TOWN OF HINESBURG

DEVELOPMENT REVIEW BOARD MINUTES

 

August 5, 2008

Approved August 19, 2008

 

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

 

DRB Members Absent:  Greg Waples.

 

Also Present:  Alex Weinhagen (Director of Zoning and Planning), Peter Erb (Zoning Administrator), Karen Cornish (Recording Secretary), Todd Morris, Chris Roy, Fiona and Gary Fenwick, Tim and Kristi Brown, Tonia and Dave Bouchard, Scott Johansen, Brock Francis, Dick Francis, Joseph Fallon, Dale Wernhoff, Jason Arnell, Matt Francis, Judy Laberge (Charlotte), Judy and Matt Laberge (Hinesburg), Rick Kelley, Barrie and Earl Anderson, Fred and Andrea Haulenbeek, George and Jan Bedard, Shane McCormack, Charles Bush, Matt Baldwin, Mary and Peter Baldwin, Mac Rood.

 

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

 

Minutes of the July 1, 2008 meeting:

Zoë MOVED to approve the meeting minutes as amended.  Dennis SECONDED the motion.  The motion PASSED 4–0, with Greg, Lisa and Ted abstaining.

 

Appeal of a Decision by the Zoning Administrator – Hayden Hill Road West – Applicants:  Gary and Fiona Fenwick

Alex summarized the appeal, stating the Fenwicks asked Peter Erb (Hinesburg Zoning Administrator) to make a decision as to whether the Laberge motor cross track, if considered as an outdoor recreational facility, needed a conditional use permit.  The ZA’s June 13th decision stated the track, as it is presently used, did not require a permit.  The Fenwicks are appealing that decision. 

 

Chris Roy, an attorney representing the Fenwicks, gave a history of the issue, noting the 2007 notice of violation, the involvement of the Hinesburg Police Department and attempts at mediation.  He said he reviewed a similar issue that occurred in Fairfax, a town with a lot of similarities to Hinesburg.  He said the Vermont Environmental Court rendered a decision on a track in Fairfax, concluding when earth is moved around and outsiders are brought in to actively train for competitive motor sports on a property, it could be considered a “change of use”.

 

Chris described the line over which an activity could cross “usual and customary use”.  He thought the Hinesburg case was strikingly similar to the Fairfax case, raising two key questions: whether a zoning permit should be required and/or whether a conditional use permit should be required.  Chris said at a minimum, a zoning permit would require conditions that are adequate to comply with performance standards.  He also said that the track, as an outdoor recreational facility, is more worthy of conditional use review than some of the examples given in the Hinesburg bylaws, with respect to impacts on the neighborhood.  He said those bylaws do not state that there shall be absolutely no motor cross racing, only whether a particular use on a particular property is appropriate.  He said the application and review process gives the community and parties involved the give and take to find a solution.  He said the Fenwicks are asking for that process to take place here within DRB review.

 

Brock Francis, a Hayden Hill resident whose home is located across from the Laberge field, asked if a fee was charged to use the track in Fairfax.  Chris said that information was not part of the court’s decision specifically, only that there were four riders, kids who trained at the facility. Brock said he asked this question because the recreational activities given as examples in the Hinesburg bylaws take place on paid-use facilities.

 

Tonya Bouchard, whose son is a regular rider at the Laberge track, said she knows the Ackerman family in Fairfax (the track owners).  She said they did bring in huge mounds of dirt, that their neighbors were very close with no brush line or wood line to buffer them.  She felt the two tracks were different in those respects and did not wish to see the Laberge track labeled as a facility.  She said the boys ride on different places in the field, sometimes creating new paths.  She said they are riding 4 hours a week (2 hours twice a week) and that the kids don’t have coaches.

 

Scott Johansen, a Lavigne Hill Road resident, said he also knows the Ackermans.  He said they did apply for a conditional use permit that was ultimately granted; the permit restricted riding to certain hours among other restrictions.  He said the situation there continued to be a problem and the Ackermans ultimately moved to a rural residential area in Jericho where they now have no conditional use permit and no issues.  He noted this as an example to say what might happen in one town does not have to happen in another town.  Scott asked what would happen if the DRB did not uphold the ZA decision, specifically how the town or the board would enforce a new interpretation of the bylaws and how a permitting process would apply to other residents in town.  Tom explained the DRB was a review board only.  Alex clarified the role of ZA, noting that while Peter works for the Select Board, permit determinations are up to him independent of Select Board input.  Scott stated that it sounded like the need for a permit was the luck of the draw, depending on where one lived.  Ted said he would not draw that conclusion and further explained the DRB’s role as an appeal body.

 

Todd Morris, a Hayden Hill resident, said he did not think the Laberge property should be characterized as a facility.  He said his own paved basketball court could likely be considered a facility, more than a motor cross track.  He said he empathizes with both parties but is concerned about the further implication of a decision labeling something as a facility.  Earl Anderson, a Lincoln Hill resident whose property is close to the Laberges’, asked the Fenwicks what resolution they would like.  Gary said he would like the noise issue to be resolved.  Fiona said she would like a riding schedule that allowed for some certainty.

 

Matt Laberge said they did have a schedule and also that it was his understanding that the noise situation had been corrected (by the time of the DRB visit last fall).  He said they brought in no fill and do not use heavy equipment to shape the track.  Tom asked whether there had been any change in the noise performance standard (in Hinesburg bylaws).  Alex said it had been discussed in the Planning Commission but no changes have been proposed.  He also noted no decibel level limitations are included in the standards.

 

Judy Laberge said she gave a schedule to Alex.  Tonya Bouchard said the riders have stayed within that schedule (Tuesdays and Thursdays) with no rain dates.  She said of the 112 hours that are available within the performance standard hours, the schedule limits usage to 4% of that time.  She said there are never more than 4 bikes running at one time.  Barrie Anderson, a Lincoln Hill resident, said the bike noise is very definitely heard from her property and is very irritating when continuous.  She said she feels her property loses some value due to that particular noise, noting that snow machines and other ATV’s come and go but don’t go around and around continuously like the bikes.  She said there are times when she cannot have a conversation with the bikes running.

 

Matt Francis, a Hayden Hill resident adjacent to the Laberge property, said he has been riding motor bikes in the area for twenty years.  He said he did not understand the Anderson’s comments, that communication above the riding noise was possible.  Scott Johansen noted that the Williston noise ordinance had been reviewed in previous discussions and that it had been determined that if Hinesburg had adopted the exact same ordinance, the Laberges would not be in violation.  Brock Francis noted another previous discussion about how sound degrades, stating a mathematical formula could be applied to sound.  He said he considered the noise to be more background noise.  He mentioned several families that have ridden motor vehicles in the area for many years, arguing that a precedent for riding has been set and that concessions should be made for that precedent.  Addressing the “usual and customary” language in the bylaws, he said motor bike riding is usual and customary for this particular neighborhood.  Judy Laberge said they did not receive a counter offer in terms of a schedule during mediation.

 

Chris Roy responded to comments.  He said the riding conditions set forth by the Laberges and their friends are entirely voluntary, stating the difficulty with this is that the Laberges can alter those conditions at their will.  He said a permit would provide something more than goodwill, solidifying issues such as decibels at the boundary line, number of users, times, days, etc.  He noted there was no screening on the Laberge property, only screening on other adjacent properties.  He suggested types of screenings that could be implemented such as berms if the matter was reviewed in a permitting process.  He said the primary issue with sound traveling is line of sight, that trees and other foliage have no impact but solid earthen berms may slow sound.  He said one’s line of sight location makes it possible for other properties not to hear the noise, pointing to why a particular track on a particular property should be required to come under review.  He said the Fenwicks bought their property 7 years before this track was constructed.  He noted a clear distinction between a motor bike track and other recreational facility, that motor vehicles create artificial noise.  He said the track is still very close to the Fenwicks property line and that structures have been purposely created on the track that allow riders to accelerate and impact the land in a manner above and beyond just riding around the track.

 

Chris stressed it was the use of land, not the users of land, that mattered; the impact is no less or no more whether there were 4 motorcycles taking turns, kids or adults, free or paying, it is the machinery that is the issue.  He said the Fenwicks are looking for an opportunity for a way to have this property reviewed for this use. 

 

Dennis asked why the police department mediation did not work out.  Chris discussed what he felt the mediations did or did not accomplish.  Ted asked if the Environmental Court sent the Ackerman matter back to Fairfax for further review; Chris said yes.  Alex clarified that the Fenwick matter involves whether a conditional use permit is required.  He said the Ackerman matter was specific to the need for a zoning permit, that Fairfax does not have a conditional use permitting system. 

 

Ted suggested keeping the hearing open to get input from the town lawyer.  Chris emphasized that the case is very similar to one already heard by the Environmental Court (the Fairfax matter) and that a precedent has been set.  Alex reviewed what Peter actually ruled, that Matt and Judy Laberge are not required to apply for a conditional use approval for the use of the track.  The Fenwick appeal asked that the board reverse the decision.  Alex said he was not convinced that the Ackerman appeal was technically relevant.  Chris said he thought it was the same issue, that the question of whether you need a zoning permit is part of the analysis of a conditional use review. 

 

Tom MOVED to continue the public hearing to August 19th meeting.  George SECONDED the motion.  The motion PASSED 6-0.  Dick Jordan joined the board at this time (8:40 pm).

 

Final Plat Approval – (2) 2-lot subdivisions - Baldwin Road – Applicants: Peter Baldwin and Andrea Haulenbeek

Joe Fallon spoke on behalf of the applicants.  He described the proposal to divide a 310-acre parcel located on the western side of Baldwin Road (Subdivision A) and a 323-acre parcel located on the eastern side of Baldwin Road (Subdivision B).  Both subdivisions will create 2 lots.  Joe said the farm road on the western parcel falls largely on property to be retained by Peter.  Peter is retaining an easement on the property to be retained by Andrea, for access to the tool shed on his property.  Alex said he did not see any issues, suggesting only that the lots be labeled on the survey.  Alex said Peter would not require any future easements over the farm road for any future development on his property but that Andrea would need an easement from Peter for access over the road to any future development.  Alex said because each original parcel has two primary dwellings, they are non-complying; the subdivisions will make conforming lots on both parcels.

 

Zoë MOVED to close the public hearing(s) and approve both subdivision decisions as drafted.  Dennis SECONDED the motion.  The motion PASSED 7-0.

 

Minor Revision to a Final Plat – Green Street Project – Charlotte Road and Route 116 – Applicants: Mac Rood and Rob Bast

Mac Rood spoke on behalf of the project.  He said the Green Street company will sell land with the existing apartment building to Rob Bast.  He said in order to have a clean transaction they were seeking clarification of the LCE boundaries as shown on the plat.  The other Green Street project units will remain on one lot, owned by an association.  Mac said the apartment building has always been in its own LCE, this revision is just clarifying where it is.

 

Tom MOVED to approve the revision as proposed.  George SECONDED the motion.  The motion PASSED 7-0.

 

Request by George Bedard to re-open a past hearing re: the Texas Hill Road subdivision

George Bedard said he is asking for an amendment to the sketch plan decision (dated 6-17-08) regarding an 8-lot PRD subdivision on Texas Hill Road.  He said he does not agree with Order #8 which requests an open space plan that clearly states there will be no future development of the parcel (particularly of the large 44-acre lot #8).  He noted that a forest management plan would be put into place for the open space and also that no further subdivision would ever be allowed without DRB approval.  He thought leaving the possibility for future development open within a subdivision process is more customary in planning procedures.  George said the building envelope for the first single-family home on the large lot could also be the zone for any future development, in other words, all current and future development on the 44-acre lot would be limited to the same building envelope.

 

George said he would prefer a statement in the decision that said no future development on this land could occur unless the appellant could demonstrate that substantial changes (in the general neighborhood, roads infrastructure, etc.) had occurred.  George said any new conversation should address all factors related to development.  Tom said the board felt a stronger statement regarding no future development was preferred.  George said he intends to sell the 44-acre lot as one piece, with no future personal involvement.  Zoë said she did not think the concern was who would be presenting future lot development, only that the board felt that 8 lots for the parcel was the maximum that the land and surrounding neighborhood could take.  George described a deed for clearing on the lot that allowed for views but still retained screening of any structure(s).  He also said he has septic disposal rights on an adjacent property for 3 units.  He said that would limit future development on the 44-acre lot to those added 3 units.  He said he thought development rights were being taken away by the DRB, a process normally handled within a Land Trust deal.

 

Ted asked if the subdivision was an 8-lot PRD, noting the intent of a PRD was to ensure no future development rights.  He suggested either excluding the large lot and revising the subdivision request to be a 7-lot PRD with some common land and 1 additional lot, or keeping it an 8-lot PRD with no future development potential on any of the acreage.  Alex said a PRD requires that at least 25% of a parcel be left open with no development.  George said open space associated with a PRD can be a commonly-owned property or one large privately-owned property.  He said if the 44-acre lot had a 6- or 7-acre building envelope the remaining 37 acres would still be 70% of the total original parcel.

 

Charles Bush, a Texas Hill Road resident, said he appreciates the language that is in the decision.  Shane McCormick asked for clarification.  Zoë restated the request, stating that if the board were to strike the two lines (in the Order and Conclusion), the subdivision would be treated as an 8-lot PRD, that the large lot would have one large building envelope, and that down the line someone could amend the PRD to add small clustered lots to be built within the same envelope.  Zoë said she thought the board did not want to give the impression that the large lot was approved for future development. 

 

Alex said the decision made clear that 8 lots was the final number for the parcel.  He said George is stating that he would not be involved in any future transaction but wishes to give the future owner the ability to come before the DRB for future subdivision.  Alex thought that when a board issues such a decision, people buying into a development have some assurance that no more houses will be built.  George said they would have the assurances of the building envelope.

 

Peter mentioned the Dam proposal, with regards to the definition of a PRD and the idea of a master plan approach for a property.  He said if an unknown such as future development is still in play, other factors such as infrastructure planning need to be discussed up front.  He thought future development rights confuse the concept of a PRD.

 

Mike Charney asked about the building potential of a 6-acre building envelope.  Lisa said the envelope just defines where building can happen, that the acreage from which density can be drawn includes the larger piece (44 acres).  Charles Bush asked for clarification on how a PRD is configured.  George said one choice is to maintain a bigger piece privately.  Alex said if a new decision excluded the sentence(s), any future request would be asking to amend a previous PRD.  He said while one intention of the PRD provisions is to allow for development potential, another intention is to include a unified treatment of a property in the form of a master plan. 

 

A motion to reopen the hearing was discussed.  Dennis said he would vote to reopen the hearing.  Ted said he would also vote to reopen, but that he liked the decision as written and would come to the same conclusion.  Tom agreed with Ted, stating he would want any alternate language to be equally strong in terms of open space remaining open space.  Alex said George is trying to be clear that 70% of the parcel would always stay open; what would be up for discussion is future development in the 6-acre building parcel.  George added he would like to associate the 3 septic rights with the large parcel and sell all lots with clarity.

 

George said planning is about neat and orderly development, not the closing off future development of a property.  Peter thought conceptually any kind of development within a PRD has to be discussed as part of the process up front.  He said the whole development needs to be looked at with potential for future lots, particularly the internal road, storm water, hardened surfaces, etc.  George said the association that maintained the road could grow.  George Munson noted that if the sketch plan hearing were opened, the entire process is opened again.  Alex said George B. could submit a new sketch plan any time he wanted.  The group discussed the logistics and/or ramifications of re-opening a sketch plan hearing. 

 

Dennis MOVED to re-open the sketch plan hearing.  No second was offered and no action was taken.

 

Other Business:

Zoning language regarding non-complying structures

Alex said there were differing opinions on how to handle requests for expansions to non-complying structures.  He said he discussed the issue with the Planning Commission who requested some consensus from DRB members as to how they would like to change language.  Alex said Peter and he have discussed the language at length and concluded they liked it as written.  They thought it had the flexibility needed to address most requests.  Tom said he does not like language with percentages, giving the example of smaller structures not being able to do as much materially as a larger non-complying structure, but that they could perhaps be used as guidelines.  Alex said he has proposed a square footage cap on how much a footprint can be expanded within the setback area.

 

Alex suggested that language clarify what constitutes the expansion of a non-complying structure, particularly in the case of a tear down.  The group discussed tear downs and extremes in general.  Lisa asked about how changes would be handled in perpetuity.  Alex said once the maximum square footage cap was met, all future landowners are bound to that maximum unless they applied for a variance.  Tom and George felt providing square footage guidelines to applicants would be helpful.  The group discussed how the application could be updated to make the process clearer.

 

George and Lisa left the meeting at this time (9:50).

 

Norris sketch plan

Alex asked board members to be specific in terms of their objections to the proposal.  Dick felt the setbacks looked too tight (the units would have difficulty in meeting them), and that there would not be enough general living space in the neighborhood after roads and buildings were placed.  Dennis did not think the multi-unit buildings fit the neighborhood.  Tom felt adding architectural details and landscaping would help with the multi-unit approach but thought there might not be enough space for landscaping.  Zoë said she supports the development in general, just not this execution.  The number of conventional lots that could be developed for this parcel was discussed.  Dick was concerned that an enclosed triangular subdivision did not tie into future expansion of the surrounding area.  The village “edge” was discussed; the connectivity potential of the development’s road was discussed.

 

Tom MOVED to approve the draft decision as written (denial).  Zoë SECONDED the motion. The motion passed 4-0 (Tom, Dennis, Dick Zoë), with Ted abstaining.

 

The meeting ended at approximately 10:30 pm.  The next DRB meeting is scheduled for August 19th.

 

 

Respectfully Submitted:

 

Karen Cornish

Recording Secretary