Development Review Board       APPROVED 12.15.09

                                                  Town of Stowe

The regular meeting of the Development Review Board was held Tuesday, December 1, 2009 in the Banquet Room in the Akeley Memorial Building starting at 5:00 P.M.

Members present: Don Ramos, Charles Lusk, Brian Leven, Michael Diender, Peter Collotta and Lynn Altadonna. One vacancy remains.

Others present: Rich Baker, Zoning Officer and those listed in the minutes book.

5:00 P.M. Project #: 4123 Hayes Hospitality Holdings Arcade was WITHDRAWN.

Project #:       4101

Owner:           The Moscow Group LLC

Location:        Adams Mill Road

Project:           Change building zones on previously approved Adams Mill Plan for lots 3 through 15 to reflect a 20-foot front yard setback as required by the Zoning Ordinance.

Zoning:           MC/FHD

Mr. Lusk stepped down as Chair because of his social relationship with each member of the group involved. Brian Leven, Vice Chair chaired the meeting. Steve Riley and Cleve Patterson present. It was explained to members that in 2008 a zoning amendment was put in place, which revised the front yard setbacks for MC district from 50’ to 20’ therefore, the request. Mr. Riley explained zoning changed after the project was approved and looking to bring into compliance. It was his impression the changes were made to create a more village scape. The change will give little more room and flexibility as far as the building envelope is concerned. Liz LeServiget, in the audience and who lives across the street was concerned with the view and how it will affect her, saying she enjoys the view. Mr. Riley stated Lots 13 & 14 have houses and garages on them but Lot # 15 has not been built upon. Mr. Leven went through the pertinent Subdivision Regs. Mr. Altadonna, who was on the Planning Commission at the time of the changes stated there were several public hearings prior to the Selectboard approving the changes, but agreed perhaps the PC did not take this change into consideration, or that he did not remember if it was discussed. Mr. Collotta asked how it will change any future development and Mr. Riley said it doesn’t change, that they are only trying to conform to zoning and it does not change landscaping/screening, Act 250 etc. Houses are currently on 5 of the lots stated Mr. Riley and there is quite an elevation difference. Ms. LeServiget’s had other comments, which could not be picked up on the tape. Mr. Leven said he understood the concerns but felt the setback conforms to the existing regs. Mr. Altadonna moved to instruct the Zoning Administrator to draft Findings of Fact and Conclusion of Law re: project # 4101 with the following CONDITIONS:   

(1)   Any change in the plan or proposed use of the property shall be brought to the attention of the Zoning Administrator, prior to its implementation, to determine if an amendment is required.   

(2)   All other conditions pertaining to the original approval remain in force.

Project #:        4118

Owner:            Whistlepig Enterprises LLC

Tax Parcel #:   6-108.000

Location:         Between 563 and 712 Barrows Road

Present were Darrow Mansfield for the applicant; Tom Amidon for Al and Katherine Coppock; Beverly Lemery, Charles Grenier and Jim Goldsmith. Mr. Mansfield described the project saying he would be giving an overview of the project and proposed scheduling a site visit. The property is adjacent to the Lemery property on Barrows Road and consists of 47 acres, split by the road. On the westerly side is 2 houses and land butts up against Trapp’s land and Coppocks, drops down to a stream and then comes back up. East side is rolling open land (side of the High School) Proposing a new road, which cuts across the contour with a gradual grade of 10% with wetlands at the bottom of the land and then climbs back up into the woods. New road will have a turnaround at the end where it splits into driveways. 4 house sites on the east side; Lot # 1 is downgrade from Barrows Road; Lot # 2 at the top of the knoll. At the top of the hill is the zoning line which runs through the crest of the hill. Proposing a building zone which crosses over into the ridgeline district, as it would be impossible to locate a house on the backside of the knoll. (proposing a new ridgeline district). Screening proposed for the driveways. House lots to be determined. Drilled wells, septic on site with a combination of individual and community systems. The entire ridgeline district being proposed will be in a conservation zone and deed restrictive. West side lots are 1.1 acres & 1.4 in a 2-acre district, with ½ lot being in conservation area. Plans are for 7 lots. A retained lot # 7 is 12.4 acres on the east side; Lt != 4.2; 2= 4.7; 3=8.3; 4= 8.3; 5=4.4;6=4.1 acres. Lot # 1 is 250 ‘ back from Barrows Road. Mr. Altadonna asked if any extension of a bike path would run through any of the land and asked Mr. Mansfield to check with Tom Jackman about that. Mr. Leven asked what the setback is from the road, which would lend a 30’ r.o.w. to the lots. Ans: 275’. Tom Amidon, representing the Coppocks (who abut Lot # 7 and had sent a letter with concerns) said the plan lends itself to the creation of a PRD and asked the Board for its consideration of such. tape 1 side 2 Ms. Lemery asked where the 2 houses will be located and Mr. Mansfield showed her on the map and said they will be located as close to the road as possible, meeting the setbacks. Mr. Altadonna asked that the PRD be kept in mind, which will be taken up at the hearing. Mr. Collotta moved to RECESS to December 6, 2009 at 2:00 P.M. for a site visit; Mr. Leven seconded with all in favor. Mr. Lusk moved to RECESS the hearing to JANUARY 5, 2009 with Mr. Leven seconded the motion with all in favor.       

Project #:        4122

Owners:          Robbins, William and Jane

Tax Parcel #: 9-038.030

Location:         520 Partridge Hill Road

Project:           Appeal of Permit # 4113 to construct a single-family dwelling.

Present were Glenn Town; Jim Cafrey with Thorndike Stearns Law Office on behalf of the Robbins; Laine Nichols on behalf of the Hoders and Randy Hoder. An appeal was filed re: the application that was approved and a permit was granted to the Hoders re: the driveway and its location. The issue is whether or not the applicant have met the burden of proof to establish they have the legal right to develop it in the manner in which has been done. Ms. Nichols submitted and response and Mr Baker submitted a memo which

Focus and assert the Robbins are asking the DRB to enforce a private covenant and that is not what the appeal is, stated Mr. Cafrey. The appeal says the applicant has failed to show his burden of proof showing he has the legal right to do what he is doing which is putting the driveway where it is and stated case laws showing he has the burden of proof). The Hoders have not shown the burden of proof. Mr. Cafrey submitted 6 copies of the deed. 6:10 P.M.The board RECESSED for 5 minutes in order that they could read pg 2 of the deed (and copy of site plan which is referenced in the deed dated 9/26/07) and the actual location of the driveway is shown and is on the Hoder site plan. The driveway exists. At 6:20 Ms. Nichols stated the DRB does not have jurisdiction and cannot decide private covenants. The Hoders do have title to the property. Mr. Cafrey said they are asking the applicant to give burden of proof and not questioning the title of the property. Cafrey not asking to enforce it but to show burden of proof. Mr. Lusk suggested the board as lay people, get advice from counsel and said he was having a difficult time separating the two situations. (1) there is the legal right and (2) and in order to grant someone a permit, it is very clear the applicant needs to show burden of proof. Monte and Bauman case about the easements. Mr. Leven refers to a covenant and a restriction on the land—an easement is separate but could be affected. Discussion continued between the members and Mr. Cafrey. Mr. Baker felt it was a deed restriction and are not grounds of denial for a permit. Ms. Nichols said the Lighter court is now in Supreme Court. Mr. Cafrey said there is not a burden of proof on the Zoning Administrator, but on the applicant to provide relevant information and has the threshold of burden of proof. Mr. Lusk said the Board is to determine if the ZA did something erroneous and it is not his obligation to go through all the documents and somehow erred. Mr. Baker responded to Mr. Leven saying when someone submits something for a permit if is true but do not address anything with private covenants. The driveway as it exists, does meet the zoning setbacks. (2) Issue of Storm water Management Issue: Mr. Cafrey stated the application does not provide any information re: erosion control, storm water control measures etc. Mr. Baker read Sec. 3.2 in which the state does not require when there is less than 1 acre, a storm water management plan etc. Required to meet practices according to state standards but no requirement to submit a plan, stated Mr. Baker. The application was check no re: disturbing more than 1 acre. Mr. baker referred to Sec. 2.6 which he went back to Sec. 3.2. Ms. Nichols stated it is tape 2 side 1 less than 1 acre (under 35,000 s.f.)    

And the applicant complied with all regulations for the driveway and stormwater plan.

Mr. Lusk referred to pg 42 (F) and said there is two ways to read it. Mr. Collotta felt there should be some guidance from the attorney. Mr. Baker said he felt the storm water issue can resolved. Mr. Baker felt it has not been brought up in the appeal that there is false information/inaccurate. The town refers to state standards if it is less than 1 acre which is disturbed and the town follows the same standard. Mr. Cafrey said there is no information and it is the applicant’s responsibility and burden of proof. It is a long driveway and the possibility for a lot of disturbed area. Mr. Baker stated the driveway is 100’ from the abutting property. Discussion continued. Mr. Cafrey said if an adjoining landowner challenges an abutting landowner situation, information is required. Mr. Baker said if Mr. Hoder could measure the driveway and resolve the stormwater issue and try and make a determination of the disturbed area, which would avoid both parties spending money. Mr. Lusk said both parties are in agreement that t he town does not enforce covenants and is a deed a covenant? Mr. Levin said he would want to know from the attorney whether the deed creates the easement, which is being referred to? Mr. Diender felt the word easement should not be brought into play. Mr. Baker asked Mr. Cafrey is he was saying if it is less than an acre, are you saying there needs to be a plan and he read from the rules, saying yes. Mr. Baker said storm water drainage system is different than storm water management plan. Mr. Altadonna said the work is already been done and a stormwater management plan is for pre-construction. Mr. Baker suggested taking the plan, draw snow fence on the plan, amend application and submit which will satisfy the issue. Trying to avoid unnecessary litigation. Mr. Hoder asked, “why should I bother if no one else does” Mr. Baker: “because everyone is going to spend money and could be resolved by drawing a line on the plan-- to save all parties money” Mr. Baker said he would go to the site, measure the driveway and try an make a determination if an acre or less has been disturbed. If it is over an acre, it is an enforcement issue. tape 2 side 2 Mr. Lusk asked members if they were in agreement if a Storm water Management Plan were to be submitted, would members not pay attention to an appeal that one was not filed when the application was submitted, and say that is without merit. Members agreed.        

Mr. Collotta moved to RECESS t o January 5, 2009, seconded by Mr. Diender with all in favor.

Minutes of November 10, 2009: Mr. Collotta moved to approve as written, seconded by Mr. Diender with all in favor.    

Minutes of November 17, 2009:Mr. Leven moved to accept as written, seconded by Mr. Lusk with all in favor.

There being no further business to come before the Board, the meeting adjourned at 7:45 P.M.

                                              Development Review Board

                                                      Town of Stowe

                                                 December 15, 2009                       APPROVED 1.5.10

The regular meeting of the Development Review Board was held Tuesday, December 15, 2009 in the Banquet Room in the Akeley Memorial Building starting at 5:00 P.M.

Members present: Charles Lusk, Brian Leven, Peter Collotta, Lynn Altadonna and Michael Diender. Also present: Rich Baker, Zoning Administrator and those listed in the minutes book.

Project #:       4061 (RECESSED 11/17/09)

Owner:           TN Associates

Location:        4000 Mountain Road

Project:           Appeal of Notice of Violation for TN Event Tent behind the Indoor Tennis Courts

Zones:             UMR/PUD/MOD/RHOD/FHD

Mr. Lusk stated the meeting was tabled 11/17/09 which had been recessed from 10/20/09. Present were Attorney Peter D. Van Oot counsel for TN Associates; Dan Oberlander, representing TN and Nancy & John Lavanway neighbors. Mr. Van Oot stated 7/1/509 TN was issued a Notice of Violation from Zoning Administrator Rich Baker, seeking removal of the tent. TN Associates appealed the violation notice to the DRB. By letter from TN dated 10/ requesting that the DRB confirm that the resort as defined by letter 10/ is approved   that they are approved uses of TN Resort PUD and TN could continue to use the spaces. TN then filed an application for the uses and the first hearing was held 9/1/09. That hearing was continued to 11/11/09 to tonight. TN does not believe they need approval to hold events on the property. On or about 10/12/09 the tent was removed. Mr. Van Oot asked to focus on the appeal first and ask that the DRB make a ruling. There are three ways the Board can act; (1) uphold the ZA violation; (2) grant the appeal or (3) conclude the violation should not have been issued. The primary argument is that the use of the area for resort type events i.e. tennis tournaments, weddings etc which serve the resort have been taking place at least before the enactment of the TN PUD or the enactment of the regulations pertaining to temporary structures which is the requirement which Mr. Baker believes was violated when not getting an approval. TN believes the use, not structures, is grand fathered and do not need a permit. Mr. Van Oot said they have no interest in appealing anything but that is an option. Need to know what we need to do to go forward, do not wish to go through this process again next year. This is a case of where a ruling of “no” would be better than a “maybe” but prefer a “yes”. Depending on what is done, Mr.Van Oot said he would ask that the Board make a determination on the development application. Felt the board could say they do not have jurisdiction to hear the application and one option would be to deny or approve but remand back to the ZA and ask him if the Board has the jurisdiction to hear in the first place. Or—could agree they are permitted uses under the Resort PUD and accept the condition of noise etc OR could deny. Mr. Van Oot stated they have approval for the Resort PUD and once that permit was issued, feel events can take place. Feel TN can continue to have weddings and the tent because it was an approved use. 

Mr. Lusk asked members if they were in agreement to deal with the appeal first and members agreed. Mr. Van Oot said it was Mr. Baker’s decision whether something is grand fathered or not and that is his option. His decision was that the tent is not grand fathered, thereby the appeal. The question is has TN been able to establish the use prior to the PUD date of 1999 and he named off several uses prior to that, therefore the use (tent) is grand fathered prior to the Resort PUD provision dated ---    . Prior to 1999 the area has been used for events, including weddings. Mr. Oberlander said in 2006, came for bathroom approval and the Chair at the time converted the application and added the temporary permit. Mr. Baker asked why in the past why that was appealed. Mr. Oberlander said they never applied for a temporary permit for this type of use as they always felt it was allowable (should have contested it at the time but didn’t). Did agree to no music after 10 PM. Mr. Altadonna said in the letter from Mr. Baker dated 7/15/09 said it only talks about a temporary structure, i.e. a tent. Confused about the use that TN is appealing which is not in the letter at all. Mr. Oberlander said a 1-year permit is of no use to them—have applications for weddings etc 2-3 years in advance. Mr. Van Oot said if there is a grand fathered use, one can continue the use—this does not refer to structures, which cannot be grand, fathered (we are not proposing a structure). Mr. Van Oot stated we cannot grandfather a temporary tent. The only thing we can establish is the use, stated Mr. Van Oot. Mr. Baker said a permit is required for land development. Land development by definition includes the use of land and could include temporary structures going up and down. Mr.Baker said if it is determined that if the area and tent has been used for what TN says are grand fathered uses, it would have to have a permit, but he could approve. If it is determined that the uses (weddings) have not been done previously with a tent, and then it is a Conditional Use. Mr. Van Oot said those kind of uses took place in the 50’s –70’s so do not need approval and held prior to 1982 (temporary structure permits) and prior to 1999 when got the PUD. Mr. Altadena asked how long the craft fair was up this year and Mr. Berliner said perhaps 2-3 weeks, but don’t know. (this approval went to the Select board because of a liquor license). Mr. Oberlander said if it is an issue how long the tent is up he would take down every two weeks. Mr. Altadonna said to Mr. Oberlander that the Board is trying to do what the bylaws allow. Mr. Altadonna referred to Par 415, which states a permit is required for temporary tents etc. and said he did not see it as being complicated. Mr. Van Oot     referred to state statues and the ordinance re: land (and read aloud). We are arguing it is not a change of use in that area. What is pertinent here is the temporary structure does not apply since it is grand fathered. Mr. Van Oot stated they did not appeal because they finally got a permit for something they wanted to build with conditions and we agree to put conditions imposed on approval now. Mr. Baker stated the question is, not just that is it grand fathered but do they have the right to be bringing it up now since they did not appeal, according to the Town Attorney. Mr. Van Oot said in retrospect we (TN) should have appealed, even though there was a permit in hand, but they didn’t. Mr. Van Oot said even if there was not an appeal and if it was a grand fathered and the temporary structure clause was applicable, it would be simple to say the Board finds the area where the tent was put up this summer was grand-fathered tape 1 side 2 use and the need for a temporary structure does not apply. Mr. Lusk said the Board cannot condition the use indefinitely. Our obligation is to the neighbors stated Mr. Lusk. Mr. Van Oot said whatever arguments we do not oppose to the condition of stopping music at 10 P.M. or could condition the use saying it is one that does not have noise, amplified noise after 10 PM or whatever is reasonable and that could be in the findings. We would have a decision that we would not appeal. Mr. Lusk said to some extent the Board ‘s obligation is to the neighbors and to rope in an activity if it turns out to be disturbing. The Board always wants to feel nothing has escaped them. Mr. Van Oot said they are looking for a permit saying that Dan can put up a tent every year for that event (weddings) with conditions without coming back to the Board. Nancy Lavanway (in the audience) referred to Ted Teffner’s letter dated 10/14/09 and questioned if the upper meadow where the events tent is, is grandfathered and Ted questioned that. Ted mentioned when the Board gave approval for the expansion it was conditioned that it not include the events field (which is part of the next application and could be a separate issue). Ms. Lavanway asked who would be enforcing the conditions which TN would agreed to? She said that when there was the tennis tournament (which included a condition that no cars park on Brook Road) she went to the area and asked why cars were parked there, police came. Mr. Oberlander said police were in charge of parking. Ms. Lavanway said the last wedding which took place she had to call over there because the music did not stop at 10 P.M. Mr. Lusk said these issue would be addressed if and only if the Board gets to the position to go through the Conditional Use criteria.  

Mr. Altadonna asked the Board to read together (which they did and referred to the wording “temporary structures”) par. 415 pg 59, which has been in effect since 1982. Mr. Baker said the Board needed to read Sec. 3.9 (and he read it allowed re: non-conforming uses. Mr. Van Oot stated it has been established that there has been a pre-existing uses in that area, and that use prior to 1982, was of n o greater scope or impact than weddings. The discussion continued along the same lines and for a lengthy time (if one wishes the tapes are available). Mr. Baker felt it was not a non-conforming pre-existing use because it has been before the DRB previously.

Project #:         4096 (RECESSED 11/17/09)

Owner:             TN Associates

Tax Parcel #:   11-138.000

Location:          4000 Mountain Road

Project:             Confirmation and Approval of Event area within TN Resort

6:55 P.M. Mr. Altadonna moved to go into closed deliberative Session, seconded by Mr. Leven with Mr.Lusk, Leven, Collotta, Diender and Altadonna voting in favor.

7:30 P.M. Members came out of deliberative session with the Chairman stating the members could not reach a consensus and therefore, because the Board is short two members, 

Mr. Leven then moved to STAY the NOTICE of VIOLATION and RECESS to    JANUARY, 19, 2010. Mr. Altadonna seconded the motion with Mr. Lusk, Leven, Collotta, Diender and Altadonna voting in favor. No one voted no.

Minutes of December 1, 2009: Mr. Altadonna moved to approve as written, seconded by Mr. Collotta with all in favor.

There being no further business to come before the Board, the meeting adjourned at 7:40 P.M.