Welcome to Leicester, VT

Town of Leicester, VT

Development Review Board

Minutes of Public Hearing May 14, 2024

Members present:  Jeff McDonough        Participants:    Richard Reed

                                Jay Michael                                       Carol Reed

                                Donna Swinington                             Jane Dessureault

                                Lyndsay D’Avignon                            Scott Baker

Also present:  Keith Arlund                                               Jan Sherman

Leicester Zoning Administrator                                        James Sherman

                                                                                          Shirley Shackett

                                                                                          Lynda S. Greeno

                                                                                          Melanie Redel

                                                                                          Matt Redel

                                                                                          Allen Fitzpatrick

                                                                                          Gayle Malinowski

                                                                                          Jay Malinowski

                                                                                          Sheilagh Smith

                                                                                          Andrew Smith

1. The Chair opened the hearing at 6:00 PM.
2. The agenda was reviewed and approved.
3. The Chair swore in all participants that desired to testify.
4. New Business:

Consider application (03-24 DRB) of the Jane L. Dessureault Family Trust, Section 6.1.1 Preliminary Plan Application for a nine (9) lot major subdivision of a 123.7-acre parcel of land at the intersection of Shackett and Fern Lake Roads in Leicester, VT in accordance with Leicester Unified Zoning Bylaws dated April 10, 2017.  Parcel ID #030032.1, Rural Agricultural (RA) District, submitted by Barnard & Gervais, LLC, dated February 28, 2024.

Scott Baker, Barnard & Gervais, LLC presented the following:

• The parcel is in the Residential Agricultural (RA) District where the goal of the district is agricultural, forestry and low density residential clustered development sited in careful consideration of the natural terrain.  The parcel is almost entirely wooded.   It’s primary natural resources are its forested habitat and the wetland complexes scattered throughout.  The parcel is not a mapped deer wintering area. There are no mapped rare, threatened, or endangered species.   There are no viable prime agricultural soils either mapped or otherwise due to all the site constraints.  The project as presented at the sketch plan hearing was to make the best use of the parcels by fitting them into the natural terrain.  The nine proposed residential lots consist of two next to each other along Shackett Road of 2 +/- acres and six accessed from Fern Lake Road. (The remaining 97 +/- acres, indicated as Lot #1, will remain undeveloped at this time.) There is a wetland complex that runs between the two parcels on Shackett Road, and they are surrounded by “drowning properties.”   They are natural building sites that fit the two parcels neatly and compactly.  The RA district standard of 2 acres allows a subdivision and even a major subdivision to take the “form of a PUD.”  Each of the six lots along the proposed private road which is accessed from Fern Lake Road are also in that 2 to 3 acres range.
• The proposed access for that private road from Fern Lake is an existing field road.  It has a moderate average slope of only about 8% with a cul-de-sac at the end for emergency vehicles to turn around.   The proposed road is 18 feet wide with ample width for two vehicles to pass.   The regulations require a minimum right away width of 25 feet.   The right way that we’re proposing is 50 feet. The right way is designed to be substantial and significant to comfortably accommodate the roadway, underground electric, and the stormwater system (ditching and swales).  The radius of the intersection with Fern Lake Road will be slightly larger and will be ___________ feet.
• The wetlands that are shown here are rough areas that you see away from the proposed development area that are just state mapped, VSWI wetlands and state inventory but the wetlands that are that are in the vicinity of the proposed development delineated; that delineation was reviewed and approved by the state officer [unclear] so we have those wetlands and buffers in the pin down in the vicinity of the of the proposed lots;
• The utilities are proposed to be underground from the existing services on Shackett Road.   Lots # and #3 will have individual connections.  Lots #4 through #9 nine will utilize the private road and will have one electrical line with transformers. No signs other than the road sign are permitted that will be coordinated with E-911.
• A homeowners’ association will be created for maintenance of the shared infrastructure that includes the roadway, the electrical system, and the stormwater system.  
• There is a lot of state oversight on this project.  The State of Vermont has evaluated the wetlands.  The potable water and wastewater permit has been issued. Two other state permits that this project requires are the 3-9020 which is the construction general permit pertaining to erosion prevention and sediment control during construction.  This permit involves delineating your area disturbance, utilizing proper, erosion prevention measures throughout construction and are inspected by state officers.   The second is the operational stormwater permit that will be shared infrastructure for the six homes, #4-#9.   This is an ongoing operational permit. There are annual inspections by the state to ensure its long-term performance and upkeep.
• Lots #2 and #3 on Shackett Road will have individual gravel drive accesses, which are typically 12 feet wide with 20-foot radii at the intersection with Shackett Road. The state V-Trans standard is B-71A for residential drives.  The construction standards for lots #4-#9 residential drives from a private road is V-Trans standard 76 for town and development roads.  This standard is a slightly different construction detail with larger radius at the road intersection with Fern Lake Road. The radius will be _________ feet wide. The 18-foot width with 1-foot shoulders, the shoulders have a gravel base with 4” topsoil so they’re stable but not totally impervious. The 18-foot-wide roadway with one-foot shoulders is constructed to V-Trans standard 76.  The six individual gravel drives that branch off from the private road would be constructed to V-Trans standard B-71A for residential drives with a 12-foot width for each individual Drive.
• Melanie Redel: About the logging road…  we purchased our land when Jane purchased her previous home.   We purchased an additional 30 acres that abuts Lot # 1 being retained by JD.  That land is in current use.  Our plan is due to harvest the timber.   We have access through that access road.  Is that access road now going to be a residential road where logging and logging equipment cannot pass through there?
•  SB confirmed that the access road would be a residential gravel road, 18 foot wide.   Our search did not uncover a right-of-way in the land records for the survey – where is this?
• [13:22]  MR attempted to describe the access road to their property.  We own the property bordering the logging road.   If you’re going down the logging road to the left our would be our property for logging.
• JD responded:   I don’t believe that that goes to the logging road though. I believe you access that from Fern Lake Rd or from your farm.  I don’t believe that abuts where the logging road is because basically you’ve got where the brook is, all the way down along the brook.  I think you have access to that through the meadow. And so I don’t believe that’s going to be an issue.
• Alan Fitzpatrick:  I live at 399 Shackett Road, adjacent to their old property. My wood lot, which has been connected to my home since the 1820s, is in that parcel surrounded by Jane’s property.  Our access point in my deed research when I bought the house, was the right-of-way called the old Peach Orchard Road which I believe is what is now becoming the access road into this development.  My question is similar.  My property is  is landlocked.  This goes back to the 1820s.   I just want to make sure - it’s now 18 acres. Will I have right-of-way access to my wood lot, which was logged 8 or 10 years ago? When we logged it we used the Peach Orchard Road.
• JD response:  I think he let you use it, but I don’t think you had a right-of-way.
• AF responded:  Well, when you have a wood lot in the middle of Vermont, supposedly, you cannot be denied access to it.
• JM: That’s really a civil matter and not our determination to make.
• AF:   So there’s no right-of-way but they did do a full search for right-of-way access?
• SB: I have encountered situations like this having been the chair my own board for 15 years in St. George.   Our surveyor went through the chain of deeds and did not find a right-of-way there.  The standard statement on a survey is that:  “this is true and accurate to the best of your knowledge based on all the information that’s available in the town land records.” No such information was found in the land records.
• JD responded:   If I remember right, Mike said to go ahead through that roadway to get to your wood lot, but there was not actual right-of-way.
• AF: I know he was a good neighbor. When James Maroney owned it, too, it was a shared – it was called the “Peach Orchard Road” and it was shared by people in the town. Does anyone else remember that?
• AF: As a follow up for that would be:   Can that road be extended further into this property in subsequent, future developments? Is there any zoning restriction on that?
• JM:  Here you’re getting back into a legal situation, which we really can’t address here.
• Well, the zoning board would know if they can go from 9 lots to 18 lots
• KA:  It would take a whole new application process to do that.
• It would be a new application. Whether or not it could be done would need to be considered in any new application.
• [19:08] Carol Reed: I live alongside Fern Lake Road. One question and one clarification.  I don’t know what some of these initials are: PUD?
• SB: PUD stands for Planned Unit Development
• CR: And then regarding deer wintering, I’m not sure how that determination was made because lots of deer, numerous turkeys, all kinds of wildlife are present.
• SB: The deer wintering areas are mapped by the state. Just because there are deer present in an area does not make a deer wintering area.  The wintering areas are all mapped.  The maps are available online on the ANR natural resources Atlas.
• CR:   I’m not sure what that will do to the wildlife in that area.
• SB:   One of the goals of this project is to avoid rural sprawl and to allow a landowner reasonable use of their property without undue adverse impact to the natural resources.   The whole community and ecosphere depend on this.   What we try to do is strike the proper balance of allowing reasonable use of the property in a responsible way.  Landowners have some right to develop the property and VT does a good job of regulating this.  There is a oversight on every project.  We evaluate over a dozen different ANR natural resource maps. This includes everything from steep slopes to sand and gravel deposits, wet lens floodplains Primary agricultural soils.  We look at all of those constraints and try to find the best solution.   We utilize existing infrastructure and share that infrastructure, so you have an overall lower cumulative impact on the environment while still providing human services and opportunity.   Our goal here is to avoid larger lots that really cut up into that forest and place two on the natural buildable sites along Shackett Road.  The other six are located along a “historic road” with easy access to Fern Lake Road.   We feel that this design provides a reasonable number of homes in a way that has less impact on this site.  This avoids putting the same number of homes right along the road which most people don’t like to see.  It is meant to be an efficient layout for the number of homes with minimal impact to the environment.
• Carol Reed: I would like to say that I understand the need for more housing and Leicester is a great place to put those houses because it’s affordable for families and so forth. When I saw the maps at first, I was unclear about overlap onto my land for peoples’ septic and wells.
• [23:29] Scott Baker: yes, and [unclear]
• The state protocol has been in place for many years. The overshadowing zones are for drilled well water isolation zones and the wastewater isolation zones.  These zones keep the water clean and the wastewater separate from each other.   A drilled well has an isolation zone (100 feet downhill and 200 feet uphill) within which you cannot build a wastewater system.  Conversely, if you have a wastewater system, there’s an isolation zone around which you cannot drop a drilled well.  The isolation zones are designed to prevent the mixing of clean water and dirty water.   Isolation zones pertain only to the wells and wastewater systems. You can put house driveways in those areas. Along the southern boundary the isolation zone for one of the wells crosses a boundary line.  The state permit was issued showing this isolation zone.  The other restriction is that a wastewater system cannot be located within 25 feet of the property line.  A variance would be required for this. 
• Carol Reed expressed concern that she has a workshop cottage that might be in violation zone her property.   The relevant map sheet was reviewed.  
• The only thing that you won’t be able to do is put the wastewater system into a well isolation zone.  The state has made a policy where wastewater permits cannot be denied by the state for overshadowing.  There is another constraint that wastewater systems cannot be built within 25’ of a property line without a variance. The state has made a policy that is “first come, first served.””   The design has been reviewed by state engineers and the permit has been issued as being properly designed by state law,
• Baker stated he would provide the town with a copy of the permit.
• I cannot, that’s the permit number and the date on it? but I can look it up. [28:03]
• So I always kind of understood the property line as where you start counting from, so what you are saying though is that overshadowing onto my land would mean that I have to then push back further so there’s no overlap?  Baker restated that the isolation zone only pertain to water and wastewater.
• CR asked if the wood road on the map was “Peach Orchard Road”?
• SB:  There was no reference found in the land records of this named road.
• CR:  “That’s what is has always been called.
• SB: OK so this is the – over the blue line is called out as the drilled well isolation means that a wastewater system cannot be constructed here.  This is a moot point, I think, for development review purposes.   The wastewater systems that cannot be built within 25 feet of property line without a variance from the state.  In this case there’s 38 feet.
• CR: I was concerned that on the map that I received there was no indication of a house and a shed.
• SB:  “You can build houses, sheds, driveways.  The state only want to prevent clean water from mixing with wastewater.
• Fitzpatrick: two questions, first is: Can zoning board can decide this, or is this just to hearing? And if so when would the decision likely be future?
• KA:  This is the preliminary plan review.   If the board decides it needs more information, we’ll ask those questions to the developers. This is not the final application hearing.  No decision will be made tonight.
• The only permit they have now is the state of VT water and wastewater permit.
• There will be a final application hearing scheduled and noticed.
• AF:  So on Shackett road there were a lot of 10 acre plus parcels when I bought my property in ’85 – this vision of ACT 250 and everything had to be 10 acres. I know on the 30-acre meadow with some great building sites. Am I allowed to put it into 2-acre lots if I choose to?
• This would require application and a process like this hearing.
• SB:  I think the 10 acres for ACT 250 pertains to the commercial development and residential development on 10-acre lot with either 10 dwelling units or 10 residential lots within a 5 mile radius within a five year period. 
• It is likely that through proper permitting other people can do this in the future in Leicester on Shackett Road.
• [32:30]
• Shirley Shackett commented that the right-of-way was referred to when her husband owned the property.
• 34:26
• This peach orchard road is an ancient road that was addressed by state statute over 10 years ago.
• There was a long discussion and history of the state ancient road process that occurred over 10 years ago.  The ancient road process took place in Leicester in 2009. The only roads that the town retained were Isthmus and Jenna (formerly Stovepipe).
• 38:35 Jan Sherman, Lot # 9 is going to abut our property.  The meadow is the only place where there’s a nice view and where we are planning to build.  There might be a temptation to clear cut that lot.
• SB:  Towns regulate building envelopes and clearing limits differently.  Some towns assume/expect that the entire building envelope will be clear.  If so, they have us draw the clearing limits outside building envelopes and outside the right of way.  Some let the building envelope go into the woods in case someone wants to have a little lawnmower shed or something like that tucked under the trees. You don’t have to necessarily clear to put a shed somewhere.   We have worked with different towns about clearing limits in building envelopes.  They are handled differently.
• JS:  So is there a way for us that have property that is going to be above this new development to know what that is?
•  SB:  Yes so on yours, it can probably be seen on sheet S5.  Let me see if I can just use one example.
• SB:  There is a purple dashed line that looks like a trapezoid – that’s the building envelope; and this kind of bold black curvy line is very close to it, but then it comes off. So to answer your question, this is one of those areas where you see the building envelope is parallel to the property line, but the clearing limits generally follow the building envelope lines.
• SB:  Here’s the building envelope that goes off the page.  That’s because the purpose of the site plan is to focus more on the infrastructure. The survey of plans shows these with bearings and distance meets and bounds, all accurate within an eighth of an inch on the ground.  The bold line is what we show as the proposed clearing limits, and you can follow it all the way around the lot.
• SB:  As designers also would like to get feedback and direction on how certain things like the overall concept of the project.  We would also like some feedback on what the town would like to see.   We want to identify all concerns of the neighbors so that we can address them.
• KA:  All of the project plans and prints are available in the town office.  There are different size prints of parts of the project.
• AF: Could we get pdfs – electronic?
• SB:  Yes, we submitted everything as PDF of course so have we have all of them available
• AF: will the town share them with us?
• KA:  All of the plans are public records
• LD: It’d be worth sending her an e-mail
• Jan Sherman: one more follow-up question for the board then: clearing the limits is that something that they aren't defined in the regulations?
• KA:  Clearing limits are not discussed in the zoning regulations.  This is a matter that can be discussed further and addressed in the next hearing.

Keith O. Arlund

Leicester Zoning Administrator