TOWN OF DERBY
ZONING BOARD OF ADJUSTMENT
Minutes
 

***Unapproved***

Derby Zoning Board of Adjustment * Minutes * January 9, 2012

Members Present:  Richard Del Favero, Judy Nommik, Paul Prue, Norman Gaboriault, Joe Profera.

Members Absent: None.

Others Present: Nicole Johnson, Art LaPlante, Monique LaPlante, ZA Bob Kelley.

7:00 PM: Chair Joe Profera called the meeting to order.  Judy Nommik made a motion to accept the minutes of the last meeting (Dec 12) as written.  Seconded by Richard Del Favero.  Approved by unanimous decision.

Chair Joe Profera read the warning for application 11-104 by James & Nicole Johnson, PIN #SESAL009J7T, for conditional use approval to raise the height of both their camps.  These properties are located at 243 & 249 Hayward Rd and are in the Shoreland (SD) zoning district.  Ms. Johnson was present to explain the request.  They are raising the buildings because of flooding this past spring and the work has already been completed.  There is no increase in the buildings’ footprints.  Each building is on a separate deeded lot.  There was no oral or written testimony from interested parties.  Judy Nommik made a motion to close the hearing on application 11-104 by James & Nicole John.  Seconded by Norm Gaboriault.  Approved by unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations, Judy Nommik made a motion to approve application 11-104 by James & Nicole John as submitted (see attached written decision).  Seconded by Norm Gaboriault.  Approved by a unanimous decision. 

7:16 PM: Norm Gaboriault made a motion to adjourn.  Seconded by Judy Nommik.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Conditional Use Review

Findings of Fact, Conclusion of Law & Decision

January 9, 2012

OWNER: James & Nicole Johnson

MEETING DATE: 1/9/12

APPLICATION #: 12-001

This decision pertains to Conditional Use review for application #12-001 by James & Nicole Johnson, PIN #SESAL009J7T, to increase the height of 2 nonconforming camps to prevent future flooding.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on January 9, 2012 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is owned by James & Nicole Johnson and is in the Shoreland (SD) zoning district.
2. The property is located at 243 & 249 Hayward Road.
3. The lot is .31 acres with over 100 ft of road frontage.

This Application

1. The applicant proposes to raise both camps to prevent future flooding.
2. No changed is proposed to the footprint of the buildings.
3. The height limit for the district is 35 ft and both camps are well below this height.
4. The area is a mix of seasonal and year round homes.
5. §302.5 allows a nonconforming structure to be increased in height provide it does not exceed the maximum building height for the district in which it is located.
6. There are no renewable energy resources in the area.

CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed site plan provides:

1.) The capacity of existing or planned community facilities;

This project will not have an undue adverse impact on existing or planned community facilities.

2.) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan;

This will not have an undue adverse impact on the character of the area.

3.) Traffic on roads and highways in the vicinity;

This project will not have an undue adverse impact on the roads and highways in the vicinity.

4.) Bylaws and ordinances then in effect;

This project will not have an undue adverse effect on the bylaw in effect.

5.) Utilization of renewable energy resources;

This project will not have an undue adverse effect on the utilization of renewable energy resources.

6.) The general public health, safety and welfare;

This project will not have an undue adverse effect on the general public health, safety and welfare.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby APPROVES application #12-001 by James & Nicole Johnson as submitted.

Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Richard Del Favero.

Those in opposition: None.

Dated in Derby, Vermont this 9^th day of January 2012.

Town of Derby Zoning Board of Adjustment

Joe Profera, Chair                                                                               

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Derby Zoning Board of Adjustment * Minutes * December 12, 2011

Members Present:  Richard Del Favero, Judy Nommik, Paul Prue, Norman Gaboriault, Joe Profera.

Members Absent: None.

Others Present: Peter Cross, Dereck Woolridge, Josee Ferland, Randall Saulnier, Donna Wyre, Robin Smith Dianne Laplante, Brandie Slicer, ZA Bob Kelley.

7:00 PM: Chair Joe Profera called the meeting to order.  Norm Gaboriault made a motion to accept the minutes of the last meeting, Nov 28, as written.  Seconded by Richard Del Favero.  Approved by unanimous decision.

Chair Joe Profera read the warning for application 11-104 by Pauline Vachon, PIN #ESSAL023H6T, for conditional use approval to construct 3 decks and a gazebo within the flood plain.  This property is located at 862 4H Road and is in the Shoreland (SD) zoning district.  Ms. Laplante was present to explain the request.  She submitted a letter from the owner authorizing her to act has their agent.  The decks and gazebo were built when the house was built, but were not included on the original permit.  Notice was sent to the State on November 3, 2011.  The 30 day period for them to respond has elapsed without a response.  The gazebo is anchored down and the decks are even with the elevation of the house.  When the house was build the State used the top of the culvert as the flood elevation and required the house to be one foot above it.  During this past spring the house did not flood and the deck remained above water.  This year’s flood was the highest in memory.  There were no abutting property owners/interested parties present to give oral or written testimony.  Judy Nommik made a motion to close the hearing on application 11-104 by Pauline Vachon.  Seconded by Norm Gaboriault.  Approved by unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

Chair Joe Profera read the warning for application 11-110 by WEV USA LLC, PIN #NDRT5053F4C, for conditional use approval to construct a 60,040 sq ft 2-story building for light manufacturing, warehousing, offices and retail space.  This property is locate on US Rte 5 at I-91, Exit 28 and is in the Commercial (COM) zoning district.  Mr. Cross & Mr. Woolridge were present to explain the request.  They presented the plans and answered questions.  Among the items discussed included location of the loading docks facing the street, drainage, snow removal, elevation of the building in relation to the road, landscaping, lighting, parking, traffic access, dedicated left turning lane, utilities, fire lane around the building, and storm water control.  There were no abutting property owners/interested parties present to give oral or written testimony.  Judy Nommik made a motion to close the hearing on application 11-110 by WEV USA LLC.  Seconded by Paul Prue.  Approved by unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations, Judy Nommik made a motion to approve application 11-104 by Pauline Vachon as submitted (see attached written decision).  Seconded by Richard Del Favero.  Approved by a unanimous decision. 

Judy Nommik made a motion to approve application 11-110 by WEV USA LLC as submitted (see attached written decision).  Seconded by Richard Del Favero.  Approved by a unanimous decision.    

7:35 PM: Judy Nommik made a motion to adjourn.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Conditional Use Review

Findings of Fact, Conclusion of Law & Decision

December 13, 2011

OWNER: Pauline Vachon

MEETING DATE: December 12, 2011

APPLICATION #: 11-104

This decision pertains to Conditional Use review for application #11-104 by Pauline Vachon, PIN #ESSAL023H6T, to build 3 decks and a gazebo within the Flood Hazard Area.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on December 12, 2011 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is located at 862 4-H road and is owned by Pauline Vachon.
2. The property is located in the Shoreland District and in Zone A on the Flood Insurance Rate Maps.
3. The property is developed with a single-family dwelling.

This Application

1. Article 6: Flood Hazard Area Regulations apply to this application.
2. Notice was sent to the State on November 3, 2011.  Over 30 days has elapsed and the State has not replied.
3. The decks & gazebo were built when the house was built.
4. The decks stayed above this spring’s flooding which was the worst flooding in memory.
5. The gazebo is anchored down and did not move during this year’s flood.
6. For the permit for the house the State used the top of the culvert going under the road as the flood level and required the house to be at least 1 ft above it.
7. The house stayed above this years flooding.

CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed site plan provides:

1.) The capacity of existing or planned community facilities;

This project will not have an undue adverse impact on existing or planned community facilities.

2.) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan;

This will not have an undue adverse impact on the character of the area.

3.) Traffic on roads and highways in the vicinity;

This project will not have an undue adverse impact on the roads and highways in the vicinity.

4.) Bylaws and ordinances then in effect;

This project will not have an undue adverse effect on the bylaw in effect.

5.) Utilization of renewable energy resources;

This project will not have an undue adverse effect on the utilization of renewable energy resources.

6.) The general public health, safety and welfare;

This project will not have an undue adverse effect on the general public health, safety and welfare.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby APPROVES application #11-104 by Pauline Vachon as submitted.

Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Richard Del Favero.

Those in opposition: None.

Dated in Derby, Vermont this 13^th day of December 2011.

Town of Derby Zoning Board of Adjustment

Joe Profera, Chair                                                                               

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Applicant	Date	Description
A-1	11/2/2011	Application
A-2	11/2/2011	Abutters list
A-3	11/2/2011	Site plan
A-4	12/12/2011	Letter authorizing Dianne Laplante to act as agent
Town	Date	Description
T-1	11/23/2011	Certificate of mailing
T-2	12/1/2011	ZA's comments
T-3	12/3/2011	Copy of correspondence sent to State on 11/3/11

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Conditional Use Review

Findings of Fact, Conclusion of Law & Decision

December 13, 2011

OWNER: WEVUSA LLC

MEETING DATE: December 12, 2011

APPLICATION #: 11-110

This decision pertains to Conditional Use review for application #11-110 by WEV USA LLC, PIN #NDRT5053F4C, for a 60,400 sq ft two-story building for light manufacturing, warehousing, offices and retail space.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on December 12, 2011 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is owned by WEV USA LLC and located in the Commercial (COM) zoning district
2. The property is located on US Route 5 at I-91 Exit 28.
3. The lot is currently vacant.

This Application

1. Light manufacturing is a conditional use in the Commercial zoning district.
2. The area is a mix of commercial uses.
3. Route 5 is the main commercial corridor connecting Derby and Newport City.
4. A traffic study was submitted indicating an acceptable level of service.
5. A left turn lane will be added.
6. There are no known renewable energy resources in the area.

CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed site plan provides:

1.) The capacity of existing or planned community facilities;

This project will not have an undue adverse impact on existing or planned community facilities.

2.) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan;

This will not have an undue adverse impact on the character of the area.

3.) Traffic on roads and highways in the vicinity;

This project will not have an undue adverse impact on the roads and highways in the vicinity.

4.) Bylaws and ordinances then in effect;

This project will not have an undue adverse effect on the bylaw in effect.

5.) Utilization of renewable energy resources;

This project will not have an undue adverse effect on the utilization of renewable energy resources.

6.) The general public health, safety and welfare;

This project will not have an undue adverse effect on the general public health, safety and welfare.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby APPROVES application #11-110 by WEV USA LLC as submitted.

Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Richard Del Favero.

Those in opposition: None.

Dated in Derby, Vermont this 13^th day of December 2011.

Town of Derby Zoning Board of Adjustment

Joe Profera, Chair                                                      

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Applicant	Date	Description
A-1	11/21/2011	Application
A-2	11/21/2011	Abutters list
A-3	11/21/2011	Narrative
A-4	11/21/2011	Photo of building design
A-5	11/21/2011	Overall site plan
A-6	11/21/2011	Layout plan
A-7	11/21/2011	Grading and utility plan
A-8	11/21/2011	Lighting and landscaping plan
A-9	11/21/2011	Detention pond and details
A-10	12/12/2011	Traffic Impact Study
Town	Date	Description
T-1	11/23/2011	Certificate of mailing ZBA
T-2	11/30/2011	Certificate of mailing PC
T-3	12/5/2011	ZA's comments on CU

Derby Zoning Board of Adjustment * Minutes * November 28, 2011

Members Present:  Richard Del Favero, Judy Nommik, Paul Prue, Norman Gaboriault.

Members Absent: Joe Profera.

Others Present: Kirk Martin, Philip Brooks, ZA Bob Kelley.

7:00 PM: Acting Chair Norm Gaboriault called the meeting to order.  Judy Nommik made a motion to accept the minutes of the last meeting, Nov 14, as written.  Seconded by Richard Del Favero.  Approved by unanimous decision.

Acting Chair Norm Gaboriault read the warning for application 11-101 by the Orleans County Sheriff’s Department, PIN #NDRT5003G2T, for conditional use approval to change the use of their property to a sheriff’s office.  This property is located at 5578 US Route 5 and is in the Commercial (COM) zoning district.  Note: This application was tabled from the November 14, 2011 meeting.  Mr. Martin and Mr. Brooks were present to explain the request.  Just about all renovations are interior.  2 antennas each about 20 ft in height will be installed on the roof.  Traffic is expected to be less than the previous use as a bank.  There is plenty of parking.  The night deposit box was removed and a doorway added.  There were no abutting property owners/interested parties present to give oral testimony.  Richard Del Favero made a motion to close the hearing on application 11-101 by the Orleans County Sheriff’s Department.  Seconded by Judy Nommik.  Approved by unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations, Richard Del Favero made a motion to approve application 11-101 by the Orleans County Sheriff’s Department as submitted (see attached written decision).  Seconded by Judy Nommik.  Approved by a unanimous decision. 

Next meeting is in 2 weeks. 

7:35 PM: Judy Nommik made a motion to adjourn.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Conditional Use Review

Findings of Fact, Conclusion of Law & Decision

November 14, 2011

OWNER: Orleans County Sheriff’s Department

MEETING DATE: November 28, 2011

APPLICATION #: 11-101

This decision pertains to Conditional Use review for application #11-101 by the Orleans County Sheriff’s Department, PIN #NDRT5003G2T, to change the use of the existing building to a sheriff’s office.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on November 28, 2011 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is owned by Orleans County.
2. The property is located at 5578 US Route 5 in a Commercial zoning district.
3. The lot is currently developed with a one-story building.

This Application

1. The area is a mix of commercial and industrial uses.
2. Route 5 is the main route between Derby and Newport City.
3. There are no known renewable energy resources in the area.
4. The Orleans County Sheriff’s Department provides a public service to the area.
5. It is expected that the traffic generated will be similar to the previous use of the property as a bank.
6. Public facilities are a conditional use in the Commercial zoning district.

CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed site plan provides:

1.) The capacity of existing or planned community facilities;

This project will not have an undue adverse impact on existing or planned community facilities.

2.) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan;

This will not have an undue adverse impact on the character of the area.

3.) Traffic on roads and highways in the vicinity;

This project will not have an undue adverse impact on the roads and highways in the vicinity.

4.) Bylaws and ordinances then in effect;

This project will not have an undue adverse effect on the bylaw in effect.

5.) Utilization of renewable energy resources;

This project will not have an undue adverse effect on the utilization of renewable energy resources.

6.) The general public health, safety and welfare;

This project will not have an undue adverse effect on the general public health, safety and welfare.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby APPROVES application #11-101 by the Orleans County Sheriff’s Department to change the use of the property to a sheriff’s office as submitted.

Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Richard Del Favero.

Those in opposition: None.

Dated in Derby, Vermont this 28^th day of November 2011.

Town of Derby Zoning Board of Adjustment

Norman Gaboriault, Acting Chair                                                                   

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Applicant	Date	Description
A-1	10/20/2011	Application
A-2	10/20/2011	Abutters list
A-3	10/20/2011	Interior layout
A-4	10/20/2011	Site plan
Town	Date	Description
T-1	10/25/2011	Certificate of Mailing - ZBA
T-2	10/27/2011	Site plan checklist
T-3	10/27/2011	ZA's comments - CU

Derby Zoning Board of Adjustment * Minutes * November 14, 2011

Members Present:  Joe Profera, Richard Del Favero, Judy Nommik, Paul Prue, Norman Gaboriault.

Members Absent: None.

Others Present: : Lynn Batchelor, Brice Simon, Laura Carpenter, Fr Michael Reardon, Raymond LeMay, Lois Young, Frank Cluba, Robin Smith, Pauline Aubi, Richard O’Hara, Valerie Dutil, Mike Staples, Mary Staples, Ann Gonyaw, Diana Brennan, Neena Marston, Valerie Griffin, Lionel Sicotte, Carrol Burrington, Phyllis Burrington, Barbara Bartley, Chris Davis, Cheryl Lefebvre, Elizabeth Bumps, Bernadette Beloin, Maureen Fountain, John Genco, Armand Belisle, Jonathan Barker, Jeremiah Barker, Joe Warantz, Dave LaBelle, Richard Dubois, Joseph Gresser, ZA Bob Kelley.

7:00 PM: Chair Joe Profera called the meeting to order.  Judy Nommik made a motion to accept the minutes of the last meeting, Oct. 31^st, as written.  Seconded by Norman Gaboriault.  Approved by unanimous decision.

7:02 PM: Chair Joe Profera read the warning for application #11-102 by Merna Dutil, PIN#ESSALO18H6T, for Conditional Use Approval to install a 4’ concrete foundation and raise the existing camp by 2’.  This property is located at 974 4-H road and is located in the Shoreland Zoning District.  Raymond LeMay, contractor, and the Dutils were present to explain the request.  The camp is currently supported by cedar posts on 16”X16” concrete pads which have shifted over the last 20-30 years and they intend to raise the camp, install concrete footings and a 4’ “frost wall” on the current footprint.  The existing non-conformity is the set back on the west side of the camp.  There were no abutting property owners/interested parties present to give oral testimony.  Norman Gaboriault made a motion to close the hearing on application #11-102 by Merna Dutil.  Seconded by Judy Nommik.  Approved by unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

7:05 PM: Chair Joe Profera read the warning for application #11-101 by The Orleans County Sheriff’s Department, PIN#NDRT5003G2T, for Conditional Use Approval to renovate building, install two 30’ antennas, and change the use to an office.  This property is located at 5578 US Route 5 and is in the Commercial District.  No one was present representing the Sheriff’s Department or interested parties.  Judy Nommik made a motion to table the application until 7 PM on November 28, 2011 here in the Municipal building.  Seconded by Norman Gaboriault.  Approved by unanimous decision.

7:07 PM: Chair Joe Profera read the warning for appeal, as per VSA Title 24 §4465, of the ZA’s decision to grant permit #11-090, for the change of use of a portion of the building at 4267 Route 5 from office to retail/office after site plan approval was granted by the Planning Commission.  Rev. Richard O’Hara, Th. D. filed the appeal and was present to explain his view.  Rev. O’Hara stated he had a concern with the “Adult” retail store going in to the location and while he understands that the 1^st Amendment guarantees the store’s right to operate in Derby he read the Vermont League of Cities and Towns’ model for Adult Business Zoning Bylaws, dated Nov. 5, 2007, as an example of “Adult” Zoning in other Vermont communities.  Rev. O’Hara feels it is reasonable to consider the type of retail establishment proposed for a location and that the nature of the type of retail was not presented in “good faith” and there was a “lack of full disclosure to the Planning Commission, the Zoning Administrator, and the public”.  Based on this opinion Dr. O’Hara believes the ZBA should say “Let’s back up” and get the Adult Zoning regulation “squared away before we let this type of business come in to our town.”

7:22 PM: ZA, Bob Kelley, questioned whether Rev. O’Hara met the definition of an interested party with the right to appeal.  The ZBA’s opinion was that Rev. O’Hara, representing the Village of Derby Center Trustees meets the criteria.

ZA, Bob Kelley, also pointed out that office and retail uses are permitted uses in the Commercial zoning district, the Planning Commission granted site plan approval on 9/26/2011 and it is his administrative duty to issue the permit.  He also noted no one has appealed the Planning Commission’s decision, the time to file an appeal has passed, and the appeal letter agrees due process was followed.

7:26 PM: Brice Simon, attorney representing the applicant, addressed the audience’s concern of a lack of discussion regarding the type of retail but reiterated the fact that legally, with Derby’s existing Zoning Bylaws, all current requirements were met by the applicant and there is no basis to deny or “table” the application.

7:30 PM: Fr. Michael Reardon spoke about his concern for the impact the adult novelty store will have on the adjacent restaurant’s business.  Possibly forcing an established restaurant out of business and leaving a space that would only be rented by another adult store.

Chair Joe Profera repeated the board’s empathy for the opinions of the audience and explained that no one had yet presented sound legal arguments supporting an appeal.  Various, non-identified audience members stated their belief that the town should hire a lawyer to support this appeal.  Chair Joe Profera attempted to explain the burden of proof was on the appellant, not the ZBA.

7:36 PM: Building owner, Joe Warantz, was introduced and explained that he had no luck renting the space as an office and was advised by a realtor that to utilize the space for retail he would need a change of usage.  He had no signed deal at the time of the change but received a call the next morning at 8 AM.  Unidentified members of the audience began to challenge Mr. Warantz’s version of the story and voice their personal opinions of Good Stuff.  Chair Joe Profera reminded the audience to address their comments to the table and be recognized.

7:40 PM: Fr. Michael Reardon asked if a zoning change was made in the future would this store be allowed to remain at this location.  ZA, Bob Kelley, explained it would be grand-fathered but would be considered a Non-Conforming use and if it became inactive for more than 6 months it would not be allowed to re-open.

7:41 PM: Neena Marston encouraged people to visit Roasters to fill up the parking lot in hopes of denying Good Stuff customers.

7:42 PM: Rick Dubois inquired as to the results of the statement at the previous Select Board meeting that they were going to consult the Town’s lawyer regarding a change in the bylaw.  ZA, Bob Kelley, stated the Town attorney was notified a potential bylaw amendment may be coming.

7:44 PM: Maureen Fountain repeated that the League of Cities and Towns has a model for adult zoning.

7:45 PM: Brice Simon, lawyer for the applicant, stated there were suggestions of inadequacies in the notice of the application.  He invited the audience to make them known or let the record reflect that the notice of the application was correct.  No challenge or alternative view was raised.

7:47 PM: Rev. O’Hara responded that his expertise was in moral law and that’s where his appeal was coming from.  And although the Constitution protects the legal right of this store he wanted it on the record that there was an absolute moral failure here.

7:48 PM: Glen Saamen stated it was a moral obligation of integrity and trust.  He asked the building owner, Joe Warantz, “with his integrity on the line”, whether he knew what type of store was going in.  Joe Warantz replied that he did know that Good Stuff was interested in the space but he did not have a signed deal before the usage change.

7:49 PM: Jim Gresser asked Chair Joe Profera if he had been told what type of store was going in, with the present zoning bylaws, would it have made a difference in his decision?  The ZBA explained that this was the Zoning Board and not the Planning Commission and he could direct that question to them at next week’s meeting.

7:50 PM:  John Genco requested permission from the board to protest at the site.  Chair Joe Profera explained it was private property and he would have to ask the land owner.  Mr. Genco continued to encourage the members of the audience to protest the Good Stuff store.

7:51 PM: Chair Joe Profera asked whether any abutters were present.  None were.

7:52 PM: Judy Nommik made a motion to close the hearing on the appeal by Rev. Richard E. O’Hara.  Seconded by Norman Gaboriault.  Approved by a unanimous decision.  The interested parties were informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

7:55 PM: The Board entered into deliberative session.  After deliberations, Norm Gaboriault made a motion to approve application #11-102 by Merna Dutil as submitted (see attached written decision).  Seconded by Judy Nommik.  Approved by a unanimous decision.  No decision was reached on the appeal by Rev. Richard O’Hara.

8:52 PM: Judy Nommik made a motion to adjourn.  Seconded by Paul Prue.  Approved by a unanimous decision.

The minutes were taken by Norman Gaboriault

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Conditional Use Review

Findings of Fact, Conclusion of Law & Decision

November 14, 2011

OWNER: Merna Dutil

MEETING DATE: November 14, 2011

APPLICATION #: 11-102

This decision pertains to Conditional Use review for application #11-102 by Merna Dutil, PIN #ESSAL018H6T, to raise a nonconforming camp 2 ft.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on November 14, 2011 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is owned by Merna Dutil.
2. The property is located at 974 4-H Road in a Shoreland zoning district.
3. The lot is currently developed with a camp.

This Application

1. Setbacks for the Shoreland district is 25 ft on all sides.
2. The existing camp is located 15 ft from the side lot line.
3. §302.5 requires conditional use approval to increase the height of a nonconforming structure.
4. The area is a mix of seasonal and year round residences.
5. No increase is proposed to the footprint of the structure.
6. After raising the building the height will be well under the 35 ft height limit for the area.

 CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed site plan provides:

1.) The capacity of existing or planned community facilities;

This project will not have an undue adverse impact on existing or planned community facilities.

2.) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan;

This will not have an undue adverse impact on the character of the area.

3.) Traffic on roads and highways in the vicinity;

This project will not have an undue adverse impact on the roads and highways in the vicinity.

4.) Bylaws and ordinances then in effect;

This project will not have an undue adverse effect on the bylaw in effect.

5.) Utilization of renewable energy resources;

This project will not have an undue adverse effect on the utilization of renewable energy resources.

6.) The general public health, safety and welfare;

This project will not have an undue adverse effect on the general public health, safety and welfare.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby APPROVES application #11-102 by Merna Dutil to raise her camp 2 ft. as submitted.

Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Richard Del Favero.

Those in opposition: None.

Dated in Derby, Vermont this 14^th day of November 2011.

Town of Derby Zoning Board of Adjustment

Joe Profera, Chair                                                                               

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Applicant	Date	Description
A-1	10/24/2011	Application
A-2	10/24/2011	Abutters list
A-3	10/24/2011	Site plan
Town	Date	Description
T-1	10/25/2011	Certificate of mailing
T-2	10/27/2011	ZA's comments

Derby Zoning Board of Adjustment * Minutes * October 31, 2011

Members Present:  Paul Prue, Sherry Aubin (alternate for Joe Profera), Judy Nommik, Richard Del Favero, Norman Gaboriault.

Members Absent:  Joe Profera.

Others Present:  Bill Gardyne, Elizabeth Bumps, Brian Smith, Stephen Gendreau, Lauri Stonebraker, Edward Stonebraker, Dave LaBelle, Richard Dubois, Joseph Gresser, ZA Bob Kelley.

7:00 p.m.: Acting Chair Norm Gaboriault called the hearing to order.

Acting Chair Norm Gaboriault read the warning for application 11-096 by Derby Historical Society, PIN #SMSDC009G5CTXM, for conditional use approval to change the use of the building to retail (high end clothing consignment shop) or office.  This property is located at 540 Main St, Derby Center and is in the Village Residential Multi-Family Derby Center (VRMFDC) zoning district.  This application was tabled from their October 17^th meeting and a site visit was held on October 18, 2011 with the following people present at the visit – Paul Prue, Joe Profera, Judy Nommik, Richard Del Favero, Norman Gaboriault, Brian Smith, Allen Yale and Betsy Bumps.  Mr. Gardyne and Mr. Smith were present to explain the request.  Edward and Lauri Stonebraker submitted a 3 page letter outlining their key points as to why the application should be denied.  Mrs. Stonebraker felt that the building had been vacant for more than 6 months and therefore has lost its nonconforming status.  Mr. Gardyne stated that only last week they removed the last of the Historic Society’s possessions.  Mr. Smith stated that he had no problem if a condition of the approval included a reapplication if anything other than a clothing consignment store were to occupy the building.  Parking, signage, character of the area, lighting and traffic were among the issues that were discussed.  Judy Nommik made a motion to close the hearing on application 11-096 by Derby Historical Society.  Seconded by Richard Del Favero.  Approved by a unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

It was noted that Sherry Aubin was not present at the first meeting.  The applicant and all interested parties were asked if they objected to her participating in the decision.  There were no objections.

Judy Nommik made a motion to accept the minute of the last meeting (Oct 17) as written.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

At 7:50 p.m. the Board entered into deliberative session.

After deliberations on the above application, Judy Nommik made a motion to deny approval for application 11-096 by Derby Historical Society as submitted (see attached written decision).  Seconded by Norman Gaboriault.  Ayes – Judy Nommik, Richard Del Favero, Norman Gaboriault.  Nays – Sherry Aubin.  Abstain – Paul Prue.  The motion passed and the application is denied.

8:30 p.m.:  Judy Nommik made a motion to adjourn.  Seconded by Paul Prue.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Findings of Fact, Conclusion of Law & Decision

October 31, 2011

OWNER: Derby Historical Society

MEETING DATE: October 17, 2011 & October 31, 2011

APPLICATION #: 11-096

This decision pertains to application #11-096 by the Derby Historical Society, PIN #SMSDC009G5CTXM, to determine if the change in use of a nonconforming use from a Community Cultural Center to Retail or Office is of the same or less nonconforming in nature.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on October 17, 2011 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is owned by the Derby Historical Society and is located at 540 Main St, Derby Center.
2. The lot is approx 1/8 an acre with 42 ft of road frontage and is located in the Village Residential Multi-Family Derby Center zoning district. 

This Application

1. The current use as a museum is a nonconforming use.
2. §301.2 permits a nonconforming use to be changed to another nonconforming use provided that such use is of the same or less nonconforming nature.
3. The area is a mix of residential, commercial and agricultural uses.
4. The property is located along a State highway.
5. No changes are proposed to the exterior of the building.
6. It is proposed to expand the parking area.
7. The current use by the Derby Historic Society generates very little traffic and they are only open a few times a year.
8. Retail sales guidelines suggest 1 parking space for every 250 sq ft of building area.
9. The existing parking area on site is overgrown with grass.
10. Retail stores require customers in order to stay in business.

CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed change is use from a Community Cultural Center or a Retail or Office use:

1. Will require additional parking.
2. Will generate more traffic.
3. Will be a more intense use of the property.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby DENIES application #11-096 by the Derby Historical Society to change the use of the building to either retail or office as submitted.

Those in favor:  Judy Nommik, Norman Gaboriault, Richard Del Favero.

Those in opposition: Sherry Aubin.

Those abstaining: Paul Prue

Dated in Derby, Vermont this 31^st day of October 2011.

Town of Derby Zoning Board of Adjustment

Norman Gaboriault, Acting Chair                                                     

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Applicant	Date	Description
A-1	9/27/2011	Application
A-2	9/27/2011	Deed
A-3	9/27/2011	Abutters list
A-4	9/28/2011	Agent authorization letter
A-5	9/29/2011	Site plan
Town	Date	Description
T-1	9/29/2011	Certificate of mailing (ZBA)
T-2	9/29/2011	Site plan checklist
T-3	9/29/2011	ZA's comments (ZBA)
T-4	10/12/2011	Certificate of mailing (PC)
T-5	10/17/2011	ZA's comments (PC)
Other	Date	Description
I-1	10/17/2011	Fax - Edward & Lauri Stonebraker dated 10/17/11
I-2	10/17/2011	Letter - Richard Dubois, Richard O'Hara & Emily Wheeler dated 10/14/11
I-3	10/24/2011	Letter - Edward & Lauri Stonebraker dated 10/24/11
I-4	10/31/2011	Letter - Edward & Lauri Stonebraker dated 10/31/11

Derby Zoning Board of Adjustment * Minutes * October 17, 2011

Members Present:  Paul Prue, Joe Profera, Judy Nommik, Richard Del Favero, Norman Gaboriault.

Members Absent:  None.

Others Present:  Allen Yale, Bill Gardyne, Elizabeth Bumps, Emily Wheeler, Brian Smith, ZA Bob Kelley.

7:05 p.m.: Chair Joe Profera called the hearing to order.  Judy Nommik made a motion to accept the minute of the last meeting (Sept 19) as written.  Seconded by Paul Prue.  Approved by a unanimous decision.

Chair Joe Profera read the warning for application 11-096 by Derby Historical Society, PIN #SMSDC009G5CTXM, for conditional use approval to change the use of the building to retail (high end clothing consignment shop) or office.  This property is located at 540 Main St, Derby Center and is in the Village Residential Multi-Family Derby Center (VRMFDC) zoning district.  Mr. Gardyne, Mr. Yale and Mr. Smith were present to explain the request.  A fax from Edward & Lauri Stonebraker and a letter from Richard Dubois, Richard O’Hara and Emily Wheeler were submitted to the Board with concerns regarding this project.  The Board reviewed the application.  The current and proposed uses were discussed.  It was determined that the property is located in the Village Residential Multi-Family Derby Center (VRMFDC) zoning district.  The warning incorrectly listed it as Village Residential Derby Center.  Parking may be a concern and the Board felt that a site visit would be beneficial.  Judy Nommik made a motion to recess the hearing on application 11-096 by Derby Historical Society for a site visit at 4:00 p.m. on Tuesday, October 18, 2011 and to reconvene the hearing at 7:00 p.m. on Monday, October 31, 2011 here in the municipal building.  Seconded by Richard Del Favero.  Approved by a unanimous decision. 

7:35 p.m.:  Judy Nommik made a motion to adjourn.  Seconded by Norman Gaboriault.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

Derby Zoning Board of Adjustment * Minutes * September 19, 2011

Members Present:  Paul Prue, Joe Profera, Judy Nommik, Sherry Aubin (alternated for Norman Gaboriault), Stephen Mengel (alternate for Richard Del Favero).

Members Absent:  Richard Del Favero, Norman Gaboriault.

Others Present:  Nancy Castle, Paul Castle, Jared Davison, ZA Bob Kelley.

7:00 p.m.: Chair Joe Profera called the hearing to order.  Paul Prue made a motion to accept the minute of the last meeting (Aug 22) as written.  Seconded by Stephen Mengel.  Approved by a unanimous decision.

Chair Joe Profera read the warning for application 11-085 by Nancy Castle, PIN #TRD04023F2T, for conditional use approval to replace a 20 ft x 16 ft nonconforming garage that was destroyed by snow.  The new garage will be in the same location as the destroyed garage.  This property is located at 4168 Darling Hill Road and is in the Residential One-Acre (R1) zoning district.  Mrs. Castle and Mr. Davison were present to explain the request.  The old garage collapsed on St Patrick’s Day 2011 and the new garage will be built within the same footprint.  There are issues with moving the garage further from the road.  Propane tanks and buried lines would have to be moved.  The location is convenient due to the location of the house.  There was no testimony given by abutting property owners/interested parties in regards to this application.  Judy Nommik made a motion to close the hearing on application 11-085 by Nancy Castle.  Seconded by Stephen Mengel.  Approved by a unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations on the above application, Judy Nommik made a motion to grant approval for application 11-085 by Nancy Castle as submitted (see attached written decision).  Seconded by Stephen Mengel.  Approved by a unanimous decision.

7:15 p.m.:  Paul Prue made a motion to adjourn.  Seconded by Judy Nommik.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Conditional Use Review

Findings of Fact, Conclusion of Law & Decision

September 19, 2011

OWNER: Nancy Castle

MEETING DATE: September 19, 2011

APPLICATION #: 11-085

This decision pertains to Conditional Use review for application #11-085 by Nancy Castle, PIN #TRD04023F2T, for conditional use approval to replace a nonconforming garage that was destroyed by snow.

FINDINGS OF FACT

Based upon the information contained in the exhibits for this application (see attached list) and the evidence presented at the Zoning Board of Adjustment hearing on September 19, 2011 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact:

General Information

1. The property is owned by Nancy Castle and is located at 4168 Darling Hill Road.
2. The property is in the Residential One-Acre (R1) zoning district.
3. The lot is currently developed with a single family dwelling.

This Application

1. The front yard setback for the R1 district is 30 ft from the front property line.
2. Darling Hill Road is assumed to have a 3 rod right-of-way (49.5 ft).
3. The garage that was destroyed by snow was approx. 36 ft from the centerline of the road right-of-way.
4. §302 of the bylaw allows for the reconstruction of a nonconforming structure destroyed by natural disaster with Zoning Board approval if an application is submitted within 6 months of the destruction.
5. The area is a mix of residential uses and open space.
6. T his proposed project does not create any other noncompliances with the bylaw.

CONCLUSION OF LAW

Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment concludes that the proposed site plan provides:

1.) The capacity of existing or planned community facilities;

This project will not have an undue adverse impact on existing or planned community facilities.

2.) The character of the area affected, as defined by the purpose or purposes of the zoning district within which the project is located, and specifically stated policies and standards of the municipal plan;

This will not have an undue adverse impact on the character of the area.

3.) Traffic on roads and highways in the vicinity;

This project will not have an undue adverse impact on the roads and highways in the vicinity.

4.) Bylaws and ordinances then in effect;

This project will not have an undue adverse effect on the bylaw in effect.

5.) Utilization of renewable energy resources;

This project will not have an undue adverse effect on the utilization of renewable energy resources.

6.) The general public health, safety and welfare;

This project will not have an undue adverse effect on the general public health, safety and welfare.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby APPROVES application #11-085 by Nancy Castle as submitted.

Those in favor: Paul Prue, Judy Nommik, Sherry Aubin, Stephen Mengel.

Those in opposition: None.

Dated in Derby, Vermont this 19^th day of September 2011.

Town of Derby Zoning Board of Adjustment

Joe Profera, Chair                                                                               

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

EXHIBIT LIST

Applicant	Date	Description
A-1	8/31/2011	Application
A-2	8/31/2011	Site plan
A-3	8/31/2011	Building footprint sketch
A-4	8/31/2011	Building elevation sketches
A-5	8/31/2011	House/garage photo
A-6	8/31/2011	Google map of property
A-7	8/31/2011	Property description from mortgage deed
A-8	9/1/2011	Abutters list
Town	Date	Description
T-1	9/1/2011	ZA's comments
T-2	9/1/2011	Site plan check list
T-3	9/1/2011	Certificate of mailing

Derby Zoning Board of Adjustment * Minutes * August 22, 2011

Members Present:  Paul Prue, Richard Del Favero, Joe Profera, Norman Gaboriault, Stephen Mengel (alternate for Judy Nommik).

Members Absent:  Judy Nommik.

Others Present:  Thomas Flynn III, Anne Flynn, Frank Davis, ZA Bob Kelley.

7:00 p.m.: Chair Joe Profera called the hearing to order.  Norm Gaboriault made a motion to accept the minute of the last meeting (Aug 8) as written.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

Chair Joe Profera read the warning for application 11-070 by Thomas & Anne Flynn III, PIN #NOSAL005H6T, for conditional use approval to remove the existing nonconforming 4 bedroom ranch house destroyed by flooding and replace with a 54 ft by 36 ft 4 bedroom cape house.  The proposed house does not increase the extent of the existing nonconformity regarding setbacks.  This property is located at 12 Hideaway Drive and is in the Shoreland District.  This application was tabled from the Aug 8^th meeting.  Mr. & Mrs. Flynn were present to explain the request.  A survey of the property has been submitted and the surveyor overlaid the footprint of the proposed building onto the survey.  The survey and setbacks to the proposed structure were reviewed.  There was no testimony given by abutting property owners/interested parties in regards to this application.  Richard Del Favero made a motion to close the hearing on application 11-070 by Thomas & Anne Flynn III.  Seconded by Paul Prue.  Approved by a unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations on the above application, Richard Del Favero made a motion to grant conditional use approval for application 11-070 by Thomas & Anne Flynn III as submitted (see attached written decision).  Seconded by Paul Prue.  Approved by a unanimous decision.

7:35 p.m.:  Paul Prue made a motion to adjourn.  Seconded by Norm Gaboriault.  Approved by a unanimous decision.

 The minutes were taken by Bob Kelley.

Derby Zoning Board of Adjustment * Minutes * August 8, 2011

Members Present:  Paul Prue, Richard Del Favero, Joe Profera, Norman Gaboriault, Judy Nommik.

Members Absent:  None.

Others Present:  Thomas Flynn III, Anne Flynn, Ali Flynn, Stephen Mengel, ZA Bob Kelley.

7:00 p.m.: Chair Joe Profera called the hearing to order.  Paul Prue made a motion to accept the minute of the last meeting (June 13) as written.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

Chair Joe Profera read the warning for application 11-070 by Thomas & Anne Flynn III, PIN #NOSAL005H6T, for conditional use approval to remove the existing nonconforming 4 bedroom ranch house destroyed by flooding and replace with a 54 ft by 36 ft 4 bedroom cape house.  The proposed house does not increase the extent of the existing nonconformity regarding setbacks.  This property is located at 12 Hideaway Drive and is in the Shoreland District.  Mr. Flynn was present to explain the request.  The property has not been surveyed and the exact location of the lot lines are unknown.  On the west side the neighbor has a chain link fence that is thought to be on the lot line.  The existing building is approx 6 ft from the fence and the porch on the proposed house will be 6 ft from the fence and the house will be 9 ft from the fence.  The existing house is 8 ft from the road and the proposed house will be 13 ft from the road.  The proposed building will stay within the footprint of the existing building within the setback areas.  The Board wants the property surveyed so that they can properly evaluate the application.  Mr. Flynn thought he could get a survey completed in the next 2 weeks.  There was no testimony given by abutting property owners/interested parties in regards to this application.  Richard Del Favero made a motion to table the hearing on application 11-070 by Thomas & Anne Flynn III until 7:00 p.m. August 22, 2011 here in the municipal building.  Seconded by Judy Nommik.  Approved by a unanimous decision. 

7:55 p.m.:  Judy Nommik made a motion to adjourn.  Seconded by Norm Gaboriault.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

Derby Zoning Board of Adjustment * Minutes * June 13, 2011

Members Present:  Paul Prue, Richard Del Favero, Joe Profera, Norman Gaboriault, Judy Nommik.

Members Absent:  None.

Others Present:  Jason Bruek, Jean Wilson, Bob DeRoehn, Ann Sparrow, Carol Boucher, Stephen Mengel, ZA Bob Kelley.

7:00 p.m.: Chair Joe Profera called the hearing to order.  Richard Del Favero made a motion to accept the minute of the last meeting (May 25) as written.  Seconded by Paul Prue.  Approved by a unanimous decision.

Chair Joe Profera read the warning for application 11-043 by Coutts-Moriarty Camp, PIN #TRD34001H6T, for conditional use approval for an 81 ft by 43 ft four season building to be used as a dining hall/group meeting room.  This property is located at 490 4-H Road and is in the Rural Residential.  Mr. Bruek was present to explain the request.  All aspects of the project were discussed including water and sewer.  This will allow them to continue school programs in the winter.  There was no testimony given by abutting property owners/interested parties in regards to this application.  Judy Nommik made a motion to close the hearing on application 11-043 by Coutts-Moriarty Camp.  Seconded by Richard Del Favero.  Approved by a unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations, Judy Nommik made a motion to grant conditional use approval for application 11-043 by Coutts-Moriarty Camp as submitted (see attached written decision).  Seconded by Richard Del Favero.  Approved by a unanimous decision.

7:45 p.m.:  Norm Gaboriault made a motion to adjourn.  Seconded by Judy Nommik.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

Derby Zoning Board of Adjustment * Minutes * May 25, 2011

Members Present:  Paul Prue, Richard Del Favero, Joe Profera, Sherry Aubin (alternate for Norman Gaboriault, Stephen Mengel (alternate for Judy Nommik).

Members Absent:  Norman Gaboriault, Judy Nommik.

Others Present:  Carrie Steele, Cliff Andrews, ZA Bob Kelley.

7:00 p.m.: Chair Joe Profera called the hearing to order.  Paul Prue made a motion to accept the minute of the last meeting (Apr 18) as written.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

Chair Joe Profera read the warning for application 11-034 by Carrie Steele, PIN #ESSAL035H6T, for conditional use approval to raise the height of a nonconforming structure due to recent flood damage.  This property is located at 670 4-H Road and is in the Shoreland District.  Ms. Steele and Mr. Andrews were present to explain the request.  Sherry Aubin disclosed that she and Ms. Steele work for the same employer.  There will be no increase in the footprint of the building.  Due to recent flooding the building will be jacked up 3 ft to hopefully keep it from flooding in the future.  There was no testimony given by abutting property owners/interested parties in regards to this application.  Richard Del Favero made a motion to close the hearing on application 11-034 by Carrie Steele.  Seconded by Paul Prue.  Approved by a unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations, Richard Del Favero made a motion to grant conditional use approval for application 11-034 by Carrie Steele as submitted (see attached written decision).  Seconded by Sherry Aubin.  Approved by a unanimous decision.

The Board discussed the need to amend the bylaw to better protect water quality.  They felt that increased use of the waterfront properties had adverse affects on the lake due to increased sewage going into inadequate septic systems.

7:35 p.m.:  Paul Prue made a motion to adjourn.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

Derby Zoning Board of Adjustment * Minutes * April 18, 2011

Members Present:  Judy Nommik, Norman Gaboriault, Paul Prue, Richard Del Favero, Stephen Mengel (alternate for Joe Profera.

Members Absent:  Joe Profera.

Others Present:  Brett Corbett, John Marshall, Terry Marshall, Sherry Aubin, ZA Bob Kelley.

7:00 p.m.: Acting Chair Norman Gaboriault called the hearing to order.  Judy Nommik made a motion to accept the minute of the last meeting (Apr 4) with the following amendment.  Near the end of the minutes after “Findings of fact:” delete The ten day period has passed however the planning commission was not notified in a timely manner. and add the following:

1.      The ZA did not advise the PC of the 10 day option before warning the hearing.

2.      As for the narrative, the board finds there was none.

Conclusion of Law:

1.      As per the 10 day period the Board finds that 24 VSA Chapter 117 §4470 does apply.

2.      As for the narrative, the Board finds the Derby Zoning Bylaw §209.3(D) does apply.

 Seconded by Paul Prue.  Approved by a unanimous decision.

Acting Chair Norman Gaboriault read the warning for application #11-016 by John & Terry Marshall, PIN #NOSAL007H6T, for conditional use approval to increase the height of a nonconforming structure for a 20 ft by 28 ft 3^rd floor addition.  This property is located at 83 North End Ext. and is in the Shoreland District.  Mr. & Mrs. Marshal and Mr. Corbett were present to explain the request.  There will be no increase in the footprint of the building.  The height of the building will be 33 ft to the peak.  The maximum height limit for the Shoreland district is 35 ft..  There was no testimony given by abutting property owners/interested parties in regards to this application.  Judy Nommik made a motion to close the hearing on application #11-016 by John & Terry Marshall.  Seconded by Richard Del Favero.  Approved by a unanimous decision.  The applicant was informed that the Board has 45 days to render a decision and they will be notified when a decision has been made.

After deliberations, Judy Nommik made a motion to grant conditional use approval for application #11-016 by John & Terry Marshall as submitted (see attached written decision).  Seconded by Paul Prue.  Approved by a unanimous decision.

Board Reorganization:

Norman Gaboriault made a motion to elect Joe Profera as Chair.  Seconded by Judy Nommik.  Approved by a unanimous decision.

Richard Del Favero made a motion to have the Vice-Chair as a floating member.  Seconded by Judy Nommik.  Approved by a unanimous decision.

Norman Gaboriault made a motion to elect Paul Prue as Clerk.  Seconded by Richard Del Favero.  Approved by a unanimous decision.

Other business:  Bob Kelley explained to the board his new procedures for referring an application to the Board and explained that the Board has only 10 days from the date the Town receives an application to made a decision if 24 VSA §4470 “Successive appeals; requests for reconsideration to an appropriate municipal panel” applies.

7:20 p.m.:  Norman Gaboriault made a motion to adjourn.  Seconded by Judy Nommik.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

Derby Zoning Board of Adjustment * Minutes * April 4, 2011 (as amended)

Members Present: Joe Profera, Richard Del Favero, Judy Nommik, Paul Prue, Sherry Aubin (alternate for Norman Gaboriault).

Members Absent: Norman Gaboriault.

Others Present: Bob Kelley, Don Johnson, Bill Simendinger (Main Street Place LLC), Roland Roy, Keith Beadle, Mitch Wonson, Gray Olney, Nancy Olney, Melody Ricard, Andre Ricard, Steve Mengel.

We have two sets of minutes.  You have one that I missed February 24^th.  I make a motion to accept the minutes.  All in favor?  Aye.  Any opposed.  No.  Motion - PP.  Seconded by JN.

JP - With that being said we will open the meeting.  Tonight's agenda has to deal with the appeal of the Derby Line Trustees as far whether or not the Administrator of the Planning Commission correctly warned the of the Application 11-001.  As everyone remembers, we do tape our meetings so we do have a record of it.  What's your first name?  Sherry.

JP - Sherry, welcome to the Board.  And we also, welcome RD.

JP - Sherry will you take the minutes?

SA – yes

JP - Bob usually takes our minutes but he's part of the problem tonight, not the solution so he's on the other side of the table.  With all that being said, where do we want to start?

JP - Who wants the floor first?  Mitch, this is your appeal, yes, I'm the applicant.  My name is Mitch Wonson and the village of Derby Line has asked me to assist them is the issues regarding 50 and 58 Main Street in Derby Line.

First pursuant to the state statutes I'd like to assert the interest and status in the interest of the village.  As the Board knows the village is a municipality with powers of eminent domain over these properties and we allege that the by-laws created inappropriate restrictions among other things no standards regarding raze the buildings particularly as they relate to historic districts and those standards of discussion regarding the opportunities for renovation and preservation of what is truly the only downtown within the town of Derby Line.  We appeal the decision of Mr. Bob Kelley, the Zoning Administrator.  In warning the public of the site plan review.  Tonight to raze the building at 50 and 58 Main Street in Derby Line.  We feel that the administrator erred for two reasons.  One he did not specifically offer the Planning Commission an opportunity not to hold the hearing pursuant to 24 VSA 117 4470 28.  I'll hand you an outline of this that does cite all these numbers.  Furthermore, the application was incomplete by the Derby Zoning bylaw.

Main Street Place had previously applied to quote "raze buildings, level site and then build a mini-mart".  They applied to the Zoning Board for conditional use.  The hearing was held March 20^th and the Zoning Board denied.  They applied to the Planning Commission for a site plan review hearings held July and August last year and the Planning Commission approved it.  On December 9^th of this last year, 2010, Main Street Place applied for a site plan review, quote "to raze buildings, bring to grade and plant grass".  The Zoning Administrator is the gate keeper of the development review process.  And pursuant to this state's statues it says, "If other municipal permits or authorizations are required the administrative officer should coordinate a unified effort on behalf of the municipality".  The Zoning Administrator should be fully aware of all the aspects of zoning.  The Board, as I believe, both this board and the planning commission should be equally aware of the state laws as it relates to them.  Bob's job is the gate keeper and the need to coordinate a unified effort.  You truly rely on him to know all the state's statutes.  The state's statutes and " in part state that if an appropriate municipal panel considers the issues raised by the appellant in the case of Mr. Simendinger's group, it involves substantially or materially the same facts by that appellate " that board can decide within 10 days whether or not to hold a hearing if the board or municipal panel finds that the facts are materially or substantially the same they do not have to hold a hearing.  They had the opportunity to determine whether when Mr. S. reapplied for conditional use whether or not to hold a hearing.  The board felt the facts were substantially and materially the same.  Therefore they determined not to hold a hearing.  I don't believe that Mr. Kelley specifically informed the planning commission of their 10 days that they had to decide this and the facts state for themselves.  It's not his decision to determine if the facts are materially and substantially the same, that's up to the planning commission.

The second is that section 209 of the bylaws discuss the site plan application requirements.  They require four things and they "Shall include: Application Form, Fee; Site Plan; a narrative of the relevant characteristics of the proposal."

That section then goes on to discuss whether certain relevant characteristics may be depending upon...  Interruption: Despite the interruption, any decision by a zoning administrator can be appealed.  Shouting by Bill Simendinger.

JP - this is not going to get into a shouting match and we're not going to argue this.  He's got the floor.  Nobody argued or disrupted you so just be polite and let him finish.

Mr. Kelley took specific action in warning the public hearing.

The 2^nd reason we believe he erred is they did not submit a narrative.  According to the state’s statutes, "the administrator should administer the bylaws literally".  Bylaws say an application shall include those 4 things.  They HAVE to include those 4 things.  We don't believe the ZA, Mr. Kelley, has the authority to accept an incomplete application on behalf of the planning commission.

JP - so the gist of your appeal is basically the timing?  The 10 day period?

MW - yes, the oneness was on Mr. Kelley to inform the planning commission that they could determine whether or not to hold the hearing and that they have to make that decision in 10 days.

JP - Robert, do you have anything to say?

BK - I did refer and inform the application on Dec. 20^th.  I then informed you the application was in, to schedule a meeting for the end of Jan. Due to a conflict Mr. S had with the other date.  My job is not to tell you what to do with that application.  I informed the application was for you and you can then decide whether you wanted to have it or not.  If it is was a successive appeal or not.  You knew about that at that time or not and the onus would be on the PC.

JP - I think I remember that, maybe Richard, you may have been there and if you were you might remember it.  You did mention that it was something he was thinking about doing this and we had discussed whether or not it was a submissive app.  We been there and done that and there was discussion both ways as to whether we should or shouldn't.  At that point it wasn't confirmed that Mr. S actually went through with the paperwork.  It was something he was thinking about.

JP - How do you remember it.

RD -Answer - the same way.

JP - we did question whether or not it was even necessary because his demolition had already been granted at a previous site plan review with the PC.

MW - apparently a letter was discussed but it was a letter we haven't seen.  The town attorney sent to the commission about whether a successive, substantially and materially were the same so you had a discussion and decided.  At that point it was too late for you to decide whether or not to hold the heating anyway, because the 10 day period pursuant to the statues had run out.

JP - Clarification.  I think when we heard about it we questioned whether or not we should even hear it because we had heard previously at pc as far as the demolition.  I think at that point, I think Dave Labelle made the statement it has already been warned so we had to hear it and we had an audience.  So I think by the time the board found out, correct me if I am wrong RD, it was after the 10 days had lapsed.  And until you brought it to our attention we weren't even aware that we had 10 days to act upon it and make a decision.  By the time that all came out to public knowledge the 10 day period had passed.  So we were stuck with hearing this and the question was whether or not we even wanted to go through with it.  He had already been given his permit for demo to go forward with the project.  That was the discussion at pc.

JP - questions from the board?

JP - Whatever decision comes out of here tonight is going to get appealed and going to go to environmental court.  Whether he appeals it or this side appeals it - we will do what we deem proper to do based on the bylaws.  Where it goes after we make a decision you can probably rest assured that one side or the other is going to appeal.  Every decision made on ZB or PC ends up going to environmental court.  The bad part is that the EC can hear this and put an end to it.  But the lawyers keep turning it around and send it back and forth which ends up costing the town unnecessary legal fees.  If they would have decided on this 2 ½ years ago, we probably would have had less legal fees than we are going to have today or tomorrow or whenever this comes to fruition.  The decision tonight is whether or not we had 10 days to make a decision by the PC to hold a meeting or whether we didn't get the 10 day warning.  That's the argument that is on the table.  One or the other...

To Clarify:

JP - so the argument is, we weren't notified when it came in.  Therefore by the time we did hear about it, and could have made a decision it was already too late.  We had to make a decision within those first 10 days.  The argument is we didn't know about it in the first 10 days so we didn't have that option.

All agreed.

JP - the argument has been made that when you put your appl in, the PC had 10 days to decide whether or not it is a submissive appl because it had to do with your demolition and to get the demolition okayed that was already pre-approved at pc meeting.  Within the 10 days the board could have refused to hear the appeal because it had already been heard.

MR. S - 24 VSA 4470.a There is nothing about submissive appl. in there.  This zb has already ruled that it be remanded back to the pc...

JP - you don't want to open that can of worms.  Because this board did not - - when we had that demolition permit hearing it wasn't the intention of this board to remand this back to pc for site plan review.  They were words that were added in that did not come from this board.  To set you straight that decision did not come out of this board.

JP - I don't mean to interrupt you but that’s why is should be over in environmental court where lawyers can deal with this, not lay people like us.  We're doing the best we can with the limited knowledge we have with our bylaws.

Mr. S - talks about due process of the constitution.

JP - decisions we make here are based on the testimony and evidence heard here.

JP - I think if the EC would have given a yes or no to this 2 ½ or 3 years ago I don't think the town would be spending all these legal fees dealing with all these meetings that we have to hold that are going to get appealed.  Whatever comes out of here tonight, guaranteed someone will appeal.  Win win for the lawyers and a lose lose for the town.  Sorry the press isn't here to get some of this and make it known to the public.  It's an exercise in futility.

Mr. S - We would like to be heard on conditional use.

JP - it was heard.  That is why is shouldn't have went to planning because part of the criteria for planning is that it meets muster for the conditional use criteria and zoning.  When you came to pc you already had the denial from zoning.  There again another exercise in futility.

BK - I want to reiterate the appl was submitted on Dec. 13^th.  I notified pc Dec 20^th, It was within the 10 days and they could have considered it - that they already heard it and refused to hear it.  They may rely on me to inform them of the state statute - it's their decision.  It is not my job to tell the pc every rule in the state statute.  Pc needs to take their own responsibility.  I do my best.  I knew there was a provision in there that you don't have to keep rehearing things.  When I got this appl in that did not even cross my mind that it was the same appl as the mini-mart appl.  At the mini-mart appl he had the demo as part of it.  Naturally you need the demo plan.  At pc mtg.  On the mini-mart not one word to the best of my knowledge was discussed about the demolition.  Demo permit was submitted before the mini-mart permit.  That appeal went to the courts.  The courts decided let it go for local use first.  That's when they came back and re-submitted the appl.  I processed it.  Again within the 10 days the pc was notified that the application was in for the demo.  They did not decide within 10 days to not hear it.

RD - As to whether Bob apprises us of the proceedings of the statutes, the failure to do this now is in the face of precedent.  He always has, to my recollection, appraised us of any peculiarities in the law we had to be aware of and it didn't happen in this case.

BK - to the best of my knowledge I always do.  Again I hadn't even remotely considered it, if they already heard it.  That didn't even enter my mind that they already heard it.  In my opinion it was - here was an application in completely different from the mini-mart to be brought before the pc because the zoning had already ruled I could not issue it because it was a 1 or 2 family.  My only other option was to put it before the planning commission.  And again, I never even remotely considered it that they had already heard that.

What would possess you to go to the pc?  Is that what you're saying?

BK - you guys denied my issuing the demo permit because it was not 1 or 2 family.  It didn't pass site plan approval so therefore I should not have issued it.

JP - and that was based on how the bylaws read.

BK - now when he resubmitted the appl I said, OK, I can't issue it so I have no reason to deny it so I passed it on to the pc.  That was my only option.

To close the hearing the motion was made by JD.

Seconded by RD.

OTHER BUSINESS:

Don Johnson of Coulter Street in Derby Line appeared in front of the board with concerns over the posting of permit signs referring to a permit sign on his neighbors dwelling being out of view.  His neighbor's permit is asking for an accessory R.V.. to be on their property.  Mr. Johnson is concerned about the fact that the board is unable to hear it because the 15 days appeal period had expired.

Joe Profera advised Mr. Johnson that while he understands Mr. Johnson's concerns Mr. Johnson's argument can't be made at "this table".  Mr. Johnson's concerns are about how Mr. Kelley made out the permit, especially the definitions of the permit.  Mr. Johnson states it was "written wrongly".  Richard Del Favero directed that Mr. Johnson either take it to the Select Board or to the Vermont League of City and Towns to possibly resolve his concerns.

Mr. Johnson felt that Bob Kelley, ZA, issued a permit for an RV to be used as an accessory use apartment is incorrect because the accessory use apartment is on "wheels".  Even though the zoning board sympathized with his concerns, we felt that it was beyond our powers to address the situation.

Board goes into closed door session.

Motion to support the Village Appeal.

Judy Nommik made the motion we find for appellant.  Richard Del Favero 2^nd the motion.  Everyone present was in favor.

Findings of fact:

The ten day period has passed however the planning commission was not notified in a timely manner.

1.       The ZA did not advise the PC of the 10 day option before warning the hearing.

2.       As for the narrative, the board finds there was none.

Conclusion of Law:

1.       As per the 10 day period the Board finds that 24 VSA Chapter 117 §4470 does apply.

2.       As for the narrative, the Board finds the Derby Zoning Bylaw §209.3(D) does apply.

Approved by unanimous decision.

The minutes were taken by Sherry Aubin.

JP - Joseph Profera

RK - Robert Kelley

PP - Paul Prue

JN - Judy Nommik

RD - Richard Del Favero

MW - Mitch Wonson

Mr. S. - Mr. Simendinger

SA- Sherry Aubin

Zb - zoning board

pc - planning commission

appl. - application

demo – demolition

April 11, 2011

Derby Line Village Trustees

PO Box 209

Derby Line, VT 05830

Dear Trustees,

Enclosed please find a copy of your letter of appeal and the minutes to the April 4, 2011 Zoning Board of Adjustment meeting.  The Zoning Board ruled in your favor on the appeal.  The attached minutes serve as our written decision.  The date of this decision is April 11, 2011.

Please take note that: An interested person may appeal the decision of the Zoning Board of Adjustment to the Environmental Court in accordance with 24 V.S.A., Chapter 117, §4471, in writing, within 30 days of such decision.  The fee is $250.00.  If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited too long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).  This permit shall not take effect until the time for such appeals have passed.

Sincerely,

Joe Profera

Chair – Derby Zoning Board of Adjustment

Cc           Main Street Place LLC/Bill Simendinger

                Mitch Wonson

Derby Zoning Board of Adjustment * Minutes * February 24, 2011

Members Present:  Judy Nommik (by speaker phone), Norman Gaboriault, Paul Prue, Charles Capaldi.

Members Absent:  Joe Profera.

Others Present:  Joseph Gresser, Mithc Wonson, Nancy Olney, Gary Olney, Melody Ricard, Andre Ricard, Chris Blais, Perry Hunt, ZA Bob Kelley.

7:07 p.m.: Vice-Chair Paul Prue opened the meeting and read the warning to decide, as per VSA Title 24 §4470, if the Board wishes to reconsider their denial of application 09-145 by Main Street Place LLC, PIN #MSTDL011A6L & MSTDL013A6L, to raze the existing buildings and build an Auto Service Station/Mini Mart.  The Board reviewed the amended site plan and felt that the changes did not affect the facts they based their previous decision on.  The Board asked for any comment from the public.  Mitch Wonson, agent for the Village of Derby Line Trustees, stated that he want to assert interested party status for the Village trustees and thought that the Board should deny the request for reconsideration.  Others questioned why the applicant is allowed to request a reconsideration and vented about the project in general.  Norman Gaboriault made a motion to deny the request for reconsideration because the facts related to Conditional Use criteria are substantially the same (see attached written decision).  Seconded by Charles Capaldi.  Approved by a unanimous decision.

7:25 p.m.:  Norman Gaboriault made a motion to adjourn.  Seconded by Charles Capaldi.  Approved by a unanimous decision.

The minutes were taken by Bob Kelley.

TOWN OF DERBY ZONING BOARD OF ADJUSTMENT

Findings of Fact, Conclusion of Law & Decision

February 24, 2011

OWNER: Main Street Place LLC

MEETING DATE: February 24, 2011

APPLICATION #: 11-010

This decision pertains to a request to reconsider of conditional use denial of application 09-145 for a mini-mart.

FINDINGS OF FACT

1. The Zoning Board issued their written decision denying conditional use approval for application 09-145 on March 9, 2010.
2. On February 17, 2011 Main Street Place LLC submitted a request, with the appropriate fee, for reconsideration based on a revised site plan .
3. Revision Notes listed on the site paln since the Zoning Boards decision include: Revision #7 (4/7/10) add 10’ grass strip to front property boundary and move parking 10’ from North East property boundary and Revision #8 (8/24/10) add level lip spreader, add storm elevations, add retaining wall.

CONCLUSION OF LAW

The changes to the site plan do not make any substantial or material changes to the facts related to the criteria for Conditional Use review.

DECISION

The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby REJECTS the request for reconsideration because the facts related to Conditional Use criteria are substantially the same.

Those in favor of reconsidering the application: None.

Those in opposition to reconsidering the application: Paul Prue, Norman Gaboriault, Charles Capaldi, Judy Nommik.

Dated in Derby, Vermont this 24^th day of February, 2011.

Town of Derby Zoning Board of Adjustment

Paul Prue, Vice-Chair                                                                         

An interested person who has participated in the municipal regulatory proceeding may appeal the decision rendered in that proceeding by the Appropriate Municipal Panel to Environmental Court in Accordance with 24 VSA, Chapter 117, §4471, in writing, within 30 days of the date of such decision.  The fee is $250.

If you fail to appeal a decision, your right to challenge the decision at some future time may be lost because you waited to long.  You will be bound by the decision, pursuant to 24 V.S.A. §4472(d).

This is a local permit application only.  Other permits may be NECESSARY.  The applicant is responsible for insuring compliance with all applicable State and Federal regulations pertaining to this application.  To determine if other permits are required you should contact the State Regional Permit Specialist at (802) 476-0195 and the State Dept. of Labor and Industry at (802) 828-5098.

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