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Meeting Minutes - ZBA

Town of Leicester

Zoning Board of Adjustment Minutes

Tuesday, July 28, 2009




** See subsequent minutes for any changes


Members Present:  Gerry Flint, Chair, Donna Swinington, Peter Fjeld, Tim Johnson


Others Present:   Kate Briggs, ZA, Dave & Erica Sabatini, Linda & Michael Brogan and Sandra Trombley, Secretary


Call to Order:  Meeting called to order at 6:08 p.m. by Chair and roll call. 


Chair asked that anyone representing the hearing to raise their right hand to be sworn in, that they swear to tell the truth and nothing but the truth, so help you God. 


Kate Briggs was asked if she would like to make any comments at this time. 


Kate stated that the reason that the application was referred to the ZBA was because it’s a non-conforming property based on the nature of the lot and so forth and one side the set back is less than 25’.  This is for a new deck on the front of the building.  There was a separate issue regarding the driveway but that is not really part of this application.  The driveway was put in, but that is a separate issue.  The application had to be referred to the ZBA because of the non-conforming nature of the building and the fact that it is an addition or change to a non-conforming structure.


Donna asked if she went out to look at the lot.


Kate stated, yes she had.  It is a very steep lot.  Kate stated that the issues around the driveway are more problematic.  But, that’s really not the question here.  It’s a question of enclosing a porch which is not the problem; it’s a question of just putting in the deck. 


Dave Sabatini stated that the plot plan does not show any relationship to the borders, as requested, so the details in relationship to all property lines and road lines, he doesn’t see. 


Tim stated that on the front of the form it lists where the setbacks are. 


Dave said, so it’s 18’ on one side and 48’ on side two. 


Michael stated that those were an estimate by the contractor and they have re-measured them since then and its 22’ on the south side.


Kate stated that there was another drawing before this that did have that information. 


Linda showed the Board the original plot plan that she had submitted with the application.  Copies were made.


Dave asked if the lot had been surveyed.


Michael answered that they had not had it surveyed.  Michael stated that Jeff Smith just had his right side surveyed.  Linda presented what she was given when they bought the property.


Dave stated that it’s closer to Jeff’s property than is normally allowed.


Kate explained that lake property, the lake lots are mostly non-conforming.  So most, don’t meet the setbacks.  That’s why it is in front of the ZBA.  Kate stated that both of their driveways, both Ellen’s driveway and their driveway are actually on Jeff’s property. There’s 23’ in between. 


Michael asked when did the zoning laws go into effect.  Kate answered that they were last adopted in 2005.  The early ones also called for larger lot sizes and setbacks. Michael was wondering about 1938.  Kate stated there was no zoning in 1938 what-so-ever. 


Kate was just trying to put into context that the ZBA does have to review all of these matters and they are all referred to them, in fact, the majority of the houses that are on the lake requires ZBA action because the lots in some way are non-conforming to the current zoning. 


Peter asked how wide the lot was.  Linda stated it was 101’.  The lake is across the road.  There is 48’ to the edge of Jeff Smith’s property from the deck.


Kate stated that she thinks that Jeff Smith’s property that lies between those two houses, is 23’ at the road and 8’up above at the top, it’s like a piece of pie.


Dave stated that the pins he saw up in there were a lot closer to this camp than 48’.  The pins marking the edge of Jeff’s land. 


Michael stated that there are concrete monuments on the south side. 


Peter asked if they made the deck 7’ from the corner of the house that it would then conform with the zoning. 


Michael stated that it’s already level with it and not wrapping around the corner at all. 


Donna stated they were actually 22’ away. 


Linda explained that it only comes out for 6’ and then it angles back so it probably will.


Kate stated that the way it reads if you basically do anything to a non-conforming structure to add to it, you still have to take a look at it.  She can’t because the structure itself is non-conforming. Even if the change itself is conforming because the structure isn’t. 


Kate mentioned that maybe the Brogan’s  would like to speak to how they are going to attach the deck, support it, landscape it because quite a bit of damage was done to that driveway in terms of eroding that very steep strip.


Michael stated that when they purchased it, there was a strip down the front that was open.  When the driveway went across that open space there was only one, two, three trees that they cut.  The deck is not crossing.  In other words, the setbacks will remain exactly the same.  It’s not going north or south, but directly east the way the house is facing. 


There are very large boulders in front of the house.  There’s a screened in porch, so one of the screens will become a door.  The deck will be even with the floor.


 Gerry was asking about the height from ground level to the deck.  Michael thought about 10’.

More discussion. 


Kate stated that if they do a deck on that house given the incline of the lot, she thinks an issue might be how the opening under the deck may be filled or landscaped or screened.  She asked, what is the treatment of that going to be?


Linda explained that right now there are plantings under there.  Depending on the lighting, minimally there would be ground cover under there and shrubbery around the bottom of it. 


Kate asked if it’s going to be open or closed.


Linda explained that right now it is open.  Our intent is to have something that looks nice.  We are also waiting to talk to Mr. Pidgeon about the driveway.  She wants to do everything so that it is in compliance with the erosion issues. 


Linda said her son-in-law is a landscape architect so he offered to help us and work with what the Town wants in terms of the erosion. 


Tim stated that he went down and viewed the property yesterday.  From what he can see, they are putting an investment into their property and it’s not something that’s going to be thrown together with recycled materials.  It looks like a quality list here.  Tim doesn’t think the height of the deck is going to be an issue.  It’s going to be to the floor of their camp or cabin. 


Dave stated his main concern was erosion as there is a spring that comes down that bank.  Right beside the driveway they put in, the spring is running out into the road, because as they put in their new driveway they obliterated the culvert that’s under the driveway. 


Michael stated there is no culvert under the driveway.


Tim interjected that they are here to do a variance on a deck.  He doesn’t believe there should be any discussion at this moment about any driveways, erosions, things like that.  That’s not what we are here for.  If we can do that afterwards, fine, but we need to stick to the facts of the application applying for a deck. 


Kate stated erosion in so far as the deck would affect. 


Dave stated in the lower spot they are going to have to put a corner post right into a spring.  


Michael said that there is no evidence of a spring there.  There is no water that is coming out there.  It’s all solid ground there.


Tim said there was no water flowing or bubbling out of the ground there.


Donna asked if we had heard from any of the other neighbors.


Kate said no, we haven’t heard from anyone, there were only two abutting land owners, Jeff Smith and Estelle Smucker. 


Tim stated that he wanted to mention when people do permits for non-conforming lots, he does like the fact that they did limit the deck, in other words, you didn’t wrap it around the camp.  You are not going past the line of your camp.  He liked the idea that they stayed in line with their camp. 


Kate stated that it’s a pretty small house, but it’s a pretty small lot.  This is about the only change you could make. 


Kate stated she learned that regardless of whether interested parties appear or don’t appear, or there is opposition.  There is always a 30 day appeal period in the State of Vermont by State law.  She will do the permit based on your minutes or your action tonight, if the permit is granted, but that 30 day period exists in all cases, even if there is no opposition what-so-ever. 


Tim asked, are you saying we can grant the permit tonight?   Kate said, no, I’m saying you can’t.  We’ve done that in the past and we can’t do that because only the Environmental Court has a right to say whether people can, we don’t.


Tim asked what Vt. Statute that is.   Kate said she would look it up and that it was in 24.  Tim said that’s a big one.  Kate said it is also in our own zoning by-laws. 


Dave said in Goshen there is a 30 day appeal period in their zoning by-laws.


Kate said, she thinks we have interpreted it here, if in fact there is no one that presented any opposition, the 30 days was kind of irrelevant, but in fact she was informed with no uncertain terms that that’s really up to the…umm (looking for reference).  It may or may not list the Statute.  It’s in her handbook.  You still have to make a decision.


Tim said he hates to put Kate on the spot, but if we are saying that they have to have a 30 day hold, he would like it on record tonight, the regulation before we dismiss the meeting, of what that regulation says.


Kate said she would look it up. 


Gerry said they would continue to make a decision.




1.  The hardship is due to the unique physical characteristics peculiar to the particular property.

·        All voted yes

2.  Because of such physical conditions, there is no possibility that the property can be developed in strict conformance with the zoning regulations.

·        All voted yes

3.  The hardship has not been created by the applicant.

·        All voted yes

4.  The variance, if authorized, will not adversely affect the character of the surrounding area, the use of adjoining property, or the public welfare.

·        All voted yes

5.  The variance is the minimum necessary to grant relief.

·        All voted yes


Permit approved with conditions.


The applicant needs to take appropriate action to prevent erosion.


Conditions:  Will conform with Section 641 of the Leicester Zoning By-laws.


Linda asked for a book on the Leicester Zoning By-laws.


Donna asked Kate if she found the statute.  Kate said she was looking for it, it is in 4465.  She doesn’t think we have the most updated version of it, but the issue that they raised which is, if for some reason we have failed to notify a potential interested party, it’s really up to the Environmental Court to say.  The Town doesn’t have the right to say there’s nobody with the right to appeal and therefore it’s final as of the decision.  There’s always that 30 day period where that person who was potentially not notified can raise the question and the Environmental Court makes the decision about whether that person has appeal rights. 


Tim stated he doesn’t see in our zoning book where we have a reference to that.  As he stated earlier,   if we can’t reference a statute to these folks tonight, then I don’t think it’s fair to them to pull a regulation out of the air and say you got to wait 30 days.  That’s not the way we have been doing business.  He doesn’t think that’s right.


Gerry said, in the past at least. 


Kate stated that she thinks they have been doing it incorrectly, but she said she would research it. 


Tim said that’s why he’s simply asking, he needs the statute.  That will solve it. 


Gerry stated that what they have done in the past is we’ve actually issued the permit with the signage to put near the construction site.


Kate stated she will give them something that references the State law on that matter. 


For the record, issuing this permit tonight, the ZBA is allowing the applicant to start without the 30 day waiting period. 


Kate wants to put her objection on record because she thinks we should not with conformance with our own by-laws and State law. 


Tim asks if Kate can show him in our by-laws where it says that or give them a State Statute.


Kate said she couldn’t do that right this minute.  She is putting herself on record and will get a memorandum to you on it.


Gerry stated that until Kate has that, the Board recognizes they can proceed with this construction.  If this is the case, then yes, but we won’t go retroactive.  We won’t go back.  We will go forward with it. 


Pete said his only concern with that is what Kate is saying is this is not anything that is within our control.  It has nothing to do with the zoning by-laws.  But it is with the non-appearing party or a party who has an interest and was not notified, decides that they have an issue with it, they can appeal and they have 30 days to do so, not….


Kate said apparently there is always an appeal period.


Tim said what Kate just said and what she said earlier is that someone can appeal.  There isn’t anything that says they can’t start construction.  Someone can still appeal.  You can go to Environmental Court for a variety of reasons, but again until we can have shown in front of us that you can’t start your project when we have granted them a permit…


Kate said she thinks the law specifically says the permit isn’t granted until the appeal period, and the permits are only granted by the Zoning Administrator.  They are not granted by anyone else.  The Zoning Administrator has no choice if the ZBA says grant a permit.  Kate said she didn’t know.  She thought we were doing things the right way, but that’s beside the point.


Dave said that is what he had heard also from Dave Wetmore who is the Zoning Administrator in Starksboro who just started as Zoning Administrator in Goshen.


Tim’s concern was whether it was State regulation or is it Town.  If it’s Town, we obviously don’t have that in our by-laws.


Kate said no, it is State.


So, that’s what Tim is asking for.  If we have one, great, but we don’t right now.


Kate said 20 Zoning Administrators jumped on her and the people from Vermont League and said that we are doing it wrong.  It’s under State law and you have to do it this way.  So, she said ok.


Linda said they would like to start construction in a week or so.


Kate said that if somebody successfully appealed, which doesn’t sound likely, then you would have to undo it.  It is for the protection of the applicant. 


Linda said, she guessed what you are saying is that you have always been doing it wrong, and it has never come up as an issue. 


Tim said he’s not comfortable with the terminology saying they have always been doing it wrong until we see the new regulation; I’m not going to say… . 


Kate said Tim is a very confident member of this Board.


Tim said that he takes pride in what we do and he doesn’t want someone to say something.


Gerry said they don’t want to give them the wrong advice.


Linda asked who could appeal.  Is it anyone in town, or?


Kate said there was a definition of interested parties.  The issue is not that people will come out of the woodwork and suddenly have the right to appeal.  The issue is that a potentially interested party may not have been properly informed by the Town and that the Town is not supposed to say that they have informed everybody and we are sure there is no interested party that we overlooked.  A potential interested party could go to the Environmental Court and say I’m appealing this decision because I wasn’t properly informed and I am an interested party.  That’s really to protect those people in cases in which there are many abutting landowners or there were problems with notification where they have multiple addresses with out of state owners and so forth. 


Tim asked, don’t we list all adjoining property owners?  That’s who we send our notices out to, correct? 


Kate said we don’t know if they receive them or not.


Tim said they should be sent certified mail.  Kate said they are not.  She said the decisions are supposed to be sent out certified mail, as well.  There are a lot of ways we are not actually conforming with what most towns are doing.  She really doesn’t think that this is of interest to everybody here.  It’s a procedural thing.


Kate explained that it would be unfair and it would expose the Town to something if they said you could do something that it turns out we had no right to tell you that you could do for 30 days.  That’s my only point to protect the Town. 


Kate was asked to fill out the signage tonight with today’s date 7/28/09.


Gerry stated that we will close this hearing. 


Motion by Pete to adjourn at 6:55 p.m.  Second by Donna.  So approved.


 Adjourned at 6:55 p.m.


Respectfully submitted,



Sandra L. Trombley

ZBA Secretary