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Meeting Minutes - ZBA

Town of Leicester

Zoning Board of Adjustment Meeting Minutes

Tuesday, August 30, 2011



** See subsequent minutes for any changes


Members Present:   Donna Swinington, Jeff McDonough, Bethany Menkart


Absent:  Pete Fjeld, Connie Carroll


Others Present:  Kate Briggs, Lynn Pitkin, Adam Lougee, Director ACRPC, Sandra Trombley, Secretary


Call to Order & Roll Call:  Donna called the ZBA Meeting to order at 6:00 p.m. with roll call.


Reviewed Agenda:   Reviewed agenda, and moved Public Officials Training to beginning of agenda.


Kate reported that there will be applications for our next ZBA meeting on September 27th.  She will get paperwork for Sandy.


Public Officials Training:


Adam Lougee came to train public officials.  He had a Power Point presentation and handouts.  He explained that the goal of your Municipal Plan is a vision for your community and clear achievable goals.


Items covered:


·         Roles and Responsibilities  -  3 Primary Functions

o   Legislative

o   Quasi-Judicial

o   Administrative

·         Local Legislative Body is your Selectboard

o   Make infrastructure decisions based on plan

o   Appoint and remove officers

o   Set a tone that supports land use planning

o   Foster an open dialogue among officials

·         Administrative Officer is your Zoning Administrator

o   ZA is the face of local land use regulation

o   Great influence over integrity of process

o   Required by law to administer bylaws literally

§  Reviews applications, approves applications or refers application to ZBA

§  Assists public and applicants with process

§  Coordinate unified development review process

§  Initiate enforcement proceedings for violations

§  Provide staff support to local boards

·         All actions or inactions are appealable

·         Accountable to local legislative body or municipal manager

·         Appointed for 3 year term by local legislative body, after nomination by planning commission

·         Only removable for cause after consultation with the PC

·         Planning Commission Legislative Ground Rules

§  Provide community leadership on planning matters

§  Broad statutory authority

·         Capital budgeting, capacity studies, retain consultants, other tasks “deemed necessary or appropriate to full duties of Chapter 117.

§  Can be appointed or elected.

§  When making policy:

·         Conduct broad outreach to community

·         Actively seek participation from public

·         Represent all members and interest of the community

·         Put the general welfare of the community above any personal interests


Kate asked about formal nomination appointments to the Planning Commission and the best practice.  Adam stated ultimately the Selectboard gets to choose.  Names may be recommended to them.


·         ZBA/PC Ground Rules

§  The board designated in local bylaws to conduct development review

§  Approve only applications that comply with applicable bylaws

§  Only levy conditions authorized by bylaws

§  If project meets criteria, they must grant approval

§  Personal opinions of individual members must not affect decision-making of board

§  Avoid conflicts of interest and refrain from discussing an application outside of a hearing

Jeff stated that the only time the ZBA meets is for a setback waiver or variances.   We are not regulated.  Jeff stated there are no “specific” regulations, but common sense and discretion.  There are no clear rules; just general and vague.


Adam explained that our bylaws contain a provision that says you will give set back waivers for certain things.  The waivers are enabled by the bylaws.  For specific things you can bend the rules a bit for certain things.  The Board has the ability to use their discretion to create exceptions to its own rules if the applicant can show you the criteria.  A waiver is a least intrusive method to address that problem in the short term.  Section 363 of regulations.  You may want to change your bylaws when they are revised.  You are also authorized to hear appeals of ZA and conditional uses.


With dimensional waivers, the Board has some discretion.  With other things, you do not.


Further discussion and examples.  Lake property is a small non-conforming lots and buildings.


Jeff asked about liability situation for board decisions.  This board has no liability protection because they are volunteers.  They would be sued individually and as a board.  Jeff talked about conversation with VLCT at a Selectboard meeting.


Adam didn’t know the answer to Jeff’s question.  He will do some inquiry.


You should never discuss an application amongst yourselves or with the applicant.  Never have an informal meeting with the applicant.  This would be a violation of the open meeting law.


A site visit should only be done once it’s entered in the record.  A site visit should be done all together and with the interested parties and never done by a single board member.  It should come out of the hearing and not done in advance prior to the hearing.  Not all applications need a site visit.  Be consistent.

·         Warn your hearing

·         Gather evidence at hearing

·         With the evidence provided, you decide you do need a site visit

·         Announce the site visit


·         Accountability of Land Use Officials

o   Legislative body represents the voters (Selectboard)

o   An appointed PC can be removed at any time by unanimous vote; elected PC may not be removed

o   ZBA members may be removed “for cause” by majority vote

o   Administrative officers may be removed for cause by majority vote

o   Any for cause removal requires a hearing

·         Types of Review

o   Permitted Uses – requires zoning permit

o   Conditional Uses – requires zoning permit after conditional use review

o   Site Plan Review (we don’t do site plan review)

o   Subdivision Review

o   Variances – when a hardship prevents conformance

·         Must meet ALL 5 statutory criteria

o   Waivers – dimensional standards may be waived following process

o   Appeals – any interested person may appeal a decision of ZA

·         Roles & Responsibilities Summary

o   Three primary roles

·         Legislative, quasi-judicial, and administrative

·         Legislating – create policy; reach out broadly to community

·         Quasi-adjudicating – focus on parties and the proposal, not policy

·         Administrating – little discretion, focus on requirements of bylaws

·         Beyond Your Town

o   Act 250

o   Highway

o   Storm water

o   Wastewater


Adam was talking about best practices.


·         The Process of Meetings, Hearings, and Decisions

o   Meetings – a quorum meets to discuss business or take action (held by all boards)

·         Cannot meet outside of the board in a public location (grocery, downtown)

o   Legislative Hearings – for purpose of receiving public comment on course of action (held by PC)

o   Quasi-Judicial Hearings – for purpose of hearing arguments from parties who seek board’s approval (board that conduct development review ZBA/PC or DRB)

·         Notice must be given

·         Public must be allowed to attend and be heard (within reason) (set the rules)

·         Minutes must be taken

o   Taking Minutes

·         Names of all members present

·         Names of other active participants

·         All motions, proposals, and resolutions made

·         Major discussion on all motions, proposals, and resolutions made

·         The results of any vote taken

·         Minutes are art of the public record.  They must be available 5 days after the meeting.

o   Role of the Chair

·         Chair administers the agenda, keeps board members focused on the issue at hand, and ensures the Board finishes on time.

·         A good Chair should;

·         State the question

·         Ask for discussion without giving own opinion

·         Bring Board to resolution after discussion (coaxing a motion)

·         A good Chair does not need a big gavel or a loud voice to rule

o   Regular Meetings, board members will generally:

·         Contribute to discussion on agenda items

·         Make motion for actions

·         Second motion made by other members; and

·         Vote on motions

·         Follow the rules and let the chair facilitate the meeting

·         Contribute to discussion without going on and on

·         Respect other members.  Agree to disagree.  Majority vote rules

·         Respect public process.  Important to know and follow the rules

o   Public Notice for Meetings

·         Regular meetings – Board adopts a resolution setting time and place

·         Special meetings – warn meeting at least 24 hours in advance by posting in 3 public places in town (including town clerk’s office) and notifying media

·         Emergency Meetings – in event of emergency, some notice as soon as possible before the meeting

o   Exception to Open Meeting Law:  Executive Session

·         Rarely needed for Land Use Boards

·         Key Points:

·         Board may meet in private to discuss specific personnel or contract issues

·         Need majority vote of Board to enter executive session

·         No decision may be made in executive session

o   Legislative Hearings – a public assembly for the purpose of listening to the public

·         Most common use – public hearing to receive comment on proposed bylaw or town plan (mandated in statute)

·         Other Use – gauge public opinion on policy issue

·         Public  notice is required

o   Quasi-Judicial Hearings – a public assembly for the purpose of hearing an application for land development (conditional use, site plan review, subdivision review, variance)

·         Distinguishing Characteristics:

·         Rules are different, and stricter, in quasi-judicial hearings than in legislative hearings and meetings.

·         Quasi-judicial hearings must protect due process

o   Public Notice:  Development Review Hearings

·         Higher degree of notice applies to applications for conditional use, variance, zoning administrator appeals, final subdivision review

·         Notice required 15 days prior to public hearing

·         Publish in newspaper

·         Post in 3 or more public places with the municipality

·         Send written notice to applicant and adjoin property owners

·         Lesser degree of notice applies to applications for;

·         Site plan review

·         All other reviews

·         Notice required 7 days prior to public meeting

·         Post in 3 or more public places with the municipality

·         Send written notice to applicant and adjoin property owners

o   Sequence of Events for Development Review Public Hearing

·         Chair opens hearing

·         The applicant presents the proposal/request

·         Board members ask questions in relation to conformance with specific provisions in land use regulations

·         Comment from interest parties/public

·         Chair closes public hearing and opens deliberations (public or private)

·         Board decides on application and issues a written decision

o   Open a Development Review Hearing

·         Review order of events

·         Remind of the importance of order

·         Make copies of the rules of procedure and ethics policies available

·         Review definition of interested persons and ensure documentation of participants

·         Request disclosure of conflicts of interests or ex parte communication

o   Rules of Procedure and Ethics:  Required by Law

·         Well drafted and applied rules give boards the tools to protect due process rights

·         Ensure efficient board proceedings

·         Rules of Procedure May Include:

·         Policy on alternate board members

·         Script for hearings

·         Role of officers

·         Administrative documentation of participants (required by law)

·         Ex parte communication

·         Voting protocols

·         Anything else deemed appropriate

o   Interested Persons – Two types of persons at hearings

·         Interested persons 24 V.S.A. § 4465(b)

·         Persons who are interested (the public)

·         Only interested persons who have participated may appeal

o   Interested Persons and Documentation of Participants

·         Methods of Approach:

·         Board makes a status determination or allow Environmental Court to make determination

·         Permit anyone to participate or limit participation only to interested persons or those seeking interested person status

o   Either way, must allow each person wishing to achieve interested person status an opportunity to do so and keep a record of participation.

·         Conflicts of Interest

·         Parties have a constitutional right to a fair process

·         Categories:

o   Financial influences: where board member stands to benefit financially from decision

o   Associational interests:  business, personal and family relationships

o   Prejudice/bias:  Board member makes statements that reflect prejudgment of the merits of an application.

o   Ex parte contacts:  A communication between a board member and a party outside of a public hearing concerning the application

o   How to Manage Conflicts of Interest

·         Adopt rules of procedure; know them and follow them.

·         Recuse oneself when necessary

·         Use alternates appropriately

o   It takes years to build trust, but only a few seconds to destroy it.

o   Board Member Role at Quasi-Judicial Hearing

·         In order to determine a project’s conformance with your regulations and protect due process:

·         Listen to testimony and evidence;

·         Ask questions;

·         Refer to your regulations;

·         Avoid conflicts of interest;

·         Must not prejudge a matter or publicly express opinions on a pending case

o   Deliberations

·         Purpose is to make decisions after hearing evidence in a quasi-judicial proceeding

·         Exempt from Open Meeting Law – allows board to deliberate in private, like a jury

·         No need to take minutes

·         No need to publicly declare votes

·         No need to warn/notice

·         Can do public deliberations or private deliberative sessions

o   Making Decisions

·         Must be in writing

·         Minutes may suffice

·         Must include a statement of the factual basis on which the board has made its conclusions (findings of fact)

·         Must provide a statement of conclusions the Board made in reaching decision (conclusions of law)

o   Making Decisions:  Whose Job Is it?

·         Occasionally administrative officer/staff planner

·         Occasionally board members, who should rotate drafting duties

·         Occasionally board assistant

·         Timeline: Board must issue decision within 45 days of close of final public hearing

·         Failure could result in deemed approval

o   Conducting Effective Meetings & Hearings:  Summary

·         Three types of proceedings – know which one you are conducting

·         Adopt rules of procedure

·         Use them and amend them on an annual basis

·         Understand the legal principles that underlie your decision-making process

·         Educate yourself and your board members



Kate asked what the process was if “she” as ZA wanted to submit an application that didn’t need to come before the ZBA.  Adam thought that the Selectboard would appoint an acting ZA to sign the application.


There are tools and resources available and web-sites to get them.  You can always call ACRPC.


Kate asked about a possible subdivision that she is an adjoining property owner.  Adam said she could recuse herself for this particular project.  It’s not best practice that the ZA be on the PC.


The Board thanked Adam for his time.


Approve Minutes of May 31, 2011 and July 13, 2011:


Motion by Jeff to approve minutes of May 31, 2011 and July 13, 2011.  Second by Bethany.  All in favor.  So approved.


Other Business:    None


Public Comment:  None




Motion by Jeff to adjourn meeting at 8:00 p.m.  Second by Bethany.   All in favor.  So approved.


Next ZBA meeting September 27, 2011.  Potential of three applications to be heard.


Respectfully submitted,


Sandra L. Trombley

Planning Commission Secretary