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Meeting Minutes - PC

Planning Commission Meeting
Tuesday, September 29, 2015
6:00 P.M.
** See subsequent minutes for any changes
Members Present: Donna Swinington, Chair, Peter Fjeld, Jeff McDonough, Bill Shouldice
Others Present: Julie Delphia, Sandra Trombley, Secretary
Call to Order/Roll Call:
Meeting called to order at 6:01 p.m. by Chair and roll call.
Review Agenda: Agenda reviewed.
Approve minutes of September 8, 2015:
Motion by Jeff and second by Peter to approve minutes of September 8, 2015 as written. All in favor. So approved.
Jim Carroll – Zoning By-laws:
Donna welcomed Jim Carroll.
Jim stated that he understood the Board has been in the process of revising Leicester’s zoning by-laws for quite awhile. He explained it is not an easy process.
Jim received two of the working drafts for his review. One was Poultney’s by-laws as a template of a unified by-law. The other draft was a rework of the current by-laws with new provisions. The question is; which direction to go.
Peter asked which one makes more sense. He explained they were working on the Poultney plan as a template. The rework of the current by-laws was done by one of the Selectman and the Zoning Administrator.
Bill explained that their work was fully intended that Jim would be involved to clean it up.
Peter said it was probably 80% done, but there are still things to be cleaned up. We sent it to the Selectboard to review it and assumed we would meet with them and discuss.
Bill stated they picked out the 20% and didn’t think we knew what we were doing.
Peter asked what makes the most sense for the Town. There is concern from some of the Selectboard that it is too hard to figure out.
Jim stated there are some interesting planning issues in the Town; the lake which causes many issues.
Jim stated that the same members on both the Planning Commission and Zoning is a heavy burden.
Jim wanted to go over who has the authority to do what.
Jim stated that while the planning process is underway, the Planning Commission has the authority by Statute to make revisions or amendments. The final draft requires a formal public hearing; along with the final draft. The Statute requires a final report. The Department of Community Development has a form, but it is a skeletal report. The final report is sent to the Selectboard and the Selectboard also has a public hearing. If the Selectboard feels it needs some major changes, they can send it back to the PC. There could be some ping ponging.
Jim stated there is the political process; that you are very much involved in. This is a town where there is not a lot of public input and it’s up to members of the Board. You ultimately need to work together.
Jim stated conceptually, the layouts of the two plans are not that different and consistent with local zoning regulations that you typically see. His overall impression for a unified document is the Poultney document. Poultney’s is more up-to-date.
Jim asked if we were getting assistance from Addison County Regional Planning. He thought we should.
Jim stated that ultimately to move Leicester into a modern day zoning ordinance that incorporates the DRB and the concept of a judicial board and a legislative board, the Poultney plan is more up to date, conceptually, and easily flows with the charts.
Bill stated that our employee and the Board feel that these charts are not needed and creates confusion.
Jim disagreed with that.
Jim stated the current zoning regulation set up was easier to accomplish. Jim also recognized that to get to where you want to go, you can use your current plan, but you would have to incorporate statutory things from Poultney’s template.
Jim would have no problem helping by taking all the unified things from the Poultney plan and moving it to the current document.
Jeff explained that Diane has been working with the Board on the Poultney plan.
Jim stated that either plan can work. The devil will be in the substance. They are both going to take some review and work.
Jim likes the Poultney plan format better, but he is perfectly satisfied with the current plan format.
Peter mentioned that there are about 20 pages of FEMA flood hazard in the Poultney Plan.
Jim stated that the FEMA information is absolutely a must and required. You must have it. There are required provisions such as telecommunications, agriculture use, pre-existing use and structure use, nonconformities, section of districts, enforcement, administration, etc.
Peter mentioned one big topic is home occupations.
Jim stated that home occupation is a statutory term and you need to account for this in your zoning regulations. Some towns have defined it home occupation and home business. It is always going to be fact dependent and subject to interpretation.
Peter stated that they need to, and will, decide which plan they are going to use.
Jim stated that they absolutely must have the required regulations under 4412, 4413, and 4414 in the zoning regulations. These are the most critical. Both plans account for them, but they need more work.
Julie offered to email these regulations to the Board if they would like.
Jim noticed that the Board continued to call the Zoning Board of Adjustment the ZBA instead of DRB.
Donna stated they were still in the revision process.
Jim stated that there should be separate members of the PC and DRB. The amount of work is too overwhelming.
Bill stated that the Selectboard feels there are some things that are never going to happen in Leicester; so why have it in there. He asked where you draw the line as to what is perceived to be the future and what is perceived to be never.
Jim stated that one way, stylistically, is to have bullet points and hammer out uses for all the types of businesses or you can have really broad general categories. The specific listing is much easier for the user and much easier for courts. It removes a lot of the interpretation. There can be catch all phrases that say; uses not dealt with in the context of this particular zoning ordinance are not permitted in any district. The planning document should be forward thinking. Jim’s response was that he would include anything that might be a potential. Hotels and motels for sure; you should have.
Peter showed Jim the document they use for Findings of Fact and asked what they should have. Jim stated the document currently being used should be discarded. It will not fly for a set of findings through a DRB, a quasi judicial body. The Statute requires that the decision has specific findings and conclusion that are specific to the particular request. You must write it out and articulate the facts, then write the conclusions in a conclusionary fashion. These require time and effort and must have a decision within a 45 day period.
Jim informed that in the Churchill situation, Mr. Churchill filed a motion to reconsider. In fairness to Mr. Churchill he needed to know that from a practical stand point getting a motion to reconsider properly noticed, getting a hearing, getting the Board convened to hear the motion to reconsider, then deliberating and coming up with a decision on the motion to reconsider, would all take more than what was left of the 30 days to happen; which would mean his appeal period would have gone by before the Board could get a written decision out.
Jim thinks it’s likely to come back on remand. Churchill has protected himself by filing an appeal. Jim recommends that the Board ask to get it back. The Board is in agreement with that.
Jim stated that when it comes back to the Board, they have two options:
  • Go back into deliberation and use the recording you already have, use the testimony you have and rewrite the findings and conclusions based on testimony.
  • Reopen the hearing, have them all come back and take more testimony; along with the original tape, and rewrite the findings and conclusions.
The Board can design a format for Findings of Fact and Conclusions with basic information and then the Board writes their findings and conclusions. Jim will send some examples of Findings of Fact.
Peter stated that the application should be completed with all the information and adjoining property owners needed in order to notice them to consider the permit application.
Jim stated, when sending notices to people listed as interested parties in an appeal, his advice is to be over inclusive; not under inclusive for interested parties. The details can be worked out later in court as to who is, or is not, an interested party.
There was discussion about the process of permit applications. Jim stated it is usually the job of the Zoning Administrator to make sure there is a completed application, that the necessary information is contained on the application. If not, it should be sent back as incomplete because the ZA also has a drop dead period of time to respond to the applicant and if they don’t respond within a 30 day period the permit is deemed to be approved.
Jim explained the Zoning Administrator is the administration of the zoning ordinance in town by Statute. The ZA is the one to process applications, initiate permits, and refer applications to DRB, to send notice of zoning violations and to pursue or not pursue the violation. A Zoning Administrator is well advised to be consulting with the Selectboard about any potential zoning violations coming up; because the Selectboard has the authority to pay a lawyer and a ZA doesn’t have an independent purse.
Jim thinks it is fair to ask the Zoning Administrator to do the preliminary work to make sure there is a complete application before being sent to the DRB. The ZA should certainly be helpful to the applicant to make sure the applicant knows where to find everything to complete the application.
The Board needs to have a vetting process to make sure public notice is being done accurately; and formalize that process.
Bill asked about a notice of violation and who should take action.
Jim said statutorily, notices of violations are issued by the ZA. They can be issued without a great deal of expense. Most ZA’s that he works with like to have an attorney review the notice of violation to make sure it follows the Statute and that there has been some preliminary discussion when it’s getting served. Not all towns do that. The Selectboard gets involved when legal expense is started and an action is proceeding. ZA’s and PC’s don’t have budgetary authority.
Bill asked about enforcement.
Jim explained; one enforcement mechanism is a uniform municipal ticket and ZA’s have the authority to issue them, but there are very limited fines and no injunctive relief.  
The Notice of Violation is the more typical enforcement mechanism.
Peter said what they will recommend to the Selectboard is they should decide whether they want the Town’s attorney to review all violations as part of the job description.
Jim stated it takes coordination between the Zoning Administrator and the Selectboard for zoning violations. The DRB doesn’t get involved until later because they are the judges.
Bill asked what should happen if he gets a call about a possible violation.
Jim said Bill should tell them to call the Zoning Administrator. Bill should not talk to them about it.
Jim stated that the Board should do site inspections when dealing with a permit application or notice of violation.
Jim commented that he thought the Board was doing a great job.
The Board thanked Jim Carroll for coming.
Old Business:  None
Other Business: None
Public Comment: None
Motion by Jeff and second by Peter to adjourn at 7:50 p.m. All in favor. So approved.
Respectfully submitted,
Sandra L. Trombley, Secretary