May 26, 2021 DRB Minutes | Town of Town of South Hero

SOUTH HERO DEVELOPMENT REVIEW BOARD May 26, 2021

Members Present: Tim Maxham (Chair), Doug Patterson (Vice Chair), Jim Brightwell, Nate Hayward, Gareth Hunt, Liza Kilcoyne, Mike Welch (alternate)

Others Present: Martha Taylor-Varney (Zoning Administrator)

Public Present: Ilmar Vanderer

Members Absent: William Rowe (M. Welch sitting for W. Rowe)

Call to Order: The meeting was called to order by T. Maxham at 6:00 p.m. The meeting was conducted by Zoom web meeting software.

Changes to Agenda: None.

Public Input: None.

Hearing: Continuation of Gammal combined hearing for a Minor Subdivision/PUD review (21-59-RT456)

Appearing on Behalf of the Applicant

Mike Gammal, Jay Buermann

Hearing Notes

Chair T. Maxham opened the hearing at 6:00 p.m.

Taylor-Varney read the hearing warning. T. Maxham administered the oath to the applicants and members of the public who wished to speak.

Chair T. Maxham said that the Board had been awaiting a site plan, had only just received it, and consequently had not much time to review it.

Gammal apologized for the late delivery and said that he had submitted his engineer’s plan by the 20^th as requested but acknowledged that the site survey was late. M. Gammal said that the survey requested by the Board was complete. M. Gammal said that he had tried to address the questions from the site visit in the survey. One of the questions was the location of the bath house, which the location of which was constrained by the right-of-way for overhead power lines.

Jay Buermann presented a walkthrough of his written application narrative and said that based on the walkthrough, he felt he had a complete application for a minor subdivision.

Buermann walked through the application against the requirements of the Development Regulations Section 408 (Development Standards). He explained that the lots were defined by physical characteristics of the property and their proposed use. He said that the environmental standards were more applicable to the PUD on Lot #2.
Patterson asked J. Buermann to explain how the application conformed to Section 408.H.1. saying that he did not seeing depiction of utilities – electric, telephone, cable. D. Patterson said he saw water and sewage on the site plan but not utilities. J. Buermann said that existing utilities were documented on the site plan, but he did not have transformers spotted on the PUD plan – that he had not done design on that yet. He said the existing overhead lines that go through the site were in the way and needed to be moved. M. Gammal said he had a conversation with Bill Johnson of VEC re Lots #1 and #3 which are currently serviced by power, and none of that would change. Lot #2 will be fed from the existing transformer by the bathhouse. The existing single-family home up by Route 2 will continue to be serviced from lines up on Route 2. He said that the currently shown power features will stay and serve the new configuration. J. Buermann said he is not attempting to show new transformer locations, but that anything new will be underground. J. Buermann said that the owners of the new lots will have to submit a load request form to VEC to determine the final configuration of transformers on the PUD lot.
Maxham said that the Board would need to be satisfied that the current overhead phone lines would be moved or buried. M. Gammal said that the current management of the phone company was on board with moving or burying the lines. D. Patterson said that the regulations require that the Board see these changes, and that he was used to seeing a full proposed utility plan, even if the plan had a note on it saying that the plans were subject to agreement by the respective utility companies. J. Buermann proposed that the utility changes be subject to a condition of approval and submitted later.
Maxham said there were two utility issues, one for the detailed plan of the PUD, and the other for the disposition of the current overhead line that both the Board and the applicant agree are in the way. T. Maxham said he felt that the Board needed to know what the plan for the existing overhead telephone line is before it can approve the subdivision.
Buermann said that except for the discussion of the power lines he felt he had addressed the Development Regulation subdivision requirements. D. Patterson said that the final mylar would need name and signature boxes.
Brightwell asked for more discussion on the location of the bath house, what other locations were considered. He said that the bathhouse was sitting right in the forefront of the Montani’s view of the lake. J. Buermann said that the criteria he used in siting the bath house was convenience to the marina and keeping it out from under the 50’ ROW under the electric lines. J. Brightwell asked if there was room on the north side of the power lines for the bath house. M. Gammal said it was solid rock and hillside at that end of the parking lot that would require blasting, and it was further away from the marina. J. Brightwell asked if there was consideration of any other sites. M. Gammal said it was possible to bring the bath house further up the hill but the tradeoff would be more trailer parking in front of the Montani’s. J. Brightwell said that the stated use of the bath house was for the marina and asked if it would also be used by patrons of the event deck. M. Gammal said yes, it would serve both. M. Welch asked about screening the bath house. M. Gammal said that the bath house was not directly in the line of sight of the Montani’s view to the lake, and that there was already some pretty heavy tree cover at the rear of the Montani’s lot and that Montani had not maintained his view to-date. L. Kilcoyne said that if the bath house was also being used by the event deck, she could imagine more traffic from the event deck than from the marina. M. Gammal said the event deck had portable toilets as the primary facility.
Maxham asked if the proposed bath house location was supposed to be showing on the survey. J. Buermann said that in his opinion only existing, permanent features should be shown on the survey. D. Patterson asked if there were permanent structures not shown that are part of the existing trailer facilities. He said that from the aerial photo there looked like permanent facilities not shown on the survey plat. M. Gammal said there are decks and sheds tenants had erected but they were not permanent.
Brightwell said that the event deck was not shown and asked if that was a permanent structure. After discussion, all agreed that the surveyor likely considered the event deck a non-permanent structure since it was built on removable shipping containers. D. Patterson suggested having the surveyor put a note on his survey explaining what his criteria was for showing on the survey (e.g. structures with foundations). J. Buermann agreed that the note was a reasonable condition. L. Kilcoyne observed that the food truck, a non-permanent structure, was shown on the survey and suggested that it be removed from the survey since no other temporary structures were depicted.
Brightwell said he wanted to return to the bath house location and said there was a potential alternate location between the event deck and the first parking area. M. Gammal said that location was not near the marina. J. Brightwell asked if there was any proposed screening at the proposed location. M. Gammal said no. N. Hayward said that at the site visit members of the Board were struck by the location as being off the Montani’s deck. L. Kilcoyne said she understood the convenience issue but the bath house is not in a good spot. N. Hayward suggested a location east of the wastewater disposal field adjacent to the gravel parking, which would be more central to the marina. M. Gammal said that would put it in the viewshed of the PUD and of neighbor P. Navarro. J. Brightwell said that in that location, the perceived scale of the building is reduced by its distance from the neighbors, and the location is not much further from the marina than the proposed location. M. Gammal said he agreed it that it is actually closer to the docks, but people would have to walk through a parking lot to get there. J. Brightwell said that the distance is equidistant from the two neighbors, it is smaller in perspective when looking at it from the adjoining properties, people will see it sitting out in the field visible from the entire area, and would presumably be kept attractive because all of the business would be looking at it. M. Gammal said he would be fine with that, it would be in the view of multiple homes instead of one, and Montani had screening due to the trees on his property, but agreed it is a central location.
Taylor-Varney asked if there was a gravel access to the southern-most two dock trees. M. Gammal said that access to those dock trees was across the grass, but that handicap access would be provided via the gravel access to the northernmost dock tree. J. Brightwell observed that the alternate bath house location would be more centrally located to all three dock trees than the original proposed location. M. Gammal agreed.
Taylor-Varney asked if there were any ADA requirements for the bath house. M. Gammal said no, but he had built the bath house with ADA requirements in mind and as far as he was concerned it was fully compliant.
Buermann said that he appreciated the Board’s suggestion for alternate locations for the bath house, but the submitted proposal meets the regulations, and he would leave it to his client to consider whether he wanted to entertain alternate locations. M. Gammal said he had not heard objections from Jamie Montani regarding the location and the proposed location is the ideal place.
Maxham asked if the proposed survey plat was missing anything. D. Patterson said that the survey plat did not need to include proposed utility changes – that utilities could go on the site plan. All agreed that the plat should show only permanent structures with foundations, and the signature block. T. Maxham said that the survey was showing only the creation of the new lots. N. Hayward said that the plat showed what was needed.
Taylor-Varney asked why Table 4.1 asked for additional information and created a more cluttered plat than what is shown. J. Buermann said that the information was needed by the Board to ensure that the subdivision was creating viable lots but the information was not required on the survey plat and would clutter it up.
Brightwell said that as he understands it, once the subdivision is approved, then the Board is supposed to review the PUD and the site plan together. Does that mean the Board has no further recourse to comment on the site plan for the non-PUD lots of the subdivision? D. Patterson said there are parts of the subdivision plan that concern more than Lot #2 (the PUD). M. Taylor-Varney said that to do a combined hearing for the PUD, the subdivision needs to be approved. She said her understanding is that once the Board is done with subdivision, it would move on to the PUD for Lot #2. D. Patterson said there are elements of the subdivision that require site plan review, for example putting the disposal mounds for Lot #2 in Lot #1, which is part of the overall site plan. J. Buermann said if a lot exists and a neighbor says can I put my septic over on your lot, then the lot does not need to go through site plan review – a simple easement would suffice. D. Patterson said but this is part of the overall subdivision plan since the PUD is not the only contributor to the sanitary system. He said you’re putting the sand mounds on Lot #1, but I’m not seeing any easements those sand mounds benefitting Lot #2. J. Buermann said without the PUD, the subdivision is only creating the empty lots, so the easements don’t need to be created until there is a PUD. J. Buermann said that a potential solution is to approve the subdivision but with a condition that the easements for the sanitary system be shown when the PUD is approved, which leaves 6 months for it to be recorded either with or without the easements. M. Taylor-Varney suggested that for the bathhouse location, the subdivision approval could be written with a condition giving the ZA some level of discretion to amend the site plan with the final location of the bath house when it is moved from the PUD.
Maxham asked how the property owners in the PUD would know what their access restrictions were to the lake, for example did they have the right to put in their own lake access, or did they have to use the marina? J. Buermann said that Shoreland regulations provided for individual property owners with direct access to the lake. J. Brightwell said that the Board had asked for in the previous meeting a proposal for deed restrictions and HOA covenants that would govern the size and shape of the house and how the common lands would be managed in the PUD. J. Buermann suggested that these were issues for the PUD, not for the subdivision, and Lot #2 as proposed is valid for a use in the subdivision.
Kilcoyne asked what issues needed to be resolved for the subdivision. J. Brightwell said common issues across all lots are the utilities and the sanitary systems fields, and the move of the bath house from Lot #2 to Lot #1. M. Gammal said that at the point that ownership would be transferred, each lot would need to be legally saleable, and easements would be created at that time.
Kilcoyne made the motion that the Board accept the survey plat as complete with the condition that the survey show only permanent structures with foundations and add a signature block. The motion was seconded by M. Welch and approved by acclamation.
Maxham asked to proceed on to discussion of the PUD. J. Buermann provided a walk-through his proposal vs. the requirements of Section 304 of the Development Regulations.
Maxham asked if the HOA restrictions would be complete before lots were sold. M. Gammal said yes. T. Maxham asked if the HOA restrictions could be amended by the residents. M. Gammal said yes, subject to the bylaws. M. Gammal said that he did not a draft HOA agreement to submit at this time. M. Taylor-Varney asked if homeowners as a group could change their bylaws. M. Gammal said yes, subject to the approval of a majority.
Brightwell said that he was concerned that the Board was being asked to approve a PUD without a proposal from the developer for standards as to what kinds of dwellings the owners could put up – for example, could an owner bring in a travel trailer and park it; do they have to have a foundation; can they paint their house orange? J. Brightwell asked what provisions were proposed that will protect the values of the other property owners. M. Gammal said that he was providing lot boundaries for building lots for single-family homes that would otherwise comply with the zoning regulations that apply to the Keeler Bay Village district but was not proposing further restrictions.
Brightwell said if I have an RV can I pull it up on the lawn and leave it out there all summer? M. Gammal said no, no RVs or boats, there would be a designated area for that out of the viewshed. M. Gammal said I understand, you want to quantify that. J. Brightwell said yes, I think we need a proposal from you on that, with constraints that would prevent people from putting up a windmill, or maybe solar, depending on whether you want that, and how you’re going to protect the common open space – covenants that would be readily available in other homeowner associations that your attorney or developer would have access to. D. Patterson said I think we’re entitled to see a draft of this to see what you’re proposing and see if there’s anything that might put the town in a bind. J. Buermann said it makes sense to provide draft covenants to give a sense of what is proposed. J. Buermann said there would be things that are not variable, and other things that can be changed by the homeowners’ association. J. Buermann said he had advised his client that he shouldn’t restrict building design too much, but instead to leave it open for individual homebuyers. T. Maxham said he was concerned about height restrictions and had understood from earlier meetings that it would be one level. He said he was also concerned whether basements were permitted considering that the development is on the lake. J. Buermann suggested that the Board address the protection of integrity and value of the community but not try to restrict the building design. G. Hunt said it is a planned unit development, where’s the plan? J. Buermann said that if building design is important, then the way to address that is to have each buyer have their plan approved by the DRB.
Taylor-Varney said she had an email from Frank Montani saying that he had requested that proposed residence #7 not be more than one story so he would not lose his view of the lake. M. Taylor-Varney asked if that type of restriction is reasonable or should the buyer of the lot be able to build to the 40’ height limit allowed in the Village District. J. Buermann said it wasn’t his position to make that decision but questioned how far the Board wanted to go in preserving existing views. M. Gammal said that Frank Montani’s view had actually been vastly improved by his actions cleaning up the campground, but he also thought a 30’ height limit was probably reasonable for a single-family residence.
Brightwell said on the question of appearances, the Town had chosen not to have design standards and he did not see anything in the regulations that would let the Board dictate design. He said it is in the developer’s self-interest to ensure that buyers are buying into a development that is an attractive place to live, and it is up to the developer to propose any constraints to the Board and to his buyers. He said the Board is on stronger ground in the regulations as to the protection of the open space. If the developer had a more unified treatment of the property, it would be a more attractive place to live and he would get a higher price for his lots.
Kilcoyne said we are not asking for design review, but are we looking at 4-bedroom homes, or bungalows? J. Buermann said that because it’s more than 5 homes on a shared septic, the number of bedrooms was not restricted by State septic regulations.
Maxham asked if a new wastewater permit was needed from the State (different from the campground). J. Buermann said yes. He said the applicant was allowed to convert from seasonal to year-round so long as it did not increase flows. The applicant did tests with a hydrogeologist and concluded that they needed about the same number of gallons per day. The applicant has held the wastewater application for the houses in abeyance while filing for the water main permit and for permits to support the food truck and the marina.
Buermann did a walkthrough of his site plan application vs the requirements of Section 303.
Brightwell asked if the PUD site plan would include a proposed utilities layout. J. Buermann suggested that it would either be provided or could be conditioned. D. Patterson said that the plan would need input from the respective utility companies.
Patterson asked if residences #3 and #4 would share the private well shown on the plan and asked why the service was going through one house to the other. J. Buermann said in his experience the well driller usually installed the master system in one house, but what he was really hoping for was an increase in the allotment of hookups from the Fire District, removing the need for the well.
Maxham said he had a problem with the height of the buildings going to 40’, whether the buildings would have a basement, and the presence of accessory structures.
Patterson said he was concerned that what was defined was a building envelope and not a lot. He said he did not see how you could have an accessory structure because you don’t have lots – there’s nothing to measure from. J. Buermann said that within the exclusive use area the owner can build what he wants within the constraints of the covenants. D. Patterson said these are not lots, and the zoning dimensional standards are based on distance from property lines. J. Buermann said that we are defining those setback distances by way of the building envelope. M. Taylor-Varney said speaking as the ZA, am I treating the building envelope as a boundary from which no accessory structure can be within 5 feet, or can you build anything within the exclusive use area? J. Buermann said you can build anywhere within the building envelope because we’re already building setbacks into the building envelope. D. Patterson said this is another reason why you need the covenants and restrictions – I don’t see how this works, personally.
Brightwell asked if the buyers own the property defined by the red area in fee. J. Buermann said the buyer is buying an undivided share of Lot #2 and the exclusive right to use the area within an exclusive use area.
Kilcoyne said so someone could build a structure within the building envelope that goes fully from one side to the other? J. Buermann said yes unless the covenant further restricts that. L. Kilcoyne said someone could build right up to the building envelope so they’re only 10’ away from the next structure, which would invoke building codes requiring fireproof materials. J. Buermann said so we need NFPA references, code references, or a licensed designer so we meet all of the building code requirements.
Kilcoyne said you could see someone building a modern, linear house that goes from one side to the other of their building envelope.
Maxham asked if someone could locate their building anywhere within the building envelope. J. Buermann said yes. J. Brightwell asked if someone could cover over the entire area within a building envelope. M. Gammal said that was not his intention. J. Brightwell said that within the building envelope, you could set a maximum number of square feet of area under roof as a part of the HOA, that’s what kind of a proposal we’re looking for that would hopefully address our concerns.
Taylor-Varney asked why the property was not divided into lots. M. Gammal said that the control they have over the area and its uses as a PUD was better than what could be achieved as a lot. Bylaws can for example act to prohibit things like people deciding to open a welding shop in their home.
Maxham said he thought the biggest missing piece was a proposal for bylaws and asked for a recess so that the applicant could provide bylaws and so and the Board could evaluate the materials recently received. J. Buermann said he needed to also get the utilities plan together.

All agreed that June 23^rd 7:00 p.m. would be a suitable date to reconvene the hearing.

Ilmar Vanderer asked for clarification of the Village District. M. Taylor-Varney said she would email Ilmar information that would answer his question.

Hunt moved to recess the meeting until June 23^rd 7:00 p.m. The motion was seconded by M. Welch and approved by acclamation. The meeting was recessed at 9:16 p.m.

Old Business None.

Review of Minutes

Patterson moved to accept the minutes of May 12^th, 2021. L. Kilcoyne seconded the motion, which was approved by acclamation.

Administrator’s Report

Upcoming hearings:

June 9 Continuation of the Anchorage hearing

The Planning Commission is holding a public hearing on June 16^th on proposed amendments to the regulations.

The Board may resume in-person meetings. J. Brightwell suggested continuing to use Zoom to capture an official record of the meeting as well as to make the meeting more accessible to the public.

Patterson said that the Planning Commission reviewed the mobile vendor ordinance and that the definition of the ordinance addresses concerns that the DRB had expressed in the previous meeting. M. Taylor-Varney will forward the ordinance to the DRB.

Motion to Adjourn

Patterson moved to adjourn to deliberative session. The motion was seconded by L. Kilcoyne and passed by acclamation. The meeting was adjourned to deliberative session at 9:30 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.