March 11, 2020 DRB Minutes | Town of Town of South Hero

SOUTH HERO DEVELOPMENT REVIEW BOARD March 11, 2020

Members Present: Tim Maxham (Chair), Doug Patterson (Vice Chair), Jim Brightwell, Nate Hayward, Gareth Hunt, Liza Kilcoyne, Bill Rowe, Sue Arguin (alternate), James Welch (alternate)

Others Present: Martha Taylor-Varney (Zoning Administrator)

Members Absent: None

Public Present: Tonya Poutry; Mitchel Richardson; Jeff Sikora; Heidi Tappan

Call to Order: Meeting was called to order by T. Maxham at 7:00 p.m.

Changes to Agenda: None

Public Input: None

Maxham announced that the Selectboard had received the resignation of Ross Brown from the DRB due to his recent election to the Selectboard. T. Maxham also announced that the Selectboard appointed Bill Rowe to complete the rest of Ross’s term.

Hearing: 20-34-RT288 Conditional Use and Site Plan Review for Real Estate Office and Retail Space – Jeff Sikora

Maxham opened the hearing at 7:05 p.m.

Notice & Oath

Patterson read the hearing warning. T. Maxham administered the oath to the attending members of the public.

Appearing on behalf of the applicant:

Jeff Sikora

Hearing Notes

Sikora said that he was planning to purchase the building at 288 US RT 2 for use as real estate office and keep the retail use for the display and sale of art. J. Sikora emphasized that the retail use would be compatible with the use as a real estate office and would not include convenience foods, drinks, etc.
Brightwell asked if the applicant planned to make any modifications to the site for the new use. J. Sikora said no, other than cleaning up the parking spaces where the grass had grown in.
Brightwell asked the Chair to clarify for the Board how it was supposed to evaluate the application under both the old and new regulations. J. Brightwell said that under the new regulations, site review may not be required depending on whether the applicant planned to make any modifications to the site. J. Brightwell cited the new bylaws Section 303 (A) on page 22, “Applications for change of use and modifications to existing uses that do not propose or require an alteration to the existing, permitted site design also does not require site plan review.” J. Brightwell said that under the new regulations, the site is in the village district and professional services is a permitted use, so the applicant would not need to come before the Board for a conditional use hearing. Since the project is a change of permitted use and no modifications to the site are planned, under the new regulations no site plan review is required as the property was previously approved as a commercial space. Under the old regulations, the property is in the rural residential district and the applicant would need conditional use amd site plan approval. J. Brightwell asked if the application is approved under one set of regulations, does it also need to be approved under the other set of regulations.
Maxham said so that everyone understands the question, we have new development regulations that were approved by the Selectboard Monday night. They won’t become effective until March 31^st, but the statutes say that in the interim the Board has to take a look at the application under both old and new regulations. T. Maxham deferred to M. Taylor-Varney to answer the rest of the question.
Taylor-Varney said the new regulations apply from the date of the Selectboard public hearing for the new regulations, which was December 11^th, for the next 150 days, or until the regulations are approved and adopted, whichever comes first. Any application that comes before the ZA or the DRB has to be reviewed under both old and new regulations. This is the first application that came in since December 11^th. The new regulations will become effective on March 31^st if there is no petition by 5% of the registered voters in the town. She said that she didn’t see that happening. The Board will deliberate on this application on February 25^th, and so needs to deliberate under both sets of regulations. M. Taylor-Varney said that she listed the application for site plan review under the new regulations because she wanted the Board to have the option of reviewing the parking under both sets of regulations as the newer regulations have much more detailed requirements.
Brightwell asked D. Patterson, who is also on the Planning Commission, if it was the intention of the Planning Commission that the new regulations not require a site review for an additional permitted use.
Patterson said that was true, but the applicant was planning to make changes to the parking, since there was no delineated parking currently.
Sikora said that no changes to the parking area were planned. The parking area is graveled, but the grass is grown up. He might bring in more gravel. The whole front has been gravel for a long time.
Brightwell asked the applicant if he was planning to make delineated parking as shown in the site plan, given that the parking is gravel. J. Sikora said no.
Taylor-Varney asked if the Board wanted to require delineated parking.
Brightwell said that as he read the new regulations, they do not require a site plan review. There is a phrase which is a little vague, “applications that do not propose or require an alteration to the existing permitted site design” do not require a site review. The phrase “or require” does not define who is requiring it. J. Brightwell said as he reads it, if the new use requires an alteration to the site, then a site plan review would be required, but otherwise not. This is in Section 303 A on page 22.
Taylor-Varney said it’s an added use – professional space plus retail.
Brightwell said that he agrees, it’s an added use, and that as he reads the new regulations they do not say that a site plan review is required. Under the new regulations, the applicant does not even need to appear before the Board for conditional use because the proposed use is permitted.
Brightwell said under the old regulations the parcel is in the rural residential district and its proposed use would require conditional use approval plus site plan review. The site plan that is submitted looks like a preliminary site plan, but under the old regulations we don’t have the concept of a preliminary site plan, so there are things missing in the site plan that the applicant would need to update. J. Brightwell said if the applicant is not planning to do anything except slap some paint on the building and move in, he was not sure the Board would require a site plan under the new regulations.
Patterson said he’s adding the use of professional office to an existing retail use. It’s not changing a use, it’s an additional use.
Brightwell said so you’re saying because it’s an additional use, this clause does not apply.
Patterson said yes, if you’re changing it to a retail office, I would agree with you, but he’s come before us adding another use, a real estate sales office.
Maxham said before we go down this path further, since we’re also evaluating under the old regulations, let’s get the information we need for that. When we’re done with the hearing, we can discuss the new regulations.
Maxham said let’s review the staff report. Martha is saying that the applicant may have to get VTRANS approval. J. Sikora said that he had started the process with Ed Pierce of VTRANS.
Maxham asked about the wastewater permit with the State. J. Sikora said he planned to follow up on that.
Maxham asked what the applicants needs are for parking and said that he saw a lot of cars at Coldwell Banker. J. Sikora said that Coldwell Banker has 37 people working there.
Maxham asked there were going to be interior partitions separating the real estate office from the retail. J. Sikora said that the interior was one big space and that his primary purpose was to have a real-estate office. If retail is a problem he would drop the retail part – he was not intending to be in a retail business other than incidentally.
Brightwell asked if water and electric were on the site and if they were shown on the site plan. J. Sikora said that water and electric were present on the site but not shown on the plan. He said that water comes in the back of the property from the water district.
Brightwell asked how the driveway area in the front of the building drains. J. Sikora said that it drains from the front of the lot toward the building and then to both sides. The floor level of the building is about 144’. The building has been there so long that water issues have been taken care of by previous owners.
Maxham asked if the applicant had done the calculations to see what the parking requirements were. J. Sikora said yes, that the building was 912 square feet, and that the parking shown was adequate under the existing regulations.
Taylor-Varney said that under the new regulations more than one parking criterion might apply, but that she thought that Professional Space with Limited Customers parking designation was most appropriate. That criterion specifies 1 space per 600 square feet, and for retail it is 1 space per 450 square feet. The consensus of the Board was that the four spaces provided were adequate under these criteria.
Sikora said that although he has several associates, they use the office primarily for meetings. J. Sikora said that he and his associates don’t go into the office every day, that most of the work is by phone or computer. Customers don’t walk in the door anymore.
Brightwell said that if the applicant did have retail, he would need somebody there minding the shop. J. Sikora said true, but that’s not the intent.
Sikora said that for the retail business that’s there now, there is at most only one or two cars there – the owner plus maybe one customer.
Brightwell asked if the privacy fence on the west side was on the applicant’s property. J. Sikora said that it was on the neighbor’s property.
Maxham asked if the current sign would stay. J. Sikora said he would put a bigger sign in the same location.
Brightwell asked if cars would be able to go around the back of the building. J. Sikora said yes, at one point you could drive all around the building, the gravel is still there but the grass has grown through it.
Hayward asked if it got wet in the back of the building. J. Sikora said no.
Brightwell said that several required features were omitted from the site plan, including features on adjacent sites, the neighbor’s house, the privacy fence, and under the new regulations a daily and peak traffic figure.
Maxham said that even under the current regulations the traffic figures were needed.
Taylor-Varney asked if the traffic figures were from a reference manual or were practical. The consensus of the Board was that traffic figures from a reference manual were not always applicable to South Hero and that practical estimates from the applicant were also valuable.
Taylor-Varney asked if the Board would be will to go ahead and approve the application conditioned upon submission of a site plan that is updated with the items mentioned and complete in the judgement of the Zoning Administrator. J. Brightwell said that he would be happy with this solution, but was anxious to maintain the standard that site plans be complete according to requirements of the regulations.
Maxham asked if the Board needed any further discussion of parking in light of the new regulations requiring parking around back. D. Patterson said that in his view, this was an existing use and the applicant was not planning any site modifications, so it did not make sense to require that parking be moved to the rear of the building. The consensus of the Board agreed with D. Patterson.
Patterson said that the only remaining concern he had was with the retail use. J. Sikora said that his daughter and wife were interested in selling art hanging on the office walls, but that this was a secondary purpose to the real estate office. J. Sikora said the space was very small, and that the primary alteration he planned was to put in a handicap toilet as the current facility was inadequate.
Kilcoyne asked what the interior would be like. J. Sikora said that it would be a conference space plus a couple of cubicles. L. Kilcoyne said that by the time you put in the toilet, conference room and cubicles you would only have room for a small lobby for the artwork, not even a gallery. L. Kilcoyne said that for her, the retail was an incidental or secondary use. It’s not like the building would be open for retail use when the real estate office was not open. J. Sikora confirmed that the building would not be open for retail use other than when the real estate office was open. L. Kilcoyne said in terms of a building permit that would be an incidental use – retail is not really the intent of the space. J. Sikora agreed.
Kilcoyne asked what the sign would say out front. Does it say “art gallery”? J. Sikora said that the sign would say Apple Island Real Estate. L. Kilcoyne asked if the sign would say “artwork” or “paintings”. J. Sikora said no – that’s not the intent, it’s a real-estate office. L. Kilcoyne said that clarifies it.
Maxham said in summary that we talked about needing to have a complete site plan. J. Sikora said that modifying the site plan would not be a problem because he was using AutoCad. J. Sikora said he could drop a completed site plan off so that when the Board deliberates they will have a complete plan.

Hearing no further questions from the Board or the audience, T. Maxham closed hearing at 7:50 p.m.

Hearing: 20-35-FR138 Conditional Use and Site Plan Review For Additional Use – Mitchel Richardson

Maxham opened the hearing at 7:58 p.m.

Notice & Oath

Patterson read the hearing warning. T. Maxham administered the oath to the attending members of the public.

Appearing on Behalf of the Applicant

Mitchel Richardson

Hearing Notes

The application is for an additional use for the property at 138 Ferry Road. The applicant received Conditional Use and Site Plan approval (Application #19-09-FR138) on September 12, 2019 to build a car and farm machinery repair facility. The applicant is now requesting to add professional space to the second-floor of the structure, making this a multi-use building. The property is in the Rural Residential district. Professional use in Rural Residential requires a conditional use and site plan review by the DRB under both old and new regulations.

Richardson said that he was planning to have office space on the second floor and was now looking to accommodate a second business in a portion of that space. He was not planning any changes other than allocating part of that space to the additional business.
Patterson asked how many square feet were in the second floor allocated to professional space. M. Richardson said 2200.
Brightwell asked if the space was in the design previously approved by the DRB. M. Richardson said yes, and that there was no new square footage in the building as a part of this.
Brightwell asked if the applicant was planning to make any modifications to the site. M. Richardson said no.
Brightwell asked what the number of approved parking spaces was. M. Richardson said fifty-four.
Hunt said that the property looked like a junkyard and asked how many cars were on the property. M. Richardson said 15 to 20, but that this would be taken care of this spring.
Maxham asked if the office space upstairs would be used by M. Richardson and another business. M. Richardson said yes, by a separate business not associated with Keeler Bay Service.
Brightwell asked if there would be changes to the entry doors. M. Richardson said no, the second business would use the same doors and stairs.
Patterson asked if all 2200 square feet would be allocated to outside use. M. Richardson said yes.
Hayward asked if the applicant would have his own office upstairs also. M. Richardson said no.
Hayward said we never saw a layout for the floor plan upstairs. M. Richardson said that at the time of the last application it was just a layout within the building. M. Richardson presented a layout that he said was tentative.
Maxham asked if there were going to be two professional spaces. M. Richardson said yes, there’s enough room for two, which is why he specified six people – there’s enough septic. So it’s either one big space or two separate ones.
Taylor-Varney asked about customer traffic. M. Richardson said customer traffic for the professional use will be very minimal.
Hunt asked what kind of professional service was expected. M. Richardson said anything professional – real estate offices or lawyers, for example.
Maxham asked about handicap access for the second floor. M. Richardson said that he talked to his architect and she said that you don’t have to have handicap access just for professional space, since it would not be open for retail. He said that if it turns out to be required, he would address it. M. Richardson said that the square footage falls below the required minimum that would require changes to address fire code.
Kilcoyne said the other change to ask the architect about would be whether there are any changes required to address egress. M. Richardson said that his architect had addressed this, and pointed out that there were stairs front and back. L. Kilcoyne clarified that this was not DRB jurisdiction but that she was offering suggestions for the applicant to check into.
Hunt asked if the floor was open to the floor below. N. Hayward observed that was the case which is why it is labeled mezzanine space. M. Richardson said that they were running the plan by the fire marshal next week.

Maxham said that the site plan was showing 121’ from the road and asked if that was the same that was approved by Act 250. M. Richardson said yes, that the town wanted 175’; Act 250 wanted 75’; and all parties compromised at the original 121’
Maxham requested and L. Kilcoyne made a motion to admit the elevations A1 and A2 presented by M. Richardson as Exhibit A. D. Patterson seconded, and the motion passed by acclamation.
Maxham said that the DRB had received an email today from abutter Deb Sherman regarding the application. The email expressed concern regarding the DRB’s May 9, 2018 decision Item #10 that states that the owner-operator shall not maintain a salvage yard, scrap metal processing facility, or automotive graveyard, as defined by Vermont Statue 24 VSA 2241. The email says that Mitchel currently has a number of cars on the property which have been there for well over 9 months. The email requested this issue to be addressed at tonight’s meeting, asked if having additional office space will extend the parking area, and requested a copy of the minutes for the hearing.
Richardson said that would soon be addressed and noted that he had recently vacated his previous business location and had to put stuff somewhere.
Hayward asked if the applicant was already out of the old location, and asked if the applicant was still operating a business. M. Richardson said he was out of his old location and was not currently operating.
Hunt said that he thought that each time there was a car junked (from the old location) it was moved to the site and that is why people were upset.
Richardson said that the issue of vehicles was brought up before (in the previous DRB hearing) and since then nothing else has been added. G. Hunt said yes it has.
Maxham said that he didn’t want to get into a back and forth. T. Maxham asked for a motion that the email be entered into the record. L. Kilcoyne so moved, seconded by G. Hunt. The motion passed by acclamation.
Henderson said that this (removal of the cars) was a condition of the previous Board approval and since that time no cars have been added, and that he would address it.
Maxham said that there were 2 or 3 points regarding the earlier decision. So that everybody understands what the Board did before, condition #10 of the previous approval said that the owner-operator shall not operate or maintain a salvage yard, scrap metal processing facility or automotive graveyard as defined by Vermont Statute 24 VSA 2241. Condition #11 said that no inoperative or unregistered vehicle shall be stored on the site for a period longer than 30 days.
Maxham asked if the elevations would be changing. M. Richardson said no.
Hayward said the section cut that was submitted doesn’t give enough head height for the staircases. He said he had a sidebar conversation with Mitchel and while he is not making any changes to the exterior elevations, the floor would be lower than what is shown. N. Hayward said he just wanted to make sure it’s on the record that none of the exterior elevations are changing.
Patterson said that the parking was approved on the previous estimation of what the business required before the additional of 6 people and questioned whether the parking was adequate. M. Henderson said that the number of parking spaces was set to appease Tim Maxham and that Act 250 would not approve any more spaces. M. Henderson said that he already had much more than what was required.
Brightwell said that his recollection was that the Board had asked Mitchel to increase the number of parking spaces because of the number of vehicles that were seen on his lot. Toward the end of the approval process the Board was asking whether that many were actually needed. J. Brightwell said that he was not sure that there are requirements for parking spaces for a garage in the regulations. Fifty-four spaces minus twelve (for employees parking for both businesses) give you 42 spaces for the garage operations. M. Richardson said that the shop required 14 spaces based on square footage. J. Brightwell said that there was a huge overage in the number of parking spaces based on what was seen in practice at the previous location of business where there were a large number of vehicles. L. Kilcoyne said she remembered that conversation. J. Brightwell said that there are plenty of spaces to accommodate the additional 6 employees associated with the professional space, and there would still be likely spaces to accommodate visitors to that professional space. M. Richardson said that Tim said that at any given time (at my previous place of business) he could see 30 cars so Mitchel went way above that in planning parking.
Maxham asked if there was anything in the current or new regulations that would clarify how many spaces were listed. M. Taylor-Varney said that in the current regulations, the only thing it fits under is Commercial. Under the new regulations it probably fits in professional services with regular customer traffic, which requires one space per 450 square feet. L. Kilcoyne said that there was a reason for the extra space, which was for the cars that don’t get finished overnight, and we didn’t want those cars on the farm.
Hayward asked if the plan for the cars on the property now was to remove the cars. M. Richardson said that in the spring, All-Metals Recycling was going to clean it up – the cars would go to recycling. N. Hayward said so they’re not going to wind up getting worked on – they’re all just going to go away? M. Henderson said yes. M. Henderson said that the cleanup date would depend on the weather.
Maxham said that the parking issue was one of his concerns, and that he was at the Act 250 hearing and that Act 250 thought that the parking was excessive. Act 250 let it go since the Town required it. He said his concern was that he had seen that many vehicles at the old business site and that if the applicant expands his business, more space would be needed. M. Richardson said that if we went back to Act 250 with more parking we would get resistance.
Brightwell asked if M. Richardson could define what “all cleaned up” meant so that the Board could perhaps condition its approval on removal of all of the vehicles. M. Richardson said all of the vehicles meeting the prior conditions would be removed. J. Brightwell asked if this excluded agricultural vehicles, since this was a farm. M. Richardson said yes. G. Hunt asked if this included the motor home. M. Richardson said that the motor home would likely be moved and used as it belonged to his parents.
Rowe asked that since there is a trailer on the property as a place to stay doesn’t that change things. M. Richardson said it’s not permanent, it’s a motor home. W. Rowe said I thought you said it was going to be parked there. M. Richardson said it’s not fixed; it can move. J. Brightwell asked if it was registered. M. Richardson said no. J. Brightwell asked if it could be registered. M. Richardson said yes. J. Brightwell said so if we had a condition that said all non-agricultural vehicles on the property would be registered, would that be acceptable. M. Richardson said yes. M. Richardson said that he could buy a registration from New Hampshire, which sells 10-year registrations for $35. G. Hunt asked registration for what? M. Richardson said for a car, trailer, or tractor-trailer. G. Hunt said so then you could leave that junk truck there for 10 years? M. Richardson said what you classify as junk may not be junk to somebody else.
Maxham said I have not been by the site for some time. I just would say that you have agreed that you understand what our conditions are in our original decision. We’re referencing state statute. Sometimes history isn’t always in everybody’s favor. You’re making a statement here that all of that stuff is going to be cleaned up and you’re going to put in a respectable business and nice looking building and operate there. I guess I’d just like to say that the Board is saying that they’d like to see some improvements there, and if they’re going to approve something based on what’s already there, then if you move forward, I‘d take that to heart very seriously.

Mitchel said that the design of the building and the effort he’s already put forward states what his intention is. T. Maxham said that I understand that, and you’ve said you’re going to have it cleaned up shortly, and it’s got something to do with weather, but I can also say that if you’re looking to move forward and make a presentable presentation, you could easily have had somebody come in there with a track excavator or something and have that stuff all cleaned up most anytime. M. Richardson said we’re coordinating with All-Metals Recycling so you have to work around their schedule.

Patterson asked if the applicant had approached VTRANS about the enhancement. M. Richardson said that he had approached VTRANS and that nothing further is needed as far as they are concerned. M. Richardson said they had also contacted Act 250.

Hearing no further questions from the Board or audience, T. Maxham closed the hearing at 8:24 p.m.

Old Business

Maxham said that we had a hearing recessed to Feb 26^th, which was for the gas station at the corner of Route 314 and Route 2. The property changed hands; applicant Vallee decided not to pursue application further and the Board received a written request from Mr. Vallee to withdraw the application. That effectively extinguishes the process.
Brightwell said that on the subject of recording the DRB meetings, he had identified a solution with external area microphone that should work, and that he had forwarded the information to M. Taylor-Varney.

Review of Minutes

Hunt moved to accept the minutes of January 22, 2020, as corrected. L. Kilcoyne seconded, and the minutes were approved by acclamation.

Administrator’s Report

The Administrator’s Report was delivered by Martha Taylor-Varney (Zoning Administrator).

Taylor-Varney reported that the draft bylaws were approved by the Selectboard on Monday night. They will become effective on March 31^st.

No DRB hearings are scheduled for March 25^th. That meeting will be used to hold deliberations for tonight’s hearings, and Heidi Tappan, owner of Sebs, will come in for her 1-year review of parking.

Patterson and G. Hunt said they will be out on the 25^th. Sue and Mike (alternates) are invited to fill in.

Adjournment

Hunt moved to adjourn the business meeting into deliberative. The motion was seconded by Liza and carried by acclamation at 8:35 p.m.

Respectfully submitted,

James G. Brightwell

Clerk for S. Hero Development Review Board

Signed: ____________________________________________ Date: __________________

For the Development Review Board

These minutes are unofficial until approved at the next regularly-scheduled meeting. All motions were unanimous unless otherwise indicated.