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Meeting Minutes - ZBA

Town of Leicester
Zoning Board of Adjustment Meeting Minutes
Tuesday, July 31, 2012
** See subsequent minutes for any changes
Members Present:   Pete Fjeld, Chair, Jeff McDonough, James Russo, Connie Carroll
Absent:  Donna Swinington
Others Present:  Kate Briggs, ZA, Tom Barker, Jeff Hornbeck, Jeff Smith, Sue Potter, Steve Beck, Bill & Linda Pitkin, Bethany & Andrew Menkart, Harry Chen, Kate Williams, Rosemary Spawn, Anne Lizak, Lisa Ventriss, Sandra Trombley, Secretary
Call to Order & Roll Call:  Peter called the ZBA Meeting to order at 6:02 p.m. with roll call.
Reviewed Agenda:  
23-12-ZBA, Tom Barker, Parcel #070033, RA District, 23 Ferson Road:
Chair read the warning.  Tom and Kate were sworn in; as well as, other interested parties for upcoming hearings.
Setback waiver to replace mobile home.
Tom explained that his mobile home was put on property in 1969.  Because of a CVPS easement there was no way it could meet setback requirements.  He is replacing his mobile home and his intent is to move it to the north and to the west to try to make it better and less non-conforming when he replaces what’s there.  He has signed an easement with CVPS to move the power lines and since the merger it’s all up in there air; and that was two years ago. 
There was no public comment and no further questions from the Board.
Chair explained that Board will go into deliberative session after hearings and he will be notified no later than 45 days.
22-12-ZBA, Mahlon & Joyce McCoy, Parcel #222124, L2 District, 1496 Lake Dunmore Road:
Chair read the warning.  McCoy’s could not make the hearing so Kate was speaking to the application to explain what they are trying to do.
Non-conforming lot needing setback waiver for addition.
Kate explained that Mr. McCoy is severely handicapped and it’s a very small house and they would like to put on an addition and make it a little bit bigger so they have wheelchair accessibility.  They are about three feet shy of the front setback.  It has a wetland around it.  Essentially it is to provide better handicap access in the front of this house.
The Board confirmed the 72’ front setback and the 13’ side setback that is not changing.  The drawing is not in scale.  Square footage is around 700’.
Kate has been asked to pass on concern from some neighbors that if this is granted, can conditions about cleaning up the debris on the property.  Abutting neighbors had no problems with the addition, but just the debris.  There was nothing official in writing and no interested parties attending.
Chair explained that Board will go into deliberative session after hearings and he will be notified no later than 45 days.
24-12-ZBA, Jeff Hornbeck Applicant for Robin P. M. Parish, Parcel #202112, Lake District, 654 Indian Trail:
Warning was read and Jeff Hornbeck had been sworn in at the beginning of the meeting.
Front setback waiver needed for addition of deck with cable railing and retaining wall.  It is 63’ from lake edge and should be 75’.
Jeff explained that the property slopes off and the retaining wall is necessary and they want storage under the deck.  Jeff showed the Board his pictures of the camp and existing steps.
The house right now is 75’ from the lake edge.
Chair explained that Board will go into deliberative session after hearings and he will be notified no later than 45 days.
Appeal of the ZA’s denial for permit to build boat house, Application # 21-12-ZBA, Jeffrey T. Smith, Parcel #212021, Lake District 1, 1134 Hooker Road:
Warning was read and Jeff Smith was sworn in; as well as; interested parties at the beginning of the meeting.
This is a formal appeal of the Leicester Town Zoning Administrator’s denial of Smith’s request for a permit to build a boat house pursuant to Section 620 of the Leicester Zoning By-Laws.
Kate Briggs, ZA, explained that this is the third application to build a structure on this parcel.  The most recent one was a request to build what was described as a boat house.  There are some photographs of what it looked like before and then, now.  Kate denied this application on the basis that what he is building is not a boat house.  It is a shed in which he plans to put boats. That would require a setback waiver.  Kate did not feel the setback waiver would be granted and she denied that on the basis that it didn’t meet the standards; particularly the standard that it wouldn’t have any effect upon his neighbors.  A number of them have already objected to this project when it was first proposed.
Kate read the second paragraph, first two sentences of Mr. Smith’s letter of appeal dated June 14, 2012; “The Administrator granted a permit for my boat house on October 29, 2009.  That permit was unsuccessfully appealed by third parties.”   Kate stated that what actually occurred was that there was an appeal by the abutting landowners.  At the appeal, before the appeal was heard, Mr. Smith said that the person representing the landowner who was their son and not properly appointed.   On the basis of that, the ZBA commenced the appeal and never heard the substantive issues about the project.   Kate said that she since researched that and it was actually improper.  There is no requirement in our regs or the State that there be any formal appointing of agents and in fact is almost always practice that somebody merely appears, particularly when a landowner is out of town.  Kate said she and Julie both spoke with the Makovec’s.  The Makovec’s were out of town and wanted their son, Gary, to represent them.  It leaves the impression that the issues surrounding the development of this property have already been discussed, when in fact, they have not.  The appeal went nowhere. 
After this hearing, there was an affidavit signed by Mr. Smith saying what he had done and it was not a mapped wetland.  Kate said, in fact, it was a mapped wetland according to Mr. Quackenbush.
Kate stated that subsequently, Mr. Smith began filling in the property.  She went over to see his permit and he said he didn’t need a permit, it wasn’t a wetland.  Kate reported it to the State and he was issued a notice of alleged violation regarding it.
His statement, I attempted to start construction by putting down rock to support heavy equipment to place piers”.  This was before he had any state permits and still doesn’t have permits.  The next sentence, “The State of Vermont violated me for class II wetlands fill.  Because of the time it took to settle with the State of Vermont on the wetlands issue, my time to build ran out.”  Kate stated that the original permit could have been renewed for an additional year, but it was not.  Kate thinks it was not because Steve Hanna who was in charge of shore land incursions made it very clear that he would not grant a permit for the boat house as described, the boat house. 
Kate stated that the issue is not settled at all on the wetlands.  She said they are merely holding off.  They intend to start enforcement again, waiting for this process to resolve itself so that Mr. Smith can begin remediation of the damage he has done to the wetlands.
The point that Kate wants to make about this process is, the Town does what the Town wants to do under its regs, the State does what it believes it should do under its regs, but in fact, there is no completed application for any project with the State.  They do not, as a matter of procedure, ever say no to something until they have a completed application.  Kate stated that this is not resolved with the State.
Kate stated that a boat house has water in it.  This is the common, ordinary definition; it’s not merely a structure that has boats.  Kate stated that the reason that this is so critical is that in our regs, Section 629 which talks about waterfront lots may have a one story boat house.  It doesn’t talk about any setback waivers, but implicit in this is that setback waivers are not needed.   Any kind of structure has to meet setbacks.  There are specific exemptions such as boathouse.  There are no new boat houses being built. 
If this permission to build a building for the purpose of storing boats without meeting the setback from the lake were granted, we would have every single person building a structure in front of their building.  This is not consistent with our past practice, zoning regulations or Town Plan.
Kate doesn’t think it’s a boat house.  She treated it as a request for setback and denied because she didn’t think it met the standards for a setback waiver and those are outlined in the regs; specifically they talk about how they do not have any reasonable impact on neighbors and enjoyment of their property.  Erecting a building in a wetland will not only affect the Makovec’s, but will affect everyone who uses and enjoys Lake Dunmore who wants to have a natural place and all of these things are very important to the ecology of the lake.  It does not meet the standards of a boat house.
Jeff Smith stated that Kate is completely misinformed with his status with the State of Vermont.  Jeff’s legal opinion in regard to what Kate’s job is.  Her job is to take care of things that are black and white.  She has no problem whatsoever to make a gray matter decision.  Jeff stated that the Town says that there is an ordinance for having a boat house.  It describes its dimensions.  She rightfully gave me a permit back in 2009 because I represented to her that I had spoken with the Town and State individuals in Rutland.  That particular person gave Jeff the ok that he didn’t need a permit from the State of Vermont because the property, in fact, was not in a wetland.  It’s not a mapped wetland.
Jeff stated that he has settled with the State. 
Jeff stated the permit was granted the first time around.  There was an appeal.  The case representation of that appeal is accurate. 
Jeff stated that the letter that he wrote to the Board basically puts it in a nutshell in regard to what happened.  Jeff told the State of Vermont that he put the rock down to support the heavy equipment so that he could put piers in.  During that period of time, Kate called the State of Vermont on behalf of some people and Mr. Urich from the State of Vermont came up and visited with him and told Jeff to stop all work; which he did.  Mr. Quackenbush came down and talked with Jeff about what was going on and what Jeff could and could not do.  Jeff told him that he would move the boat house back and have a track system that would pull the boat into the boat house basically, on land.  That kind of operation is not too common, but quite common in places like Lake Champlain.
Mr. Quackenbush, who heads up the Wetlands Program, told Jeff that the regulations had changed just about a year and a half ago.  It is his call that almost all of that land that he owns down there, with the exception of about 20’-30’ from west of Hooker Road is in fact Class II wetland.  It was not a mapped wetland and is still not a mapped wetland.  Jeff said he did not make any false statements to anybody.  After he settled with the State, he copied Kate with all of his letters from the State, which pretty much says that he is to attempt to get a permit from the Town, put in the boat house, and take out the white stone after he has the piers in.  After he gets the piers in he can back fill with loam or other materials to the level it was originally.  Based upon a call to Mr. Urich today from someone and Gary and Jeff talked tonight about what was going on.  Jeff reminded him what he had in his file.  He agreed with the letters that Jeff has.  Kate has all his letters between Jeff and Quackenbush.  Mr. Urich was going to email Mr. Quackenbush tonight about some interest of what Jeff was doing down at the lake.
Jeff’s plan is to put in the boat house according to the original plan that was put in for me in 2009 and resubmitted in June 2012.
Jeff stated that Kate’s position is one of the Zoning Administrator who doesn’t have the ability to determine what a boat house is or what it is not.  She should believe what her residents are telling her.  Jeff doesn’t think she has the authority to make a judgment of that sort.
The Chair asked how high the structure was.  Jeff stated it can’t be any higher 10’, not wider than 12’.
Jeff took some photographs.  Mr. Quackenbush wanted Jeff to put the boat house somewhere else that would not conform and an officer of the Town told Jeff that a variance was not going to work.
Mr. Quackenbush gave Jeff permission to put the boat house into the position where Kate and Jeff originally had it permitted for in 2009.  Jeff showed the Board some photographs he recently took.  Jeff explained the photos.
There was further discussion between Kate and Jeff whether the property is a mapped wetland or not.
Connie asked if it would have water under it or would not have water under it.  Jeff stated that it can have no more than what is there.
Jeff is taking the position that anything the State has been doing with him is his business.
Jim asked about the drawings and the piers.  Jeff stated that the drawing that he attached to his appeal had to do with the 2009 permit.  Jim asked if it was a shed or a boat house.    Jeff stated that he doesn’t think the Zoning Administrator has the authority to question his definition of a boat house.
Chair read letter from Charles & Grace Makovec dated 7/30/12 into the record objecting to granting a waiver for this boat house.
Chair read letter from Lisa and Curt Ventriss dated 7/30/12 into the record objecting to the waiver requested by Jeff Smith to build a large structure on the lakeshore.
Bill Pitkin:
Attorney Smith’s legal opinion that he gave, saying that the Zoning Administrator opposes, strikes me as a conflict of interest.  It’s always been known that you can’t build boat houses around the lake.  This is a way of trying to break the rules.  He’s taking up a lot of the Board’s time and a lot of their time.  It impacts all his neighbors, the wetlands.  A shed is not a boat house.  It doesn’t fit with logic and common sense.
Linda Pitkin:
How would we prevent everyone else on the lake from doing that is the larger concern?  Once you say this is ok, everyone will dig into their shoreline.  That is not the intent of the regulations or anyone that uses the lake.  A frightening precedent to set.
Jeff Smith:
I appreciate your comments.  He has the greatest appreciation for the lake, otherwise he wouldn’t be here, but at the same time, as a moral issue, nothing to do with the application and with the appeal, and I want to preserve the best I can for my own property, as well as, my children, my heirs and so on.  This is what I’m attempting to do.  It’s a boathouse used in the same configuration that other people have used elsewhere as in Champlain and Maine, etc.  It can’t be any more destructive than a boat lift.  I intend to preserve this structure if I can build it.
Bill Pitkin:
The idea of preservation of something that doesn’t yet exist doesn’t make sense.  The preservation that needs to happen is the wetlands.
Andrew Menkart:
He wanted to speak to the definition of boat house.  His background is as a Civil Engineer, but has been involved in boating commercially and recreationally his whole life all over the world.  A boat house is what we see here on this lake, lakes in NH and NY with water in which boats float into.   There similar to ones built 50 – 100 years ago when we didn’t know better.  None have been built for good reason.  The only ones here now are existing or rebuilt ones.  What Mr. Smith is describing as a boat house is not what he would describe as a boat house, but a shed and setbacks should apply.  He would have significant concern of the precedent it would set for other construction.
Anne Lizak:
Echo what lots of others have said.  There have not been boat houses for many years and there is good reason for that.  She has nothing against Mr. Smith, but anybody degrading the area and the environment.  I love that this area is open and lovely.  This would create a precedent.  This would endanger the wetlands.  It does particularly goes against the zoning regs.  It should be in conformance with the Town Plan and its goals.  To protect and limit the impact upon ones neighbors.  It seems this is in clear violation.  Really concerned for our community.
Bethany Menkart:
They live across the lake from Mr. Smith’s property.  She’s here for the same reasons as others.   Everybody that lives on the lake is a neighbor.  We are all impacted whatever is done there.  If one person wants to do something that adds to the degradation of the lake, it affects the lake, the loons, and the quality of life there.  That’s what we love there and what’s important.  Bethany spoke with Alan Quackenbush this afternoon and she also spoke with Meaghan MacIntyre from Natural Resources.  They both concur that Jeff Smith is in violation.  He does not have a permit.  He would not receive a permit until he addresses the remediation and violation.  He has had three years to do this and has not done it.  It is a mute point.  Why would he even apply when he is in violation with the State?  It’s a big waste of everyone’s time.  There should not be any structure built there.  There would be a big impact to the lake.  Her concern is what kind of precedent would be set.  The Lake Dunmore shoreline assessment condition is already an eroded area.  Anything more would contribute to it.   Alan & Meaghan said that it is a Class II mapped wetland.  It has been a mapped wetland.  It has an impact on the lake and it has an impact on all of us on the lake.  She thinks it’s important that the Town of Leicester and the ZBA take this seriously.
Peter asked the difference about the boat lift’s with a roof and a boat house.
Linda Pitkin:
Linda said if this was for a boat house, it would be a different thing, but this is a structure built within the setback that it’s going to store boats.  There are 100’s of structures that store boats, but they are either grandfathered or built where they are supposed to be built and they are not newly constructed in violation of the regulations.  That’s the key difference.  They are legal by State regulations.
Sue Potter:
Boat lifts are temporary structures which are usually moved or picked up in the winter and stored. 
State regulations are not the responsibility of the Town of Leicester.
Harry Chen:
He appreciates the opportunity to comment.  While he doesn’t directly abut where Jeff would like to put the structure, but it certainly is in our daily routine of walking, riding, etc.  His expectation of the ZBA would make a decision consistent with the guidelines and goals of the zoning regulations and planning.  Whether you call it mapped or not, it is a wetland.  Whether it is a boat house or structure, the fact of the matter, putting it there would change the nature of the area/view and enjoyment of people there.  I’m here for my children and all of our children and how we take care and protect this valuable resource.  I would oppose granting a waiver.
Kate Williams:
She wanted to second the things that have been said, with that structure lying on the edge of the water.
Sue Potter:
Her concern is the preservation of the wetlands.  They have seen some pretty heavy storms on the lake.  The wetlands serve a very valuable purpose and we need to preserve them.
Rosemary Spawn:
She echoes what the others have said.  The wetland has already been filled in with stone and now he’s asking for a structure on top.
Ann Lizak:
Commented she was happy to see the Town Plan and what the town supports.  Read a few lines of Town Plan.
Jim asked for clarification on setback waiver.  Which setback waiver? 
Kate said it’s from the lake.
Chair explained that we will be closing the hearing and going into deliberative session tonight on all hearings.  Decisions will be sent within 45 days.
Went into deliberative session at 7:27 p.m. and came out at 9:00 p.m.
Motion by Jeff to adjourn at 9:00 p.m.  Second by Jim.  All in favor.  So approved.
Respectfully submitted,
Sandra L. Trombley
Zoning Board of Adjustment Secretary