SOUTH HERO DEVELOPMENT REVIEW BOARD MINUTES April 10, 2024
Members Present: Tim Maxham (Chair); Doug Patterson (Vice-Chair); Mike Welch; Nate Hayward; Gareth Hunt; Jim Brightwell; Liza Kilcoyne; Tim Mullen (Alternate, via Zoom); Ellie Reid (Alternate, via Zoom).
Others Present: Eben Hill; Norm Benoit; Suzanna Brown; Mark Clifford; Craig Allen; Charles Reeves; Lucas Tremble; Coletta Greenbaum; Martha Taylor-Varney (ZA); (the following via Zoom) Virginia Randlett; James Preston; Charlie and Mima Tipper; Michael Hopwood; Phelps Holloway; and Don Bedard.
Note – the minutes for this meeting were taken by ZA Martha Taylor-Varney except for the first hearing. Those were taken by DRB member Jim Brightwell (as noted).
7:01PM – T. Maxham call the meeting to order and introduced the Board.
Changes to the Agenda
There were none.
Public Input
There was none.
Appeal to ZA’s Approval of Building Permit #24-53-SB041 for a Replacement Home at 41 Sunset View Rd.
[The minutes for this hearing were taken by DRB member Jim Brightwell]
- Maxham opened the continuation of the hearing for “Appeal to ZA’s Approval of Building Permit 24-53-SB041 for a Replacement Home at 41 Sunset Beach Rd.” at approximately 7:05 p.m. and administered the oath to the Zoning Administrator Martha Taylor-Varney, the applicant’s representative, and the appellants.
- Maxham said that the appellants had designated James Preston as the spokesperson.
- Taylor-Varney’s testimony:
On January 24, the Board denied a setback waiver for a replacement home since the design increased the degree of non-conformity. On February 5th Norm Benoit, representative of the property owner J. Henry Scott, filed a new permit application that was compliant with regulations. The new design used the footprint of the original home in the non-conforming area and extended the home for additional space in the conforming area of the lot. The new design is 3701 sq ft with a finished basement. Unlike the design that was denied, the new design does not have a walk-out basement with extensive lake-side excavation, and a Shoreland permit was supplied consistent with the new plan. The new design height is 31’5”, which is within the 35’ height limit of the Shoreland District. The original home had a flat roof and then a long shed roof. That design has been replicated in the new design, but the applicant wants to use the flat portion of the roof as an outdoor deck with access from the 3rd floor.
I issued a permit on February 5th. With a 15-day appeal period, the permit would have become effective on February 20th. On February 19th I received an email from James Preston, who owns the abutting property to the south at 35 Sunset Beach, appealing the approval. Preston is representing the other appellants. I told the appellants that the notice had been received on time, but the information required by the regulations was missing. I received the missing information on February 27th.
The appeal says that the deck constitutes a change of use and thus needs to be reviewed by the DRB. A year-round seasonal home is an allowed use in the Shoreland Zoning District, and a review by the DRB is required only if there is a change of use per section 505.D.1. The new design remains a seasonal residential home, so there is no change of use. An example of a change of use would be if the use became a restaurant or a multi-familiy home – a different kind of use, not a difference in architectural features.
The appeal claims that the railing around the deck is taller than the original structure and increases the nonconformity. I treat a railing like an antennae or chimney and is not part of the building height.
The appeal also said that a change of use should be evaluated for no undue adverse impact on the neighborhood, but since there is no change of use, there is no conditional use review required and this portion of the regulation does not apply.
The appeal says that the design does not comport with the character of the area. Since there is no change in conditional use, character of the area, which must be considered only for change in conditional use, cannot be used as a basis for this appeal.
The appeal cites the absence of a parking plan. The first design had parking for two cars; the new design does not – I missed that. There is room on the site for two cars, and the site plan needs to be updated to show that. I am aware that there is no parking on the other side of the road – Pat Corbin’s property.
The appeal cites a seasonal septic system. The “Clean Slate” permit exemptions allowed by the State allow wastewater systems to continue their use as they were on January 1, 2007 until the use changes. The use of the property on that date was a 4-bedroom seasonal home per the Listers’ card. Since the use of the new home is the same, I cannot require an upgrade. The appellants may want to go to the State, since it regulates wastewater.
The appeal also says that the second floor of the house was constructed without a permit. The Listers’ card, as far back as we have records, shows a 1.5 story (2 levels with a smaller second floor) dwelling. I understand that the previous owner was reported to have said at closing that he built the second floor without a permit but there is no documentation on this, and the 15-year statute of limitations would have expired.
Today I received a supplementary letter from the appellants stating that since 2014 the property has been occupied more than 180 days per year, it is no longer a seasonal property and a state wastewater permit is required. No one has complained about this property until now. I would need documentation, and again wastewater is regulated by the State. I have a statement from Denise Johnson-Turk, a wastewater specialist for ANR, that a state wastewater permit would be required for a change of use if renting it out on AirBnB, indicatinges it is being used for more occupants than when it was being used as a single-family dwelling. We have no regulations here in South Hero to regulate short-term rentals or to know which properties are short-term rentals, and wastewater is regulated by the State – I do not have jurisdiction over that.
The appellants’ letter also points out the lack of parking on the plan and asks that the building permit be revoked. I leave that up to the board, but the parking specified in the January application can be conditioned to an approval.
There are no design standards in Town regulations outside of the Village District, and there is no neighborhood association, so the only design standards are the dimensional standards defined in Town regulations in Table 2.3.
The site plan that came with the building permit was overlaid on the same site plan that was issued by Civil Engineering Associates, and they did it from the original 1942 survey. There are only two properties on the road that have recorded surveys. This property has 25’ side and road setbacks, the preexisting non-conforming setback is 9’ from the south boundary; the setback from the north boundary is 25’. The plan from Civil Engineering Associates clearly states that the plan is not intended to be a survey. I prefer a survey be done, but when the applicant signs an attest line that this is OK, the responsibility is the applicant’s.
My responsibility is to interpret and enforce the regulations. If you find differently, I defer to the Board. But I found that I was able to make the decision that I did with the information and jurisdiction that I had.
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T Maxham asked that the April 10, 2024 supplement be accepted as Exhibit #1. A motion was so made by Mike Welch, 2nd by Lisa Kilcoyne. The motion was passed by acclamation.
- Patterson clarified that the application that was approved was for a seasonal home.
Testimony of James Preston:
It sounds like there is an agreement that parking needs to be a part of the plan. The only issue is that if there is a wastewater permit the septic and wastewater needs to be juxtaposed.
The second issue is the rooftop deck. Don Smallwood, the former Zoning Administrator, was our consultant for this. The rooftop was never used as a deck, and as a deck it becomes part of the house. There is a deck on our garage which meets the setbacks and given the setback of 9’ you’re basically looking into the windows of that house. I’m imagining that if there’s a rooftop deck on that house, you’ll be able to clink glasses, you’ll basically be on top of one another. My understanding from talking to Don is this would be a change of use to a non-conforming structure. I’ll have Charlie talk about the septic.
Testimony of Charlie Tipper:
I think we can all agree that whatever the detail of the regulations that when it comes to a change of use it becomes a matter of interpretation. Even if it’s not a change of use I don’t see how anyone can argue how it is not an increase in the non-compliance of that space – changing it from an inert rooftop to one where people gather in that space that is 9’ from the property line. We’ve seen numerous rebuilds on the road but to the best of my knowledge there has never been a contested rebuild. Brian and Becky Aitchison recently went out of the way to be sure that their project was not stepping on the toes of neighbors and got numerous letters of support. In a lot of past rebuilds the DRB started by saying let’s talk septic, but that’s glaringly absent in this case where the owner is building a 4100 [sic] sq ft house. We’re hoping someone will step up and say “let’s be real” – when is this septic system is going to be redone. We’ve seen the DRB take that initiative with other projects.
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- Taylor-Varney noted that while not determinative, two letters of support had been received in support of the application under appeal.
- Kilcoyne asked if the Town had copies of the wastewater permit. M. Taylor-Varney said the house was built in 1974 and there are no records. It became exempt in 2007 when the State assumed regulation of wastewater. In my conversation with people, it is my impression that they intend to replace the system, but I cannot require it.
- Kilcoyne asked if as a seasonal dwelling, the proposed new home is without insulation or heating. M. Taylor-Varney said that the criteria for designating a home as seasonal is only determined by the septic system – has nothing to do with the construction of the building. State wastewater rules define seasonal or year-round occupancy.
- Tipper asked whether seasonal vs. year-round use was being considered by the Board. M. Taylor-Varney said the Listers’ card classifies it as seasonal, and that prior to the application she had never been approached by anyone saying that it was over-used.
Craig Austin said that he was in favor of the rebuild and that the new owner had no intention of renting it.
Craig Austin said that the new owner intends to replace the septic system, but he doesn’t want it as a contingency because it’s being used by the neighbors as a delaying tactic. The new owner has put a lot money into two sets of plans and wants to get something built. The septic system, even if overused, has functioned all these years. The new owner intends to put in a driveway. Craig said that the Sweeney residence nearby also has a rooftop deck on a non-conforming part of the house – this is not something new in the neighborhood. What the applicant is asking for is not unreasonable and meets the zoning regulations.
- Maxham said that the Board was bound by the development regulations and that the rights of all parties had to be respected.
- Clifford said that the Board was forcing the camps to be sold because most of the camps were non-conforming. People are buying multiple camps to combine lots. The lots are not big enough to accommodate a big family. Because of the high taxes, owners end up selling. Somebody with a lot of money comes in and buys them pricing native Vermonters out of the market.
- Maxham said we must deal with what is there, which was created in 1940. D. Patterson said that he took offense at the characterization of the Board’s actions and pointed to the new setback waiver provisions in the most recent version of the Development Regulations. T. Maxham said that South Hero grants a lot of variances due to small lots where many other towns would say “no.”
Mark Clifford said that maybe if the Board would let the applicant build only a replica of the original house that we wouldn’t have a lot of these issues.
- Maxham said that the original application was rejected because it did not conform to regulations; the applicant has returned attempting to conform to regulations and that’s what we’re considering now.
- Maxham asked for Norm Benoit’s comments. Norm Benoit said he had not shown the parking on the site plan, but it is on the Shoreland Protection application, which the Zoning Administrator has a copy of. He can transfer the parking to the Site Plan. Norm said that the owner intends to replace the septic system but wants to be sure he can get the house approved before updating the septic system. M. Taylor-Varney confirmed that the Shoreland application shows a 240 sq ft pervious driveway.
James Preston said that he had spoken to M. Taylor-Varney about the overuse of the property when he put a fence up. He said that he assumed that the earlier owner of the property did have a wastewater permit and stated that the property was over-used, and he did not know whether the septic had failed. He said that the new owner had not kept the neighbors informed about their plans.
Craig Austin said that the house now had new owners who did not intend to use it as a AirBnB and said that he had kept Charlie Tipper informed about plans for the septic, so the statement that they didn’t know is not true.
- Maxham ended discussion, saying that everyone had an opportunity to state their case, and closed the hearing.
Request for Setback Waiver at 49 Kibbe Farm Rd. – Eben Hill (24-57-KF049)
8:05PM – T. Maxham opened the hearing. The warning was read and Mr. Hill was sworn in.
Eben Hill presented to the Board. He explained that 49 Kibbe Farm Rd. has been a family camp since 1907. It includes a seasonal dwelling and 3 additional cabins. One cabin is in a precarious position atop an eroding bank above the lake. Mr. Hill proposes to tear down the existing 11’x14’ structure and build a cabin of the same size approx. 12 to 15 feet further from the bank (east) and 2 to 3 feet north, but still within the lake setback. The deck on the original structure will not be added to the replacement one. The proposed new location will prevent the need to remove several cedar trees. The existing cabin has been connected to a septic system shared by the 3 cabins. The replacement cabin will not be reconnected to the system.
The site plan included specs for rip rap to be added to re-enforce the eroding bank, but Mr. Hill said that, due to the expense and unnatural appearance, he prefers to add native plant vegetation instead to control erosion instead. This area measures approx. 100 feet along the lakefront. This application is only for a waiver to move the cabin. Mr. Hill told the Board that the camp is for family use only and will not be used as a short-term rental.
8:39PM – T. Maxham closed the hearing.
Request for Variance at 109 Kibbe Farm Rd. – Greenbaum (24-60-KP109)
8:42PM – T. Maxham opened the hearing. The warning was read and Ms. Greenbaum was sworn in.
Applicant Coletta Greenbaum presented to the Board. Her home at 109 Kibbe Point Rd. had been moved from RT 2. It was previously known as John Stark’s cabin. The home is a pre-existing, non-conforming structure, 13 feet from the west boundary and within the setback to the edge of the Kibbe Farm Rd. right-of-way. In 2001 a kitchen was added to the back of the structure, maintaining the 13-ft. setback from the west boundary. A back door, with a stoop and stairs, is within this non-conforming space. There are no homes beside or behind the home. The only homes are across the road.
Ms. Greenbaum is asking for a variance to build a 7.5-ft. long, 4-ft. wide non-conforming raised walkway within the side setback to connect the back door to a deck in the conforming space on the back of the house. Existing kitchen counters, cabinets, sink, and stove are along the north (back) wall, preventing locating a door directly from the kitchen to the conforming deck without the expense of redesigning the kitchen.
- Maxham asked if she would prefer a wider connector from the door to the deck than 4 feet? Ms. Greenbaum agreed. She said that John Lalumiere, owner of the parcel to the west, supported her proposal. Across-the-road neighbor Luke Tremble said he thinks the proposal is great.
9:05PM – T. Maxham closed the hearing.
New Business
ZA M. Taylor-Varney told the Board that Pest Pro has appealed the Board’s denial of their site plan review to enlarge the business’ parking lot to Vermont Superior Court Environmental Division (E Court).
Review of March 27, 2024 Minutes
- Patterson moved to approve the minutes of 3/27/24; M. Welch second. All in favor.
Administrator’s Report
- Upcoming schedule:
April 24, 2024 – deliberations only
May 8, 2024 – Setback Waiver at 13 Providence Island; CU/SP for Accessory Use at 189 South St.
May 22, 2024 – Vaiance on Ferry Rd.; Minor Subdivision on Station Rd.
- The Zoning Office will be closed from April 24 to May 2nd.
Adjournment
- Kilcoyne moved to adjourn and move the deliberative; M. Welch second. All in favor.
Respectfully submitted,
Martha Taylor-Varney, ZA
Signed: ________________________________ Date: ________________________
For the DRB
These minutes are unofficial until approved at the next regularly scheduled meeting. All motions were unanimous unless otherwise indicated.