TOWN OF DERBY
ZONING BOARD OF ADJUSTMENT
Minutes
*** Unapproved ***
Derby Zoning Board of Adjustment * Minutes * July 26, 2010
Members Present: Paul Prue, Joe Profera, Judy Nommik, Charles Capaldi, Norman Gaboriault.
Members Absent: None.
Others Present: James Johnson, Nicole Johnson, ZA Bob Kelley.
7:05 p.m.: Chair Joe Profera called the hearing to order. Paul Prue made a motion to accept the minute of the last meeting (July 12) as written. Seconded by Charles Capaldi. Approved by a unanimous decision.
Chair Joe Profera read the warning for application #10-062 by James & Nicole Johnson, PIN #SESAL009J7T, for conditional use approval to build a roof over an existing 12 ft by 16 ft nonconforming deck and screen it in. This property is located at 249 Hayward Road and is in the Shoreland zoning district. This application was tabled from the July 12th meeting. James & Nicole Johnson present to explain the request. The exact location of the property line along Hayward Road is not known. It is thought to be along the fence line. The fence is approx 6 ft from the edge of the pavement. The screen room will be the same size as the existing deck. The existing deck is pressure treated wood. There were no letters submitted or oral testimony given by abutting property owners/interested parties in regards to this application. Judy Nommik made a motion to close the hearing on application #10-062 by James & Nicole Johnson. Seconded by Charles Capaldi. 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.
The Board went into deliberative session to discuss the above application.
Upon returning from deliberative session Judy Nommik made a motion to grant conditional use approval to application #10-062 by James & Nicole Johnson as submitted (see attached written decision). Seconded by Charles Capaldi. Approved by a unanimous decision.
The Board discussed their July 12, 2010 written decision concerning the appeal of permit #09-031. It was felt the wording in their decision remanding the application back to the Planning Commission should not have been there. ZA Bob Kelley will check with VLCT to see if and how they can change their written decision.
8:00 p.m.: Judy Nommik 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 Conditional Use Review Findings of Fact, Conclusion of Law & Decision July 26, 2010 OWNER: James & Nicole Johnson MEETING DATE: July 26, 2010 APPLICATION #: 10-062 This decision pertains to Conditional Use review for application #10-062 by James & Nicole Johnson, PIN #SESAL009J7T, to add a roof and screen in a 12 ft by 16 ft nonconforming deck. The existing deck does not meet the front yard setback. 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 July 26, 2010 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact: General Information This Application 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 #10-062 by James & Nicole Johnson to add a roof over and screen in the existing 12 x 16 deck as submitted. Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Charles Capaldi. Those in opposition: None. Dated in Derby, Vermont this 26th day of July 2010. 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 6/17/2010 Application A-2 6/17/2010 Abutter's list A-3 6/17/2010 Site plan Town Date Description T-1 6/22/2010 Certificate of Mailing T-2 6/22/2010 ZA's comments
Derby Zoning Board of Adjustment * Minutes * July 12, 2010
Members Present: Joe Profera, Judy Nommik, Paul Prue, Charles Capaldi.
Members Absent: Norman Gaboriault.
Others Present: None.
7:06 p.m.: Chair Joe Profera called the hearing to order. Judy Nommik made a motion to approve the minutes of the June 14, 2010 meeting as printed. Seconded by Paul Prue. Approved by unanimous decision.
This hearing had been previously warned for Application #10-062 tendered by Mr. James Johnson. Mr. Johnson was unable to attend and had requested that the hearing be remanded to a later date. Judy Nommik made a motion to move the hearing to the Zoning Board of Adjustment docket for 7:00 pm July 26, 2010 here in the Derby municipal building. Seconded by Paul Prue. Approved by unanimous decision.
7:12 p.m.: Judy Nommik moved that the deliberative session be closed on the appeal by the Derby Line Village Trustees of the Zoning Administrator's decision to grant permit #09-031 to Main Street Place, LLC to raze all buildings and level the site at 50 & 58 Main Street, Derby Line. Seconded by Paul Prue. Approved by unanimous decision.
Judy Nommik moved that after full consideration of the testimony provided on this appeal and a careful review of the Town of Derby Zoning Bylaw, the ZBA find the following:
· §209 of the Town of Derby Zoning Bylaw reads, "No zoning permits shall be issued by the Administrative Officer, with the exception of exempted one and two family dwellings and uses and agricultural uses and structures, as provided under VSA and this Bylaw, until the Planning Commission grants site plan approval following public notice and public hearing."
· The structures located at 50 & 58 Main Street are not exempted one or two family dwellings. They do not constitute an exempted use, nor are they agricultural structures, or for a specific agricultural use.
· The Planning Commission has not previously granted site plan approval for this site to the current applicant, Main Street Place, LLC, nor has it previously granted site plan approval for this site to any other applicant.
· The permit was issued administratively in error prior to site plan approval from the Planning Commission.
Seconded by Paul Prue (see attached written decision). Approved by unanimous decision.
7:25 p.m.: Judy Nommik made a motion adjourn. Seconded by Paul Prue. Approved by unanimous decision.
The minutes were taken by Charles Capaldi.
TOWN OF DERBY ZONING BOARD OF ADJUSTMENT Appeal of Zoning Administrator’s Decision Findings of Fact, Conclusion of Law & Decision July 12, 2010 OWNER: Main Street Place LLC APPLICATION #: 09-031 Appealed by: Village of Derby Line Trustees This decision pertains to an appeal by the Village of Derby Line Trustees alleging that the permit (09-031 by Main Street Place LLC) issued by the Town of Derby Zoning Administrator to raze all buildings and level the site at 50 & 58 Main Street, Derby Line was improperly issued. FINDINGS OF FACT After careful consideration of the information contained in the exhibits for this application, evidence presented at the Zoning Board of Adjustment hearings and review of the Town of Derby Zoning Bylaw, the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact: CONCLUSION OF LAW Based on the foregoing Finding of Fact, the Town of Derby Zoning Board of Adjustment makes the following conclusions in regards to the appeal: DECISION The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby GRANTS the appeal by the Village of Derby Line Trustees and affirms that the Zoning Administrator improperly issued permit 09-031 by Main Street Place LLC and remand this application back to the Derby Planning Commission for site plan review. Those in favor: Paul Prue, Judy Nommik, Charles Capaldi. Those in opposition: None. Dated in Derby, Vermont this 12th day of July 2010. 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).
Derby Zoning Board of Adjustment * Minutes * June 14, 2010
Members Present: Joe Profera, Judy Nommik, Norman Gaboriault, Paul Prue, Charles Capaldi.
Members Absent: None.
Others Present: Bill Simendinger, Roland Roy, Perry Hunt, David Oliver, Patricia Oliver, Scott Warthin, Mitch Wonson, Joseph Gresser, Chris Blais, Pietro Lynn, Robin Smith, Franklin Davis, Norman Miller, Andy Major, Lois Major, ZA Bob Kelley.
7:00 p.m.: Chair Joe Profera called the hearing to order. Judy Nommik made a motion to approve the minutes of the April 5, 2010 meeting as printed. Seconded by Paul Prue. Approved by a unanimous decision.
Norman Gaboriault made motion to approve the minutes of the May 17, 2010 meeting as printed. Seconded by Judy Nommik. Approved by a unanimous decision.
Chair Joe Profera reopened the hearing on the appeal by the Derby Line Village Trustees of the Zoning Administrator's decision to grant permit #09-031 to Main Street Place, LLC to raze all buildings and level the site at 50 & 58 Main Street, Derby Line. Mr. Bill Simendinger, representing the Applicant Main Street Place, LLC, stated that the definition of land development in Title 24 4303:10 does not include demolition. He contended that the scope of the Zoning Board of Adjustment's (ZBA's) authority is limited to the terms and conditions specified by the State in making a power grant. The Town can't create a new type of land development.
Mr. Mitch Wonson, speaking on behalf of the Village of Derby Line, asked Mr. Simendinger to identify the representative of the Town of Derby who threatened to sue him if he didn't tear down the buildings. Mr. Simendinger replied that it was Zoning Administrator (ZA), Bob Kelley. Mr. Wonson then reiterated the Village of Derby Line's position that, according to the Bylaw, the Zoning Administrator does not have the authority to issue permits for the demolition of multi-family, commercial or industrial buildings.
Chair Joe Profera yielded the floor to Ms. Chris Blais, resident of Derby Line who requested interested party status because of the 208 signatures she collected from Derby Line residents. Ms. Blais provided copies of a handout and a petition urging the ZBA to deny a demolition permit for the buildings in question until a site plan detailing the condition and development of the lots following demolition be presented by the Applicant to the Village Trustees and approved by that body. The petition and the accompanying handout provide the following grounds as a basis for denying the permit:
· The permit to build an Auto Service Station/Mini Mart is not consistent with the Municipal plan and has already been denied twice;
· Neither the Town of Derby, nor the Village of Derby Line have bylaws detailing what condition a demolished site must be kept in - this must occur in order to ensure the safety of Derby Line's youth, pedestrians and vehicular traffic.
· Razing of this site is not consistent with the 2009 Town Plan which states that the Village Commercial District is not characterized by vacant lots, but by "mixed land uses that are typical for traditional Vermont village centers";
· The 2009 Town Plan identifies the intersection of Caswell Avenue with Main Street as "oblique and has substandard sight distances to the North (Canada)" resulting in difficulties safely navigating this already heavily traveled intersection;
Chair Joe Profera explained that the point of this hearing was to determine whether the permit to demolish was properly issued and that the Zoning Board was rehearing it because some abutters were not properly notified about the first hearing. The Zoning Administrator, Bob Kelley, explained that Section 403.2 of the Town of Derby Zoning Bylaw requires that cellar holes be filled in so they are level with grade on either side of the building. Ms. Blais reiterated her lack of confidence that the demolition would be done in a manner compliant with the safety and best interests of the Village of Derby Line. Mr. Simendinger explained the process by which he would have to notify the State of Vermont Department of Health, and the EPA of his intent to demolish the buildings with at least 10 days notice. He indicated that Main Street Place, LLC would be retaining a contractor who was experienced in asbestos and lead paint removal.
Mr. Frank Davis, Derby Line resident, asked if the ZBA would take site contamination (e.g. asbestos dust, lead paint and other contaminants that may exist in the building) into consideration in the approval or denial of a permit for demolition. Chair Joe Profera said that the ZBA can only go as far as the Bylaws dictate but that it would be looking into those issues.
Mr. Perry Hunt, Village of Derby Line Trustee, suggested that the first permit issued should be denied and a new permit should be issued addressing what has been discussed hitherto. He requested on behalf of the Village that if the site remains open, there should be a stipulation for grass cover to contain the run off that would result from it.
Mr. Bob Kelley, Zoning Administrator, stated that Mr. Wonson had previously submitted a list of issues outlining why the permit was improperly issued. Mr. Kelley prepared a handout responding to the Village's assertions as followed:
· The Village alleged that the bylaws do not assess reasonable opportunities to allow viable potential reuse of the buildings. Mr. Kelley contended that the bylaw allows for all kinds of potential reuse of the buildings as outlined in §206. The property owner has decided to raze the buildings instead and the bylaw has no provision requiring a property owner to use or maintain a property.
· The Village asserted that the Zoning Administrator issued the permit to raze the buildings in error. Mr. Kelley contended that since the final use of the property would have been a vacant lot both he and the Vermont League of Cities and Towns agreed that the permit could be issued administratively.
· The Village asserted that the Zoning Administrator is not authorized to issue a permit for demolition of commercial/multi-family residential buildings. Mr. Kelley contends that he granted a permit to raze the buildings on the site and level it as required by §403.2(B).
· The Village asserted that the lack of specific standards does not connote that demolition is automatically in compliance. Mr. Kelley contended that the standards for demolition are found in §403.2(B), after removal the lot shall be refilled to clear ground level.
· The Village asserted that there is no approved end use for the properties. Mr. Kelley contends that the end use of the permit was a vacant lot.
After all testimony was heard Judy Nommik made a motion to close the hearing on the appeal by the Derby Line Village Trustees of the Zoning Administrator's decision to grant permit #09-031 to Main Street Place, LLC to raze all buildings and level the site at 50 & 58 Main Street, Derby Line. Seconded by Norman Gaboriault. Approved by a unanimous decision. Everyone was informed that the board has 45 days to make their decision.
Chair Joe Profera read the warning for application #10-045 by David Oliver, PIN #LAKPK027B1T, for conditional use approval to rebuild and enlarge his camp. The existing camp is a nonconforming structure. This property is located at 1033 Eagle Point Road and is in the Shoreland zoning district. Mr. & Mrs. Oliver were present to explain the request. The only nonconformity is a triangular portion of the building on the south west corner and this section will be rebuilt in the same footprint. All proposed additions to the house will be in conformance with the bylaw. The house cannot be moved the north due to the location of the septic system. There was no testimony from interested parties. Judy Nommik made a motion to close the hearing for application #10-045 by David Oliver. Seconded by Charles Capaldi. Approved by a unanimous decision. The applicant was informed that the board has 45 days to make their decision.
After deliberations Charles Capaldi made a motion to grant conditional use approval for application #10-045 by David Oliver, PIN #LAKPK027B1T, to rebuild and enlarge his camp as submitted (see attached written decision). Seconded by Judy Nommik. Approved by a unanimous decision. The Board requested that the zoning administrator emphasize to the applicant that the nonconforming portion of the structure cannot be rebuilt any closer to the lot line than it currently is.
After deliberations no decision was made concerning the demolition permit appeal. The Board agreed to try and get together on June 29, 2010 to continue deliberations.
9:30 pm: Judy Nommik made a motion to adjourn. Seconded by Norman Gaboriault. Approved by a unanimous decision.
The minutes were taken by Bob Kelley, minutes pertaining to the appeal of permit 09-031 Main Street Place, LLC were taken by Charles Capaldi.
TOWN OF DERBY ZONING BOARD OF ADJUSTMENT Conditional Use Review Findings of Fact, Conclusion of Law & Decision June 14, 2010 OWNER: David Oliver MEETING DATE: June 14, 2010 APPLICATION #: 10-045 This decision pertains to Conditional Use review for application #10-045 by David Oliver, PIN#LAKPK027B1T, to reconstruct and enlarge a nonconforming structure. 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 June 14, 2010 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact: General Information This Application 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 #10-045 by David Oliver as submitted. Those in favor: Paul Prue, Judy Nommik, Norman Gaboriault, Charles Capaldi. Those in opposition: None. Dated in Derby, Vermont this 14th day of June 2010. 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 5/11/2010 Application A-2 5/11/2010 Narrative A-3 5/11/2010 Proposed building footprint A-4 5/11/2010 Site plan A-5 5/11/2010 Existing building footprint A-6 5/11/2010 Building photo A-7 5/11/2010 Building footprint comparison A-8 5/24/2010 Abutters list Town Date Description T-1 5/24/2010 Certificate of mailing T-2 5/25/2010 ZA's comments
Derby Zoning Board of Adjustment * Minutes * May 17, 2010
Members Present: Joe Profera, Judy Nommik, Norman Gaboriault.
Members Absent: Paul Prue, Charles Capaldi.
Others Present: ZA Bob Kelley.
7:20 p.m.: Chair Joe Profera called the hearing to order and waived the approval of the last meeting’s minutes. It is noted that Judy Nommik participated by speaker phone.
Judy Nommik made a motion to table the appeal by the Derby Line Village Trustees of the Zoning Administrator's decision to grant permit #09-031 to Main Street Place, LLC to raze all buildings and level the site at 50 & 58 Main Street, Derby Line for 4 weeks until June 14, 2010 at 7:00 p.m. here in the municipal building. Seconded by Norman Gaboriault. Approved by a unanimous decision.
7:23 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 * April 5, 2010
Members Present: Joseph Profera, Paul Prue, Norman Gaboriault, Judy Nommik, Charles Capaldi
Members Absent: None
Others Present: Mitch Wonson (representing Derby Line Trustees), Robin Smith, Scott Warthin, Frank Davis, Karen Jenne, Pat Wright, Richard Wright, Bill Simendinger, W Perry Hunt, Gilles Blais, Keith Beadle, Roland Roy, Lois Major, Andy Major, Richard Del Favero, Chris Blais, Melody Ricard, Nancy Olney, Andre Ricard, Gary Olney, Paul Gillies (representing Community National Bank), ZA Bob Kelley.
6:58 p.m.: Chairman Joseph Profera called the hearing to order. Ms. Nommik made a motion to accept the minutes of the March 8th, 2010 meeting as written. Mr. Gaboriault seconded the motion. Approved by unanimous decision.
The Derby Zoning Board of Adjustment ("ZBA") convened to rehear an appeal by the Derby Line Village Trustees of the Zoning Administrator's decision to grant permit #09-031 to Main Street Place, LLC to raze all buildings and level the site at 50 & 58 Main Street, Derby Line. Chairman Profera clarified that when the appeal was originally heard, some abutters did not receive proper notice of meeting and therefore had no opportunity to attend the meeting. The Environmental Court of Vermont remanded the pending application to the ZBA for a properly-noticed hearing on the demolition application by Main Street Place, LLC.
Mr. William Simendinger, Esq. represented the Applicant. Chairman Profera invited him to briefly summarize the permit request for the Board. Mr. Simendinger testified that the idea was to "start fresh" and to find a common vision that the Village of Derby Line Trustees could approve and to deal with the buildings which are in an exceedingly poor state of repair e.g. water traveling through the buildings and their foundations, poor roof on the Caswell building, old wiring, lead paint. Mr. Simendinger suggested that by razing the buildings, additional off-street parking might be created which would help to abate the traffic problems in the Village.
Mr. Robert Kelley, Zoning Administrator ("ZA"), testified that normally he does not require a permit for demolition, but since he anticipated that this could be controversial, he contacted the League of Cities and Towns with a copy of Derby's Zoning Bylaws ("the Bylaws"). The Bylaws are moot on the subject with the exception of the definition of land development which includes demolition. The State statutes on zoning, and land development do not include demolition. ZA's decision to issue an administrative permit derived largely from that consultation.
Mr. Mitchell Wonson asserted interested party status on behalf of the Village of Derby Line Trustees. The basis of their appeal is as follows:
1. The Bylaws do not assess the potential reuse of this property and that the Zoning Administrator had issued the permit in error.
2. Section 209 of the Bylaws restricts administrative issuance of permits to one and two family dwellings, as well as for agricultural uses and structures. The Village Commercial Derby Line District does not include demolition as a permitted use subject to the administrative approval under the categories above or after site plan review.
3. The Bylaws provide that any use "exceeding 5,000 square feet" is a Conditional Use. Since the applicant indicated that as much as possible would be salvaged during the demolition, the Derby Line Village Trustees contend that a use is being made of the buildings and therefore, would have to receive conditional use approval.
4. Lack of specific standards in the Bylaws does not confer automatic compliance with the Bylaws allowing the permit to be issued. Any decision on compliance should be based on intent, purpose and bylaw objectives in relation to the proposed demolition (c.f. Section 102 of the Bylaws and 24 VSA 4411 & 4302 re: Public health and safety, the historic settlement pattern of the village center, to provide a strong and diverse economy, to ensure the availability of safe and affordable housing).
5. The permit violates an object of Section 206.1A of the Bylaws re: the preservation of Village-scale commercial activity.
6. In the absence of a grading plan, it is impossible to determine compliance with the Bylaws and potential impact on adjacent properties and environmentally sensitive areas.
Mr. Paul Gilles, Esq. representing Community National Bank ("CNB"), said that CNB's position on this permit is consistent with the position of the Village of Derby Line Trustees. Mr. Gilles observed that this issue should have come before the ZBA separately and not as an appeal. CNB contends that the Bylaws treat demolition as a use. Mr. Gilles also underscored Mr. Wonson's statements relative to the historical settlement pattern in the Village of Derby Line, and the preservation of the Village's historical center.
Ms. Christine Blais, Derby Line resident, expressed concern for the public health and safety of demolishing these buildings. She also expressed her concerns about local children and teenagers who already congregate at the park and across the street from the subject properties. She has spoken to the Department of Natural Resources, and Representative Bernie Sanders' office who will be contacting the Department of Transportation. She received a letter stating that a decision was pending on the subject properties in Environmental Court. She is willing to relinquish her interested party status for that proceeding so that the aforementioned state agencies could participate in the initial telephone hearings which have a limited number of telephone access lines. Ms. Blais reiterated that "as a resident", she does not think a permit should be issued for demolition until the Environmental Court has ruled.
Mr. Kelley, ZA, observed that there may be some confusion about the fact that these are two totally different permits and proceedings. He also felt that clarification was in order about the following:
1. Demolition is not listed as a "use" in any district within the limits of the Town of Derby.
2. The Village of Derby Line's Town Center designation is currently in the process of renewal. The renewal process consists of submitting a map of the village center, a letter from NVDA stating that a valid Town Plan exists, and a letter from the Selectboard. In his professional opinion, he does not believe that this permit would in any way effect the Town Center designation of Derby Line which would be renewed every five years thereafter.
3. The slope from the subject property toward the Tomifobia River leads first to a wide plateau, before plunging again down toward the river.
Mr. Roland Roy, resident of Derby Line and abutting property owner, requested that he be granted interested party status due to the possible adverse affects on his property.
Mr. Prue asked the Applicant if he had exercised due diligence in determining whether he would be allowed to demolish the buildings before he bought them. Mr. Simendinger stated that he had been told he would be able to demolish the buildings. When asked by whom, he indicated that he had spoken with the ZA. Chairman Profera asked if the Applicant purchased the buildings on the contingency that they could be demolished at-will. Mr. Simendinger responded in the negative. Mr. Capaldi asked Mr. Kelley, the ZA, how he generally handles questions about what one can or cannot do with a property. Mr. Kelley indicated that as a matter of course, he exercises due caution in answering those questions and frames his responses in the context of existing Bylaws, conditioned by the submission of the proper applications and where necessary, the issuance of a permit. Mr. Kelley does not recall whether his conversation with Mr. Simendinger was preceded or followed the purchase of the subject properties."
Chairman Profera asked the members of the ZBA if everyone was familiar with the subject properties and if an additional site visit would be of assistance in ruling on this matter. The members of the ZBA agreed to an informal site visit - no additional testimony would be taken at that time. The Applicant was asked to mark the property boundaries with a can of spray paint to facilitate that visit. The site visit will be held on Tuesday, April 6, 2010 at 5 pm at the subject properties.
Ms. Nommik moved that the ZBA recess the hearing until Monday, May 17, 2010 at 7:00 pm at the Town Offices. The motion was seconded by Mr. Gaboriault. Approved by unanimous decision.
Ms. Nommik made a motion that Mr. Joseph Profera continue to serve as the Chairman of the ZBA, that members serve on a rotating basis as Vice Chairman in his absence, and that Mr. Charles Capaldi serve as Clerk. Mr. Prue seconded the motion. Approved by unanimous decision.
8:20 p.m.: Ms. Nommik made a motion to adjourn. Mr. Gaboriault seconded the motion. Approved by unanimous decision.
These minutes were respectfully submitted by Charles Capaldi.
Derby Zoning Board of Adjustment * Minutes * March 8, 2010
Members Present: Paul Prue, Norman Gaboriault, Joe Profera, Judy Nommik, Charles Capaldi.
Members Absent: None.
Others Present: Joseph Queenin, Brian Smith, Sandra Chaplin, Richard Wright, Patricia Wright, Kate Castle, Bob Castle, Frances Gonter Gross, Charles Gonter Gross, Andy Major, Richard Dubois, Diane Beadle, Robin Smith, Laura Carpenter, Bessie Hastings, Skip Hastings, Nancy Olney, Melody Ricard, Andre Ricard, Gary Olney, Frank Davis, Don Buschman, Louis Barber, Roland Roy, Karen Jenne, Keith Beadle, W Perry Hunt, Joseph Gresser, Mitch Wonson, Scott Warthin, Bill Simendinger, Lynn Batchelor, Dave Batchelor, Margaret Clowery, Kendal Clowery Sr, Christine Blais, Laurie Moss, Kim Allen, Burton Jacobs, Patricia Walsh, Robert Glover, Valerie Glover, Rachel Ducharme, Madeleine Roy, ZA Bob Kelley.
7:00 p.m.: Chair Joe Profera called the hearing to order. Charles Capaldi made a motion to accept the minute of the last meeting (Feb 22) as written. Seconded by Paul Prue. Approved by a unanimous decision.
Chair Joe Profera read the warning for application 09-145 by Main Street Place LLC, PIN #MSTDL011A6L & MSTDL013A6L, for conditional use approval to raze the existing buildings and build an Auto Service Station/Mini Mart with a 12 seat deli. The proposed Mini Mart is 60 ft by 50 ft and there is a proposed canopy over the fuel dispensers. This property is located at 50 – 58 Main Street and is in the Village Commercial – Derby Line zoning district. Mr. Simendinger was present and explained the request. A revised site plan was submitted with the canopy 30 ft from the front lot line. A traffic study indicates a level of service of A or B with this project, meaning short or no delays. A separate stacking lane for Customs will be created, parking spaces will be created onsite for public use to replace the sites lost due to the creation of the stacking lane. The lot is approx .8 acres, will be level and stormwater will go thru an oil separator and daylight at the rear of the lot. Landscaping in the front has been kept low to help with site distances for Customs. The exact location of the fuel storage tank has not been determined, but will be north of the mini-mart building. The fuel dispensers are approx 40 ft from the front lot line. Mitch Wonson, Derby Line Village Trustee Representative, explained why he believes the project would have significant undue adverse impacts on the character of the area, traffic, and the bylaws, which combine to adversely affect the public health, safety, and welfare. In opposition to the development Frank Davis spoke out about auto and pedestrian traffic, erosion and the loss of the existing buildings. In opposition to the development Don Bushman spoke out about erosion and submitted an email from Barry Cahoon regarding erosion of the Cemetery lot. In opposition to the development Lynn Batchelor spoke out about the character of the area and submitted a petition with 200+ signatures addressed to the Derby Selectboard about not wanting another mini-mart in Derby Line. In opposition to the development Patricia and Richard Wright submitted a letter. In opposition to the development Andre Ricard spoke out about erosion and polluting the river. In opposition to the development Keith Beadle spoke out about polluting the river. In opposition to the development Chris Blais spoke out about pedestrian/auto traffic and character of the area. In opposition to the development Pete Jacobs feel the Derby Line Trustees should be listened to. In opposition to the development Bob Castle spoke about saving the community and the need for affordable housing. In opposition to the development Scott Worthin spoke out about traffic and character of the area and submitted a letter in opposition to the project from Tim Gustafson-Byrne. In opposition to the project Joe Queenin spoke about the character of the area and submitted a letter in opposition from the Derby Line Cemetery Association. Roland Roy simply stated he wants party status. In opposition to the project Perry Hunt spoke out about the loss of the existing businesses. In opposition to the development Sandra Chapman did not think Custom was in favor of the project. Louis Barber felt the mini-mart would be appreciated in Beebe.
8:25 p.m.: The Commission decided to go into deliberative session to discuss the above application.
8:55 p.m.: Upon returning from deliberative session Judy Nommik made a motion to close the hearing on application 09-145 by Main Street Place LLC. Seconded by Norman Gaboriault. Approved by a unanimous decision.
Charles Capaldi made a motion to DENY conditional use for application 09-145 by Main Street Place LLC because it will cause an undue adverse impact on the character of the area involved, traffic on roads and highways in the vicinity, and to the general public health, safety and welfare. Seconded by Judy Nommik. Approved by a unanimous decision, conditional use is DENIED.
When the official written decision is drafted it will be attached to these minutes.
9:00 p.m.: Paul Prue made a motion to adjourn. Seconded by Norman Gaboriault. 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 March 9, 2010 OWNER: Main Street Place LLC MEETING DATE: March 8, 2010 APPLICATION #: 09-145 This decision pertains to Conditional Use review for application #09-145 by Main Street Place LLC, PIN #MSTDL011A6L & MSTDL013A6L, to build an Auto Service Station/Mini Mart with a 12 seat deli. The proposed Mini Mart is 60 ft by 50 ft and there is a proposed canopy over the fuel dispensers. 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 March 8, 2010 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact: General Information This Application 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 project will have an undue adverse impact on the character of the area as per §208.4(B). 3.) Traffic on roads and highways in the vicinity; This project will have an undue adverse impact on the roads and highways in the vicinity as per §204.8(C). 4.) Bylaws and ordinances then in effect; This project does not meet the requirements of §402.1 of the bylaw. 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 have an undue adverse effect on the general public health, safety and welfare as per §208.4(F). DECISION The Town of Derby Zoning Board of Adjustment, based upon the foregoing Findings of Fact and Conclusion of Law, hereby DENIES application #09-145 by Main Street LLC as submitted. Those in favor: Joe Profera, Paul Prue, Judy Nommik, Norman Gaboriault, Charles Capaldi. Those in opposition: None. Dated in Derby, Vermont this 9th day of March 2010. 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 11/10/2009 Application A-2 11/10/2009 Abutters List A-3 11/10/2009 Hours, employees, customers, deliveries A-4 11/10/2009 Front building elevation A-5 11/10/2009 Rear building elevation A-6 11/10/2009 Side building elevation A-7 12/23/2009 Conformation from Applicant to continue hearing until Jan 25, 2010 A-8 1/11/2010 Narrative on Conditional Use Criteria A-9 1/19/2010 Traffic Impact Study - by RSG Inc A-10 1/20/2010 Request from applicant to continue hearing until after Access is granted A-11 3/8/2010 Site Plan #2009014 101, by Llewellyn-Howley Inc revised 3/5/10 A-12 3/8/2010 Circulation Plan #2009014 100, by Llewellyn-Howley Inc revised 3/5/10 A-13 2/10/2010 Lighting Plan #LO-100233-1, by LSI Industries 2/3/10 A-14 3/8/2010 Letter from David Rugh Esq dated 3/5/10 - Environmental Court decision Town Date Description T-1 11/23/2009 Certificate of service - ZBA hearing 12/14/09 T-2 1/7/2010 Certificate of service - ZBA hearing 1/25/10 T-3 2/10/2010 ZA's comments - Conditional use T-4 2/11/2010 Certificate of service - ZBA hearing 3/8/10 Others Date Description O-1 3/8/2010 Letter from Patricia & Richard Wright dated 3/8/10 O-2 3/8/2010 Synopsys from Mitch Wonson dated 3/8/10 - Derby Line Trustees position O-3 3/8/2010 Petition to Derby Selectboard submitted by Lynn Batchelor O-4 3/8/2010 Letter from Derby Line Cemetery Association dated 3/8/10 O-5 3/8/2010 Email from Barry Cahoon to Don Buschman dated 1/21/10 O-6 3/8/2010 Letter from Tim Gustafson-Byrne dated 1/25/10
Derby Zoning Board of Adjustment * Minutes * February 22, 2010
Members Present: Paul Prue, Joe Profera, Judy Nommik, Charles Capaldi.
Members Absent: Norman Gaboriault.
Others Present: Joseph Warantz, 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 21) as written. Seconded by Paul Prue. Approved by a unanimous decision.
Chair Joe Profera read the warning for application 10-006 by Midtown Estates LLC, PIN #NDRT5046G4T, to change the use of the second floor from offices to 4 studio apartments. This property is located at 4267 Route 5 and is in a Commercial zoning district. Joe Warantz was present to explain the request. Mr. Warantz explained that he has owned the property for about a year and has not been able to rent the 2nd floor offices. It is hard to lease the 2nd floor because it is not handicap accessible. He would prefer to keep the 2nd floor as offices, but he would like the option to convert it to studio apartment if he cannot find a tenant for the offices. Because the proposed apartments would be small studio apartments (approx 500 sq ft) he is anticipating that they would be rented to a single person or possibly a couple. There were no letters submitted or oral testimony given by abutting property owners/interested parties in regards to this application. Judy Nommik made a motion to close the hearing on application 10-006 by Midtown Estates LLC. Seconded by Charles Capaldi. 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.
The Board went into deliberative session to discuss the above application.
Upon returning from deliberative session Judy Nommik made a motion to grant conditional use approval to application 10-006 by Midtown Estates LLC as submitted (see attached written decision). Seconded by Paul Prue. Approved by a unanimous decision.
The Board was reminded that their next meeting on March 8, 2010 would be held in the Derby Line Village Hall.
7:40 p.m.: Charles Capaldi 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 Conditional Use Review Findings of Fact, Conclusion of Law & Decision February 22, 2010 OWNER: Midtown Estates LLC MEETING DATE: February 22, 2010 This decision pertains to Conditional Use review for application #10-006 by Midtown Estates LLC to convert the existing 2nd floor offices into 4 studio apartments. 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 February 22, 2010 the Town of Derby Zoning Board of Adjustment makes the following Findings of Fact: General Information This Application 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 #10-006 by Midtown Estates LLC to convert the existing 2nd floor office into 4 studio apartments as submitted. Those in favor: Joe Profera, Paul Prue, Judy Nommik, Charles Capaldi. Those in opposition: None. Dated in Derby, Vermont this 22nd day of February, 2010. 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 1/28/2010 Application A-2 1/28/2010 Abutters list A-3 1/28/2010 Project narrative A-4 1/28/2010 Site Plan A-5 1/28/2010 Narrative on Condition Use criteria Town Date Description T-1 2/3/2010 Certificate of mailing - ZBA T-2 2/4/2010 ZA's comments - Conditional UseAPPLICATION #: 10-006