C) are to the south. 

 

John said the north end includes an existing driveway off Gilman Road that currently serves 3 houses, all with ROW access to that land.  He said the town forest continues to the north of Lot 1D.  They are proposing septic for lot 1D to be located on the town forest parcel.  John said they have done septic testing there, and found adequate soils.  He said when the town was gifted the 300 acres, it was made clear that a septic easement would be located on that portion of it.  Dick asked why septic for Lot 1D would not also be located on that lot.  John said test pits showed nothing worked on that lot, so they reserved access on the town land.

 

John discussed the configuration of the town Lot 2, stating it would be re-configured to conform more to the existing ROW path used to access the forest and a field on state land for many years.  He said Gilman Road frontage for Lot 2 would then be reduced from 200 to about 75 feet.  He said a 4-car gravel parking area would established directly off Gilman Road where the land is most flat.

 

John said the southern portion of the parcel has an access drive that currently serves two houses.  Three lots are proposed in this area, two smaller lots near Gilman Road and one large lot of about 10 acres with a house situated near the tree line.  John said they would speak to the Cornish family about establishing a ROW across a portion of their land that continues where the Bissonette land/ROW ends, providing an alternate access to the larger lot.  Greg asked why the building envelope on 1C situated the home site away from the trees.  John said the 300-foot buffer had to do with a deer yard in the area, but also that they hoped to maintain the largest open space possible for the large lot.  HLT said they could move it west, closer to the trees, to keep it out of swale or move it to the north to gain more southern exposure. 

 

John said the two other small lots would be less than 1 acre each.  He said they agreed with the staff report suggestion to reposition them closer to the drive off Gilman.  He said he has checked warranty deeds on all adjoining lots; all describe 50 foot ROWs; lot 1D has also been granted a deed for underground power.  He said both drives currently do not meet road standards in terms of width or ditches.  The north drive would serve 4 homes; the south would serve 5 and neither would be paved.  Greg asked if there were any language in the deeds that restricted the ability to increase the traffic on them; John said no and added no formal associations exist for either drive.

 

Ken Douglas, an abutting neighbor on the south, expressed frustration over what he described as constant changes in development proposals in the area.  He said he has seen parcel size change from requiring a minimum 10 acres, to 2 acres and now to less than 1.  He said the existing drive ruts constantly and that a road bed would be required in addition to a culvert.  He thought the development of two house sites so close to his own was an infringement on his privacy and may serve to reduce property values.  Greg commented on prior conversations about the field, that the scale of its development has been dropped since earlier conversations.

 

Tom asked whether there would be any home owner’s association; John said no.  Dick asked about further subdividing lot 1C; John said that would not be allowed.  Ted asked why the subdivision included two small lots.  John said it was both to allow one lot to be a reasonable size for a mini-farm, and also to allow for some affordable housing, in keeping the smaller lots less expensive.  He said there are no plans to include mobile homes on any lots.  Alex noted the board was not allowed to discriminate based on housing type, and noted a ½ acre lot recently sold for 200K off Buck Hill Road.

 

Dianne Deforge, an abutting neighbor to the north, stated she was very happy with the project as proposed.  Jane Douglas clarified they were not making a comment on housing type so much as expressing frustration about the number of driveway cuts accessed along their property line.  She said when they first moved to their location, a 10-acre lot was required.

 

Karen Cornish, an abutting neighbor to the south, asked whether motor vehicles would be allowed past the parking area on the town forest access lot.  John said a town forest management committee is currently working on those kinds of questions and that conditions could be put into the transfer of land to the town.  He said there are no HLT plans to allow cars access past the parking lot, and that they favor putting up a gate.  He said certain state mandates exist regarding the management of the land, due to bat habitat.  He said any permanent management plan would not preclude recreation but will not include access for motorized vehicles.  He said there would also be an easement stating the town can’t further subdivide the seven acres being granted to them. 

 

John said the two smaller lots were located near the Douglas property because they wanted to keep buildings away from the deer yard in and around the high forest to the west.  The proposed location also includes a small south-facing slope near Gilman Road, maximizing solar potential for homes sited there.  He added that keeping drives and improvements to the front was better for sharing expenses before and after development.  He said the drive to the back would not be improved.  He said the house associated with the larger lot could be a more expensive house.  Greg suggested putting the two smaller houses on the north end of the lot and situating the house on 1C to the southwest corner.  John said they wanted to use cuts that were already in place.  The cut leading to the town forest is currently not improved, with no road or culvert.  Ted noted that access had to be improved eventually; John agreed, but said it would be improved for public use, not private use.  Peter said a development cluster to the south of the parcel was in keeping with other such clusters on Gilman Road, rather than stringing homes out along the road.  John pointed out land to the east and north of Gilman Road that was recently purchased by a private owner.

 

Dave Deforge asked how wide the driveway to lot 1D would be.  John said it would be improved to whatever specification the town required, at least 14 feet wide.  Dave asked about a turnaround for emergency vehicles.  Peter said yes, one would be planned, probably as a hammerhead turnaround, not a big loop.  John said that would be dictated by the fire department and the town in terms of road width.  Carol Palmer, an abutting neighbor to the north, asked about buildings planned for across the road (the parcel to the east and north).  John said building envelopes on that parcel were restricted, with homes required to be sited somewhat on the eastern side of a knoll and less visible (if at all) from Gilman Road.  Andrea Morgante added that only 4 homes can be built on that land.

 

Tom MOVED to continue the public hearing to June 3rd, and to schedule a site visit for 6:00pm the same evening.  Greg SECONDED the motion.  The motion PASSED 7-0.  Tom asked the applicants to mark the lot corners for the smaller lots, and to mark the location of all house sites with stakes.

 

Other Business:

Lisa rejoined the board and Dick left the board at this time (9:45 pm).

 

Burnett Junk Yard

Peter explained all junkyards in Vermont have to be reviewed by a local board every five years.  The board must certify that the location is within zoning regulations.  The group discussed the business as a pre-existing, non-conforming use, with no change to the lot/location.  Greg MOVED to approve Peter’s exercise of discretion regarding the Burnett Junk Yard.  Ted SECONDED the motion.  The motion PASSED 7-0.

 

Tom MOVED to go into deliberative session.  Ted SECONDED the motion.  The motion PASSED 7-0.  The Fournier, Spencer and RCC Atlantic applications were discussed, with no actions taken.

 

The next DRB meeting is June 3rd.  A site visit is scheduled for 6:00pm the same evening, to begin at the proposed entrance to the town forest; the site visit is open to the public.  The meeting adjourned at 10:30 pm.

 

Respectfully Submitted:

 

Karen Cornish

Recording Secretary