November 13, 2 019 DRB Minutes | Town of Town of South Hero

SOUTH HERO DEVELOPMENT REVIEW BOARD November 13, 2019

Members Present: Tim Maxham (Chair); Doug Patterson (Vice Chair); Jim Brightwell (alternate); Ross Brown; Nate Hayward; Gareth Hunt; Liza Kilcoyne

Others Present: Martha Taylor-Varney (Zoning Administrator)

Members Absent: Sherry Corbin

Public Present: Mike and Michele Gammal

Call to Order: Meeting was called to order by T. Maxham at 7:06 p.m.

Changes to Agenda: None

Public Input: None

Hearing: 20-02-RT513 RL Vallee Conditional Use and Site Plan Review (continuation)

Maxham re-opened the hearing at 7:08 p.m.

Appearing on Behalf of the Applicant

None

Hearing Notes

The hearing is continued from August 28^th, 2019. T. Maxham said that the applicant requests that the hearing again be recessed until the mutually agreeable time of February 26^th, 2020 7:00 p.m. at the Worthen Library or at Town Hall.

Kilcoyne made a motion to recess the hearing until the above time/date. G. Hunt seconded the motion, which passed by acclamation.

Old Business: Keeler Bay Associates to discuss decision 19-72-RT456

Mike and Michele Gammal appeared before the Board to discuss the recent decision re 19-72-RT456 conditional use and site plan for Keeler Bay Marina.

Mike Gammal said that the condition imposed by the Board limiting the dock trees to no closer than 150’ from the northern property line was restrictive to him as a property owner in that it limits his potential for waterfront development. He said that his northern neighbor, Peter Velasquez, bought his property after the campground was established and so knew what his neighbor would be. The Army Corps and engineer Jay Buermann say that the proposed location is the best place for the docks. The Town has jurisdiction over land issues and the State and Army Corps have jurisdiction over water, so the Town should not be attempting to regulate the location of the docks. Placing the docks in deeper water along the northern portion of the property makes sense.

Maxham said that the Board looked at the issue, deliberated, and made a decision, and that it seemed to him that the marina has three choices: (1) live with the decision, (2) make another proposal that’s different, or (3) appeal to Environmental Court.

Mike Gammal said that an appeal is expensive for everybody.

Maxham said that the Board normally likes to discuss all issues related to an application during the hearing, but in this case some issues did not become apparent until the Board had entered into deliberation.

Mike Gammal said that Peter Velasquez is who you’re trying to cater to.

Brown said whoa, we’re working for the town, not a person. We look at the regulations and decide based on what’s good for the community.

Mike Gammal apologized.

Brown said that the applicant made assertions over and over again that the State and Army Corps said we want you to move the docks north and inferred that this was in the current permit. The current permit makes no reference to moving the docks. Mike Gammal said the move was part of his discussions with the Army Corps.
Brown said that if they said you could move, I haven’t seen anything in writing.
Taylor-Varney said that she had a discussion after the hearing closed with Mike Adams at the Army Corps to find out the status of the permit since the current permit on file with the Town did not reflect a change in location. M. Taylor-Varney said that Mike Adams told her that he was going to amend the original permit to reflect the move. M. Taylor-Varney said that she reminded Mike Adams that any changes need to be reviewed with an opportunity for public input. His response was that he would open a comment period for abutting landowners before acting on whether the dock locations could be moved. M. Taylor-Varney said that the conversation had occurred more than a month ago and she hadn’t seen anything yet – and that the Town would automatically be considered one of the interested parties.

Mike Gammal said that he hadn’t submitted anything yet to the Army Corps. He said that he was told by M. Taylor-Varney that the Town had jurisdiction over traffic and parking. No neighbor showed up at the hearing so what was the issue? He said that he was not going to submit an application, which is expensive, until he knows what’s what.

Hunt said that the applicant said the Army Corps was “cool with all of this” (referring to the relocation of the docks to the north) but that the Town has not seen that from the Army Corps.

Mike Gammal said that he didn’t think it was appropriate for M. Taylor-Varney to call the Army Corps, and said that he was frustrated getting the permit through the Town. He said that the Town was seemingly picking a number, and there is no regulation that requires a 150’ setback to abutting neighbors. Mr. Gammal referred to a handout he provided that showed distances to neighboring properties for other marinas in the area that were less than 150’.

Maxham said that the applicant should understand that the Board is dealing with the specific property in question. T. Maxham said that while the Town recognizes the State and Army Corps jurisdictions, the anchors to the dock trees are on land and he believed were within the Town’s purview to regulate. Any permits received by the Town related to the application become a part of the package. T. Maxham said that when the applicant applied this summer he had the impression that the applicant had recently received approval for 120 slips in the new location. But during deliberations, in looking at the Army Corps permit the Town had on record, the Board determined that the Army Corps in 2017 had given permission for 120 slips at the current location. The Army Corps paperwork states that if you change anything, you have to file a new application and site plan to get their approval, which opens it up to public scrutiny and input. T. Maxham said that unfortunately we didn’t talk enough about the status of the Army Corps approval of the relocation of the docks during the hearing process. He said that in deliberations the Board has to look out for adjoining neighbors, people who use the lake, and the town as a whole. The Board felt that it took all of those factors into consideration when making a decision.

Mike Gammal asked where the 150’ number came from.

Taylor-Varney said that the town bylaws Section 303 pertaining to conditional uses says that there should not be an undue adverse effect on the character of the area, as defined by the purposes of the zoning district and town plan. While there is no specific setback requirement for marinas related to the Shoreland District regulations, the Board noted that the marina was adjacent to residential properties. The distance from the northern abutting residential property to the current northernmost dock tree is about 300’; the Board felt they were splitting the distance with a 150’ condition on the reconfigured location to protect the properties to the north.
Brown said what the applicant said did not match the Army Corps permit. The Army Corps said you could have 120 slips. They did not approve a move.

Mike Gammal said we have to get Town approval and then get Army Corps approval.

Kilcoyne said you asked the question how we came up with the 150’ number. It isn’t a random number. We spent a lot of time trying to determine what is equitable for you and for your neighbors. You are a commercial property in the middle of a residential area. What we were looking at is the 3 proposed docks – the northern most seemed to be the one crowding the neighbor. Two out of the three docks are where you asked for them. The third one is not. You’re not getting everything that you want but you’re getting 2/3 of it. We also get the idea of the deeper water to the north for water quality and boat operation. We felt once we visited the site that the northern dock is really close to the abutting neighbor, which was our rationale.

Mike Gammal said that the guy on the other side of Peter Velasquez’s house is running a commercial operation, running boats out to Fishbladder Island. Also Peter Velasquez’s house is oriented away from the marinas’ docks – he would have to go out into the front yard to see them. Mike Gammal said that Velasquez is constantly calling the environmental police, making false allegations. He is an angry man, so I have no interest in catering to him. We may just do 2 dock fingers out into the bay.

Brown said we said you could have 3 fingers.
Hunt said that the Board was nearly split on just denying the application.
Hayward said we wanted to give you a decision that didn’t require you to coming back to us with a denial.

Mike Gammal said I thank you for your two hours of deliberation. We gave you in the packet evidence of better water farther north.

Brown asked how that makes the water in the bay better.

Mike Gammal said boat propellers chew up the weeds in the shallower water and cause the plants to drift off and grow elsewhere.

Brightwell said that when you were in here before you were saying that you were mowing – mowing does the same thing. Mike Gammal said that he had not said that he was mowing.
Brown said you said that Army Corps had approved the move which is not the case. When somebody brings in a document that is what we look at. We look at paperwork. The relocation to the north is not what the paperwork said.

Mike Gammal said what we discussed in the hearing was traffic, not dock location.

Taylor-Varney said Mike Adams at Army Corps has told her that the Town is not required to approve something the Army Corps has approved – the Army Corps does not trump the town. The town does have input.

Mike Gammal said yes, through the public input to the permitting process.

Taylor-Varney said that in 2017 she got a communication from the Army Corps in association with the most recent Army Corps permit asking for comment. The Town’s concern was that they had 15 days to comment and hadn’t received an application or any information. Two year’s further on, the applicant has now come in for the Town’s conditional use permit. She said she contacted Mike Adams to determine the status of the Army Corps permit and ask whether a new one was in progress or had been granted. L. Kilcoyne noticed during deliberations that the 2017 Army Corps permit on file with the Town referenced only the expansion to 120 slips, not their relocation.
Kilcoyne said that to the applicant’s credit, all of the other issues – parking, traffic, etc. were approved without any issues. The Board wanted to move only the first dock finger and grant the other fingers where the applicant had proposed.
Kilcoyne asked what the process was from here. T. Maxham said that the applicant could come back with either a new or amended application.
Taylor-Varney asked what distance from the adjoining property the applicant would accept. Mike Gammal said that 100’ sounded fair, but he didn’t want to pay another $450 fee plus engineering for a revised site plan.
Hunt said that the applicant must realize when he brings something in for review that there will likely be some revision and associated engineering fees.
Gammal said that he didn’t realize the Board had jurisdiction over water. N. Hayward said that sometimes things like the status of the Army Corps permit doesn’t become clear until documents are reviewed during deliberation. The Board tried to find a compromise that will get the applicant over the finish line.
Brown said that he felt that the applicant was asking the Board to deliberate now and that was inappropriate.
Gammal said I’m asking for 100’. I’m fine reapplying – what am I applying for?
Taylor-Varney said you’re applying for an amendment to your site plan. We don’t do the full fee, it just covers the warning. The hearing would be warned as specific to Condition C.
Kilcoyne said that’s part of our rationale – what would be a fair distance from the boundary knowing that it’s not what you asked for, but it’s not a denial so you don’t have to come back with a whole new application.
Brown said we deliberated for 2.5 hrs. I don’t have an opinion on this right now. You want to see what our opinion is.
Gammal said I’d like know whether you would accept something other than 150’.
Taylor-Varney asked what the minimum distance is that the applicant would accept from northerly dock to the property boundary. M. Gammal said 100’ would be reasonable. The proposed ramp is 40’ from the property line. He said he would accept putting the northern-most dock finger 60’ south of that – a total of 100’ south of the property line.
Patterson said that he didn’t think placing the northern-most finger at 100’ would materially affect the site plan. He said the site plan was incomplete – grading wasn’t shown.
Gammal said that 150’ as requested by the Board encroaches on planned storm water and septic areas, which could be hundreds of thousands of dollars.
Gammal thanked the Board for its time, said that he was a little frazzled and that he would submit a new application with a new number.
Kilcoyne said that the application can be an amendment, not a totally new application.
Taylor-Varney asked Mike Gammal if his objection was just to the one condition imposed by the Board regarding the dock location, and not to any other issues. Mike Gammal said yes.
Hunt asked if the Board had to warn and reopen the hearing. M. Taylor-Varney said yes.

Review of Minutes

Hunt moved to accept the minutes of October 23^rd 2019 as amended. R. Brown seconded. The motion passed by acclamation.

Administrator’s Report

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

The upcoming schedule is as follows:

December 11^th: Variance request for a small lakefront lot; a sketch plan for a 2-lot subdivision on West Shore Road.

No meeting Thanksgiving week.

No meeting on Christmas.

January 8^th: Carol Egan is returning for an amendment to the site plan for a childcare facility at 266 US RT 2 and Carter Lane to accommodate a new septic system.

FEMA is starting the process of updating flood maps for the Lake Champlain basin on the Vermont side. It’s a 5-year process. The current maps are from 1978.

Adjournment

Patterson moved to adjourn the business meeting; the motion was seconded by L. Kilcoyne and carried by acclamation at 8:50 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.