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August 2, 2017 [SDRB]

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Field Producer: Emilio Fornatora

A VIDEO RECORDING OF THE MEETING IN ITS ENTIRETY IS AVAILABLE THROUGH VERMONTCAM.ORG. THE WRITTEN MINUTES ARE A SYNOPSIS OF DISCUSSION AT THE MEETING. MOTIONS ARE AS STATED BY THE MOTION MAKER. MINUTES SUBJECT TO CORRECTION BY THE SHELBURNE DEVELOPMENT REVIEW BOARD. CHANGES, IF ANY, WILL BE RECORDED IN THE MINUTES OF THE NEXT MEETING OF THE BOARD.

MEMBERS PRESENT: STAFF PRESENT:

OTHERS PRESENT: AGENDA:

Joanna Watts, Ian McCray, Norm Blais, Alex von Stange, Jeff McBride. (Mary Kehoe, Mark Sammut, Jeff Pauza, Jeff Hodgson, and Judy Christensen were absent.)
Kaitlin Mitchell, DRB Administrator; Dean Pierce, Director of Planning & Zoning; Brian Monaghan, Town Attorney.

Scott Jaunich, Jeff Halvorsen, Maura Wigmans.

1. 2. 3. 4.

5. 6.

1.

In the There

2.

None.

3.

Call to Order and Announcements Public Comment
Approval of Minutes (7/19/17) Applications

Conditional Use, Exterior Changes, 973 Mt. Philo Road, Classic Home Vermont\Scott Corse (CU17-10)

Appeal, Denial of Zoning Permit, Fence, 422 Lands End Lane, Halvorsen (A17-09)

Other Business Adjournment

CALL TO ORDER and ANNOUNCEMENTS

absence of Chair Mary Kehoe, Joanna Watts called the meeting to order at 7 PM. were no announcements.

PUBLIC COMMENT

APPROVAL OF MINUTES

TOWN OF SHELBURNE DEVELOPMENT REVIEW BOARD MINUTES OF MEETING August 2, 2017

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July 19, 2017

MOTION by Joanna Watts, SECOND by Norm Blais, to postpone approval of the July 19, 2017 minutes until the next meeting. VOTING: unanimous (5-0); motion carried.

4. APPLICA TIONS

The function of the Development Review Board as a quasi-judicial board and the hearing procedure were explained. Individuals to give testimony before the DRB were sworn in.

CU17-10: Conditional Use for expansion and significant revision of architectural

elements (roof massing of a nonconforming structure) and reconstruction and

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SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 2

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expansion of a deck at the rear of an existing single family dwelling at 973 Mt. Philo Road in the Rural District by Classic Home Vermont/Scott Corse
Maura Wigmans, Classic Home Vermont, appeared on behalf of the application.

Submittals:

General Application Form, received 7/11/17

Conditional Use Application Form, received 7/11/17

Site Plan, received 7/11/17

Existing conditions plan, received 7/11/17

Proposed conditions plan, received 7/11/17

West elevation, received 7/11/17

North elevation, received 7/11/17

East elevation, received 7/11/17

Town of Shelburne Staff Report, dated 8/2/17

STAFF REPORT
The DRB received a written staff report on the application, dated 8/2/17.

APPLICANT COMMENTS
Maura Wigmans explained the plan to expand the porch on the rear of the house at 973 Mt. Philo Road. The porch is not seen from Mt. Philo Road. The expansion is outside of the setback. The house is in the setback. The addition on the open farmer porch will be enclosed with screening on one side. The porch is being expanded from 6’ to 14’ and a railing will be added. There are no changes to the slope and style of the roof. The proposed changes are in keeping with the historic house (circa 1905).

Ian McCray asked if the expansion is visible from the south. Maura Wigmans said the addition may be slightly visible from that direction.

Jeff McBride asked if there is any work being done in the setback. Maura Wigmans said clapboard and window replacement and insulation upgrade were done on the north and west sides of the house. All the other changes are replacement in kind to match existing elements. Jeff McBride asked if the eave line is the same. Maura Wigmans said the standing seam roof will have a 2:12 pitch.

PUBLIC COMMENT None.

DELIBERA TION/DECISION

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SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 3

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Conditional Use, Exterior Changes, 973 Mt. Philo Road, Classic Home Vermont\Scott Corse (CU17-10)
MOTION by Joanna Watts, SECOND by Alex von Stange, to finalize the record for CU17-10 and direct staff to prepare a decision to indicate Conditional Use approval for exterior changes to the single family house at 973 Mt. Philo Road with the condition a zoning permit shall be required prior to land development. VOTING: unanimous (5-0); motion carried.

A17-09: Appeal of Denial of Zoning Permit for a fence at 422 Lands End Lane in the Rural Zoning District, Lakeshore Overlay District, and Floodplain and Watercourse Overlay District by Jeff Halvorsen
There were no announcements of conflicts of interest or ex parte communication. Kate Mitchell and Town Attorney, Brian Monaghan, represented the town. Jeff Halvorsen and Attorney Scott Jaunich represented the appellant.

Submittals:

Pre-filed testimony and Exhibits from Kaitlin Mitchell, dated July 26, 2017

Exhibit 1 – Copy of May 3, 2017 (effective date) Shelburne Zoning Bylaws

Exhibit 2 – Site plan submitted with appeal with the addition of the 100’ setback

TESTIMONY
Individuals to provide testimony were sworn in.

Jeff Halvorsen
Jeff Halvorsen testified when they purchased the house at 422 Lands End Lane they assumed there could be a fence in the backyard like the fence in the front yard. A fence is wanted to prevent the dogs and grandchildren from falling off the cliff which is a 50’ drop to sheer rock below. Mr. Halvorsen said having the fence is a safety issue. Kate Mitchell and Chris Galipeau were contacted about the fence. The fence could be camouflaged with landscaping or a berm or a stone wall and set back 30’. Mr. Halvorsen said he understands the aesthetic concerns and is willing to look at different ideas.

Attorney Jaunich asked Mr. Halvorsen to describe the location of his property. Jeff Halvorsen said the lot is located at the northern tip of Shelburne Point. Photos of the location were shown.

Attorney Jaunich asked where the fence would be located. Jeff Halvorsen said on the cliff or set in 20’ or 30’. Whatever is necessary will be done for aesthetics to mask the four foot high fence and still offer protection.

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SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 4

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Attorney Jaunich asked if options were investigated for the fence. Jeff Halvorsen said he looked at mesh fence, aluminum vertical black rail fence, and met with a mason about building a stone wall to match the erosion control structure with the fence behind.

Norm Blais asked if the fence is visible from the public highway or the lake. Jeff Halvorsen said the fence will not be seen from the road and is unlikely to be seen from the lake.

Norm Blais asked if the neighbors have seen the proposal for the fence. Jeff Halvorsen said they have not, but they would likely champion the same even though they do not have grandchildren.

Norm Blais asked if the fence will be visible from the neighboring property. Jeff Halvorsen said no.

Joanna Watts asked how long the appellant has owned the property and if the bylaws changed over that time period. Mr. Halvorsen said he has owned the property for over three years and does not know if the bylaws changed. Mr. Halvorsen said he always thought he would install a fence on the property.

Attorney Monaghan asked if there are bylaws that give consideration of visibility of the fence from neighboring property. Attorney Jaunich said Section 1980.6.C deals with exceptions and recognizes a fence in the setback provided the road or driveway is not obstructed.

Kate Mitchell
Attorney Monaghan asked Kate Mitchell if her pre-filed testimony is true and accurate to the best of her knowledge. Kate Mitchell corrected the sections of the bylaws referred to in the answer to Question #9, line 12 to be Section 2110.144 and line 17 to be Section 2110.176.

Attorney Monaghan asked if there is any provision in the bylaws requiring the DRB to consider whether a fence is visible from another property. Kate Mitchell said no.

Norm Blais said an interpretation of Section 1980.6.C could be fences are not considered structures if sightlines on roads and driveways are not obstructed. Kate Mitchell said Section 1980.6.C and obstruction of the road deals with entering/exiting a driveway.

Norm Blais asked if the fence as proposed is a sightline obstruction. Kate Mitchell said that is not the issue with the application, but rather the issue is an exception to yard

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SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 5 setbacks and the exception goes to the district. The lakeshore setback is for protection of

natural resources and the lakeshore, and is separate from yard setbacks.

Norm Blais asked if the distance from the public right-of-way to the structure is a consideration. Kate Mitchell said the yard setback is a measure from the right-of-way. The 100’ setback is from the 102’ elevation.

Ian McCray commented the lakeshore setback is for ecology and erosion control purposes. Kate Mitchell confirmed this, adding the setback is to protect more sensitive areas.

Alex von Stange asked why the lakeshore setback is considered. Kate Mitchell explained the subdivision approval talks about the lakeshore setback. The request is not a waiver of the setback.

Ian McCray asked if there is any instance where building is allowed and the ecology and aesthetics are still protected. Kate Mitchell said there is allowance for certain items in the setback, such as a lakeside deck, docks, or stairs. Ian McCray said these are considered on a case-by-case basis. Kate Mitchell confirmed this.

Joanna Watts asked if the Lakeshore Overlay District interplays with the underlying rules and if the Lakeshore Overlay is more restrictive. Kate Mitchell said overlays can allow for more of something, such as density, or can be more restrictive, like the floodplain. The overlays should supersede the underlying bylaw.

Norm Blais asked why the yard setback is not being discussed if the fence is constructed on the yard setback. Kate Mitchell said the yard setbacks would be extensive due to the size of the Halvorsen property. The lakeshore setback is what is preventing the fence. The more restrictive overlay applies.

Norm Blais asked how it is determined whether the yard setback applies or does not apply in a certain district. Kate Mitchell said the exception for the fence is for the yard setback. The 100’ lakeshore setback would not be ignored. One setback is already met with the fence. Attorney Jaunich objected because there is no definition of “yard setback”. Joanna Watts sustained the objection. Kate Mitchell noted there are definitions for side, rear, and front yard setbacks, but not for yard setback.

Jeff McBride asked if there is a definition for permanent and temporary fences. Kate Mitchell said there is not a separate section for temporary structures such as construction fencing tied to a permit where the fence expires when the permit expires.

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SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 6

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Jeff McBride asked about seasonal fencing such as around gardens. Kate Mitchell said there is a definition for “structure” and certain structures can be tied to a permit.

Alex von Stange asked if a safety fence for construction is allowed. Kate Mitchell said safety fencing for construction is not contemplated. Erosion control fencing is removed when construction is complete.

Ian McCray asked if a stone wall is viewed the same in the setback as excavating pylons for fence posts. Kate Mitchell said both encompass a structure.

Ian McCray asked if vegetation that creates a barrier is a structure. Kate Mitchell said landscaping is handled separately.

Joanna Watts asked for further explanation of the answer to Q.15 in the pre-filed testimony relative to the DRB’s decision of approval for the Shelburne Point subdivision and the appeal. Kate Mitchell explained the subdivision approval made the Halvorsen lot and other lots with building envelopes for structures. There is a caveat that there can be other structures outside the building envelopes, but the lakeshore setback still must be observed. Structures in the setback are specific and listed. If fences were contemplated they would have been on the list.

Attorney Jaunich asked Kate Mitchell about reference to the “lakeshore overlay district”. Kate Mitchell corrected the name is Lakeshore Overlay Conservation District. Attorney Jaunich affirmed there is a separate conservation district (Article XIII).

Attorney Jaunich referred to Section 1700 of the bylaws and asked how many purposes there are for the overlay district. Attorney Monaghan objected, irrelevant. Joanna Watts overruled the objection. Attorney Jaunich said the purpose says to preserve vegetation and natural cover and also says preserve water quality and prevent pollution, but that is tied to preserving vegetation and natural cover. Kate Mitchell said the purpose is to maintain vegetative cover and preserve natural resources so there are multipole purposes. There are other sections of the lakeshore overlay that explain what the overlay seeks to protect.

Attorney Jaunich said the fence does not disturb vegetation or natural cover. Kate Mitchell said the fence is in direct violation of the setback, but does not violate the purpose of the overlay.

SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 7

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Attorney Jaunich asked if there is evidence the fence will impact water quality or result in pollution. Attorney Monaghan objected because the decision is based on setbacks, not purpose. Attorney Jaunich said he is forming the record. Joanna Watts overruled the objection. Kate Mitchell said it cannot be said the fence will absolutely not have an impact, but there was no evidence presented as part of the application.

Attorney Jaunich asked if the fence will exacerbate risk of erosion. Kate Mitchell said no evidence was submitted as part of the application.

Attorney Jaunich referred to the pre-filed testimony relative to the fence exception for yard setbacks and asked Kate Mitchell to explain what was meant by “null”. Kate Mitchell said no longer relevant or applicable.

Attorney Jaunich said our position is Section 1980.6 provides an exception within the yard setbacks and the exception does not nullify the lakeshore overlay. Kate Mitchell disagreed with that position.

Attorney Jaunich asked if stairs nullify the district. Kate Mitchell said stairs are permissible. A fence is not laid out as a structure that is permissible.

Attorney Jaunich asked about the size of the Halvorsen lot. Kate Mitchell said about 10 acres.

Attorney Jaunich said 30’ side and rear yard setbacks are set for lots less than five acres and this has no application to lots greater than five acres. Kate Mitchell explained for lots greater than five acres 10% of lot frontage is used to determine the side and rear setbacks in the Rural District. Attorney Jaunich said per Section 330.3.D for side and rear yard setbacks on lots greater than five acres 10% of the lot frontage or 50’ is used whichever is greater.

Attorney Jaunich asked Kate Mitchell if she calculated the lot frontage for the Halverson lot. Kate Mitchell said she did not because the 100’ setback would dictate.

Attorney Jaunich asked Kate Mitchell if she said to start with an understanding of the requisite setback distance and for that the frontage must be known. Kate Mitchell confirmed this.

Attorney Jaunich asked if there is a definition of frontage in the bylaws. Kate Mitchell referred to Section 2110.93 – Lot Frontage.

SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 8 Attorney Jaunich asked if Section 2110.93 was applied to the Halverson application. Kate

Mitchell said she did not do the 10% lot frontage calculation for the rear setback.

Attorney Jaunich referred to the pre-filed testimony and Kate Mitchell saying that there must be ways to install a fence or other device for safety without violating the bylaws. Attorney Monaghan objected because it is not the job of the Zoning Administrator to speculate. Joanna Watts sustained the objection. Attorney Jaunich asked if alternatives were discussed with Mr. Halverson. Kate Mitchell said she discussed landscaping mainly as an alternative.

Alex von Stange asked if the bylaw contradicted the purpose which would be upheld. Kate Mitchell said the purpose is a general statement with underlying bylaws. The two are not adverse points. There is the purpose and the underlying measures. The purpose speaks to the character of the area, but the hardline numbers or specific statement prevail.

Norm Blais asked if “yard setback” is defined in the ordinance. Kate Mitchell said no.

Norm Blais asked if the ordinance states which district has yard setbacks. Kate Mitchell said every district has yard setbacks.

Norm Blais asked if yard setbacks apply in every district and if the ordinance refers to fences within yard setbacks provided sightlines are not impaired. Kate Mitchell said each type of yard setback is defined and laid out in the district. Norm Blais said this is dimensional, not structures. Kate Mitchell said the definition is for where structures can be placed. Attorney Jaunich pointed out Section 2110.144 is a dimensional definition.

The appellant, Jeff Halverson, presented an alternative solution for consideration which is to regrade the yard to a 6% slope. The stone wall will be hidden from the lake. This will also prevent storm water discharge from the house and provide protection for animals and people. Dean Pierce asked if the alternative is an amendment to the permit application. Mr. Halverson said it is an informal suggestion. Alex von Stange asked if this is an appeal of the original ruling or a variance. Attorney Jaunich said this is an appeal of the original denial of the application for a fence.

There was no further testimony.

DELIBERA TION/DECISION
Appeal, Denial of Zoning Permit, Fence, 422 Lands End Lane, Halverson (A17-09)

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SHELBURNE DEVELOPMENT REVIEW BOARD – 8/2/17 PAGE 9

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MOTION by Joanna Watts, SECOND by Alex von Stange, to close the proceedings and indicate that a written decision will be issued by the DRB within 45 days. VOTING: unanimous (5-0); motion carried.

5. OTHER BUSINESS/CORRESPONDENCE

None.

6. ADJOURNMENT and/or DELIBERATIVE SESSION
MOTION by Ian McCray, SECOND by Norm Blais, to adjourn the meeting. VOTING: unanimous (5-0); motion carried.

The meeting was adjourned at 8:15 PM.

RScty: MERiordan 

Episode Number: 
216
Original Airdate: 
Wednesday, August 2, 2017

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