TOWN OF HINESBURG

DEVELOPMENT REVIEW BOARD MINUTES

October 6, 2009

Approved November 3, 2009

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

DRB Members Absent: George Munson.

Also Present: Alex Weinhagen, Peter Erb (Zoning Administrator), Karen Cornish (Recording Secretary), Kate Bissonette, Joe Fallon, Tom Walsh, Nancy Wright, Steve Lidle, Diane Langevin, Tom Campbell, Tim Dowd, Debra Cramton, Patti Drew, Mike Hopwood, Jamie Carroll, Maria and Eric Belliveau.

The meeting began at approximately 7:30 pm.

Minutes of the September 15, 2009 meeting:

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

Zoë left the board at this time (7:35 pm).

Tim Dowd & Melissa Harter (Appellants) to appeal the issuance of Zoning Permit #2009-20 for property located at 167 Wood Run, owned by Travis & Sarah Hart. [Tax Map #14-21-74.000] *continued from 7-21-09 and 9-1-09 meetings.

Tom Walsh spoke on behalf of Tim Dowd and Melissa Harter, and also Mike and Kim Hopwood who are interested parties in the matter. Greg asked for clarification of the location of easements which are under discussion between the parties involved, and also whether the Harts had resubmitted a new application for a building permit (with those easements now delineated). Alex explained that this appeal pertains to the original building permit application, that no new application has been filed. He said the appeal is based in part on the claim that easements were not disclosed within that application.

Tom Walsh began by stating that his clients wished to resolve the matter amicably and feel they have made the appropriate attempts with the Harts to do so. He cited two basic reasons why his clients felt the zoning permit should be overturned and voided: (1) a procedural issue remains with the Hart’s wastewater permit and (2) easements regarding rights to shoreline access and use were not disclosed within the permit application.

Wastewater permit – Tom W. said the Harts had agreed, at the 7-21-09 DRB hearing, to go back to the state and resubmit the application for wastewater permit. The state did issue a permit, which Melissa and Tim have now appealed to the Environmental Court. Tom W. said, on the topic of local regulation of wastewater, that towns are pre-empted and can't address wastewater issues except via one action, which is to create a town regulation that makes a permit contingent on the obtaining of a wastewater permit. He said therefore the Town of Hinesburg has two options, to either declare that section as invalid or to interpret that section so as to state if a project requires a permit, it needs to be obtained before a zoning permit is issued.

Greg said that Joe Fallon, attorney for the Harts, has argued in his letter that the rigid construction of that state rule does not make sense, that the town can protect itself by stating it can't issue a Certificate of Occupancy without the permit (not the initial zoning permit). Tom said that either way, Hinesburg is required to either stay away from the subject entirely or comply with the state. Greg said if the applicant wished to invest the money in the infrastructure before resolving the wastewater permit issue now under appeal, they are taking the risk; he did not feel it necessary to impose that the permit be in place before construction began.

Ted asked Peter Erb whether it was usual to issue a building permit without the wastewater permit. Peter responded it was his understanding he could not deny a building permit based on the wastewater permit (and as such has issued building permits without wastewater permits). Alex clarified that the state has granted any town the ability to require a wastewater permit but that our current regulations do not. He said the question now before the Board is whether the ZA issued the permit improperly. Alex added that the DRB approved a camp conversion request by the appellants (Dowd/Harter) at their last meeting, noting they benefited by not having to have a state permit. Tom W. said it was different - the Dowd/Harter’s did not need one due to an unrelated state ruling; the Hart’s do need one whether required by the town or not.

Easements - Tom cited Section 4.1.6 (3) of the Zoning Regulations that requires that a plat filed with an application depicts areas restricted by easements. He said although the Harts (via Joe Fallon’s letter) suggest that the house is being constructed wholly on Lot 1, other elements (a driveway, landscaping, etc.) are planned on Lot 2 - all of which is subject to these restricted easements.

Greg agreed that although the original application did discuss the easements on Lot 2, we now understand that they are not within the building location. He also questioned whether easements were defined in time and space (such as a ROW that could be delineated dimensionally on a map) or if only a general right of access existed. Alex said George Bedard discussed related elements of the building project specifically during the original Camp Conversion application hearing, noting none would obstruct access to the water itself. Greg added he did not think the Board had the power to make decisions regarding the deed language itself.

Tom W. agreed although the issue was somewhat of a technicality, the regulations stated that easements do need to be shown on an application for a zoning permit. He said his clients understand there to be a 56-foot wide ROW within which certain projects elements are planned. He said the issue over access rights is currently being discussed in Vermont superior court. Greg said he did not read anything about a 56-foot wide ROW; Tim Dowd clarified that it is a 56-foot length of shoreline that they have rights to use.

Joe Fallon spoke on behalf of Travis and Sarah Hart. He said there are no easements where the permanent building is being constructed. Peter said the Conditional Use (CU) approval set up where the building can be constructed (entirely on Lot 1). He said he knew when he issued the building permit that building was required to be on Lot 1 and he did not, when he issued the permit, try to show the easements as he provides building permits for a structure and does not have the right to question the wastewater system. He added that he did not question the location of the 2 as they are already there.

Joe Fallon said there was no appeal of the CU decision. He showed the Dowd/Harter house and existing Hart camp on a map, along with the old and new wastewater systems. He said access to the water has always been down Wood Run, to the lake and that none of the proposed improvements are in that access. He said although the appellants are presenting an argument that they have an easement over the entire Lot 2, he will argue that they have always used only a portion of that lot. There was more discussion regarding the interpretation of the deed language, whether a person with the ROW access can choose their access route and also the meaning and extent of a right to “use of shoreline”.

Michael Hopwood asked about the location of particular elements of the project, particularly a retaining wall and driveway. Travis Hart said there was no retaining wall as part of the project. Tom Walsh asked if the building permit dealt only with the structure. Peter said the Hart’s needed no additional permits to construct the parking area or the wastewater system. Diane Langevin asked about the location of various elements of the project (parking spots, retaining wall, landscaping, pumping system). Joe said the Harts are not planning to construct a retaining wall; the pumping system will be located on Lot 2, westerly of the existing system.

Nancy Wright, also speaking for Steve Lidle, said they are also neighbors, also with deeded access rights. She said she felt that two issues were being intertwined: one is the ability to build a permanent home which has already come before the Board; the other is the shoreline access use. She said there are 5 parties involved, each with different interpretations of the deed language. She said she thought the matter could be resolved amicably among neighbors and that the DRB should not become involved in the matter and let the permit stand on its own.

Deb Cramton, also a neighbor and owning access rights, said she agreed with Nancy’s comments, stating she was happy to have the Harts re-build on the camp site which has sometimes been problematic as left unoccupied. She said her and Nancy are year-round residents. Nancy wished to include a response to a comment made by Tom Walsh regarding a settlement that had existed but then fell apart – she said that settlement had not been negotiated among all 5 parties with deeded access rights.

Tom MOVED to close the public hearing and take the matter up in deliberative session. Greg SECONDED the motion. The motion PASSED 5-0.

Voted: Ted Bloomhardt, Dick Jordan, Tom McGlenn, Dennis Place, Greg Waples.

Amy joined the board, and Zoë re-joined the board at this time. Kate Bissonette was introduced as the Board newest member (filling an alternate position).

William and Patricia Drew for Request for Waiver of Building Standard (garage setback) at 108 Thorn Bush Road. [Tax Map #09-01-01.500]

Patty Drew explained her proposal to build a garage facing the Thistle Hill development. She explained that Thorn Bush Road ends with a left turn going into the development and her driveway continuing up to the end. The garage is planned to be 10 feet in front of her house, with doors facing the development. She said her property is entirely within the Village district. Peter said there is a Village design standard that require a garage to be set back 10 feet from the front property line, but with a waiver option for those projects that do not compromise the intended village streetscape development pattern. Ted agreed that this project does not compromise that pattern, particularly due to its distance from and orientation to the Thistle Hill development.

Ted MOVED to close the public hearing and approve the draft decision as written (approval). Dennis SECONDED the motion. The motion PASSED 7-0.

Voted: Ted Bloomhardt, Amy Escott, Dick Jordan, Tom McGlenn, Dennis Place, Zoë Wainer, Greg Waples.

Eric and Maria Belliveau for Revision to a Final Plat (building envelope relocation) of a Previously Approved Subdivision at 85 Apple Ridge Road.
[Tax Map #04-01-21.44]

Eric Belliveau explained they purchased their property on which a barn had already been constructed outside the lot’s approved building envelope. The barn had been deemed an agricultural building and was thus exempt from any envelope restriction. Peter confirmed that when the original owner came in for the building permit, barns were allowed outside envelopes, legitimately permitted, and would not have turned up in a title search. Peter said after the Belliveaus purchased the property, they put an addition on the back of the barn without a permit. He said he started to clear up the permit matter with Maria and it became clear they would need a building envelope adjustment (as their use of the barn would not qualify it as an ag building.)

Peter said the new building envelope is not bigger in size and is actually in a better location than the original as it preserved more agricultural land. Greg asked if there were any conflicts with any existing covenants. Dick asked why the envelope had been sited there in the first place. Alex said ag soils had been the prime concern and the building envelope had been sited near the trees away from those soils. Ted wished to state he placed a high value on whether the neighbors have relied upon an original building envelope. In this case he agreed it was not a problem but wanted to emphasize that this is not a light decision in general.

Greg MOVED to close the public hearing and approve the draft decision as written (approval). Dennis SECONDED the motion. The motion PASSED 7-0.

Voted: Ted Bloomhardt, Amy Escott, Dick Jordan, Tom McGlenn, Dennis Place, Zoë Wainer, Greg Waples.

Other Business

The group discussed what items should be recorded in land records. Alex explained that any official action taken by the DRB is recorded. Greg MOVED to go into deliberative session to discuss the Ruben/Maurer application and the Dowd/Harter appeal. Ted SECONDED the motion. The motion PASSED 7-0.

The group came out of deliberative session to take the following action:

Ruben/Maurer - The DRB voted to re-open the public hearing to the November 3^rd meeting. The motion PASSED 6-0 with Ted not voting.

Dowd/Harter – no action was taken.

The meeting ended at approximately 9:00 pm. The next DRB meeting is scheduled for November 3^rd.

Respectfully Submitted:

Karen Cornish

Recording Secretary