TOWN OF HINESBURG

DEVELOPMENT REVIEW BOARD MINUTES

September 16, 2008

Approved October 7, 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), Colin McNaull, Chris Roy, Fiona and Gary Fenwick, Amy Scott, Rick Kelley, Dorothy Pellett, Tonia and David Bouchard, Judy and Matthew Laberge, Judy Laberge (of Charlotte), Earl Anderson, Tim and Kristi Brown, George Bedard, Bob Quackenbush, Bill Marks, Scott Johansen.

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

Minutes of the August 19, 2008 meeting:

Zoë MOVED to approve the meeting minutes as written. Ted SECONDED the motion. The motion PASSED 5–0, with Lisa abstaining and Greg not voting.

Preliminary Plat Review – 6-lot Subdivision – Baldwin Road and Burritt Road – Applicants: Robert & Elizabeth Quackenbush and Stephen & Joanne Hoke

** continued from the 8/19 meeting

Tom said a site visit took place this evening, with the following in attendance: Lisa, Zoë, Dennis, Ted, Richard (board members), Peter (staff) and George Bedard, Bob Quackenbush and Collin McNaull. Tom said the group started on Baldwin Road where the access road would be located. They passed a detention pond, saw Lot 2, passed another detention pond, walked on the road that follows the woods, saw Lots 3 and 5. They traveled to the end of the access road where Lots 4 and 5 split and the driveway to Lot 6 began. They saw where the 200-foot line to the Baldwin farm was located, then walked down to Lot 6. Tom said Lot 6 is drawn on their current materials to be 29 acres with a 2.4-acre building envelope but that will change (envelope size minimized). They saw where a potential trail could be located on Lot 6. The group walked back down the Baldwin property line to the Lot 4 building envelope, currently planned inside the 200 foot setback. They looped around to the north toward Burritt Road to view Lot 1.

Colin McNaull, representing the Trails Committee, said he understands the landowner is amenable to trails on the west side of Lot 6 so that there may be the opportunity for access headed north to the French property. He noted that on both the east and west sides of Baldwin there seemed to be enough room on town land to have a north-south corridor.

George Bedard spoke on behalf of the project. He addressed the two issues raised in the staff report, the size of the Lot 6 building envelope and the location of the Lot 4 building envelope in the 200 foot buffer from the Baldwin property. He passed out a proposed revision to Lot 6 that removed 1.1 acres of the envelope to the west, leaving a 1.3 envelope to the east. He pointed out where wooded trails could be located outside the new envelope, providing north-south access. He noted an existing trail already in that area.

He explained that the Lot 4 envelope was placed closer to the Baldwin property line than the suggested 200 ft. buffer, mainly due to topography. He said homes were placed along a rocky ridge and the access road follows where the contours are most easily dealt with. He noted that the area was largely wooded between the Quackenbush property and Baldwin fields and said anyone buying this lot would be made fully aware of an agricultural operation on other side. He said the placement also provided a good amount of greenspace and would allow wildlife to travel through the low spots on the property. He said the Lot 4 well will be 200 feet from boundary and at least 250 feet from ag land. He also noted there would be no drainage from Baldwin land in that direction. Lot dimensions were discussed; Ted thought the best house site would be on the north side and suggested shifting the lot up 30 feet. George agreed this was a good solution. George reviewed the August 2^nd letter received from the ZA and said no adverse drainage situation would be created from either property (Quackenbush or Baldwin) onto the other. Ted said he liked the road orientation they saw tonight on the site walk.

Bill Marks spoke on behalf of the Conservation Commission. He said another CC member, David Hirth, in reviewing the previous proposal and this one, felt differences were insignificant. David also reviewed the forester’s letter included in the Quackenbush proposal and said that assertions regarding wildlife only applied to a limited number of wildlife such as grouse and deer, but beyond that were not applicable and conducive to wildlife corridors.

Tom MOVED to close the public hearing and direct staff to draft conditions of approval. George SECONDED the motion. The motion PASSED 7-0, with Greg not voting.

Appeal of Decisions by the Zoning Administrator – Hayden Hill Road West – Appellants: Gary and Fiona Fenwick

** continued from the 8/5/08 and 8/19 meetings

Tom explained that tonight’s discussion would combine two appeals of decisions by the Zoning Administrator: 1) that no conditional use permit is required, an appeal heard at the 8/5 and 8/19 meetings and 2) that no zoning permit is required, an new appeal, to be discussed tonight, to a decision recently delivered by the ZA.

Chris Roy spoke on behalf of the appellants. He reviewed the appeal discussions and proceedings held to this point, and said he would focus tonight on the Fenwick’s request for a zoning permit hearing. He read from three Hinesburg zoning regulations he felt were applicable to this request, involving:

- the construction of a building or other structure. Chris said the definition included anything that required a fixed location on the ground in order to be used. He asserted that 5-foot high banks and large jump structures, as piles of dirt configured in a particular way, constituted a structure.

- land fill and excavation. Chris said there is a lot of fill shaped on the Laberge property in a way that constitutes land fill.

- change of use. Chris cited the Nixon decision in Fairfax that required property owners to obtain a zoning permit due to a change of use. He read from that decision, noting language stating that not requiring a zoning permit preempted a neighbor’s participation in the review process. Chris emphasized that the Fenwicks are asking for the same thing, to be heard and to ensure that town performance standards are being upheld.

Details of the Scarborough decision, involving a go-cart track in Leicester, were discussed. Details of a 2002 case involving a snowcross track in Wilmington were discussed. Chris said in that case, the landowner applied for and was denied a conditional use permit, did not appeal that decision but ultimately obtained a zoning permit with conditions. Chris reminded the group that the Fenwicks are not looking for a denial of a permit application, nor do they wish to make a statement on the merits of a track, but are simply requesting that a review process take place.

Ted said town performance standards still applied regardless of whether a permit existed. He also said a zoning permit could not come with conditions as there was no avenue within the application process for those conditions to be discussed, created, approved, disapproved, etc. Chris said that with no permit or conditional use review, the practicality of enforcing performance standards is difficult, noting the changing nature of noise, weather and other environmental conditions such as the number of users. He said if a zoning process were used those issues could be dealt with on the front end. He gave an example of a violation of a zoning permit as a building being built outside setbacks. Ted said a zoning permit would not indicate operational conditions such as appropriate times of day, number of riders, etc, only the placement of earth on a particular property.

Ted questioned when a use rose to the level of needing conditional use review. He did not think it was the moving of dirt or riding of bikes on private property per say, it was the degree to which those were being done that was important. Chris agreed that the line is not clearly established in the zoning regulations. He said when that line is in dispute, he looks to other boards or courts on how they handled that judgment call. Ted noted that while other town boards have found that things did not need permits, environmental boards outside the town have.

Alex passed out letters submitted by Mr. Roy on 9/15 and 8/22 (sent via email today). He also offered packets containing all submitted documents to the public for their review.

Peter said he did not read through the court decisions nor try to base what he decided on those decisions, rather focused on the Hinesburg zoning regulations. He said he tried to determine a threshold at which a zoning permit was necessary, for land movement or fill on anyone’s property, not just at the Laberge’s. He concluded that if a property use has changed as a result of the topographical change, then a permit is needed. He said property owners have the right to raise the level of their land if they want as there are no town erosion regulations. He cited the football field on Shelburne Road as an example of a use, due to a topographical change, that had crossed a threshold. He said people using the property are no longer there to visit the owners (the Palmers), that its use may now be described as “non-residential”. He thought the level or nature of use at the Laberges did not cross that threshold.

Amy Scott, Hinesburg, resident, asked if the outcome of the Scarborough hearing was known. She said she understood it to be a denial of a summary judgment, not a decision, as the materials facts of the case were in dispute. Alex said he called the court this afternoon and explained that a summary judgment was issued (denied) in April; the case went to trial in July but the judge in that trial had not yet issued a decision.

Scott Johanssen, Hinesburg resident, said he thought the DRB proceedings focused too much on Environmental Court proceedings. He thought as EC judges could not see the evidence of any matter (e.g. the dirt, the noise) first hand, they would have a hard time assessing the “disputable or undisputable” facts of individual situations. He also thought it was difficult to compare cases to the Hinesburg matter as all towns have different bylaws. Without facts, Scott suggested that the Environmental Court would not want to hear this case and likely issue a denial of a summary judgment. He said he hoped the matter did not get that far, and felt our regulations were written in such a way that they defer to our own DRB process for judgment.

Chris explained the EC process: A procedure takes place before a trial. A summary judgment is issued when there is no factual dispute between parties in a matter; there is no trial. A denial of summary judgment is issued when there is a factual dispute; a trial is scheduled so that the judge may hear evidence and determine which witnesses they believe, which evidence is credible, etc. He confirmed the Scarborough matter went to trial but with no decision issued yet. He also confirmed that his clients are not requesting a summary judgment from the DRB. He said it’s true the Environmental Court starts with a clean slate and does not review DRB proceedings up to that point. He said he refers to court precedents as a way of looking to some authority, not as a means of threatening to appeal a DRB decision. Scott said we know very little about the facts of a matter and a town’s bylaws in the cases that have been decided in EC. He said he thinks the ZA has to make judgment calls that are very specific to each case.

Tonia Bouchard said there was a factual error in a letter submitted to the Board regarding when the children started riding at the Bouchards; she said it was in 2003, not 2006 as the letter stated. She also said the Francis family has been riding motor bikes on Hayden Hill for 25 years, establishing it as a reasonable and customary use for that neighborhood. Rick Kelly, a North Road resident, said he did not think this track required a permit. Judy Laberge said she thought what the appellants were seeking was a mediation process, something she felt they had already offered in a document that included a riding schedule that she felt would have been policeable.

Tom MOVED to close the public hearing on both appeals and take the matter up in deliberate session. Dennis SECONDED the motion. The motion PASSED 7-0, with Greg not voting.

Final Plat Review – 2-lot subdivision - North Road – Applicants: Robert & Mary Reid

** continued from the 8/19 meeting

George Bedard spoke on behalf of the applicants. He said the wording of Order #8 of the draft decision, regarding the issuance of a certificate of occupancy (CO), was problematic. He explained that a well completion report, as requested by the order, was not a certification statement concerning water supply, providing only well construction details. George said he normally suggests to potential buyers that they get a water test done; submitting a copy of the water test to the ZA (instead of a well completion report) would certify that there was water to test and that it was potable.

Peter said he tried to find out exactly what the state does to certify a water supply exists. He explained they sometimes investigate an area during the permitting process if they know it to have low yields, going so far as to request wells being drilled before the water/wastewater permit is issued. He did not know if this area was determined by the state to have low yields. He said he was trying to find way to assure that there is at least evidence water will be found. Ted gave a suggestion as to how to change language to include a statement about sufficient well yield. The board discussed what could be used in terms of a document. Alex said he thought water supply had more to do with the subdivision than with the building process, noting that withholding a
CO would deny someone the use of a home they have already built. Peter said he contacted a drilling company representative who stated there is almost never a time when they can’t find water.

George Munson said he thought language should not be tied to the CO. Dennis suggested removing Order #8 from the decision. Ted said there were areas in town where he thought no building should be permitted until water is found. The group agreed to strike Order #8.

Tom MOVED to approve the draft decision as amended (approved). Dennis SECONDED the motion. The motion PASSED 6-0 with Lisa abstaining and Greg not voting.

Richard left the board and Greg joined the board at this time (8:50 p.m.).

Appeal of a Decision by the Zoning Administrator – Leavensworth Road – Appellants: Allison Cleary and Richard Watts - POSTPONED

Alex explained both parties called late this afternoon and felt they were close to withdrawing appeals at all levels and settling the matter, but have not finalized their actions. Tom MOVED to continue the hearing until October 7^th. Greg SECONDED the motion. The motion PASSED 7-0.

Revision to a Final Plat - Thistle Hill PRD on Mechanicsville Road – Applicant: Hinesburg Hillside, LLC

Bart Frisbee explained they wish to create buyer-owned footprint lots that will function in exactly the same manner as those lots that were previously approved. Building lots that had been described as “limited or exclusive use areas” on the previously approved plat will now be owned outright by the homeowner. He said it was a legal or technical description brought about by changes in the home financing industry that would allow buyers to more easily buy their home. He said when he discussed the matter with Alex and Peter, they said the creation of a deed or a description of that piece of land constituted a subdivision and needed DRB approval. Greg clarified what the DRB had previously approved: building envelopes that included some land, most of which would be occupied with the structure, and a statement giving buyers ownership of only the house with the right to control a limited area around it. Bart agreed, describing it as a “limited common element” before and an “owned and fee simple” arrangement now.

Ted asked if ROWs for each of these pieces of land were necessary. The group decided ROWs were not necessary, as owners partially owned the land (Lot 5, for example) they would cross over to get to their properties. Bart said owners have all the same rights they had before. Dennis asked if they could change the look of the house. Bart said yes but they would still have to go through the association for a review of design standards, etc. Bart gave a brief description of Fannie Mae and Mac’s changes in requirements; he said by owning the lot fee simple, each owner can get financed one at a time, and they can be financially responsible for their own property.

Ted said this arrangement would no longer give the ZA any leeway in allowing minor movement in envelope boundaries; the applicant would have to come back to the board for that. Dick asked about the zoning waivers listed under FOF #5. Alex said it was a complete list; some were new and some were the same, allowing someone to look only at the updated decision (and not two decision documents). He said the plat will be updated with the new list and that he will update that sentence to clarify that this list includes both previous unchanged waivers and newly-added waivers.

Tom MOVED to close the public hearing and amend the approval as noted. Greg SECONDED the motion. The motion PASSED 7-0.

Other Business

Baldwin Haulenbeek Subdivision – Alex said the two parties made a change to one of the plats by adding a crosshatched area and a note in the deed language referencing that area. He said they could do that if it first came back to the DRB. He said it concerned the area around the tool shed on the west side lot; the hatched area clarifies a ten-foot wide strip of land oriented east-west, that is to be referenced as the Baldwin strip of land. Alex said the change was not substantive to what was you approved, that it only provided a notation in the plat that they can refer to in the deed.

Ted MOVED to approved the change. Zoë SECONDED the motion. The motion PASSED 7-0.

The Board voted to go into deliberative session at this time (9:35 pm).

The meeting ended at approximately 9:55 pm. The next DRB meeting is scheduled for October 7^th.

Respectfully Submitted:

Karen Cornish

Recording Secretary