TOWN OF HINESBURG
DEVELOPMENT REVIEW BOARD MINUTES
May 20, 2008
Approved June 3, 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),Roger Kohn, Gary and Rebecca Fournier, David and Dawn Morgan, Kristin Miskavage, Debbie and Andy Seaton, Fred Spencer, Greg Glade, Barb Galgon, Martha Gray, Anne Broussard, Clifford and Sally Brody, Sheri Hanlon, Brian Hanlon, James Burnett, Alison H. Dennison, Landon Dennison, Denise Guttler, Cheryl Park, Mark Delaney, Kim Hazelrigg, Steve Finn, Paula Brennan, Beth Sengle, Maria Sengle, Allison Cleary, Richard Watt, Tim Richmond, Will Dodge, Brian Frazier, Scott Shumway, Kitty Frazier, Jane Douglas, Ken Douglas, Charles Kogge, Kim Sears, Dianne and David Deforge, James Burnett, Andrea Morgante, Zak Griefen, Jamie Carroll, Steven and Carol Palmer, John Kiedaisch.
The meeting began at approximately 7:30 p.m.
Minutes of the May 6, 2008 Meeting:
Zoë MOVED to approve the meeting minutes as amended. Lisa SECONDED the motion. The motion PASSED 6–0, with Dennis abstaining.
Conditional Use Permit – Home Occupation (Doggy Daycare) – Pond Brook Road – Applicants: Gary and Rebecca Fournier
** continued from the April 15thand May 6thmeetings
A site visit took place before the DRB meeting. Board members in attendance were Tom, Lisa, Dennis, Dick,Ted andZoë; George visited the site on his own. Peter and Alex (staff), Gary Fournier, Kristen Miskavage, Roger Kohn, Greg Blade, Dan Cook, Dave and Dawn Morgan, Anne Broussard and Marty Gray (neighbors) also attended. Tom said they visited the shed portion off the existing building and that Gary explained how he would alter that structure. They saw the new building site and fenced-in area,as outlined in the grass. Gary pointed out wetlands to the north of the existing building, and property boundaries. The group then went to Orchard Commons, saw the meadow and well head that serves 11 houses and noted the proximity of the houses to the property line. The group listened to noise coming from the Fournier property, as Peter and Gary slammed car doors and started a tractor. Neighbors said they can also hear noise coming from CVU soccer fields. Lisa said they saw a rise in topography between where the dogs would be and the meadow/wellhead/wetlandareas on the OC property. She said the land where the dogs would be allowed runs off in a different direction. She also noted a large number of mixed-species trees in between the two properties. Zoë said they heard a dog barking to the east and another to the west from unknown locations. She said they also heard a lot of traffic that was easily discernable from all locations. Marty Gray noted that various hillsides in the area create a natural amphitheatre for sound between the Fourniers and OC. Roger Kohn said there are a number of other residents in the area that would be affected. Dick said he was concerned about the ability to insulate the shed for sound and maintain an effective air supply for the animals.
Gary said he wished to respond to comments made at the last meeting regarding three major concerns. He does not think the character of the neighborhood would be affected with the addition of his business, noting the houses, the OC development and other businesses (the church, CVU and Annette’s daycare). He said those businesses all have car traffic (“trips” with slamming doors) and many residents have dogs as well. He did not think pollution was a major concern, with contamination of area water sources not feasible given the location of the fenced-in area. He said they are taking dog barking very seriously, that dogs would be monitored 100% of the time while they are outside. He said they will deal with consistent barking and offered to install a video/audio surveillance system to monitor and assess individual dogs.
Roger Kohn said activities at a business (car trips, multiple dogs barking) are very different from residential activities in the same neighborhood. Hereferred to his memo, which states there is no way the Board could find the potential for impact to be minimal, nor that the applicant could prove that impacts would be minimal or absent (dog barking at night, for example). He thought the applicants had not fully analyzed the situation; he discussed state permits needed for this type of business and passed out a letter received from a state waste water management regional engineer regarding the need for permits.
Tom MOVED to close the public hearing and take the matter up in deliberative session. George SECONDED the motion. The motion PASSED 7-0.
Conditional Use Permit – Replace an existing non-conforming structure – 310 Pine Shore Road – Applicant: Fred Spencer
** continued from the April 15th and May 6thmeetings
Fred said he reviewed possible changes with his architect. He said she proposed a more radical change (turning the house 90 degrees) than he wanted to make. He reviewed other possible alterations that would either minimize or remove the siting of the proposed sunroom in the lake setback. He did not wish to move the house back as that would encroach on a hillside and possible spring. He did not wish to swap square footage off the deck, as he thought it was already at minimum size. He said he would reluctantly eliminate the sunroom if needed. Tom asked about the side deck, whether that could be removed. Fred said it provided access from the back to the front but that narrowing it would be an option.
Tom explained the main problem with the proposal, in terms of DRB review, is the amount of the structure that is in the lake setback. Alex said the Board uses criteria to review non-complying structures that state any further non-compliance of a structure needs to be the “least amount practicable”. Lisa said she was having trouble with that point as the sunroom is an addition to the original footprint and the whole project a complete rebuild. Ted agreed, stating it was difficult to find changes to be the least amount practicable as the whole building could be moved back if a new foundation was to be used anyway.
Fred asked if a conditional use permit is transferable to a buyer; Alex said yes but that permits have expiration dates. Fred asked if stone patios would be treated differently; Alex said they are considered pedestrian walkways and do not count toward square footage or lot coverage. Alex suggested altering the configuration and materials of the side deck and Fred said he would be willing to look at that. Ted asked if the lot was level; Fred said yes. Zoë suggested siting the house back three feet in order to keep the sundeck. Fred said moving west, the house would be pushed into the slope and into a wet area. He added that the current house’s chimney and the portion of the foundation that is slab could not be re-used if the house were moved. Fred agreed he would be willing to replace the side deck on the south with a stone walk.
Tom MOVED to close the public hearing and take the matter up in deliberative session. Zoë SECONDED the motion. The motion PASSED 7-0.
Request for a De Minimus Determination/Sketch Plan Review – Subdivision approval for commercial lease – Leavensworth Road - Applicant: RCC Atlantic, Inc. (“Unicel”)
Dick Jordan left the board and Greg Waples joined the board at this time (8:15pm). Alex passed out copies of a letter submitted by the applicant responding to the neighbor’s attorney. Alex explained that Peter Erb determined that the application to install a cellular tower on private property needed subdivision approval for a lease area, in addition to the conditional use approval already received (see Feb. 5th and 19th DRB meeting minutes). He said the applicant has requested a de minimus (DM) impact review of the application to precede any subdivision hearing. De minimus review under VermontState statute Act 79 is a process that determines if a telecommunications proposal has minimal or no impact on its surroundings. If a local board determines a project to have minimal or no impact, they may approve a proposal without further review. Alex said if the DRB reviews the application under this statute and finds impacts are not minimal (ie. there is an impact), they would then review the proposal as a subdivision, as it contains a lease provision that requires subdivision review. Alex added Hinesburg regulations have not been amended since the statute came into effect in 2007 (
Will Dodge, an attorney for Unicel, said the conditional use permit granted by the DRB is currently under appeal in Vermont Environmental Court. He said in reviewing the proposal under the subdivision regulations, he thought none of the criteria for review applied to his proposal, or to the extent that it did, the board had already made a decision at the conditional use hearing. He said Act 79 was designed to encourage carriers to avoid building large new towers, that the legislature and Douglas administrationbelieved that if there was going to be wireless and broadband coverage in this state, it was desirable to allow sites with existing infrastructure within a pleasant setting. He said he thought DM review could apply to a review of subdivision criteria, in the same way it applies to zoning regulation review. He said he thinks this application had minimal or no effect at all.
Greg asked Will why he did not appeal Peter Erb’s March 21st determination regarding the necessity for a subdivision review. Will said they were not convinced Peter’s determination was incorrect or completely flawed, and that in requesting DM review they were not contesting subdivision jurisdiction, only invoking the state statute that seems to apply in this case. Greg said parties opposed to the project have suggested that not appealing the determination had certain consequences and have likened the DM review request to a “back door” attack. Will said while they have requested use of the statute, if either the board or the ZA does not wish to review it in that manner, they are requesting it then be treated as a request for a waiver, according to Hinesburg subdivision regulations Section 7.4.
Alex said the request is novel; normally DM determination is used to obtain a zoning permit, but in this case, the applicant is requesting its use to obtain subdivision approval. Will generally agreed except to state that the board would be granting a DM determination that eliminated the need for a subdivision approval. Alex asked if the board could attach appropriate conditions to a DM determination; Will said his understanding was yes, citing a Burlington DM review that required the applicant to post a removal bond and screening. He also cited a Cabot DM review that required the analysis of radio frequencies after a cellular tower installation to make sure the facility complied with FCC regulations. Tom then opened the discussion to the public.
Richard Watt introduced Zach Griefen as the attorney representing a group of neighbors living next to or near the proposed tower. Zach reviewed three major points contained in his letter regarding RCC’s DM request: (1) He said because Hinesburg has not adopted any telecommunications bylaws, no standards existed to provide guidelines to this board. Greg said the board was required to review the proposal, whether the Select Board has not chosen to adopt standards for the board’s use or not. He said he agreed that without standards specifically related to telecommunications issues, there may be an attack on any decision the board makes, but that local governments have been told by the statute that they have to review proposals. Zach responded that without standards, any review may constitute “unbridled discretion” and therefore, the safest course would be to deny the DM request and proceed via the subdivision process. Greg disagreed.
(2) Zach said the ZA has rendered a final determination that subdivision review is required. He said he heard tonight that Will said he agreed, but then he said the DM exists so that his application would not have to be reviewed as a subdivision. Greg asked Zach for his rationale on how Act 79 does not trump 24 V.S.A Chapter 117 (Vermont rules on local land use planning and regulation), stating it was his understanding that the Act 79 de minimus review statute requires a local board to forget about everything else. Zach said he thought DM was meant to be applied at the beginning of a process. He said he thought the applicants decided to go the ACT 79 route only when their application appeared in jeopardy; he said he did not think taking that course was in keeping with the original intention/process of the DM.
(3) Zach said Hinesburg zoning regulations prohibit multiple uses in the agricultural district. He said although Section 2.5.5, titled “Multiple Structures and Uses”, describes multiple “principle” structure but does not include the word “principle” as it pertains to uses, he feels that word is implied (and that this application would constitute a multiple principle use). He said furthermore, regulations list only three districts in which multiple uses are allowed, with the agricultural district conspicuously notlisted and therefore not included.
Charles Kogge, a Beecher Hill Road resident, expressed support for the proposal, stating he found no substantive research that this level of radiation effects anyone. Steve Finn, a Leavensworth Road resident, said he had no issue with the health effects of the proposed tower but thought it affected the character of the neighborhood. He asked what the board would base their decision on, given the lack of town standards specifically dealing with cellular towers. He added that he felt the intense strife experienced by the neighborhood over the proposal was a significant impact on it character and should constitute a non-deminimus decision.
Clifford Brody, one of the owners of Hillcrest Farm where the tower is to be located, asked the board to move ahead with the project. He said the town, through various efforts and entities including the Farm and Forest Conservation task force, encourages the support of the farm industry. He said the financial burden of maintaining an active farm in Hinesburg is intense and would be eased with revenue generated from this project. He added that the timing of project approval was becoming critical to the viability of the farm. He also spoke about the need of the community as a whole for this service, noting many areas received marginal cell phone coverage, putting them at risk in the event of dangerous situations. Allison Cleary, an abutting neighbor, said no one is contesting the need for coverage. She said other sites that would be just as useful and effective have not been thoroughly explored. Sally Brody said the farm provides a community service by doing a good job with caring for horses and providing training for children at the farm. She said the facility would constitute just one panel placed on the side of a silo.
Will responded to comments, stating he disagreed that the board was “floating” without the use of standards specifically written to address telecommunications facilities and/or DM review requests. He said that Act 79 DM was not meant to have boards create new regulations, but to look at existing land use and development standards to see if the project has little or no impact on those standards. He also disagreed that DM had to be invoked at the onset of the process. He said his firm thought it was important to go through conditional use first and said if the board finds “yes” for DM, then the project is applicable; if “no”, then a sketch plan would be in place for immediate review. He said a determination regarding Zoning Regulations section 2.5.5 has already been made and thus the board could not now say they were in violation of that section.
Zach said any subdivision hearing should be treated as a major subdivision,due either to its status as a PUD or a non-residential application. As to the lack of standards, he thinks the lack of guidelines specifically dealing with how to decide DM is problematic. Greg said the DRB is obligated to make the review, with or without the type of guidelines Zach is describing. Zach said the board can decide to deny it and felt that as any DM decision is highly appeal-able, it would be best to review the application under the regular regulation process.
Ted asked whether the board was essentially hearing both the arguments for DM and a sketch plan application. The group discussed how to proceed; Alex said any decision must be delivered in writing. Greg thought it was best to close the public hearing, discuss the application under DM review, proceed in deliberative session, then proceed from there. Alex said one application is contingent on another, and that neither requires a warned public hearing.