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BATCH - Supplemental - 0069 0006 Pinnacle Drive
�l�/lL U, IGl� IEE;tl� Ir ��JJ� J���r��. INC. 928 Falls Road P.O. Box 485 Shelburne, VT 05482 December 26, 2001 Mr. Ray Belair City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 Re: Measurements at 69 Pinnacle Drive South Burlington, Vermont Dear Ray: Phone: 802-985-2323 Fax: 802-985-2271 E-Mail: cea@together.net At your request, on December 10, 2001, our firm revisited the house located at 69 Pinnacle Drive to re -measure the ridge height pursuant to recent modifications. The elevation is related to the existing sanitary manhole at the intersection of Pinnacle Drive, and based on as -built information provided by your office and control points established on September 11, 2000, from previous measurements at the above referenced site. The result of the December 10' measurements is as follows: Highest Point of Ridge 418.0' If you have any questions or concerns or need additional information, please feel free to call. JM:pao Sincerely, Jack Milbank Post -it® Fax Note 7671 Date ') d pages To W! t C� From - L fj 9 Co. ept. Co. Phone # Phone # Fax # Fax # (W tv 1 U it r rv" , 1 1 4ff �) -�,'�Vlnt -1,6 a ov 59 CHITTENDEN BANK 21 A & M CONSTRUCTION CORP. BURLINGTON, VERMONT •. .ae» i�r, rn c P.O. BOX 9347 ®® SO. BURLINGTON, VT 05407-9347 (802) 865-4250 58 6/116 11/28/2001 PAY TO THE CITY OF SO. BURLINGTON ** 10.000,00 ORDER OF TenThousandand DOLLARS CITY OF SO'. BURLINGTON ,ram MEMO 03-03828538 �: : AUTHORIZED SIGNATUR _ .7.... L..atlT-c sf. VCi"�a1�✓., rti: �r�Sir!`W�.4.I.d,_ri�L_5.dr3Limi-"'✓L'E�'-! 1�A".i.: +1it.n.�.$'4'r9`a°rn �.iu. r*�aiai-�+�.T.%wN`� 1110 1 2 1 S9u® 1:0 L L60006 20: 1100 L®®I S 2-RA & 2®®I 7n® A & M CONSTRUCTION CORP. 12159 CITY OF SO. BURLINGTON 11/28/2001 Date Type Reference Original Amt. Balance Due Discount Payment 11/28/2001 Bill 112801 10,000.00 10,000.00 10,000.00 Check Amount 10,000.00 CASH CHITTENDEN B THANK YOU Chy,of South fBunliingt®n South Burlington, Vermont Total Cash § Total Chi Recaipt No Do llara ®ascription eceived By Post -it`" Fax Note 7671 Date i C pa°es, To > + C / From " f Co./Dept. Co. Phone # Phone # Fax # Fax # 'aasurers Office SEP-25-2001 TUE 09:04 AM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P. 01/09 STITZEL, PAGE & R,Evra E , P.C. A11ORNINS AT LAW 171 rir WT MY S'I krili r P.O. 110X 1507 RURLING ON, VIiRMONT 05402.1507 ice' 1 Utd!-2i55 (YO1Cof!'l 1U) „_„_•• , 51'IdVL• N f . }; I 1 I"/.i f i+A'I I It, PAMI:v FAX (802) 660.2531 nr Gd0.91 19 AMANUA g U I.AFFER't V atc)nr•Rr e.1'>.Hi'('ll;c� Et- �r1, Igft vPSSSAr,R1RM5P!', ';IM —L• rd U)WARD0. AIM IAN WKITU1V8C-MAIL( Mg:),I(AN.t&rLRMShB.00m1 J0ti1 I'll S. McLEAN Y R 11'L:R'S FAX (802) 60 2 t SZ TlMM)Iv M I.lISrncc (•ALSu AIAII r l I I I IN ti Y) FA( SIMILE, TRANSMITTAL. SHEET Late: Septerni.) r 25, 2001 1'(: [flay r3clair 17 ilx: 846-410 t Appeal of John Larkin City C)i South F3(.r!ir��;lon v. John Larkin, et, l. San(lcr; Joe Mcf,ean, Esq, —_._ Yc►!1 shcl[dcl rccc.ive _ llage(s), including this cover sheet. If you do rQ c;aiveWltli i11c: prt�us, Please call (902) 660-2555. MESSAGE, Trim"imitted herewith rive copies of our Stipulation for Entry of Order and Order in regard to tl[c; atu)ve-referenced matter, Thank you. 'rbi% ulti:n+ c iK IIIIVI8JL(l nnly IN'tttc tl U ul'17i1 ;xldii:55cu and may contain infurmalron OUT is privi(�au! Lind e011f5d0bill. If y'DII ON IM the Ilw:ulhd miriCllt, you ills huchy polIIla' 111,11 any (IImiull)yditnl (if Ns Milo is strictly Wrulhibilcd, I(Y0u h,%vu rccuivvd this couuaanlcmion 1n eimr, pie wu nulllj' US inuuedtateiy by t0el-kilu (802-660-25ii). Thactk yuu 5EF-25-2001 TUE 08:04 PM 3TITZEI- FnH FLETCHER N FM !40. 602550255E Fo 2r08 wrnw,:T., f-A(,j-j & FIX11,01TIN. P.C, ATIAW w17 1WU1NUNW. WAIMON V 1, 4 7101. p 417 STATE OF VERMONT ENVIRONMENTAL COURT 11T RE, APPEAL OF JOHN LARKIN Envxro=ental Court CITY OF SOUTH BURLINGTON Docket Nos. 159-9-99Vtea V. & 244-10-00 JOHN IARKIN, ET AL. gzL]-?U&hTT0N FOR ENT y_,OF ORDER NOW COMES Ijlohn Larkin, individuall,y, and John Larkin et ai., (C-oll-actively "Larkin") by and through his/their attorneys, i.ismari, rCi:-kj-.)A-r.rj.ck & Lecke-r] j i1q.. 1-3-C, p and the C !.i.y of South liurlingtoi-i (tho "City") , by ancl thr(.;L.,qh its attorjjc-y5 P,1Cj0- & Fle'Lchar, 1'.C. , and hereby stipulate and ragj:ec t-h4t- thO Court may enter an Crdar in the!;,,,. matters as set fr.)rttj W14ZREAS, Larkin has -IPP0411ed to the Environmental C-CLAX�L frOM it :Or-:iSiOrl Of LhE, ',30tfth Darlington Dc-,,ve1Qp71e11L Review Board Upholding 1.ho Zoning Administrator's deterrtiination that 5 hc.)LjCjL) by h-im .:AL #69 (forimorly RG/LoL 19) Pj.nnac;je r)r 3. ri ivL 1,hQ City I -el in viClati.orl of the Scanic View Protewtion (,,;'Vp) Ovc�tl,-*i,y Distriol. !standards contained in the City ozf South ]ri.irlington VonLng Requlaticns; and WHEREAS, 0101 City h�iS commenced a zoning anforoemorit sc,icir, Lrl h,he EnviromrenLell Col-Irt against Larkin and others to ObLair with it$ ZQrlillg Rec4ulations; and 1 SEF-25-2001 TUE 09:05 Al'1 STITZEL PAGE FLETCHER FC FAX NO, 8025602552 F. 03t09 AITM.cy, , YArm ec I7I.101cULJt, P.C. NI"POUNIMS ATLAW fTt IINT i 6T wl I'inrr p.0.109 r.41 HU n Lf A M ON, VV al(JMP 11,04-17,07 WHEP2AS, t?-:e violation of t1ju SVP Z011c sT.anciarcis was first bi-oIIga t to Lhe Ci.t;y's attention by Larkin himself; and WHEREAS, the violation of the SVP Zone standards, while the result o F nugligencc, ' was uninLent.! ona1; .and WHEREAS, Larkin has pr,opUsc,d to make structured alterations Lo the roof of t110 h013se at #69 Pi.nrsacle Drive, to pay a penalty for Lhe violation of the SVP Zone starltiarcis, iriclud,ing a portion Of the City':, l.it,igation-related expenses; and MlER'SAS, and tllc-' City t_hAt. :L !, is in their.. im1l,ual hest i.:7l:erest tc resolve their dtfforences by this SLipulat'1.o11 and artier, raL,hcr than through liLigati,on in the Environnenuu Cozlrt; NOW THERX ORE, iri Consa,deration of Lherse premises, L11L, P,,f'r, e.s h3-rCit() sLipul,ato and agree: that: Lhc Envi,ronmerital. Count Ifl�ly enter an Order dismissing the above maLtors, subject co the f0 1 lowing: 1. Within thirty (30) days of, tho date that said Order: is 1-X(:(:uLvd by Lhe Krivironmental Court, Larkin shall take: )1.)1)rnl)ri.aLu .sr,.e1,s Lo reducc the height of the lappermust roof -line un t.11c, h0l-15f•' cIt" #t(19 Pirinac.l.e Drive by at least one (1) foot. 2. Pricir I,o commencing the work ref;ercnceci in Item 1, abuv%:, Larkin shall provide the City's Zoning Admi,nistrati,vo Oifirer with at least 7-day notice of the same, SEP-25-2001 TUE 08,05 AN STITZEL PAGE FLETCHER PC FAX NO. 8025502552 P, 04/09 .9VIPPA , Pnr lP. s ri', ,ri•rcYJ le li, F.(", ATTi UNEYN ATLAW r�i r;n'i^rqH� ;r(uhr� R i,,;N�,rrrr � RUN. Yh,ItMI,A"!' MICA UIn :3. L'r.ior to commencing the work refereliced in .Iturn 1, >•eprf:sOntc3tl.Vf. ar*ld the, CiL.y's representative Ve `ail�tll mee'i, Lo dat:erm.trie the benchmark from which the exist,i rich t' c is;hL cif thFe hc.)usp at # G9 PirinaolC Drive shall be measux`c:d, the € xis t.ing height of the house frOln Lh�lt benchmark, the point to whi oh t.:ht', roof.-1 i nc ,shall be luweSred relative to thc: bev)chmark, and t.tte mot:hodclogy for determining that the r.eqLiixad 3-foot x'odllctiori has h)ee1 complied w,' lLti. 4- Wt.Ltl_il f-if '-c e.,i ;15) days of the data on which i.ho work t•cfc.'r. enc:c�li in .I t c:in 1, above, is complete, Larkin' s representat.ivo e.�rld the, CiLy'i repre-scritattVe sh6.11 a9T,,'C'0 anti attest., in W171tit g, Lhl it the work has be��rl completed and that the he.i,ght of the irpi'� 'LJna�l: Y'ir(:).-It17P, on, the: house aL #E9 Iirlrlc1(-'1C? Drive h_jts beers x•c:ci>, Pd )y at 7e,isL one (1) .foot relative to the agreed upon banchmark, whic:k'l s11e711 be, spCc.ifically identi,fiect therein. 53jd att'est;aUcri shall h)e Sk1bmi.LLQd to tho Envi ronniontal ('ourt:, and inL.c) its Order as Exhtbi'L A. 5. Upon rereipt by the City of, said attestation, the Zoning Acitr,lnis1-,r,)L0r' shill prOmptly issue tc) Larkin, cr his desi,grica, a CoY't:i,f,i,CALU of Occupancy for Lhe hoijse at #69 Pinnacle Drive. C. Wirhi.n 30 clays of the date Lhat this Order is 'executed .)y C,aurL, Larkin Shall pay Lo the city, 1-)y C'CrCi.f,i-ed c:hacck or money ordox, mon\i.es in the amount. cat 3 SEP-25-2001 TUE 09:06 AC[ STITZEL PAGE FLETCHER FC FAA N0, 8025602552 F. 05/09 Arrnroi� ,ivs A'r i. w 114 OATI t1i;y A'1'11Y11T P-0.110X IMP 0010 W -111N, V1111VOW Iv,a 0 uurr $1U,000.00 which sum shall inCi.ude both a peizellty and a >,c1l-l.i.o!► of the City's icgai, fees and uxpensos to date. i. r'a,iluxe tO C01nply wiL•h the Lerms of the Environmental C0Ul•t' s U1•dC. shall be enLoraeRble in a pr.Or.'eCding for con t c1ript , l'n any r.011Lc)mpt Proceed -frig arising out of an alleged viol.aLion o i' th . > Order, if i't is established that Lark,iii has fai.lc:d to c.c)mpl.y with the required 1-foot height, reduction, by any amouriL whaL'sonver, Lhe CiLy shall be entitled Lo Seer-iFic perforrnanco by r,ari:in to comply with Lhr required 1 -foot height reduction, anti CO all OL it3 Costs and fees, ilicl'adinq its', attor,raeys fees, Tay P-v0(:uting this 0oc:ument, the parties horeto wrivp i.tye fQC.jL0.remarlt of : eY•vic o of the same as a prcreq+uisiLe to commence ally ronLempt proceeding. BATES? at Bur-lington, Vermont, thi c; day of September, JOHN LARKIN, ET AL. Ay:�'ohn L�rk�.n, Fora„hiln:aef and ali namod. Defendants DAZED ,.'�'( outh PiuYlington, Vermont, ztjis (jay 0,, ;ief)Lurciba r, 2001. . 4 CITY OF SOUTH BURLINGTON Hy�: Charles Ha fter, 1 t s duJ ,r authorized agent SEF-25-2001, TUE 09:06 M STITZEL FAGS FLETCHER FC FAX NO, 8026602552 F, 06/09 APPROVED AS TO FORM: for Larkin et eil. J ,c(��h � . McLean, � Efic.�. , fo.t City RPITY,(%, I'MIll & RV. ATIIIIM,',Y,14 AT LAW IIA'I'll'Ity tiffitlM/r 110 lu INP I-W IIIIIIIANCTON. vVilealw 0,4kr.iV,it7 5 SEP-25-2001 TUE 09:07 AM STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. 07/09 rWO,: & rr.r:rVil"R, Vc. h9•T!jSINNYa AT 1•AW 171 Rrrfu+kYY(I!h:r"I- A-A 11MX ;,o j fl AI INGTON, Vf it'9LtVT W, Al.) Sll7 STATE OF VERV.ONT ENVIRONMENTAL COURT f� 1117 RE APPi A.I., OF w.-CHN LA-RKIN ) Environmental Court 1 CITY OF SOUTHSLTRLTNGTON ) Dcckot Nos, 159-9-99Vtec I' v• & 244 -10-oo J011�7 LARKIN, ET AZ,. ) On the basis of. a SttpulaL•ion for Entry of Order, dated August -,_, 2001, OXocuted by the Parties horeto and filed with Ghc Envi ronmenta 1. Court, Lhis CourL Hereby Orders as follows. BY this Orde.,.-, the ak)ova-capt ior1Qd nzat Lars arc% DISMISSED, wLtfi projudi.cc, 3ubjeCL to the following conditions: I. Within Lhirty (30) days of the date that this Order.' is cxect.7t,ed by the Eriv.i roninantal. Court, Larkin shell take !tppro7, rlatci steps to reduca the height Of the uppermost rood' -line on thO house �It 469 Pinnacle Drive by at least one (1) foot. '. Prior to commercing the work reLurenced in Item 1, cak)Ovo, T,a,rkin sh811 providUl the Cily's Zoriing AdministraL'ive wi[11 at lL'ast 7-dr,y ncticr: of tho sarne. 3. Prior Lo commencing 't;ho work raferenced in Item c-11)(1va, T,arkln's .toprescnLative and the City's rapresent�ztive hclli meet: Ln det orrnine the benchmark from which the. exit/-inc hoighL of t-he hotase at. 1169 Pinnacle Drive shall be measured, Lh i3t:a.ng ho.ight of thE° lrouSe from that benchmark, the paint to wh.iCll thi1 foof-IJ,rtc shal-I be lowered relative to the beric.hmar.k, 1 SEP-25-2001 TUE OM7 AM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P, 08/09 «;ITI' I,I'AEiT,.ww AT'I'C! 0;r':Y 4ATJ.AW n 111 k'rTrcY 0 wn-.,r PC), Itox tfio ti7 it17 ! 6t17 Laic Mel'.hndol,ogy For determining t:haL the required i-foot rt,,ciuc:t.i.on ha;3 i:)ec;, ccmpj.iod witij. 4. WiLhir, fifteen (15) day;; of t.hr• date on which the wc)rlr, r,Erir rent:nci in Tt:erlt 1, at:�ovo, is complete., iar_kirJ's .representative, and the City':, :;1'1a11 k3grOe and_lttest, in writing, Lhc.>t•, trt_ work has been compl..eLaci and L.hat tho hei,ghL of the 1.y1-:1pnrmast roof -line on the house at # 69 Pinrracle Drive has been r¢:r>Tt:roc! try 'i'*- leaaGt or'ie: (1.) foot rel�lLive to the ayrc;ed, upon Y.Jc.;t•1oh]'Ilark, whi-c.-IJ sh,a1.1 bQ Specific -ally identiC'icad thore' r). Saiei aLL(,nitat,.Lori :shall be sub'Uitte: i Lc the Lrivironntontal. Court, and inc:orpcJrnI1 nc'I hez:c:in as Exhjb-. L A. 5. Upcn rcc:oipt by the City c)f said atLostation, the Zoria,ng AdNlirli trriLor ghall pr.ornpLly issuL, to Larkin, or his cic:sigl;nc;, a CtE ' t.iL"`lte c.' E 00c,'uP,' ncy f0t the house gat #69 Pinnacle Drive, 6. Within 30 days of Lhe date: that Li'>is Ordox• is oxecj.at;ed ;y t hO ['4ivi..r.onmPnt41 Court, Larkin ,shall pay to the. Ci'Ly, by L�e31i't,ii.iE'C1 CIIC.C:k (Jr money order, rrtorli(-s iT-1 the amount of 1.01 000. C)0 (A0111-Ir5, which such shall inc-LIAde both a Penalty and tho C;tty's ] r g,,jl feFes ,ind exponses i.o date. )- [',ai lure: to Comply with the terms of this Order shall bo c rtf.r.�rc:c.aYai �3 in a proceeding for curitempL . :r;n any conLempt: prc,cr.cdinq arising out of zin alleged vi.01ation of this Order, if it: is uz Lab i.shed that. Lar.kill has f Hied L.0 comply with L'hL- z'i;Ei..rir'cei 1-f:ooL h�:ight reduction, by any amount whatsoevor, 2 SEP-25-2001 TUE 09:08 AM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P, 09/09 City ',mall I-.)e enti.t.1ccl to SPccific performance by Larkin Lo Jy with Lhe required 1-foot hoight reduction, and to rec3vox all of its costs and fees, including its attorneys feet. OXCCUtinq Lhis document, the: pRifti0s hereto waive t:he -,.-equjre.m0.jjt of Of' the S�Une as A Prere(jull!3" te Lo commence any contempt p rocu edl, n(j. Judge, Date IWPAC)V"Z,D AS TO FORM: Ar.�-Xrr)iuy for Larkin ot al. Suph sq, Attorney f o r t y ro:180?.: I i -q,rn,vx,r, PAGI-314. m,mr�i i wt, rx. ATM1714ICTS A!jP JAW Itt I MAY VV11WIN-1, 110m; 11,M7 SEP-25-2001 7JE 11:05 AN STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 02 STATE OF VERMONT ENVIRONMENTAL COURT IN Rya APPEAL OF JOHN LARKIN } Environmental Court CITY OF SOUTH BURLINGTON ) Docket Nos. 159-9-99Vteo g244-10--00 JOHN LARXXN, ET AL. ) EXHIBIT, A NOW COME the duly authorized representative of John Larkin, .iniiv.idual.ly, and John Larkin et al., (collectively "Larkin") and t]'ie (.7uly aurthori•r.Ecl. rcpresentativc of the City of South Dur.:lington (thc "^.ity") , and haroby stipulate and agree that the work ro erenced in <-,i ,stipulation for Entry of Order and an Order of tho, Vermont Environmental Court, prepared in. connection with tho aN)ve•-referenced matter, has been satisfactorily completed, Arid that,: the height, of the uppermost roof -line (i.e., the top of the ridge vent) on the house at 069 (formerly #6/Lor 49) Pinnacle Drive in the. City has been reduced by at least one (1) foot relative to an agreed upon bonchmark. The: benchnark used to determine the e.xisti,ng height of the hou8o at #69 Pinnacle Drive, and to assess the required 1-foot roducstti,on in height shall be identified as follows: as shown on n plan entitled "Rowland Two Site ¢ind ULili,.ties Plan" dated July 1992, last revised 6/30/93, pt7eparod by Fitzpatrick-LIewellynr Inc., recorded in SEP-25-2001 TJE 11:06 AM STITZEL FACE FLETCHER FC FAX NO, 8025602552 P, 03 Volume 286 ct I'ay(� i 1'.6 o,C the City's Land Records. Said bonChym,,irk is at clovation feet above mean sea level ("mean sea 'level', is based on National Geodetic Datum of 1929) . As construct-cd, the elevation of the top of the ridge vent of the hou,;o at: //69 Pinnacle Drive is at elevation 419.20 feet above meull sea levol at the east end and 419.21 feet above mean sea level.at the west end. Accordingly, following the required 1- foot, height: roduction, the top, of the ridge vent of the house at }/G9 ilir;na,:la Drive shill not exceed elevation 418.20 feet above mean sea level at the east cnd and 418.21 feet above mean sea level at tho wort end, measured from the benchmark. The signatories hereto agroa, and hereby attest, that the uppermost roof-;.ine of the houso at #69 Pinnacle Driver as lowered, does not: exceed the maximum elevations stated in the preceding et�ntencac:. DATED at this _, day of _—__- . 2001. By'. Duly authorized representative of the City of South Burlington [ i.n crt notary block.) DATED at By: [insert notary block] , this day of , 2001. Duly authorized representative of the John Larkin and Jaa;kin et al. SEEP-25-2001 "JE 11:05 AN ST.TZEI PAGE FLEETCHER PC FAX N0, 8026602552 P. 01 ` TITZET,, PAGE & FLLETCHER, P.C. A F 1 OKNGYS A'I' I.AW 17l nAI"I MYS1Rl;ET 1'A TIOX 1107 D UR UNU YON, VFAMON 1' 0510;1-15(17 51 } VLN II 61l i'?,L'1, CAX (802) 660.99s2 r» 660-9115 AMpN:7n S E. LAR,*S I Y PATI I R. PA " GMr1lt,li u:M2iii!rA1 IHMSI'I COM) EDWARDO ADMAN R011I,I; I R }IT r" filet WRI11%it' S h;-hlAll. (.IM( I.r.AN;jDTLRMSF),'COM) d()S1t11I S. M,I VAN WRI1'f.lt`ti i A4 (d02j r,604se2 '11MC1111Y M. HIN FACE I'AI So Ahti'I ri i.0IN N Y ) iC AC:SIMI1.,1.; TRANSMITTAL SHlTf7 Date: Sgtemhcr 25, 2001 TO: Ray 11clair I"I\, 846-4101 Re: ;lohn Larkin City of South Burlington v. John Larkin, ct at. ,S011(lcr.: Joe McLean, Esq. �- You should receive 3 _..Page(s), including this cover sheet. If y'OU do ynot reeciye all the pages, please call (802) 660-2555. MESSAGE Transmitted herewith is a draft copy of Exhibit A for your rcvIew. Please call tiller you have rcvicwcd the document. Thank you. I hi mc+,agt is mwndW only I'm Zhu ,thu urtite aft-csscc and may conmin Inronllas.lon thU is plivike d mid a>alido&I'l. IFyon are not lho illlelldoI Itl41Pl1'lli, you ilid (lcruby nlltiflcc I[a idly diC,ziliniaIII of Mis wirmtnicallimi Is SIdCIIy prOhi01Led, If you h11VC rmivcd dIL, cunI111tnti0:I%i(1il in grrkir, plutv,e autiry ll:i immedinlcly by i0cphuic (802-G60-2555). Thank you STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEJTDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) September 10, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 RE: Appeal of John Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Please find enclosed for filing with the Court the City of South Burlington's Requests to Admit, as well as a Certificate of Service in connection with the above=referenced matter. ncerelk, Josetah S . McLean JSM/jp Enclosures cc: Raymond Belair, Administrative Officer Carl Lisman, Esq. son4641.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ENVIRONMANTAL COURT APPEAL OF JOHN LARKIN } DOCKET No: 159-9-99 Vtec CERTIFICATE OF SERVICE I, Joseph S. McLean, hereby certify that I served a copy of the City of South Burlington's Requests to Admit, dated September 10, 2001, upon Appellant's attorney, Carl Lisman, Esq., 84 Pine Street, 5th Floor, Burlington, VT 05401, by causing a copy to be placed in the U.S. Mail, postage -prepaid, this loth day of September, 2001. DATED at Burlington, in the County of Chittenden and State of Vermont, this loth day of September, 2001. Son819.1it STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT I.AW 171 BATTERY STREET P.O BOX 1507 BLRLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: S`I'IJ7,EL, PAGE & FLETCHER, P.C. ,;Pts At orneys Jo,54ph S. McLean STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE APPEAL OF JOHN LARKIN ) Environmental Court Docket No. 159-9-99Vtec CITY OF SOUTH BURLINGTON'S REQUESTS TO ADMIT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and, pursuant to V.R.C.P. 36, asks the Appellant, John Larkin, to admit the following. 1. Admit that the baseline elevation datum used to establish the elevation of the property comprising the Pinnacle at Spear (Nowland II) subdivision was the 1929 USGS sea level assumption a/k/a the National Geodetic Datum of 1929 or Sea Level Datum of 1929. 2. Admit that the footprint of the structure located on Lot 49 (#6 Pinnacle Drive) is approximately 1944 square feet. 3. Admit that one (1) cubic yard is the equivalent of 27 cubic feet. 4. Admit that twenty (20) cubic yards is the equivalent of 540 cubic feet. 5. Admit that, discounting the effect of compaction, five hundred forty (540) cubic feet of material spread evenly over an area of 1944 square feet would raise the height of said area by approximately .278 feet (or approximately 3.33 inches). STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 nnrFF.HY STREET P.O 13OX 1507 BURLINGTON, VER9IONT 05402-1507 6. Admit that the preconstruction grade of Lot 49, and/or that portion of Lot 49 underlying the footprint of the structure located thereon, was not raised by the unregulated addition of less than 20 cubic yards of fill. 7. Admit that the addition of less than 20 cubic yards of fill to Lot 49, and/or that portion of Lot 49 underlying the footprint of the structure located thereon, would not raise the preconstruction grade of said Lot by more than .278 feet (or approximately 3.33 inches). 8. Admit that the average preconstruction grade of Lot #49 was at elevation 389' above mean sea level. 9. Admit that, on Lot #49, the average preconstruction grade, the existing grade and the finish grade elevations are/were equivalent (i.e., elevation 389' above mean sea level) 10. Admit that the zoning permit issued by the City's Administrative Officer for the construction of a house on Lot #49 authorized the construction of a house twenty-eight (28) feet in height. 11. Admit that a sketch attached to the application for zoning permit submitted to the City showed a building 28 feet in height, measured from the lowest at grade floor level to the peak of the roof. 12. Admit that the lowest at grade floor level of the dwelling on Lot #49 is actually at elevation 389.961 above mean sea level. 2 STITZEI., PAGE & i i FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VLRMONT 05402-1507 13. Admit that the elevation of the top of the ridge vent of the house ranges from elevation 419.201 above mean sea level at the east end to 419.211 at the west end. 14. Admit that the difference between 419.211 and 389.961 is 29.251. 15. Admit that the first floor.elevation of the house, as built, is not located at elevation 394, above sea level. 16. Adm-_t that the house located on Lot #49 is not authorized to exceed an elevation of 417.51 above mean sea level. 17. Admit that the house located on Lot #49 is not authorized to exceed a height of 281. 18. Admit that neither Appellant nor any of his agents, employees, representatives or assigns has been authorized by the City to deviate from the maximum height and/or elevation standards contained in the plans and permits applicable to Lot 449 and the house located thereon. DATED at Burlington, Vermont, this fn day of September, 2001. son786.1it CITY OF SOUTH BURLINGTON By: S,T-'1TZEI , PAGE & FLETCHER, P.C. ,,-'Its Ate„ rneys ph S. McLean 3 STEVEN F. STITZEL PATTI R. PAGE• ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE ("ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 (802) 660-2555 (VOICEITDD) FAX (302) 660-2552 or 660-9119 E-MAIL(FIRM2555r FIRMSPF.COM) WRITERS E-MAIL (JMCLEAN@FIRMSPF.COM) WRITER-S FAX (802) 660-2552 July 18, 2001 VIA FACSIMILE & FIRST-CLASS MAIL, Carl H. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckering, P.C. 84 Pine Street, 5th Floor Burlington, VT 05401 Re: Appeal of John Larkin Dear Carl: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I am in receipt of your letter to me dated July 16, 2001, relative to the above. I have the following comments. First, in the interest of moving this matter forward, the City agrees to let you know when our surveyor, Jack Milbank, will visit the Luciano property so that a Larkin representative may be present. Among other things, I have asked Mr. Milbank to determine the first floor elevation of the dwelling in an effort to resolve one of the issues raised, in Judge WrightIsMay 16, 2001 Decision and Order on Second Motion for Summary Judgment. I too would like to agree on methodology and results, to the extent possible.• Let me know if you want to discuss this further. Second, with regard to the deposition of John Larkin, no deposition will be necessary if Mr. Larkin is willing to admit that the preconstruction grade of the lot was not raised by the unregulated addition of less than 20 cubic yards of fill. You raised this as an issue in response to the C:ity's motion for summary judgment, and I believe that you have an obligation to either admit that it did not occur or back it up by providing the factual basis for your claim. Judge Wright obviously construed your comments regarding the addition of fill to the lot as a disputed issue of material fact. If you were mistaken regarding the addition of fill to the property, I would appreciate it if you would tell me now. Otherwise, I will be required to take appropriate action, including pursuit of my discovery requests, which I believe are reasonable. I understand that you are not available on July 25th for the noticed deposition. If necessary, is there another attorney in your firm that can sit in for you? Carl H. Lisman, Esq. July 18, 2001 Page 2 Third, and finally, I understand that Ray recently had a conversation with representatives of Dubois & King (the firm that purchased Fitzpatrick -Llewellyn, Inc.) in an effort to determine conclusively what topographical reference point was used to establish the elevations on the Pinnacle/Nowland II property. He was informed that the survey data on file with Dubois indicates that the 1927 USGS sea level assumption was the standard employed. If necessary, I am prepared to subpoena documents and/or depose individuals at Dubois & King to establish this fact. However, this will not be necessary if Mr. Larkin is willing to admit that the 1927 USGS sea level assumption is the standard that was used to establish elevations on the property. Please get back to me on this issue as soon as possible. If I do not hear from you by Friday, July 20, 2001, I will assume that we are going forward with the deposition. This letter is intended to satisfy the City's obligations under V.R.C.P. 26(h). JSM/m cc: Raymond J. Belair, Carolyn Hutchinson, sor9610.cGr Sin rely, Joseph S. McLean l Administrative Officer Environmental Court Clerk City of South Burlington PLANNING & ZONING DEPARTMENT 575 Dorset Street South Burlington, VT 05403 (802) 846-4106/4101 fax TO: Jack Milbank Civil Engineering Associates FAX NUMBER: 985-2271 FROM: Juli Beth Hoover, AICP Director of Planning & Zoning RE: Larkin appeal --View Protection District DATE: Wednesday, July 11, 2001 TOTAL NUMBER OF PAGES INCLUDING COVER: 4 HARD COPY TO FOLLOW: Yes �111-- No MESSAGE: Hi Jack, Following is Judge Wright's Order on the Larkin house case. You'll see on pp. 2 and 3 that she is questioning 1) what topographic reference point and method were used by the City to establish preconstruction grade, 2) whether preconstruction grade was raised by an unregulated addition of less than 20 cubic yards of fill; and 3) how far above grade the first floor elevation (394 feet above sea level) was to be placed, and what constitutes the point at which one measures the "first floor's" elevation. Joe McLean from Stitzel, Page & Fletcher will be in touch with you shortly to set up a meeting for the week of the 23rd to try to answer #3 above, take measurements, and have you provide an affidavit on the impact of the change from 1929 to 1988 mean sea level measurements. Thanks very much for your help! If there are anyproblems with this transmittal please call (802) 84Fr4106. J'l Y-30-2001 WED 11:11 AM STITZEL PAGE FLETCHER PC FAX td0, 8026602552 STATE- OF V).RMON"r I' sNVIRONME,N'1AT, COURT } In re: Appeal of } } } Gicy of SolIrll 13t1r161,graM, 191illti1r, v. Docket No. 159-9-99 Vtcx, Tlallrt Larkin, Gkrald Milor, Larkin-Milot Partnership, and Michael -wd Kadiryn Luciano, Defendants. P. 03 FILED h�Ay 1 C 2001 1ViRL1N�alrNTA� COURT } Docket No. 244-10-00 Vtcc } l } ?'cis Ali mid Order rn.,,Sc.(; id rir�n fir 41.lnarrtary iuc� itYealc In 1')ockcr No, 159-9.9c7 Apl)c.11mit appealed from a dccisic)ii of tllc tlieti-7.oiiing Boars{ of Acljust,nuit (Z13A) of the. City of South lmrluigton regiuding the height limit on Lor 49 in ncc Pinnade subdivision. In May, 2000, dhc Court rem-,u1C1eC1 the inatrcr for the ZBA (note dic r)r�B) to act on the merits of Appellalit's appcal of the jime 1999 Noricc of Violarkwt as in the original elwsion the 413A had tre-ared it as a rcqucst for a variance. On reinanci, the 7 ,1')A ttph(ticl, tltc tio6cc of violarion in jtily 2000, Tit l)oeket No. 244-10-00, iTl Oc;tot-ier 20007 the Gty fllCd 111 C'160174CI-nL11t action ro compel Defuidants, among oilier things, to luwcr, tlic btlilding's hc'Lglir, The ]hatters have: bcen Consolidated for hearing. The City huts filed ct sccolid 1110don for p:trri:11 sulYml;lry jtulgllzc:llr in Dockcr No. 159-9-99 Vrcx. Appell-wir-Ddendaitt Larkin is rcpresenred by Garl H. Lisman, I7ssc4.; the (:ity is repro-9cntui by Josc} li & Mc:Lcltl,'F.scl. The 1999 Norice of Violation vvts addressed to Mr. l MAY-30-2001 WED 11:12 AN STITZEL PAGE FLETCHER FC FAX N0, 8026602552 P. 04 kliiot .and Mf. LarkaT7, "ws ilidividimis, Mr. N ilot has not appealed or clitued m ippearmace I-n Mr, 1"u-Idn's appeal of the Noriec ol'Violaraon, Docket No. 159-9-99 Vtcc. Folic: of th.: 5ve I°]d"Caiclali.ts, including Mr.1_.,arkin, has filed an answer in Dockc: No, 244-10-00 Z'tcc. l-irsr, the C;iey argue.; that Appell.u.t I,;irkin failed to appeal tiac July 11, 2000 decision of LhO '1MB, .11'tc•r this C_,ourt li-td relYru de-d the mattcr to the D10. However, Appellant slid crigincLlly aatru•cillaC to appeal from Lhe d1c.n-ZBA's action oil his appL!-11 of the: notics: of viol-,,tion, IC fcami it was ILT11'Xided by this Court is that the ZDA had improperly trcarr--cl l,is appc:."J of rile notice of viobrion 1s ait applic7rioLi for a varialice. 13y rerii,-ulding tlac iiaauer, t11C C'-OLIrt dies not cli.vCst itsc:li of jurisdiction to consider the: appeal of the notice of violsttioil, rLathcz, ncc, (.'c7Lirt merely provided for qua orderly appeal by requiring die: DRH to cact on rile ctiattcr in rhea first iiistmace. Accordingly, the Court still has jurisdiction of A,ppcllant's appell of die notice of violation. The (;iry also has moved for sunim ary judgment on Questions 1 aTie 2 of the 5taten`)v t cia C aescions in Docket No. 159-9-99 'Vtcc, dear is, to establish the methodology tiladcr the ZolaiLlg .ltcf;uL tioLls for measuring the heighL of the bolding in question, and to c :Stablish [lie klji 11L' of the bII-Vila, in gUeStion. `i`lTc pirrics a grc.c that U5.113 govc im building height, which is ineasurcc] fro[u the c'awra e pre consuuction grade ac"jotning such strucLure." It scats a iiwit of40 feet f6r pitched rool'i and .4..5 root for arty oThL'r smicLur e'., zmd pi-ovidCS For D10 approval ofincrease In 11c fight alxaVL. rluasc: liiaiits LUYder subsection (b), (e) and (g). 11recolistruetion grac]L� is deCmcd as the gradc. cxisting on the property as o the d:ue: of -w application For dcvclopitient approval, unless anod,,cr gradc has been establistwd unc;lor ;�27.117,ts t1t4.prc;cxali4rrueticin grade. Sc-cticyi� 25,11? a11c�Gcrs t1tcI7RIa approzi *.1ic17lcuritu.nt or tl fie removal of 20 or morc cubic yards of fill. 1�ci,uaval or addition of less than that amount As dic Ciry notes, tbu- height standards iit the loving Rergularions arc disrincr r+'Iaa rlac: Irlcl,cictiuiii l�cr.atiCLc.Li LlL.vaarioli stcuadarcts for bu11ings in rile Dorset I ark Vic.v 11rorccdon Zone undcr §,2140 of LlIC Zoning B cguht)Ons. MAY-30-2001 WED 11:12 AM STITZEL PAGE FLETCHER PC FAX K. 8026602552 P. 05 is unrq,tllaltcd by th,: Zoning Regulations. '1'lie prob icin with applying these: deCinitlons m the lot in cluc:stion is [halt the preconsrrtaction gracic is shown on the plan only by one contour line, at 389 feet above sra 1c.w,c?. 1:vcn with tlic assumptions suggested by the City, an average. grade caninot be csrablished by a single: contour linc. Moreover, the City will [need to establish which + J` `f v de `fG�-L e6Y1�f0 tcil�c��;Tatl�lnic: rarcrence paint was used in Ille rccorded plans. c6d 4ne( al-, N6.5� a > Noy�p ? Sc:coml, a naiterial facts arc in dispute as to whether the prcconstmicrion grads: was raised l�s� ;�7t t,tali'e ,`al:ir.:cl :1c�.tiCii�t1 of less the-n 20 (ilbic yards of fill. Third, the. approVc Li plan also contains a notation that the allow4'cI first floor elevation _ CE 40 {I'1a11) is 394 fecr above sea level, Ulit clues not indic;itc how fir above the grade that first f7oc>rnu U- c1mition was to be placed, although it tzlay be possible to atnswcr that cluestioil by measuring rile ilia n to scale. If the acrual first fluor elevation m built is located at 394 feet at)ovc seal level, and iF it can be alscemlined from the approved plarls flow much tl'1C 3l)l7roVc d. plans for site liotise extinided above that approved first: floor elevation, tiled i t may Lie that them -built height of tllr. house conforms with the approved plans, whether or not it conforms to a 28-loot I icii. lhr as .nic', SUsed by the definition in the ;lolling Reguladolls. Accordingly, materi-al facts are in dispute;, even regarding the measurcment of thc: as- l)uilt hd&t oCtlic house. Accordingly, all r cmaininb issues in this matter nhism be set 1br trial. When the May 3 hearing wail continued the panics agrtc:d that tlic matter could be set for al hearing in July. I'lc:al :l; alcivisc the Court of amy elates an which rhe attorneys or witnesses are unavalikibIc in juiy and Atig0r, as wcli ass whether the platter can be concluded in a Ilalf day. It' it can, it will probably be set Cor July 12. In the inrcrim, i)ocker No. 2-10-00 Vtec may lic siili)tict to a m` i ion for default :is to any party not filing an answer to it. I)onc at Barre, 'Ve.rnloar, this 16131 day of May, 2001. Mc•.ricic.tll Wright l+.nv�rc:ni�lc�nt,11 jiicl�;c 3 MAY-30-2001 WED 11:10 AM STITZEL PAGE FLETCHER PC FAX N0, 8026602552 P. ��D1 )Z' S ll'YZEL, WAGE & FI,1 I'CHER, P.C. ATTORNEYS AT LAW 171 RATTCRY STREET 70, BOX 1507 MkLINGTON, VLRM0N'l'C5402-1507 (PA)2) 660.255 S (VAICEn-DD) 6 t'b VIiN 11. ', I ITLI{I. FAX (802) 660 2552 ev 640-91 I U PATH R, -AGI,$ F-MAll (rIRM:u55Ci)r'IRMSPP.COM) krill R ii. Fl E l'CIIIdR WRITER'S E-MAfL f,11UCLF.AK@FIRMSI'F.('UM) 10S,F.'1' f 1 S. met t vN WRITER'S R'S FAX (802) 660-2S52 T167C', T] Y M. EUSTAC'L IAl:aAr aermINWV) FACSIMILE TRANSMI1"1'AL SIIEET Mav 30, 2001 '1,,: Julil3etlz I'toovcr 1'ax: 840.4101 Ise: Appcal ofLarkin Sclarlcr. Joseph S. McLean You should receive 5 1'age(s), including this cover sheet. If you do not receive all the pages, please call (802) 660-2555, MESSAGE MIA NAMIONIULS AMANDA S.E. LAFF A,fY 'I'maismitkcd hcrmith is an Order issued by Judge Wright relative to the above -referenced �r ICJi'l��er. Ica c Wal 4ta I s' on eel (/atKY7 1-0 ( Wh6d tat �� 1�5�5 °r e a 4l czv d w -M� tda e�, (t f �-eO-A- ? CA a a. (C y F(,t 0,,Z ue (c - Ulu . d d- Ctl� I eayadaf& -eri nee NG�s � 106ti q which la��ceY' 2e�c Q�thin-'Vwlac is intonded only fire tha use of Lhe addressoc and may contnition shut ig privVcc,cd and conGdcntial. IPyou are nest the iroNadrd rooipicnl, you aru I%rcby Dotificd uIa auy a eminulinn of this an)tnunicRlion is Stri�Ily ps�hi6itcti, If you ltays r "Ind this C011lli1u=11C. tiDt1 ils crtor, plcmc ntXily us imttr �i ticly L+y leleal,une (902 60.2555). Thank yo , b01i1 act The �';C12 haw kkt 4dX4 MAY-30-2001 WED 11:10 AN STiTZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 02 V%:i$MONT ENVIRONNIENTAL COURT In Re: Appeal of Jahn Larkin E)ockot Nc. 1 S9-9-99Vtec City 01'SO' Mlflimaon v. John Larkin, otc, Docket Na. 244-18-60 Vtec DmIr Punits: (802) 479.4486 ist Fluor 255 North Main Street Barre, Vermont 05641 May 17, 2001 l3ncko5ed is an Order izsuetl by Judge Merideth Wrinlit relative to the above -referenced nialicr. Sincerely, Carolyn A. Hutchinson, Clerk Environmental Court cc: Carl l.isman, Esq. Joseph S. McLean, Esq. STI"IMF., PAQI'= a R.FTG•HER PG ctulk-C)4- -2)0 if -6f ylc)+ VI/ln1u1j4A,,j^ Cc�. , PI, e0. vk Live w &iA,- 4lnafi qu - - oq4. 13 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/fDD) STEVEN F. STITZEL FAX (802) 660.2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555 r@i FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) July 9, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing with the court, please find a Request to Enter Property and Notice of Deposition, as well as a Certificate of Service on behalf of the City of South Burlington in connection with the above -referenced matter. cerjely, seph S. McLean JSM/laf Enclosure 1` cc: Raymond Belair, Administrative Officer Carl Lisman, Esq. son4606.cor STEVEN F. STITZEL PATTI R. PAGE' ROBERT E.FLETCHER ("ALSO ADMITTED IN N.Y.) HAND DELIVERED STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICErMD) FAX (802) 660-2552 or 660-9119 E-MAIL (FIRM2555@FIRMSPF.COM) WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 July 9, 2001 Carl Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, P.C. 84 Pine Street, 5th Floor Burlington, VT 05401 Re: Appeal of Larkin Dear Carl: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY Attached please find a Notice of Deposition of John Larkin and a request to enter the disputed property for inspection and measurement purposes. Thank you. Sincerely, J91seph S. McLean cc: Raymond Belair son4606.cor.wpd STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET No: 159-9-99 Vtec NOTICE OF DEPOSITION Please take notice that at 1:00 p.m. on the 25th day of July, 2001 at the offices of Stitzel Page & Fletcher, PC, 171 Battery Street, Burlington, VT 05401, the Appellee, City of South Burlington, will take the deposition of John Larkin, upon oral deposition pursuant to the Vermont Rules of Civil Procedure, before a Notary Public or before some other officer authorized by law to administer oaths. DATED at Burlington, in County of Chittenden and State of Vermont this 10`h day of July, 2001. Scn783..pd STITZEL, PAGE & ELETCHER, P.C. ATTORNEYS AT LAW psi �i,rrre�tisrat:rrr P.o. Hex 1i>07 eeNiosr usaoai5o; CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET No: 159-9-99 Vtec REQUEST TO ENTER PROPERTY Pursuant to VRCP Rule 34, the City of South Burlington, by and through its attorneys Stitzel Page & Fletcher, request permission to enter Lot 49 of the Pinnacle at Spear Subdivision (##6 Pinnacle Drive) for the purposes of inspecting the grounds and measuring the height of the building situated thereon. We request that this inspection take place between the hours of 9:00 a.m. and 4:00 p.m. on Tuesday, July 24, 2001, or at such other time and place during the week of July 22, 2001, as is convenient to the property owners. A surveyor contracted by the City will conduct the inspection. DATED at Burlington, in County of Chittenden and State of Vermont this 10th day of July, 2001. Son783.wpd STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: S ZEL, PAGE & FLETCHER, P.C. s Attorneys seph S. McLean STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET No: 1.59-9--99 Vtec CERTIFICATE OF SERVICE I, Joseph S. McLean, hereby certify that I served a copy of the City of South Burlington's Request to Enter Property and Notice of Deposition, both dated July 10, 2001, upon Appellant's attorney, Carl Lisman, Esq., 84 Pine Street, 5 t h Floor, Burlington, VT 05401; by causing a copy to be placed in the U.S. Mail, postage -prepaid, this 9th day of July, 2001. DATED at Burlington, in the County of Chittenden and State of Vermont, this 9th day of July, 2001. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Jos,60h S . McLean j STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW j 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT i 05402-1507 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREE F P.O. BOX 1507 BURL.INGTON. VERMONE' 05402-1507 (802) 660-2555 (VOICETI DID) STEVEN F. STITZ.EI. FAX (802) 660-2552 or 660-9119 PATTI R. PACE' E-MAIL(FIRM2555,1 FIRMSPF.COM) ROBERT E. FLE FCHER WRITER'S E-MAIL (Ji ICLEAN a FIRN4SPF COM) JOSEPH S_ McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN A A ) June 21, 2001 VIA FACSIMILE & FIRST-CLASS MAIL Carl H. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, P.C. 84 Pine St. , 5`*' Fl. Burlington, VT 05401 �) 1 FFERTY r,EDVFD JON22 � City of So. Burlington Re: In re Appeal of John Larkin/City of South Burlington v. Larkin Docket Nos. 159-9-99Vtec & 244-10-OOVtec Dear Carl: I am writing in connection with the above -referenced matters and Judge Wright's May 16, 2001 ruling relative thereto. I wish to address two matters. First, the City seeks permission to enter Lot 49 of the Pinnacle at Spear Subdivision (#6 Pinnacle Drive) for the purpose of making additional measurements of the building situated thereon. Would you please let me know as soon as possible when it would be convenient to do so, or whether a formal request will be required? I do not anticipate the City's consultant being on the property for more than 30 minutes, at the most. Of course, the City will take appropriate steps to minimize any disturbance to the homeowners. Second, and more important, please provide me immediately with the basis for your contention that "the dwelling [on Lot 49] sits on a grade properly raised during construction by less than 20 cubic yards of fill material." In its May 16, 2001 ruling, the Environmental Court states that there are material facts in dispute on this issue. I am not aware of any testimony by Mr. Larkin regarding any significant addition of fill to the property, but assume your claim is well grounded in fact. Accordingly, please let me know what you believe the true facts on this issue to be. Carl H. Lisman, Esq. June 21, 2001 Page 2 Thank you for your attention to this matter. Please let me know if you have any questions. Sincerely, sevh S. McLean JSM/m cc: Ray Belair, Administrative Officer son4598.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYSAI-LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05 402-1507 (802) 660-2555 ( VOICE I DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-91 19 PATTI R. PAGE* E-\tAIL(FIRM2555 ri:FIRMSPF COM) ROBERT E. FLETCHER \VRITER'S E-MAIL (JMCLEAN trFIRMSPF COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN �\ Y ) June 21, 2001 VIA FACSIMILE & FIRST-CLASS MAIL r,A%�' �S,E 1,6FFERTY t'w ° r';EDN D G city 030. Blurfir$fon Carl H. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, P.C. 84 Pine St., 5c� Fl. Burlington, VT 05401 Re: In re Appeal of John Larkin/City of South Burlington v. Larkin Docket Nos. 159-9-99Vtec & 244-10-OOVtec Dear Carl: I am writing in connection with the above -referenced matters and Judge Wright's May 16, 2001 ruling relative thereto. I wish to address two matters. First, the City seeks permission to enter Lot 49 of the Pinnacle at Spear Subdivision (#6 Pinnacle Drive) for the purpose of making additional measurements of the building situated thereon. Would you please let me know as soon as possible when it would be convenient to do so, or whether a formal request will be required? I do not anticipate the City's consultant being on the property for more than 30 minutes, at the most. Of course, tha City will take appropriate steps to minimize any disturbance to the homeowners. Second, and more important, please provide me immediately with the basis for your contention that "the dwelling [on Lot 49] sits on a grade properly raised during construction by less than 20 cubic yards of fill material." In its May 16, 2001 ruling, the Environmental Court states that there are material facts in dispute on this issue. I am not aware of any testimony by Mr. Larkin regarding any significant addition of fill to the property, but assume your claim is well grounded in fact. Accordingly, please let me know what you believe the true facts on this issue to be. Carl H. Lisman, Esq. 'June 21, 2001 Page 2 Thank you for your attention to this matter. Please let me know if you have any questions. Sincerely, r JSM/m seoh S. McLean cc: Ray Belair, Administrative Officer STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT05402-1507 (802) 660-2555 (VOICE/!DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-91 19 PATTI R. PAGE' E-MAIL(FIRM2555@F1RMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (`ALSO ADMITTED IN N.Y.) June 27, 2001 Jacalyn M. Stevens, Clerk Vermont Environmental Court 255 North Main Street, lst Floor Barre, VT 05641 Re: South Burlington v. John Larkin; Gerald Milot; Larkin-Milot Partnership; Michael Luciano: Kathryn Lu Docket No. 244-10-00 Vtec Dear Jacalyn: This is to participate in a 12, 2001. I am, a Merits hearing Thank you. JSM/laf AMANDA S.E. LAFFERTY EDWARD G. ADRIAN notify you that I am already scheduled to hearing in the Chittenden Superior Court on July however, available August 7, 2001 to appear for in connection with the above -referenced matter. ery/ truly yours, oseph S. McLean cc: Ray Belair, Administrative Officer Carl H. Lisman, Esq. son4600.cor Environmental Court of Vermont State of Vermont 255 North Main St., First Floor Barre, Vermont 05641 (802) 479-4486 Joseph McLean, Esq. PO Box 1507 Burlington VT 05402 N O T I C E O F H E A R I N G June 25, 2001 South Burlington, City of VS. Docket No. 244-10-00 Vtec John Larkin; Gerald Milot; Larkin-Milot Partnership; Michael Luciano; Kathryn Lu This is to notify you to appear at the Court named above in connection with the above named case for the following: Merits hearing Thursday July 12, 2001 at 09:00 AM THIS IS SET AS A BACK-UP TO ANOTHER CASE SCHEDULED FOR THAT DAY. PARTIES MUST CALL THE COURT WEDNESDAY, JULY 11TH TO VERIFY WHETHER OR NOT IT WILL GO FORWARD THE NEXT DAY. THIS CASE AND DOCKET NUMBER 159-9-99VTEC ARE SCHEDULED TOGETHER -AND WILL BE GIVEN A DATE CERTAIN IN THE EVENT THAT IT DOES NOT THAT IT DOES NOT TAKE PLACE THIS DAY. TO BE D AT THE COSTELLO COURTHOUSE, 32 CHERRY STREET, BURLINGTON, VT. En onmenta Cou Clerk Notice sent to: Joseph McLean, Attorney for Plaintiff, Carl H. Lisman, Attorney for Defendant, Carl H. Lisman, Attorney for Defendant, Carl H. Lisman, Attorney for Defendant, Carl H. Lisman, Attorney for Defendant, Carl H. Lisman, Attorney for Defendant, South Burlington, City of John Larkin Gerald Milot Larkin-Milot Partnership Michael Luciano Kathryn Luciano JU�l 2 7 2001 STl �,' 7L, t, FLETCHEf! PC Environmental Court of Vermont State of Vermont 255 North Main St., First Floor Barre, Vermont 05641 (802) 479-4486 Joseph McLean, Esq. PO Box 1507 Burlington VT 05402 N O T I C E O F H E A R I N G June 25, 2001 South Burlington, City of VS. Docket No. 244-10-00 Vtec John Larkin; Gerald Milot; Larkin-Milot Partnership; Michael Luciano; Kathryn Lu This is to notify you to appear at the Court named above in connection with the above named case for the following: Merits hearing Tuesday August 7, 2001 at 09:00 AM This is a DATE CERTAIN for this case & docket 1159-9-99Vtec. These cases are currently scheduled as a Back -Up on 7/12 . This hearing to be held at the Costello Courthouse-, 32 Cherry St., Burlin VT. L'k ;Enr�onment/91 'C ' Court Clerk Notice sent to: Joseph McLean, Attorney for Plaintiff, South Burlington, City of Carl H. Lisman, Attorney for Defendant, John Larkin Carl H. Lisman, Attorney for Defendant, Gerald Milot Carl H. Lisman, Attorney for Defendant., La.rkij._Mi1Gt Partnership Carl H. Lisman, Attorney for Defendant, Michael Luciano Carl H. Lisman, Attorney for Defendant, Kathryn Luciano !P � J JUN 2 7 2001 i yj i EV� L STITZEL, *AGE_ L FLFTCHER PC STAiT OF VL1xabJOW., p',NVTR0NM1 N'TAL COURT } In rc: Appeid of } John Lukin } } Gity of South Buriillgron, Plaintiff, V. Docket No. 159.9-99 Vtce John Larkin, Gerald Milot, Larkin-1Milot parti.iership, and Midiacl cold ICathryn Lu,- , no, IDdaidants. Fi L1ED 6 2001 ENVIR0"-icN1ALC0URf } } } } } Docket No, 2,14-10-00 VWL i } } } } 17cci is n clnc'. order a �S�c d iVlati01-1 fair SLli11t11,1tV ti�jgmciic Lt,1)oc1%-ct No. 15�►-9-99 �lppellault appc.ailc�i i'ronl a clecisic)a af'tlic the il-''{aiiiti� 1 Saarci of lldjusmicat (Z13A) of the City of South BUrlii1gton regarding thcheight li111ir ou Lot 49 in the Pinnacle subdivision. Ll May, 200.0, dlc Court rcniailded the nlaitter for thc Z111A (now the Dr,B) to act On the ni�--its m Appellult's appV-3! Of dle Ju0c 19`�9 l�O&C i)r %7*01:iri'')il, A5 in rile origuial decit.iola tl:c ZBA had treated it as a request fora variatli.e. On remuid, the Z13A upheld the 1106ce of violatic711 in July 2000. In Docket No. 2411-10-00, in October 200(}5 tilt: City fil,_d cui c:.nfai•cemcnt accion to compel Defcmdants, imolig orlicr tllitil;s, to) Iowa the building's height. The 1maC(crs have bec.il consolidated for hearing,. -1'ht. 01-y has i11c:.d a second motion for paruial summary judgmeilt in Docker No, 159-9-99 Vtec. Appellant-Def.ndant 1..arkin is rcjvc.5tncc•c1 by Caul I-1. Lislil,~ti, lssq.y dIC. C 11Y is rcl)rctiriitcd. by 7osepll S. McLc,iii,1',scl. �l'llc 199{ 1`'uticci of Vitalntic]il was adclrctircd rc� N1r. 1 ZO 'd Z99ZO99ZO8 'ON XV. Od 33HO,1313 3OVd 73ZI I1S Wd Z5 ; £0 t1H.1. 1 O0Z-�Z-AVW ,Wlot curd ,W. Laxl in, is individuals. Mr. Milot has not appeaicd or c ritc red an plivan,ince in Mr. L.1tkjri"° arppcal OF the: Notice of Violation, Docker No. 1 a9-9J 99 Vto.(:. Nona of tlic Eivc Defc.nd,,ints, incli,lding.,LU. Larlein, has flied all answer in DotAct No. 244-11. -00 Vtec. First, the City argues that Appellcult Dvkin failed tri .LppCa.l tllc jL113r 11, 2000 cic`c.isioli of rile DIU, after dais G)urt had rcinculdcd the matter to tilt. DRB. Ilovvo r, Appcilant did origin"llily attempt to appall froin the then-%13A's action on his appeal of t11c noric-c.: of violation, Illc reason it was rern:ulded by this Court is Lht,r the ZEA had inlproperiy trei.tcd Lis appeal of the 11oric e ofviolation as wl application fl'ar a v;lri;ulcc. 13v )ILItW.r, the Court slid not divest itself of jurisdiction to consider the: <ppval of the: notice cif violation; rai:hcr, the Court merely provided For in ordL�rly apilcal by roxpiring the DR13 to et on tl,C matter in the first iilsuulce. Accordingly, the Court Still leas jurisdlcLion of Appellwies app,,;°al of tilt notice of Violation, The City also has moved for stirt1111c11yjudglntnt oil Questiuns l and N of'the Stritcll],.:llt of Questions in Docket No. 159-9-99 Vtec, that is, to establish the inct,-)dology Lilider the Yoilillg Reguhiti0t15 for weasuring the hclghtof the boils n— to quesuo n, and to Cstalllis1a tl" C: 1lciglic' of the building in gt.icst.iorl. The partics agree. that §25,113 goverils building hLight, tiv!ai(.h is nioisltied fro'li the "leer: ge p, Lconsrruction grade adjoining such st.rucrtlrc." it sets a 1mit oF40 fie.c.t fc.7z l itc:,hr,i rc)ols ,uul 35 feet for any other structtirc, ,wd pro-6 s for DR13 approval ofill Liva (-. n111e:iz;ht above those: lit -nits under stib.scct1ons (1.)), (e:j ail Prccorls Cruction grade is dQF"lf.d as the tir icjc existilig oil J-he prol)el'ty :ls ul" t:1 • c,1Ai,Q Of ail application for dcvelopment approval, unlss 1ilntllCr gT;1Lal" 1;1.5 been CStll�,iS1':'(1 {,.311c;r §25,117 as tlie. precoltrtrucrion gracle, ,Section ?5.117 �11c�ws the 1)Rl3 apprc�vc rile lac:CrllClit or tlu., rcinoval of 20 or more cub1C yards of till. Relnoval 01' addition of lc:.r,s tlix'-L thar :11nokill t ' As the City notes, the height 5taild;uds in the %7n.11g 'Lire distilw.t frOla1 tilt MWKi11111111 perilli11Cd Cle"-vaLion st,.uidards for buildings ill tli l)c7rsct .l'arit \7icvv l7rotcctioil 7k)11C uridcr §22AGI ol'th:: '/.At)riiug Rcgulaciolls. 2 £0 'd �995 09HK 'ON XVd Od NRO.LEI. 30Vd 7KlIiS Wd aS�EC Nil 100�-��-AVW is tuiregulatc:d by dic Zoning Rcgulatlons. The problem with applying tbese definitions to the; lot in elucsrioli is thae die: preconstruction grade is sliown on the plash only by one contour line, at 389 fcc°t above sca level. Even with the assumptions suggesteLi by the: City, an average gratele cannot be established by a single contour line. Moreover, the City will need to establish whlich topographic rcfcrence point was used in the recordeel plans. Sccond, material facts arc in dispute: m to wllc&,cx tlic prccollstl-tic:tic>l l grade was ratiscci by ati uurcgulaatcd addition of less than 20 cubic yards of fill. Third, the atpprovcdpl-a.l also contains a notation that the also-V%-cd first f1clor clevatioll (FFE) is 394 felt above: scat level, but dory not indicate how fir above, the. gradc that First floor elevation was to be placed, although it may bepossible to answcr that yuCstiun by m". unngu the: plain to scale. If the acnial first floor elevation as built is located at 39.1:eet. above swa Icvcl, anxi if it can be scertai uicd from the approved flans how rncuh the. approved plus for the house extended above that approved first floor ele ation, then itmay be that the as -built height of the house. Conforms with the approval plans, whether or not it con(bm)s to -a 28-foot height -m lnm sured ley the dckinit'ion in the 7-0mr.g Rcgula bons. Accordingly, material facts are uz dispute, evoil re;gar(iing the measurement of thc: aS- built hcil ht of the house. Accordingly, all remaining issues in this 11Mttcr nTulst be set 1«r I rial. When tltc May 3 heiring was continued, the parties at rce-cI that tho mittcr could, bo s:-t f«r a1 hearing in July. Ple:asc advise the Court of any dares on which the: attorneys or cviulcssc-s acre unavlilable :n July alld Augmist, as %veil as whether die shatter cm bc` concluded in a1 hells i ly. Hit C111, it will probably be set for July 12. Li tlic iliterim, l)c)cke.t No. 241-' •-10-OO VtC.e:, inly he subject to a notion for default as to any puc ty not filing .ut ammer to it. Done at Wirre, V'crinonr, this 16L" day of May, 2001. Merideth Wright l:nvironmenud Judge 3 fi0 'd 299209920e 'ON kdd Od 83140.131A 30Vd 13ZI 11S Wd £9: £0 flhs 1002-32-AVW STITZEL, PAGE & FLE'1CHI✓R,1'.C:. ATTORNEYS A'r I.AW 171 IIAT I LRY STRI;r,T 13URLINGTON, VERVIONP05402-1507 (SD2) 600.2555 (VVICIVII)IJ) sT=lVun( F. STOZE.L IrAX (802) 000-2552 or 66D.vl 14 FATTI It rAGI.* E•l�2All (t ileM?SSS( FIRMSJ'F.CUN ROBE;RT E. FLCTO II•: t J0..914I S. MCLEAN T(MOTHYM. FUSTA("B ('ALSO ADtriiTnyj W T,- .1 F�\CSINIIL.E;'I'RANSMITI'A1, SIlE1J1' Data: May 24. 2001 -IV Ray Behair Fax; 946-4101 Re: Sendcr: Bianca Dash Paralegal WA KARVI)NWIl iS AMANIM SY LAFFERTY You should receive 4 Page(s), iiicluding this cover sheet. If you CR) — not receive all the pages, plcase call 802) 660-2555. MESSAGE Trmsmitted herewith This mcwige is intended only ror 1ho use orthc addre me mid may coWnin inRmnalian tlmt is privilgod ntid ow0th ntiul. if you ary not thu inlcoded rocipiont, you are b=by notified that Any di'mmilrarlon ofthis communication is smelly rwohiblied. Ifyou have Iaceivad INS communkat(an in error, PIMO notify us inarlcdiately by tekphone (602-6(10-?555). Thank you. 10 'd 2992099Z08 'ON Xd.d Od 83H01371.d 3OVd 13L I IS Wd 19 ; £0 flHi 1002- 2-AVW STITZEL, PAGE & FLETCHER, P.C. A T FORNEYS AT LAW 171 1;3ATTERY STREET P.O. 1.3OX 1507 BURLINGT0N. VERNIONT 05402-1507 (SO' 1 660.2555 (VO10E%TDD) STEVEN F. STITZEL FAX (S02-) 660-2552 or 660-9119 PATTI R. PAGE' F MAILIFIRM'_555 iFIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (1MCLEAN4i FIRMSPF COM) IOSEPH S. MCLEAN NRITFR'S FAX (802) 660-2552 TIMOTHY M. EUSTACE i'ALSO ADMITTED IN N Y ) February 20, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1`- Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99Vtec Dear Ms. Hutchinson: MIA KARVONIDFS AMANDA S F LAFFERTY Enclosed please find the City of South Burlington's Reply to Appellant's Opposition to City's Motion for Summary Judgment in connection with the above -reference atter, with an attached exhibit. Thank you. JSM/ laf Enclosure cc: Ray Belair, Administrative Officer Carl Lisman, Esq. STITZEL.. I'AC.F FLFTCHER.PC_ AT P iHNFYS AT I..\\1 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARRIN ) Docket No. 159-9-99Vtec CITY OF SOUTH BURLINGTON'S REPLY TO APPELLANT'S OPPOSITION TO CITY'S MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and submits the following reply to Appellant's Opposition to City's Motion for Summary Judgment, dated February 8, 2001. For the reasons set forth herein, the City's Motion for Partial Summary Judgment. should be granted. Introduction By Motion for Partial Summary Judgment, dated January 29, 2001, the City of South Burlington has asked this Court to issue an Order granting summary judgment in its favor on Questions #1 and 2 of Appellant's Statement of Questions. Question #1 of Appellant's Statement of Questions asks this Court to determine how the height of a building is properly measured under the City's Zoning Regulations. Question #2 of Appellant's Statement of Questions asks this Court to determine the height of the building at issue in this case. Appellant has opposed the City's Motion for Partial Summary Judgment, apparently contending that material facts are in dispute. The City disagrees that materials facts are in dispute in this case. For the reasons discussed herein, this Court should grant the City's Motion for Partial Summary Judgment. City's Reply to Appellant's Opposition As a preliminary matter, the City's objects to Appellant's responsive filing on the basis of its noncompliance with the requirements of Vermont Rule of Civil Procedure 56. Appellant has failed to support its Opposition to the City's Motion for Summary Judgment by affidavit or any other form of competent evidence. See V.R.C.P. 56(c)(1). Furthermore, Rule 56 provides that [t]he opposing party shall include with the affidavits and memorandum filed under paragraph (1) a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party. See V.R.C.P. 56(c)(2). As discussed below, a close reading of the numbered paragraphs in Appellant's filing, appearing under the subject heading "The Facts," indicates that none of the material facts set forth in the City's Statement of Undisputed Facts (Second) are specifically disputed by Appellant. Instead, Appellant merely snipes at the City's motion, implying disputes where none exist and making assertions without any evidentiary basis therefor. For the reasons discussed below, all of the facts contained in the City's Statement of Undisputed Facts (Second) should be deemed admitted, and summary judgment should be granted in the City's favor on Questions #1 and 2 of Appellant's Statement of Questions. 2 STITZEL. YAGF. & FLE'I CHER. PC. :1Fi1 )ENFYc.A11.;AA _..i:I l 1 . [?) - 'R,S I As noted in his filing, Appellant does not dispute Paragraphs 1-4 and 6-8 of the City's Statement of Undisputed Facts (Second). Paragraphs 11 and 12 of the City's Statement of Undisputed Facts are also essentially undisputed by Appellant. Therefore, the facts contained in those paragraphs should be deemed admitted, pursuant to V.R.C.P. 56. With regard to the City's Paragraph 5, Appellant does not state that that paragraph is inaccurate as written or that "there exists a genuine issue to be tried." See V.R.C.P. 56(c)(2), The facts themselves are undisputed. Further, there is no "implication" to the paragraph -- it is a merely factual statement. Whether the facts, themselves, give rise to legal consequences is a matter for this Court to decide. With regard to that legal issue, Appellant contends that "the remand to the DRB and its action did not require a second appeal, inasmuch as this Court had retained jurisdiction." Appellant offers no further evidence or argument in support of his position. However, in its Decision and Order on Motion to Dismiss or Remand, or for Summary Judgment, filed May 29, 2000, this Court determined, at page 4 of its ruling, that "the then- ZBA should have heard it [Appellant's appeal] as an appeal from the Notice of Violation" and not as a variance. Accordingly, it remanded this matter to the DRB, concluding that "this Court should not address a matter on which the municipal body did not issue a decision." Id. at 5. This Court further stated that "[a]ny party appealing the DBR's decision after remand shall file 3 a statement of questions not later than August 7, 2000, to allow the parties to prepare for that hearing." Contrary to Appellant's assertion, this language strongly suggests that this Court transferred jurisdiction over the appeal of the Notice of Violation back to the DRB, and that it fully expected that any further appeals relative thereto would proceed in accordance with ordinary appellate procedures set forth in V.R.C.P. 76. Additionally, the City does not believe that the Court could have properly "retained jurisdiction" over matters not warned or squarely addressed at the local level. See In re Torres, 154 Vt. 223, 236 (1990). A new notice of appeal was therefore required to vest jurisdiction over that matter in this Court. With regard to Paragraph 9 of the City's Statement of Undisputed Facts (Second), there does not appear to be any dispute of material fact. The fact that Lot 49 may be depicted on a number of recorded plans, as Appellant observes (which the City does not dispute), is immaterial for the purposes of the instant motion. There is no dispute that the referenced plan (Exhibit AA) is of record with the City and depicts the "final design" of a portion of Appellant's approved subdivision. It is also undisputed that the plan shows an elevation contour line reading 11389" running though the approximate center of Lot 49. The Legend on the plan indicates that this is an "existing contour," as opposed to a "finished grade contour." There are S17T7_EL. RV F S F1.Tcr3E}z.Pc other existing contour lines on the plan. The existing contour 4 line directly below the 389 contour reads 11390," and the existing contour line above it reads 11388." The 389 contour is the only "existing contour" shown on Lot 49, however. The City believes that it establishes the average preconstruction grade of Lot 49. Appellant contends, without support, that "the plan does not depict 'average preconstruction grade adjoining' the dwelling on Lot 49." He has failed, however, to come forward with any evidence whatsoever demonstrating a different preconstruction grade. Based on the above, it appears that all of Lot 49 is at elevation 389. This is consistent with the figure provided under the heading "existing grade" for Lot 49 in Column 4 of Exhibit BB. (The notes on Exhibit BB indicate that Column 4 indicates "existing house lot grade.") Appellant also suggests that the City's Statement of Undisputed Facts (Second) is somehow deficient because it does not address "whether the dwelling sits on a grade properly raised during construction by less then 20 cubic yards of fill material." Here again, it is Appellant who has failed to come forward with any evidence to demonstrate that a change in the i grade of Lot 49 has occurred. The City's Motion cannot be defeated by the mere suggestion of a factual dispute. Appellant must come forward with some evidence indicating that a "genuine issue" of material fact exists. See V.R.C.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (the mere existence I STI"I-ZI?l,. PACE of a scintilla of evidence in support of plaintiff's position b FLETCHFE,t'c insufficient to defeat motion for summary judgment; there must be ATD,RNE`a I �I 5 STY] ZFL. PA(;F FLFTCHFR. P(' AT"i h % 1: } r _a 1 1..-1'� evidence on which a jury reasonably could find for plaintiff). As noted in the City's motion, Appellant has never received authorization to alter the grade of the lot, and he does not contend that the grade has, in fact, been altered. Instead, by his filing, Appellant seems to imply that some alteration of the grade may have occurred, and faults the City for not addressing it. This is insufficient to raise a genuine issue of material fact. Furthermore, an architectural drawing showing north and south elevations of the house located on Lot 49, prepared by Appellant's architect and submitted to the City by Appellant during the proceedings (on remand) before the DRB, contains the following notation: Finish grade = Existing Grade Elevation: 389.001 A true and correct of said drawing, marked as Exhibit DD, is attached hereto. This drawing strongly suggests that the grade of Lot 49 has not changed. Appellant has not stated or shown otherwise. There is no genuine issue of material fact in this regard. Finally, Appellant attempts to make an issue of whether his own engineers and consultants relied upon consistent sea level baseline datum in preparing Exhibit AA and in calculating the building heights contained in Exhibit CC. On its face, Exhibit CC, prepared by Krebs & Lansing Consulting Engineers and submitted to the City by Appellant, states: "Vertical datum is 6 based on temporary bench marks supplied by Fitzpatrick -Llewellyn Inc." Fitzpatrick -Llewellyn, Inc., is the same engineering firm that prepared Exhibit AA and the other plans that comprise Appellant's approved subdivision. Therefore, it appears that both Exhibits AA and CC were developed using consistent baseline datum. Since there are no "fundamental disputes of material fact" in this case, summary judgment should be granted in the City's favor. conclusion For all of the foregoing reasons, the City of South Burlington respectfully requests that this Court issue an Order granting its Motion for Partial Summary Judgment in the above - referenced matter. 2000. STI"!'ZEL. I'M',E s i FLETCHER. PC. ATT OKNH.l ` Al LO DATED at Burlington, Vermont, this Z O day of February, CITY,/SOUTH BURLINGTON By: St' ze y Page & Fletcher, P.C. oseph S. McLean 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BA F FE RY STREET P.O. BOX 1 507 BCRLINGTON. VE MONT Oat02-1507 (802) 060-2555 ( VOICE TDD) STEVEN P STITZEL FAX tS02) 600-2552 or 660-9119 PATTI R PAGE' E-MAIL(FIRM2555'ri'FIRMSPF CONI) ROBER"F E- FLETCHER WRITER'S F.-MAIL (JN-ICLEAN aFIRMSPF.CON1) JOSEPH S WLEAN WRITER'S FAX (8021 660-2552 TINIOTHY M EUSTACE (':\LSO aD\IITTED IN N ) ) January 29, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1 Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99Vtec Dear Ms. Hutchinson: MIA RARVONIDFS AMANDA S F I AFI LRTY Enclosed for filing with the Court is the City of South Burlington's Motion for Partial Summary Judgment, Statement of Undisputed Facts (Second) and atta bed Exhibits. Thank you. VeYy_t�.ruly yours, / Jeiseph S. McLean JSM/bjl Enclosures cc: Raymond Belair Carl H. Lisman, Esq. STITZEL. PAGE & FLETCHER,PC. ATTORNFYSAT LAW 1_t MPI FEN �7Ft F:ET STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) Docket No. 159-9-99Vtec CITY OF SOUTH BURLINGTON'S STATEMENT OF UNDISPUTED FACTS (SECOND) NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and, pursuant to V.R.C.P. 56, submits the following Statement of Undisputed Facts in support of its Motion for Partial Summary Judgment. 1. At all times material to this matter, the City of South Burlington has had duly adopted zoning regulations in effect. 2. This matter is before this Court for a second time following this court's grant of the City's Motion to Remand. 3. In its Decision and Order, this Court concluded that it "should not address a matter [i.e., Appellant's appeal from a June 30, 1999 notice of violation issued by the ZAO] on which the municipal body did not issue a decision, even though the ZBA did peripherally discuss the issue." Therefore, this matter was remanded to the City. 4. By written decision dated July 11, 2000, the South Burlington Development Review Board denied Appellant's appeal from the NOV. 5. Appellant did not specifically appeal the July 11, 2000 decision of the DRB to this Court, nor has he requested a stay of enforcement relative to the July 11, 2000 decision from any body or tribunal. STITZEL. PAGE FLETCHER,P.CA77( )RNM AT LAW i<,crrr_r� rilerrr 6. Appellant also has not filed a new statement of questions. 7. Appellant did send a letter to the Court, dated July 27, 2000, reporting the decision of the DRB, briefly commenting thereon and requesting a hearing. 8. Appellant is the current or former owner of certain real property located on the easterly side of Spear Street known as the "Pinnacle at Spear" subdivision, and formerly known as the "Nowland Two" subdivision. The lot at issue in this case (Lot 49) was created following approval by the City's Planning Commission of that subdivision. 9. The above -referenced subdivision is shown on a set of plans that include a plan entitled "Nowland Two South Burlington Vermont Site and Utilities Plan," recorded in Volume 286, Page 116 of the City of South Burlington Land Records. 10. That plan depicts a contour line running through the approximate center of the Lot 49 indicating an elevation of 389 feet (above mean sea level) on that lot. No other contour lines are shown on the lot. 11. As this Court observed in its May 29, 2000 Decision and Order, "[a]s constructed, the elevation of the top of the ridge vent of the house ranges from 419.20 feet above sea level at the east end to 419.21 feet at the west end." I 12. This ridgeline-elevation information is based on measurements and calculations performed by Appellant's consultant, and was provided by Appellant, himself, to the City. 2001. STII 7EL. PAGE. & FL TCt1ER. PC. ATTf lRN E1;S XF DATED at Burlington, Vermont, this 29 day of January, CITY OF SOUTH BURLINGTON By: Stitzel;, Page & Fletcher, P.C., tts attorneys Joseph S. �n Q STITIEL, P,.%GE & FLETCHER. PC. nT O RvEYS AT i AA+ . -. ii%; I ETT > I ijl : STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) Docket No. 159-9-99Vtec CITY OF SOUTH BURLINGTON'S MOTION FOR PARTIAL SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and asks that. this Court issue an Order granting partial Summary Judgment in its favor on Questions 1 and 2 of Appellant's Statement of Questions. INTRODUCTION The facts _necessary to decide this motion for partial Summary Judgment are not in dispute, and are set forth in the Cicy's Statement of Undisputed Facts (Second), attached hereto. The Court's attention is also directed to Appellee city of South Burlington's Statement of Undisputed Facts, dated April 13, 2000, previously submitted in this case, and to this Court's Decision and Order on Motion to Dismiss or Remand, or for Summary Judgment, filed May 29, 2000 (hereinafter the "Decision and Order"). This matter is before the Court for a second time following this Court's grant of the City's Motion to Remand. See Decision and Order, at 5. In its Decision and Order, this Court concluded that it "should not address a matter [i.e., Appellant's appeal from a June 30, 1999 notice of violation issued by the ZAO] on which the municipal body did not issue a decision, even though The City also directs the Court's attention to its Complaint in this matter, filed subsequent to the Decision and Order. S1 ITZF.L. PAGE 8: FLETCHER. PC. ATT, ,HXEl S AT 1_;15 jr)>:aF1.1 the ZBA did peripherally discuss the issue." Therefore, the matter was remanded to the City. By written decision dated July 111 2000, the South Burlington Development Review Board denied Appellant's appeal from the NOV. Appellant did not specifically appeal the July 11, 2000 decision of the DRB to this Court, nor has he requested a stay of enforcement relative to the July 11, 2000 decision from any body or tribunal. Appellant also has not filed a new statement of questions. Appellant did send a letter_• to the Court, dated July 271 2000, .reporting the decision of the DRB, briefly commenting thereon and requesting a hearing. It is unclear to the City whether that July 27, 2000 letter was legally sufficient to return jurisdiction to this Court. Without conceding the jurisdictional issue (which the City cannot lawfully waive since it involves the filing of a notice of appeal),- this motion is addressed to Questions 1 and 2 of Appellant's original Statement of Questions ("SOQ"), dated October 4, 1999. The City understands that SOQ to contain the only articulation of the issues in this case. Question 1 of Appellant's Statement of Questions asks this Court to determine how the height of a building is properly measured under the City's Zoning Regulations. A true and correct copy of said Zoning Regulations, marked as Exhibit A, is attached to the City's Motion to Dismiss or Remand, or for Summary See Town of Charlotte v. Richmond, 154 Vt. 354, 358 (1992) (subject matter jurisdiction cannot be waived). F STITHL. RAGIF 3 FI_FTCHER. N'. ATTORNEY.-; AT 1,A%\ Judgment, previously filed, and to its Complaint. Question 2 of Appellant's Statement of Questions asks this Court to determine the height of the building at issue in this case "within the meaning of the City's ordinance" (i.e., what is the height of the building using the methodology employed in the Zoning Regulations) See Appellant's Statement of Questions, dated October 4, 2000. The City will address these issues in the order presented. Article XXV of the South Burlington Zoning Regulations addresses, among other things, the permissible height of structures in the City.- Specifically, §25.113 of the Zoning Regulations provides in pertinent part, as follows: (a) Except as otherwise provided under subparagraphs (b), (c) and (g) below, no point of any pitched roof structure shall rise more than 40 feet, and no point on any other structure shall rise more than 35 feet, above the average Preconstruction grade adjoining such structure. Maximum allowable building heights are illustrated in Exhibit 25A. See South Burlington Zoning Regulations, at §25.113(a) (emphasis added). Subsections (b) and (c), referenced above, authorize the Planning Commission (now DRB) to approve height increases for residential and non-residential structures under certain circumstances. Subsection (g) authorizes the Zoning Board of Adjustment (now DRB) to approve, as a conditional use, While related, these height standards are distinct from the maximum permitted elevation standards for structures in the Dorset Park View Protection Zone, set forth in 522.40 of the Zoning Regulations. 3 STITZEI- PAGE S: FLETCHER, P('. A]TORN YA !-AA B%1 1 I:P -! Nt I ; communications towers/antennas, farm silos and church steeples at heights in excess of height limitations. For purposes of this proceeding, the Zoning Regulations define "preconstruction grade" as the grade existing on property on the date of an application under the South Burlington Zoning Ordinance for any development approval . . . unless another grade has been established as the preconstruction grade pursuant to Section 25.117 . . . Where land receives subdivision approval from the Planning Commission, the grade shown on the approved subdivision plat shall constitute the preconstruction grade, unless modified in accordance with Section 25.117 . . . See Zoning Regulations at §25.113(j). Section 25.117 allows the DRB to alter the "preconstruction grade" of property by authorizing the placement or removal of more than 19 cubic yards of fill, gravel, sand, loam or topsoil, on the property. See South Burlington Zoning Regulations at §25.117(a) and (b).' Appellant is the current or former owner of certain real property located on the easterly side of Spear Street known as the "Pinnacle at Spear" subdivision, and formerly known as the "Nowland Two" subdivision. The lot at issue in this case (Lot 49) was created following approval by the City's Planning Commission of that subdivision. Said subdivision is shown on a set of plans that include a plan entitled "Nowland Two South Burlington Vermont Site and Utilities Plan," recorded in Volume 286, Page 116 of the City of South Burlington Land Records. A true and correct copy of said Site and Utilities Plan, marked as Appellant has never obtained authorization for such an alteration to Lot 49. 0 STITZEL 1'-' (; . & FLETCHEP. PC, ATTORNK,Y�4 Al ;,A%N Exhibit AA, is attached hereto. That plan depicts a contour line running through the approximate center of the Lot 49 indicating an elevation of 389 feet (above mean sea level) on that lot. See Exhibit AA. No other contours lines are shown on the lot, clearly indicating that the lot is virtually level, but in no case above an elevation of 389 feet.Based on this, the "average preconstruction grade" of Lot 49, as defined in §25.105(j) of the Zoning Regulations, is at an elevation of 389 feet. As this Court observed in its May 29, 2000 Decision and Order, "[a]s constructed, the elevation of the top of the ridge vent of the house ranges from 419.20 feet above sea level at the east end to 419.21 feet at the west end." This ridgeline- elevation information is based on measurements and calculations performed by Appellant's consultant, see Exhibit CC, and was provided by Appellant, himself, to the City. Given the above, and subtracting the ground level elevation at the average preconstruction grade (389) from the elevation of the highest point on the ridge (419.21), it is clear that the height of the building at issue here is 30.21 feet. Therefore, the house, as The plan does contains a notation on Lot 49 reading "FFE 394.0." Id. This figure is consistent with the allowed "first floor elevation" for the building on Lot 49, as shown on documents prepared and approved in connection with a Notice of Development Conditions for Appellant's subdivision, recorded in Volume 445 at Pages 392-98 of the City of South Burlington Land Records. A true and correct copy of said Notice of Development Conditions, marked as Exhibit BB, is attached hereto. 5 STITZEL. PA6E K FLETCHFH.PC. ATTC)HNEI"SAT i..%V% constructed, is 2.21 feet higher than allowed under its existing permit. Throughout these proceedings, as his primary defense to the City's contention that the building at issue exceeds permitted height and elevation standards, Appellant has repeatedly argued that he built what he was permitted to build. See Appellant's Opposition to City's Motion for Summary Judgment, dated April 21, 2000 at 3 ("The appellant believes that he has a legitimate right to rely on a building permit issued by the Administrative Officer. In reliance on — and in strict compliance with - the permit, the appellant constructed a dwelling ."). The facts do not support Appellant's position. Appellant built a house 30.21 feet, a height that is inconsistent with the terms of his permit. This Court should resolve Question 2 of Appellant's Statement of Questions by concluding that the building, as constructed, is 30.21 feet high. The Court should note that, from a preconstruction elevation of 389 feet above sea level, Appellant could have constructed a house 28 feet 6 inches in height, and still been in compliance with applicable elevation standards. He violated the terms of his zoning permit, however, by constructing the building in excess of 28 feet. 6 Conclusion For all of the foregoing reasons, the City of South Burlington respectfully requests that this Court issue an Order resolving Questions 1 and 2 of Appellant's Statement of Questions in the City's favor, and in the manner set forth above. 2001. ST1 ; LFL. P.%(1F. & FLETCHER, I'('. A'I T03N i' .','f !..AU e . DATED at Burlington, Vermont, this 29`' day of January, CITY OF SOUTH BURLINGTON By: Stites e-1., Page & Fletcher, P.C., .Its attorneys Joseph S S.----- 7 CIT CLERK'S OFFICE 30 Received 19 atM Recorded in -'ol. on page�o"Z Of So. Burlirg;on Lard Records Attest: 3 �g PINNACLE AT SPEAR Margaret A. Picard, Ciiy Cleric NOTICE OF DEVELOPMENT CONDITIONS THIS NOTICE is made this (l day of January, 1999, by Gerald C. Milot and John P. Larkin, doing business as Larkin Milot Partnership, a Vermont general partnership (the "Declarant"). RECITALS 1. The Declarant was the original sponsor of the subdivision located on the easterly side of Spear Street in the City of South Burlington known as "Pinnacle at Spear." The lands comprising the subdivision were conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South Burlington, and pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood, recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington (the "Property"). 2. The Declarant initially received approval from, the South Burlington Planning Commission to subdivide the Property into 73 single-family lots, common areas and roads, as depicted on the Plan. Thereafter, the Declarant received approval to create 7 additional single-family lots and reconfigure a portion of the common areas. 3. The subdivision, as originally approved, is shown and depicted on a plan entitled Nowland Two South Burlington Vermont Plat of Subdivision of Lands of Gerald C. Milot, et. al. dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume 286, Pages I I I and 112 of the Land Records of the City of South Burlington. The subdivision, with Lots 74 through 84, is shown and depicted on a plan entitled Final Plat for Subdivision of Property of Gerald Milot and John Larkin Pinnacle @ Spear (Formerly Nowland Two) dated August 21, 1998, last revised January_ 5, 1999, prepared by Vaughn C. Button, L.S., recorded in Map Volume'00 , Pages 5 and 5 of the Land Records of the City of South Burlington. 1_ EXHIBIT P E BR m 4. It is a condition to the subdivision approval, as amended, by the Planning Commission that the Declarant make certain undertaking and promises. 5. This document supplements prior Notices of Development Conditions, dated November 5, 1993, recorded in Volume 353, Page 585 and dated *G j4 , 1995, recorded in Volume Sys , Paged 1 of the Land Records of the City of South urlington�!�1 Ctct'Cli NJ'�^ �y1 �'`rS, AGREEMENT In consideration of Ten Dollars and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Declarant hereby declares that the Property is and confirms that the Property shall be held, sold and conveyed subject to the following covenants, agreements, easements and restrictions, all of which are for the purpose of protecting the value and desirability of, and which shall run with, the Property and be binding on all parties having any right, title or interest therein or any part thereof, and their heirs, successors and assigns: 6. The maximum height of any building and any landscaping on each Lot shall be as set forth on the Attachment hereto. No building shall be constructed or landscaping permitted which shall exceed such limits. IN WITNESS WHEREOF, the Declarant has executed this Declaration this I Ith day of January, 1999. WI SS: ' LARKIN MILOT PARTNERSHIP BYE---� Jo . arki , general partner and duly authorized ag STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington in said County and State on this I fklay,of January, 1999, personally appeared John P. Larkin, general partner and duly authori nt f L kin Milot Partnership, and he acknowledged this instrument by him signed and se ed to fre act and deed and the free act and deed of Larkin Milot Partnership. Before me Notary Public 03\20014\010\Iega1\conditi2.not 2 PINNACLE @ SPEAR Lots 1 through 51 South Burlington, Vermont The following information was obtained from a document entitled "Table of Height Limitations For Structures Within the Dorset Park View Protection Zones" prepared by FitzPatrick-Llewellyn Incorporated in July 1993 Table of height limitations for Dorset Park View Protection Zones Zone A - Section 25.401 Zone D - Section 25.407 Notes refer to Table below Column 1. Lot numbers according to FitzPatrick-Llewellyn Incorporated, Drawing D-4382 Column 2. Dorset Park View Protection Zone (VPZ), A or D Column 3. Distances scaled from Dorset Park VPZ baseline to center of house lot - feet Column 4. Existing house lot grade Column 5. Ceiling Height relative to Dorset Park VPZ Baseline VPZ A: ceiling height = 435' - 3.1 (distance/1000) VPZ D: ceiling height = 435' - .7 (distance/1000) Column 6. Road Centerline Grade adjacent to house lot Column 7. First Floor Elevation (road centerline grad plus 5 feet) Column 8. Maximum height of structures, first floor elevation to ridgeline (ceiling height minus FFE). TABLE I 1 Lot # 2 View Protect Zone 3 Distance from VPZ Base Line 4 Existing Grade 5 Ceiling Height 6 Road Centerline grade 7 1" Floor Elevatiom 8 Max Height 1 A 5900 391.0 416.7 390.5 395.5 21.2 2 A 5900 390.0 416.7 389.5 394.5 22.2 3 A 5850 387.0 416.9 387.9 392.9 24.0 4 A 5850 386.0 416.9 387.0 392.0 24.9 5 D 5900 384.0 - 430.9 386.0 391.0 39.9 6 D 6000 382.0 430.8 385.2 390.2 40.6 7 D 6000 380.0 430.8 384.2 389.2 41.6 8 D 6100 380.0 430.7 384.1 389.1 41.6 LLEWELLYN INCORPORATED 1 Lot # 2 View Protect Zone 3 Distance from VPZ Base Line 4 Existing Grade 5 Ceiling Height 6 Road Centerline grade 7 1" Floor Elevatiom 8 Max Height 9 D 5900 388.0 430.9 387.0 392.0 38.9 10 D 5850 386.0 430.9 384.0 389.0 41.9 11 D 5850 386.0 430.9 383.8 388.8 42.1 12 D 5800 386.0 430.9 384.4 389.4 41.5 13 D 5800 386.0 430.9 384.8 389.8 41.1 14 D 5750 387.0 431.0 385.4 390.4 40.6 15 D 5720 388.0 431.0 385.9 390.9 40.1 16 A 5650 390.0 417.5 386.8 391.8 25.7 17 A 5650 390.0 417.5 386.8 391.8 25.7 18 A 5650 390.0 417.5 387.4 392.4 25.1 19 A 5600 390.0 417.6 387.8 392.8 24.8 20 A 5620 389.5 417.6 388.3 393.3 24.3 21 A 5500 392.0 417.9 390.5 395.5 22.4 22 A 5500 392.0 417.9 391.5 396.5 21.4 23 A 5500 392.0 417.9 392.2 397.2 20.7 24 D 5550 392.5 431.1 393.0 398.0 33.1 25 D 5550 392.5 431.1 393.0 398.0 33.1 26 D 5560 393.0 431.1 393.2 398.2 32.9 27 D 55600 393.0 431.1 393.5 398.5 32.6 28 D 5610 391.0 431.1 393.3 398.3 32.8 29 D 5650 392.0 431.0 393.0 398.0 33.0 30 D 5680 392.0 431.0 392.5 397.5 33.5 31 D 5720 391.0 431.0 391.0 396.0 35.0 32 D 5780 391.5 431.0 389.5 394.5 36.5 Page 2 of 3 LLEWELLYN INCORPORATED 1 Lot # 2 View Protect Zone 3 Distance from VPZ Base Line 4 Existing Grade 5 Ceiling Height 6 Road Centerline grade 7 I" Floor Elevatiom 8 Max Height 33 D 5680 391.0 431.0 390.5 395.5 35.5 34 D 5560 390.0 431.1 391.5 396.5 34.6 35 D 5520 391.0 431.2 392.2 397.2 34.0 36 D 5500 390.5 431.2 393.8 398.8 32.4 37 D 5460 391.0 431.2 393.2 398.2 33.0 38 D 5420 391.0 431.2 393.4 398.4 32.8 39 D 5400 391.0 431.2 393.3 398.3 32.9 40 D 5370 391.0 431.3 393.1 398.1 33.2 41 D 5350 391.0 431.3 392.8 397.8 33.5 42 A 5330 391.5 418.5 392.3 397.3 21.2 43 A 5300 390.5 418.6 392.0 397.0 21.6 44 A 5280 390.0 418.6 392.2 397.2 21.4 45 A 5300 390.0 418.6 390.6 395.6 23.0 46 A 5340 390.5 418.5 390.2 395.2 23.3 47 A 5420 391.5 418.2 389.9 394.9 23.3 48 A 5540 390.5 417.8 389.4 394.4 23.4 49 A 5650 389.0 417.5 389.0 39410 23.5 50 A 5660 389.5 417.5 389.8 394.8 22.7 51 A 5660 389.5 417.5 390.5 395.5 22.0 Page 3 of 3 LLEWELLYN INCORPORATED LLEWELLYN INCORPORATED PINNACLE @ SPEAR Lots 52 through 80 Vale Drive South Burlington, Vermont July 28, 1998(rev) Table of height limitations for Dorset Park View Protection Zones Zone A - Section 22.401 Zone D - Section 22.407 Notes refer to Table below Column 1. Lot numbers according to Llewellyn Incorporated, Drawing 0067-D Column 2. Dorset Park View Protection Zone (VPZ), A or D Column 3. Distances scaled from Dorset Park VPZ baseline to center of house lot - feet Column 4. Ridge Line Elevation relative to Dorset Park VPZ Baseline VPZ A: Ridge line = 441 - 4.3 (Distance / 1000) VPZ D: Ridge line = 441 - 2.0 (Distance / 1000) Column 5. Roadway centerline elevation at center of house lot Column 6. Assumed First Floor Elevation (based on footing drains discharging to storm sewers) Column 7. Height of house (First Floor Elevation to Ridge Line Elevation) Column 8. Height of House (Roadway centerline elevation to ridge line elevation) TABLE V 1 Lot # 2 View Protect Zone 3 Distance from VPZ Base Line 4 Ridge Line Elevation 5 Roadway Elevation 6 Assumed FFE 7 Height of House above FFE 8 Height of House above Roadway 52 A 4650 421.0 394.9 398.1 22.9 26.1 53 A 4685 420.9 395.0 398.3 22.6 25.9 54 A 4710 420.8 394.9 398.5 22.3 25.9 55 A 4725 420.7 394.6 398.7 22.0 26.1 56 A 4735 420.6 394.5 398.9 21.7 26.1 57 A 4740 420.6 394.4 399.0 21.6 26.2 58 A 4750 420.6 394.4 399.3 21.3 26.2 4049 Williston Road • South Burlington • Vermont • 05403 T 802.658.2100 • F 802.658.2882 • e-mail: Ilewellinc@aol.com Engineering • Permitting • Consulting Services TABLE V (continued) Pinnacle @ Spear July 28, 1998 1 Lot 9 2 VPZ 3 Distance from Base 4 Ridge Line Elevation 5 Roadway Elevation 6 Proposed FFE 7 Height of House 7 Height of House 59 D 4755 431.5 393.6 399.4 32.1 37.9 60 D 4760 431.5 394.3 399.8 31.7 372 61 D 4765 431.5 394.5 399.9 31.6 37.0 62 D 4750 431.5 394.7 400.0 31.5 36.8 63 D 4735 431.5 394.9 400.3 31.2 36.6 64 D 4750 431.5 395.2 400.5 31.0 36.3 65 D 4745 431.5 395.5 400.7 30.8 36.0 66 D 4780 431.4 396.4 401.0 30.4 35.0 67 D 4850 431.3 396.5 401.9 29.4 34.8 68 D 4600 431.8 396.4 402.0+ 29.8 35.4 69 D 4580 431.8 395.3 401.8 30.0 36.5 70 D 4575 431.9 394.8 400.6 31.3 37.1 71 D 4590 431.8 394.6 400.1 31.7 37.2 72 D 4580 431.8 394.4 400.0 31.8 37.4 73 D 4585 431.8 393.6 39?.7 32.1 38.2 74 D 4590 431.8 394.4 399.6 32.2 37.4 75 A 4580 421.3 394.4 399.5 22.8 26.9 76 A 4615 421.2 394.5 399.2 22.0 26.7 77 A 4555 421.4 394.6 399.0 22.4 26.8 78 A 4550 421.4 394.9 398.6 22.8 26.5 79 A 4525 421.5 394.9 398.5 23.0 26.6 80 A 4500 421.7 394.9 398.4 23.3 126.8 Rev. 12-04-98 Page 2 of 2 LLEWELLYN INCORPORATED Lot *49 (, Pinnacle Drive (Corner Lot) The following elevations were dettin incd by Krebs and Lan9ing Consulting Engineus on i Thursday, June 24, 1999. f Note: Vertical datum is based on remrx)rrrry bench mm*,r wpplied by F4gvrrick-L1ewe11yn Inc. • Top of ridge vent (west end) - 419.21' Top of ridge vent (east end) = 419,20' Centerline of road at crater of lot (west side of house) — 389.19' • Centerline of road at center of lot (north side of house) = 399.69' EXHIBIT E cc > L • 1 Y Na RE>..SCM eaLTE t � � /�� / / ` r AT.IZ uwrvLunravz AnLrwa snerrr L: AOW nc ALa ApIE! •iJlnJ / AT AfMZ f1OWr lYSAC A[MZ lraM AO.OS A(a lrlEir wAI[s !/lln.1 rrrr •A• # .� j '� i �/ rrr JM.o # ArNZ roc L«nn. Am +arts AOD aOrNRS Tp.ns Isar �'' • AnafiW lTAla !rO'i Ala NOItx NNZ KAO/4L3/1LNm aD5 a/r MAa7 / 1 ! KNZ OIALW4 KAOWNtS MIQR AAD ROFar NLLK ACT w1aRAwi 1lLls/ar • - \ ' , Nv « aa7.r axe .K' M. ifrl - / I ROADWAY IRACERORANS NOT SHOW FOR a.W?Y D� NYLNrJa! - tl PR(POSEDWLINDERVRAMS DHSCNARGE SLMO"DRAMS y[YxT , ` i OF NTO PROPOSED STORMWAIER COILECTAOV SYSIEN M VINT•[. /' � 1 /O AT DROP IV/E7S a/Jn.w i / FAW94C0 ROOR EZEVA TIONS (F:T) AMR TO TW LOWEST -AT GRAPE- P Nv r in.1J fry' % 1 / FLOCK ELL VA RON (TYPICALLr IW GARAGE FLOOR QFVA LION). BASEMENT !LOOP EL£VA DONS ARE ASSL/«ED TO BE NO LONER THAN / 51 1 _��e i. mom pi a•BELOW De FFE. / 1 /a• I 1 t 50 ruAv AC¢g pSCNARIY MIpNWAL NOVY FOOTING DRAWS NTD SipTYWATCR CLALECRLIN SYSTEM ONLY MIEN A SIAMBLE LOCATION TO 4 / _ DAn OIT Th[ fPO71Nc P4AN CANwo CONNECT FOOTING CRAMS N70 ROADWAY ONOERCRANr Br FaND PO NOT auso «N :� ( ' as •�\_ / 49 / .e �\ JML_ \� TIT JN II /' _NYYS•0 ---__ ___ - ` I ' ' , «ro.LL� a• LwrrfrossnNAu r. nr _--_ ` -• � / 19 % � ns,i.` � _-_- _ !' _ . 1 '--------- Nv JM a a" � _ / 18 Arvoved by resolution of the Planning Commission p} O 17 16 Ue City of South Burlington, Vermont on the /o _____� / / A: wUTUY % 48 Q I rrs sEo / - day Of �US� „�,,,., �;0 1 , 19-���' , subject to the require - p..;: `��. 1 1 ments of said conditions of said resolution. Signed this -__----------- day 19`. Dy,c'>�„ •r Chairman or�rk - `�-' I 47 Jan I as wr ar.n 21 2 L - M11A' A« Ja.•I / A. 10.a'AT- IIRMiE Enr) \ \ JR" IINLT' FIYId NV J.l ID • 1L90.La' c -Au _ \ 1 , ITT.Ri / .m nTNa frnl \♦ 1 a rs i LEGEND \ ---- i NVN J37 .ZEJ \ I ----- �• Nr mrJv rJ _ ------- --- aWsraAG LXiTTDUt M fa+sLm GRACE LZIN/pAT ♦ - -- M.C" PROPERry LIE PROPOSED LOT L&F PROPOSED S709( W/ MANNgf - �,// E76TNG S CM YNCR \ -Jtlnf '\ ` ` �� O / a/} .. "N",- PROPOSED NN TV? IT/GATE VALVE f HYDRANT - N•- _ - - , JaiD n.NLm VA)Fr( !3! f # a N _ -- — — — — EMS7MC WETLANDS Y78ACK it a • \ 1 _ _ ! ! N -- n----e--- PROPOSED SAMTANY Sn" W/ MAMKCE N~i• a�tl.si3o \ .r ,• _ - \ \ �, 1 w ouT b ` _ _ -r'W' _ �z w JJNNsa PROPOSED AOCMAVOW PW/T -- - _ _ \ # nAREo tso - '� 1 1 r r.cl 1- - _ _ _ mr aEas I I a PROPOSED NOV PN -'- I\ _-N.JaLso •� _ 1� a[n+aa _I GRAPHIC SCALE - --- 44 a.ar 41 I 7 ! 1 PROaiESf E7ivr — APRELa.«.Ws atSw iNK ACT tSo --- �. Ir ! s,'. ����`` `\` 1 1—•� — I I I wJo atLxm a.00- s..rusa R.s WA— S SOLELY WE LOOM ARFONSEEM IV OMM W6 LRGaMi N¢fNES WE LATEST AEVWMS me 'A• A.__ _ _ _ , �_- , �,y\ — --- - — - _ N O W L AA N D T W O -4- wnn snN,cnAW IT �KA0.aILL `'_ I 1 «rowE nAA�ew areaw ````�`\ + _ �--_---- --- 'Y Ja2n - -- - SITE AND UTILITIES PLAN is .. i1P Z\ � nwl® LTa L'Ra'H � No n 9zo+s --�- 1♦ -- - ----- Aa0..afm.•MQ,,mE�rlp,wrAd ------ n n nMM / J- • ---------------- - , - -- ---- ___ ---- 7 Jo•R-r.Nca Y.raN,r-�%X'••.•. ,_ saRA,Fn s__ rNCR.rr_- _---------- ._ =__-"� sL�rN,�.c4.nH, i r. — - r!•n!'=__-"'_— — 1 MAWSTON R.� VERMONT 1 6 T 77 CITY CifRrsOFFIC$ a'-y»•` Recorded ig VDI 291--- on Rage- l l b Ot So Z.,,,.Ic,,L8W Race Ilthsi �,�Ndrr'A Naia�Lr 01/24i2001 YED 118:40 FAX $020609119 STITZEL PAGE & FLETCHER Z002 IN RE® APPEAL OF LARXIN STATE OF VERMONT ENVIRONMENTAL COWRT Docket No. 159-9-99Vtec AAYF12AVIT OF JoEN L. MI%EAW John L. ("Jack") Milbank, being duly sworn, deposes and states on his personal knowledge as follows. 1v I, Tack Milbank, am the Surveying Manager- for Civil. Engineering Associates, Inc., a civil engineering firm located in Shelburne, Vermont_ I have been employed by Civil Engineering Associates, Inc., for approximately eleven (11) years. 2. In my capacity as Surveying Manager for civil Engineering Associates, Inc., I have, can numerous occasions, performed engineering surveying measurements and calculations in connection with my employment. 3. On or. before September 11, 2000, at the request of the Zoning administrator for the City of south Burlington, I field measured the difference in elevation between the highpoint on the ridge of an existing structure located at 69 Pinnacle Drive in the City (formerly 5 Pinnacle Drive./Lot #49) and the average elevation of the post -construction grade adjoining the structure. 4. Baseline elevations were established, in part, using "as -built' plans and other elevation -related data provided to the City by the developer of the Pinnacle -At -Spear subdivision. 4. on the basis of my measurements and calculations, I determined that the following post -construction elevations exist at the four corners of the structure at issua» northeast corner - elevation = 389.7 feet; southeast corner - elevation � 389.2 feet; southwest corner - elevation = 389.9 feet; and northwest corner - elevation = 390.0 feet. Therefore, the average post - construction grade is at a point with an elevation of approximately 389.7 feat. 5. Also, on the basis of my measurements and calculations, and given the baseline elevation data previously supplied to the City by the developer of the Pinnacle -At --Spear subdivision, I determined that the highpcint on the ridgeline of the structure located at 6 Pinnacle Drive, excluding the ridge vent, is at an elevation of 419.0 feet. DATED at rrr [notary block] son754.1it Vermont, this day of ,7anu,ary, John L. Milbank 01!24/2001 WED 16:40 FAX $026609119 STITZEL: PAGE & FLETCHER Z001 STI{TZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY S?1MEET P.O. BOX 4507 BI,TJ INGTON, VEkMONT 05402-1507 ;SQ2) i560-2555 (VOICETGI)) STEMN F STITLEL FAX (002) 66Cr2S52 or 600-9119 PATTI R_ PAGE' E Nu4II (MR N13a3tjFFtLM3CF.COIvQ F035RT 5. rLt31'C HER. WRITER'S E-MAIL (JMGLEAIQ�T1?'N3PF.Ct7M!) 303M 5, I&LBAN WRn-M-S FAX ($02) 660.2552 TLM07, FY M. BVSTACE (•ALSO AZ>W= IN t1Y.j FACSIMILE TRANSMITTAL SHEET Datc: January 24, 2001 To: Ray Belau Jack Milbank Fax: 846-4101 985-2271 Re: Appeal of Larkin Sender: Joseph McLean, Esq. N A KARY014MES AMANDA S.E. LAFMTY You should receive _2 Page(s), including this cover sheet. If you do not receive all the pages, please call (802) 660-2555_ MESSAGE Transmitted herewith is a draft copy of Jack's Affidavit. if it looks okay, please give me a call and we will forward the original for signature. 'nis rntemge is imtmded amly for the use of the adelresm' and may contain tnlbmmtion that is privileScd and congdm ial. L'you arc not tlac intmuied recirie rt, you are hercby notificd that any dissemination a2 this cutrtmamicatlon is strictly prohiN ed 1f you havc rnccived this eornmanicatiap in mT% r, pie= r> *fy us immediately by telephone ($02-66 -2555). Thank you. CIVIL E, GU IE"EkII Ir 11 Nr. 928 Falls Road P.O. Box 485 Shelburne, VT 05482 September 19, 2000 Mr. Ray Belair City of South Burlington 575 Dorset Street So. Burlington, Vermont 05403 Re: Measurements at 69 Pinnacle Drive South Burlington, Vermont Dear Ray: Phone: 802-985-2323 Fax: 802-985-2271 E-Mail: cea@together.net At your request, on September 11, 2000, our firm field measured the difference in elevation between the highpoint of the ridge and the mean elevation of the existing ground at four corners of the house at 69 Pinnacle Drive. Elevations are related to the rim of the existing sanitary manhole at the intersection of Pinnacle Drive and rims of the existing catch basins in the vicinity based on as -built information provided by your office. The results are as follows: Highest point of ridge (excluding ridge vent) Mean of existing ground at the northeast (3897), southeast (389.2% southwest (389.9'), and northwest (390.0') corners of the house Difference in elevation between high point and mean of existing grade of house at 69 Pinnacle Drive If you have any questions or need additional information, please feel free to call. Sincerely d4 A&q Jack Milbank JM:pao 419.0' 389.7' 29.3' go U77LITY Col"l- SIDEWALK. 51 50 Ef -:E , a3, URIAN PA 77 / I =I 014 Post -it® Fax Note 7671 Date jI GI of No. pages TO Fro Co./Dept. Co. Phone # Phone # Fax # Fax # 0/ 4 IAXBOXEs�zl Rl" 388.70 AMILROX 4CCE�S INV 385.60 EASEMENT DI 6 RIA4 388.20 INV 385,50 390 C 8) 7) IN A 10 R(Af 389.75 IN V 384. 50 A WENT-. Invoice Cavil Engineering Associates, Inc. 928 Falls Roast, P.O. Buss 485 Shelburne, VT 05482 November 28, 2000 Project No: 00289.00 City of South Burlington Invoice No: 0000946 Attn: Ray Belair Zoning Department 575 Dorset Street S. Burlington VT 05403 Project: 00289.00 City of S. Burl -douse Elev-69 Pinnacle D Elevations of House and Ground Residence cr 69 Pinnacle Drive Professional services from September 11, 2000 to November 22, 2000 Professional Personnel Flours Rate Amount Surveyor Milbank, John 91111/00 2.00 50.00 100.00 Milbank, John 9/18/00 2.00 50.00 100.00 Survey Crew Ovitt, Brian 9/11/00 4.00 40.00 160.00 Totals 8.00 360.00 Total Labor Reimbursable Expense Misc Reimbursable Expense 9/11/00 Milbank, John Mileage 6.30 Total Reimbursables 6.30 Total this invoice Net 30 days - 1.5% interest on invoice balance over 30 days 6.30 $366.30 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER ('ALSO ADMITTED IN N.Y ) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-91 19 E-MAIL (FIRM2555(a,FIRMSPF.COM) WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 November 21, 2000 Carl H. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, P.C. PO Box 728 Burlington, VT 05402-0728 RE: City of South Burlington v. John Larkin, et al. Docket No. Vtec Dear Carl: JOSEPH S.McLEAN TIMOTHY M EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY Enclosed please find a Waiver in connection with the above - referenced matter. Once executed, please return to me for filing with the Court. Thank you. Very't'uly yours, seph S. McLean JSM/bjl Enclosure cc: Raymond J. Belair son5979.cor STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARKIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec WAIVER I, Carl H. Lisman, Esq. do hereby accept service of the Complaint and attached exhibits filed in connection with the above -entitled action on behalf of all of the above -captioned Defendants and waive any other form of service whatsoever. DATED at Son742.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 371 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 , Vermont this day of November 2000. Carl H. Lisman, Esq. Attorney for John Larkin, Gerald Milot, Larkin-Milot Partnership and Michael and Kathryn Luciano STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/FDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL (FIRM2555 a FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) ('ALSO ADMITTED IN N.Y) WRITER'S FAX (802) 660-2552 October 20, 2000 Carl H. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, P.C. PO Box 728 Burlington, VT 05402-0728 RE: City of South Burlington v. John Larkin, et al. Docket No. Vtec Dear Carl: Enclosed please find the following documents: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY 1. Notice of Lawsuit and Request for Waiver of Service of Summons; 2. Waiver of Service of Summons (2 copies); 3. Complaint; and 4. Motion to Consolidate and Continue in connection with the Appeal of Larkin, Docket No, 159-9-99 Vtec. Thank you. Ve-r''y truly yours, ost',�th S . McLean JSM/bjl Enclosures cc: Raymond J. Belair STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARKIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS To: Carl H. Lisman, Esq. An action has been commenced against John Larkin, Gerald Milot, Larkin-Milot Partnership and Michael and Kathryn Luciano. A copy of the Complaint is attached to this notice. It has been filed in the Vermont Environmental Court and has been assigned Docket No. Vtec. This is not a formal summons or notification from the court. To save the cost of serving you with a formal judicial summons and another copy of the complaint, I am requesting that you sign and return the enclosed waiver of service. That cost will be avoided if I receive a signed copy of the waiver by November 9, 2000. I enclose a stamped and addressed envelope for your use. An extra copy of the waiver is also enclosed for your records. If you comply with this request and return the signed waiver by November 9, 2000, it will be filed with the court and no summons will be served upon you. The action will then proceed as if you had been served on the date the waiver is filed. If you do not return the signed waiver by November 9, 2000, I will have formal service made in a manner authorized by the Vermont Rules of Civil Procedure. In that connection, please read the statement concerning the duty of the parties to waive the service of summons, which is set forth on the enclosed waiver form. I affirm that this request is b sent to you on October 20, 2000. Joseph S . McLean A"rtorney f or the City of South Burlington SON73L.L?T STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARKIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec WAIVER OF SERVICE OF SUMMONS TO: Carl H. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, P.C. PO Box 728 Burlington, VT 05402-0728 I acknowledge receipt of your request that JOHN LARKIN, GERALD MILOT and LARKIN-MILOT PARTNERSHIP waive service of a summons in the action of City of South Burlington v. John Larkin, Gerald Milot, Larkin-Milot Partnership and Michael & Kathryn Luciano, which is Docket No. in the Vermont Environmental Court. I have also received a copy of the Complaint in the action, two copies of this waiver form and a means by which I can sign and return this form to you without cost to me. I agree to save the cost of a service of summons and an additional copy of the complaint in this lawsuit by not requiring that JOHN LARKIN, GERALD MILOT and LARKIN-MILOT PARTNERSHIP be served with judicial process in the manner required by Rule 4 of the Vermont Rules of Civil Procedure. I will retain all defenses or objections to the lawsuit or to the jurisdiction or the venue of the court except for objections based on a defect in the summons or in the service of the summons. I understand that a judgment may be entered against JOHN LARKIN, GERALD MILOT and LARKIN-MILOT PARTNERSHIP if an answer or motion under rule 12 of the Vermont Rules of Civil Procedure is not served upon you by November 9, 2000. 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402 1507 DATED this day of , 2000. Carl H. Lisman, Esq. On behalf of John Larkin, Gerald Milot and Larkin-Milot Partnership 2 DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS Rule 4 of the Vermont Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. If you and the plaintiff are both located in the United Sates and you do not sign and return this form waiving service as requested by the plaintiff, you will be required to bear the cost of such service unless you can show good cause for not doing so. Your belief that the complaint is unfounded or that the action has been brought in the wrong place or in a court that lacks jurisdiction of the action or your person or property is not good cause for a failure to waive service. If you do waive service, you retain all defenses and objections (except those relating to the summons or its service), and you may later object to the jurisdiction of the court or to the place where the action has been brought. If you waive service, you must, within the time specified on the waiver form, serve on the plaintiff's attorney, or on the plaintiff if he or she has no attorney, a response to the complaint, which should be an answer or motion as provided in Rule 12 of the Vermont Rules of Civil Procedure. You must also file a signed copy of the response with the court. If a response is not filed within that time, a default judgment may be entered against you. Note that by waiving service you are allowed more time to respond to the complaint than if a summons had actually been served upon you on the date that you received the request for waiver of service. SON733.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURUNGTON, VERMONT 05402.1507 STATE OF VERMONT ENVIRONMENTAL COURT ) IN RE APPEAL OF ) Vermont Environmental Court JOHN LARKIN ) Docket No. 159-9-99Vtec ) MOTION TO CONSOLIDATE AND CONTINUE NOW COMES the City of South Burlington, by and through its attorneys, the law firm of Stitzel, Page & Fletcher, P.C., and asks this Court to consolidate the zoning enforcement action captioned City of South Burlington v. Larkin et al., Vermont Environmental Court Docket No. , filed of even date herewith, with the hearing currently scheduled in the above - referenced matter. MEMORANDUM 1. City of South Burlington v. Larkin, et al. is a zoning enforcement action brought by the City of South Burlington against Defendant, John Larkin, and certain co -Defendants by Complaint filed of even date herewith. In its Complaint the City contends that the Defendant Larkin and others commenced land development on property located off Pinnacle Drive in the City, without obtaining a zoning permit. Specifically, the City alleges that one or more of the Defendants (1) constructed a single family dwelling on the subject property that exceeds the maximum elevation standards contained in relevant approvals of the City of South Burlington and/or the South Burlington Zoning Regulations and (2) constructed a single family dwelling on the subject property that exceeds the maximum height limitation contained in the zoning permit for the property. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT Lew 171 BATTERY STREET P.O BOX 1507 BURUNGTON, VERMONT 05402-1507 2. Under Vermont Rule of Civil Procedure 3, the City has 60 days' from the date that its Complaint is filed to serve Defendants with a copy of the summons and complaint. Upon service of the summons and complaint, Defendants are entitled to 20 days to file an answer. V.R.C.P. 12. 3. Currently, a one-half day merits hearing is scheduled in Docket No. 159-9-99Vtec for Thursday, November 9, 2000, at 9:00 a.m. in Burlington. 5. This Court has jurisdiction over both of the above - referenced matters. 6. Docket No. 159-9-99Vtec and the above -referenced enforcement action, City of South Burlington v. Larkin, et al., arise out of the same activities on the same property, involve common questions of law and fact, and are likely to involve the testimony of common witnesses. In light of the foregoing, it is reasonable and appropriate to consolidate those actions for hearing purposes. 7. Given the time required for service of City's summons and complaint, the filing of any answers thereto, and the conduct of any necessary discovery, it is appropriate to continue the scheduled merits hearing, so that both the appeal and the enforcement action may be heard in one, consolidated proceeding. The Town anticipates that such a consolidated hearing will require at least one full day of hearing time. For all the foregoing reasons, the City of South Burlington 1 The City does not anticipate taking 60 days to actually effect service on all Defendants. respectfully requests that this Court consolidate the above - referenced matters and continue the same for a date no sooner than January 15, 2000. Dated at Burlington, Vermont, this 1"T day of October, 2000. son730.1itson730.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 RATTERY STREET P.O BOX 1507 Bl7Rl.1NGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitzel, Page & Fletcher, P.C. Its Atjorj�eys Jos'eDh S . McLean STEVEN F. STITZEL PATTIR.PAGE• ROBERT E.FLETCHER ('ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL (FIRM2555@FIRMSPF.COM) WRITER'S E-MAIL (JMCLEAN@FIRMSPF.COM) WRITER'S FAX (802) 660.2552 October 20, 2000 Mr. Michael Luciano Mrs. Kathryn Luciano 69 Pinnacle Drive South Burlington, VT 05403 RE: City of South Burlington v. John Larkin, et al. Docket No. Vtec Dear Mr. and Mrs. Luciano: Enclosed please find the following documents: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY 1. Notice of Lawsuit and Request for Waiver of Service of Summons; 2. Waiver of Service of Summons (2 copies); and 3. Complaint (2 copies). Thank you. JSM/bj1 Enclosures cc: Raymond J. Belair STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARKIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS To: Michael and Kathryn Luciano An action has been commenced against John Larkin, Gerald Milot, Larkin-Milot Partnership and Michael and Kathryn Luciano. A copy of the Complaint is attached to this notice. It has been filed in the Vermont Environmental Court and has been assigned Docket No. Vtec. This is not a formal summons or notification from the court. To save the cost of serving you with a formal judicial summons and another copy of the complaint, I am requesting that you sign and return the enclosed waiver of service. That cost will be avoided if I receive a signed copy of the waiver by November 9, 2000. I enclose a stamped and addressed envelope for your use. An extra copy of the waiver is also enclosed for your records. If you comply with this request and return the signed waiver by November 9, 2000, it will be filed with the court and no summons will be served upon you. The action will then proceed as if you had been served on the date the waiver is filed. If you do not return the signed waiver by November 9, 2000, I will have formal service made in a manner authorized by the Vermont Rules of Civil Procedure. In that connection, please read the statement concerning the duty of the parties to waive the service of summons, which is set forth on the enclosed waiver form. I affirm that this request i,s'be'ng sent to you on October 20, 2000. JosePh S. McLean Att rney for the Cirty of South Burlington STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARRIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec WAIVER OF SERVICE OF SUMMONS TO: Michael and Kathryn Luciano 69 Pinnacle Drive South Burlington, VT 05403 We acknowledge receipt of your request that MICHAEL and KATHRYN LUCIANO waive service of a summons in the action of City of South Burlington v. John Larkin, Gerald Milot Larkin-Milot Partnership and Michael & Kathryn Luciano, which is Docket No. in the Vermont Environmental Court. I have also received a copy of the Complaint in the action, two copies of this waiver form and a means by which I can sign and return this form to you without cost to me. I agree to save the cost of a service of summons and an additional copy of the complaint in this lawsuit by not requiring that MICHAEL and KATHRYN LUCIANO be served with judicial process in the manner required by Rule 4 of the Vermont Rules of Civil Procedure. I will retain all defenses or objections to the lawsuit or to the jurisdiction or the venue of the court except for objections based on a defect in the summons or in the service of the summons. I understand that a judgment may be entered against MICHAEL and KATHRYN LUCIANO if an answer or motion under rule 12 of the Vermont Rules of Civil Procedure is not served upon you by November 9, 2000. 1 DATED this day of , 2000. Kathryn Luciano STIT'LEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON. VERMONT 05402-1507 DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS Rule 4 of the Vermont Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. If you and the plaintiff are both located in the United Sates and you do not sign and return this form waiving service as requested by the plaintiff, you will be required to bear the cost of such service unless you can show good cause for not doing so. Your belief that the complaint is unfounded or that the action has been brought in the wrong place or in a court that lacks jurisdiction of the action or your person or property is not good cause for a failure to waive service. If you do waive service, you retain all defenses and objections (except those relating to the summons or its service), and you may later object to the jurisdiction of the court or to the place where the action has been brought. If you waive service, you must, within the time specified on the waiver form, serve on the plaintiff's attorney, or on the plaintiff if he or she has no attorney, a response to the complaint, which should be an answer or motion as provided in Rule 12 of the Vermont Rules of Civil Procedure. You must also file a signed copy of the response with the court. If a response is not filed within that time, a default judgment may be entered against you. Note that by waiving service you are allowed more time to respond to the complaint than if a summons had actually been served upon you on the date that you received the request for waiver of service. SON736.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 0 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARKIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS To: Michael and Kathryn Luciano An action has been commenced against John Larkin, Gerald Milot, Larkin-Milot Partnership and Michael and Kathryn Luciano. A copy of the Complaint is attached to this notice. It has been filed in the Vermont Environmental Court and has been assigned Docket No. Vtec. This is not a formal summons or notification from the court. To save the cost of serving you with a formal judicial summons and another copy of the complaint, I am requesting that you sign and return the enclosed waiver of service. That cost will be avoided if I receive a signed copy of the waiver by November 9, 2000. I enclose a stamped and addressed envelope for your use. An extra copy of the waiver is also enclosed for your records. If you comply with this request and return the signed waiver by November 9, 2000, it will be filed with the court and no summons will be served upon you. The action will then proceed as if you had been served on the date the waiver is filed. If you do not return the signed waiver by November 9, 2000, I will have formal service made in a manner authorized by the Vermont Rules of Civil Procedure. In that connection, please read the statement concerning the duty of the parties to waive the service of summons, which is set forth on the enclosed waiver form. I affirm that this request b ing sent to you on October 20, 2000. efleph S . McLean torney for the ity of South Burlington sON-35.L_: STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BLTRUNGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JOHN LARKIN, GERALD MILOT, ) LARKIN-MILOT PARTNERSHIP, ) and MICHAEL & KATHRYN ) LUCIANO, ) Defendants. ) Vermont Environmental Court Docket No. Vtec WAIVER OF SERVICE OF SUMMONS TO: Michael and Kathryn Luciano 69 Pinnacle Drive South Burlington, VT 05403 We acknowledge receipt of your request that MICHAEL and KATHRYN LUCIANO waive service of a summons in the action of City of South Burlington v. John Larkin, Gerald Milot, Larkin-Milot Partnership and Michael & Kathryn Luciano, which is Docket No. in the Vermont Environmental Court. I have also received a copy of the Complaint in the action, two copies of this waiver form and a means by which I can sign and return this form to you without cost to me. I agree to save the cost of a service of summons and an additional copy of the complaint in this lawsuit by not requiring that MICHAEL and KATHRYN LUCIANO be served with judicial process in the manner required by Rule 4 of the Vermont Rules of Civil Procedure. I will retain all defenses or objections to the lawsuit or to the jurisdiction or the venue of the court except for objections based on a defect in the summons or in the service of the summons. I understand that a judgment may be entered against MICHAEL and KATHRYN LUCIANO if an answer or motion under rule 12 of the Vermont Rules of Civil Procedure is not served upon you by November 9, 2000. 1 DATED this day of , 2000. Michael Luciano STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402.1507 DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS Rule 4 of the Vermont Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. If you and the plaintiff are both located in the United Sates and you do not sign and return this form waiving service as requested by the plaintiff, you will be required to bear the cost of such service unless you can show good cause for not doing so. Your belief that the complaint is unfounded or that the action has been brought in the wrong place or in a court that lacks jurisdiction of the action or your person or property is not good cause for a failure to waive service. If you do waive service, you retain all defenses and objections (except those relating to the summons or its service), and you may later object to the jurisdiction of the court or to the place where the action has been brought. If you waive service, you must, within the time specified on the waiver form, serve on the plaintiff's attorney, or on the plaintiff if he or she has no attorney, a response to the complaint, which should be an answer or motion as provided in Rule 12 of the Vermont Rules of Civil Procedure. You must also file a signed copy of the response with the court. If a response is not filed within that time, a default judgment may be entered against you. Note that by waiving service you are allowed more time to respond to the complaint than if a summons had actually been served upon you on the date that you received the request for waiver of service. SON734.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE APPEAL OF ) Vermont Environmental Court JOHN LARKIN ) Docket No. 159-9-99Vtec MOTION TO CONSOLIDATE AND CONTINUE NOW COMES the City of South Burlington, by and through its attorneys, the law firm of Stitzel, Page & Fletcher, P.C., and asks this Court to consolidate the zoning enforcement action captioned City of South Burlington v. Larkin et al., Vermont Environmental Court Docket No. , filed of even date herewith, with the hearing currently scheduled in the above - referenced matter. MEMORANDUM 1. City of South Burlington v. Larkin, et al. is a zoning enforcement action brought by the City of South Burlington against Defendant, John Larkin, and certain co -Defendants by Complaint filed of even date herewith. In its Complaint the City contends that the Defendant Larkin and others commenced land development on property located off Pinnacle Drive in the City, without obtaining a zoning permit. Specifically, the City alleges that one or more of the Defendants (1) constructed a single family dwelling on the subject property that exceeds the maximum elevation standards contained in relevant approvals of the City of South Burlington and/or the South Burlington Zoning Regulations and (2) constructed a single family dwelling on the subject property that exceeds the maximum height limitation contained in the zoning permit for the property. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171HATTERYSTREET P,O BOX 1507 BURLINGTON, VERMONT 05402-1507 2. Under Vermont Rule of Civil Procedure 3, the City has 60 days' from the date that its Complaint is filed to serve Defendants with a copy of the summons and complaint. Upon service of the summons and complaint, Defendants are entitled to 20 days to file an answer. V.R.C.P. 12. 3. Currently, a one-half day merits hearing is scheduled in Docket No. 159-9-99Vtec for Thursday, November 9, 2000, at 9:00 a.m. in Burlington. 5. This Court has jurisdiction over both of the above - referenced matters. 6. Docket No. 159-9-99Vtec and the above -referenced enforcement action, City of South Burlington v. Larkin, et al., arise out of the same activities on the same property, involve common questions of law and fact, and are likely to involve the testimony of common witnesses. In light of the foregoing, it is reasonable and appropriate to consolidate those actions for hearing purposes. 7. Given the time required for service of City's summons and complaint, the filing of any answers thereto, and the conduct of any necessary discovery, it is appropriate to continue the scheduled merits hearing, so that both the appeal and the enforcement action may be heard in one, consolidated proceeding. The Town anticipates that such a consolidated hearing will require at least one full day of hearing time. For all the foregoing reasons, the City of South Burlington ' The City does not anticipate taking 60 days to actually effect service on all Defendants. respectfully requests that this Court consolidate the above - referenced matters and continue the same for a date no sooner than January 15, 2000. Dated at Burlington, Vermont, this day of October, 2000. son730.1itson730.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitzel, Page & Fletcher, P.C. Its or_j�eys Jos'evh S . McLean STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, Plaintiff, v. JOHN LARKIN, GERALD MILOT, LARKIN-MILOT PARTNERSHIP, and MICHAEL & KATHRYN LUCIANO, Defendants. Vermont Environmental Court Docket No. Vtec COMPLAINT NOW COMES the Plaintiff, City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and for its Complaint states as follows. 1. The City of South Burlington is a Vermont municipal corporation situated in Chittenden County, Vermont. 2. At all times material to this matter, the City has had duly adopted Zoning Regulations in effect. A true and correct copy of said Zoning Regulations, marked as Exhibit A, is attached hereto. 3. Article XXII of said Zoning Regulations establishes a Scenic View Protection Overlay District for the City, which includes the Dorset Park View Protection Zone, as depicted on a map entitled "Scenic View Protection Overlay Map" recorded in Volume 414, at Page 135 of the Land Records of the City of South Burlington. A true and correct copy of said Map, marked as Exhibit B, is attached hereto.. 4. Article XXV of said Zoning Regulations contains, among other things, area, density and dimensional requirements for STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 structures in the City, including provisions relating to height of structures. 5. Defendants John Larkin, Gerald Milot and/or Larkin-Milot Partnership ("Larkin, et al.") are the current or former owners of certain real property located on the easterly side of Spear Street in the City known as the "Pinnacle at Spear" subdivision, formerly known as the "Nowland Two" subdivision (the "Property"). 6. All or a portion of the Property is located in the Dorset Park View Protection Zone, so-called. 7. On or about December 21, 1993, Defendants Larkin, et al., received written approval from the South Burlington Planning Commission (the "Planning Commission") to subdivide the Property into 73 single-family lots, common areas and roads, as shown on a plan entitled "Nowland Two South Burlington Vermont Plat of Subdivision of Lands of Gerald C. Milot, et al." dated July 1992 and prepared by Fitzpatrick -Llewellyn Inc., recorded in Map Volume 286,.at Pages 111-112 of the Land Records of the City of South Burlington (the "Subdivision Approval"). A true and correct copy of said Subdivision Approval, marked as Exhibit C, is attached hereto. 8. Condition 9 of the Subdivision Approval states: "A -Notice of Conditions' addressing the height limitations for structures and landscaping on each lot shall be submitted to the City Attorney for approval and shall be recorded in the South Burlington land records prior to recording the final plans." 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 9. Pursuant to Condition 9 of their Subdivision Approval, Defendants Larkin et al., prepared and recorded a Notice of Development Conditions, dated November 5, 1993, and had the same recorded in Volume 353, Pages 585-93 of the Land Records of the City of South Burlington (the "Notice of Development Conditions"). A true and correct copy of said Notice of Conditions (with attachments), marked as Exhibit D, is attached hereto. 10. The Notice of Development Conditions provides in pertinent part as follows: "The Nowland Two planned residential development is in compliance with the Dorset Park View Protection Zone set forth in Article XXV, Section 25.40. Calculations of elevations and maximum height for each lot for structures and landscaping are set forth on a schematic plan and tables attached hereto as Exhibit -A.'" See Exhibit D. 11. The Attachment to the Notice of Development Conditions (labeled "Exhibit All thereto) is entitled "NOWLAND TWO SUBDIVISION SPEAR STREET SOUTH BURLINGTON - TABLE OF HEIGHT DETERMINATION FOR STRUCTURES AND LANDSCAPING WITHIN THE DORSET PARK VIEW PROTECTION ZONES IN ACCORDANCE WITH SOUTH BURLINGTON ZONING REGULATIONS: Article XXV, Sections 25.401-25.402 (Zone A), and 25.407-25.408 (Zone D)." See Exhibit D. 12. On or about April 14, 1997, Defendant John Larkin, as owner, made application to the City for Zoning Permit No. 97-54 to construct a single family dwelling on Lot 49 of the Property (a/k/a #69 Pinnacle Drive). Said application was accompanied by 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171RATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 an attached sketch. A true and correct copy of said application and attached sketch, marked as Exhibit E, is attached hereto. 13. Lot 49 is located in Zone A of the Dorset Park View Protection Zone and is subject to the limitations contained in the Notice and Development Conditions and Attachment, referenced in Paragraphs 8-11, above. 14. The Attachment to the Notice of Development Conditions lists the maximum elevation of structures and trees on Lot 49 as 417.5 feet. 15. Under the Zoning Regulations, compliance with view protection zone standards for Zone A of the Dorset Park View Protection Zone is measured by reference to maximum permitted elevation above mean sea level, among other things. See Exhibit A. 16. On or about April 14, 1997, the City's Administrative Officer issued Zoning Permit 97-54 to "A & M Const[ruction]," Defendant Larkin's builder. By its terms, Zoning Permit 97-54 authorized a structure twenty-eight feet (281) in height. See Exhibit E. 17. Zoning Permit 97-54 was not appealed, and the time for taking an appeal has now passed. 18. Following the issuance of Zoning Permit 97-54, A & M Construction constructed a single family dwelling on Lot 49 for Defendant Larkin. 19. On or about October 13, 1998, Defendants Larkin, et al., received amended subdivision approval from the South 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Burlington Planning Commission to create 7 additional single- family lots on the Property and to reconfigure the common area, as shown on a plan entitled "Final Plat of Subdivision of Property of Gerald Milot and John Larkin Pinnacle @ Spear (Formerly Nowland Two) Spear Street South Burlington, Vermont" dated August 21, 1998, last revised January 5, 1999, and prepared by Button Associates, recorded in Map Volume 430, at Pages 57-58 of the Land Records of the City of South Burlington (the "Amended Subdivision Approval"). A true and correct copy of said Amended Subdivision Approval, marked as Exhibit F, is attached hereto. 20. Condition 10 of the Amended Subdivision Approval states: "A Notice of Conditions' addressing the height limitations for structures and landscaping on all 80 lots shall be submitted to the City Attorney for approval and shall be recorded in the South Burlington land records prior to recording the final plat plans." See Exhibit F. 21. Defendants Larkin et al., prepared and recorded a second Notice of Development Conditions, dated January 11, 1999, and had the same recorded in Volume 445, at Pages 392-98 of the Land Records of the City of South Burlington (the "Second Notice of Development Conditions"). A true and correct copy of said Second Notice of Conditions (with attachments), marked as Exhibit G. is attached hereto. 22. The Second Notice of Development Conditions provides, in pertinent part, as follows: "The maximum height of any building and any landscaping on each Lot shall be as set forth on 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 the Attachment hereto. No building shall be constructed or landscaping permitted which shall exceed such limits." See Exhibit G. 23. The Attachment(s) to the Second Notice of Development Conditions, consisting of two separate tables of height limitations for Dorset Park View Protection Zones, are entitled "Pinnacle @ Spear Lots 1 through 51 South Burlington, Vermont" and "Pinnacle @ Spear Lots 52 through 80 Vale Drive South Burlington, Vermont July 28, 1998 (rev)." See Exhibit G. 24. Lot 49 is subject to the limitations contained in the Second Notice of Development Conditions and the Attachment(s), referenced in paragraphs 20-23 of this Complaint. 25. The Attachment(s) to the Second Notice of Development Conditions, lists the maximum "ceiling height" for Lot 49 relative to the Dorset Park View Protection Zone baseline as 417.5 feet. 26. On or about January 1999, Defendants Larkin, et al., prepared and recorded a third Notice of Development Conditions (the "Third Notice of Development Conditions") containing language providing, in pertinent part, as follows: "The maximum height of any building and any landscaping on each Lot shall be as set forth on the Attachment hereto. No building shall be constructed or landscaping permitted which shall exceed such limits." The version of this Third Notice of Conditions recorded in Volume 446, at Pages 494-501 of the Land Records of the City of South Burlington contains the signature of both partners of STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Larkin-Milot Partnership. (The Second Notice of Development Conditions, as recorded, contained the signature of only one partner). A true and correct copy of said Third Notice of Development Conditions, marked as Exhibit H, is attached hereto. 27. Lot 49 is subject to the limitations contained in the Third Notice of Development Conditions, referenced in paragraph 26, above, and in the documents and/or attachments referenced therein. 28. On or about February 3, 2000, Defendant Larkin, et al., conveyed Lot 49, and the structures and improvements located thereon, to Defendants Michael and Kathryn Luciano by Warranty Deed recorded in Volume 471, at Pages 98-99 of the Land Records of the City of South Burlington. A true and correct copy of said Warranty Deed, marked as Exhibit I, is attached hereto. 29. Defendants Michael and Kathryn Luciano are the current owners of Lot 49 and they own, occupy, maintain and control the structures and improvements located thereon, including the dwelling at issue in this matter. 30. As the current owners of Lot 49, Michael and Kathryn Luciano are obligated by law to comply with all applicable requirements of the Zoning Regulations and the law of the State of Vermont. COUNT I 31. Plaintiff herein repeats and reaffirms the allegations contained in Paragraphs 1 through 30, above. ■I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 32. Commencing on or before June 30, 1999, one or more of the named Defendants commenced land development on Lot 49 of the Property by constructing a single family dwelling that exceeds the maximum elevation standards contained in the attachments to the several Notices of Development Conditions and in Article XXII of the Zoning Regulations. 33. At no time have any of the Defendants obtained approval from the City to construct a single family dwelling on Lot 49 that exceeds the maximum elevation standards contained in the attachments to the several Notices of Development Conditions, referenced above, and in Article XXII of the Zoning Regulations. 34. Constructing a single family dwelling on Lot 49 that exceeds the maximum elevation standards contained in the attachments to the several Notice of Development Conditions and in Article XXII of the Zoning Regulations constitutes a violation of said Zoning Regulations and of 24 V.S.A. §4443. 35. By written notice dated June 30, 1999, the City notified Defendants Larkin and Milot of the violation of the Zoning Regulations referenced in Paragraph 33, above. (The City also issued a second, virtually identical notice dated July 19, 1999, to the same Defendants to correct a typographical error contained in the June 30, 1999 notice). True and correct copies of said notices, marked as Exhibits J and K, are attached hereto. 36. The City recorded a notice of said June 30, 1999 notice of violation in the land records of the City of South Burlington. i A true and correct copy of said notice, marked as Exhibit L, is attached hereto. 37. On or about July 6, 1999, Defendant Larkin filed a form with the City which this Court ultimately construed as his attempt to appeal the June 30, 1999 notice of violation. See In re Appeal of John Larkin, Decision and Order on Motion to Dismiss or Remand or for Summary Judgment, Vermont Environmental Court Docket No. 159-9-99Vtec (May 29, 2000), at 4. 38. Defendant Milot did not appeal either notice of violation, and the time for taking an appeal has now passed. 39. On remand from this Court, and by written decision dated July 11, 2000, the South Burlington Development Review Board denied Defendant Larkin's appeal from the June 30, 1999 notice. A true and correct copy of said decision, marked as Exhibit M, is attached hereto. 40. Defendant Larkin did not specifically appeal the July 11, 2000 decision of the South Burlington Development Review Board to this Court, nor has he requested a stay of enforcement relative to the July 11, 2000 decision from any body or tribunal. 41.. Despite the above -referenced notices and decision, all of the Defendants have failed and/or refused to comply with the requirements of the Zoning Regulations and applicable provisions of Chapter 117 of Title 24. 42. As of the date of this Complaint, none of the Defendants have taken any action to correct the violation STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET FO BOX 1507 9 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BUR.LINGTON, VERMONT 05402-1507 identified in the above -referenced notices, and said violation continues. /1 TTTTM T T 43. Plaintiff herein repeats and reaffirms the allegations contained in Paragraphs 1 through 42, above. 44. Commencing on or before June 30, 1999, one or more of the named Defendants commenced land development on Lot 49 of the Property by constructing a single family dwelling that exceeds the twenty-eight foot (28) height limitation contained in Zoning Permit 97-54. 45. At no time have any of the Defendants obtained approval from the City to construct a single family dwelling on Lot 49 that exceeds the twenty-eight foot (281) height limitation contained in Zoning Permit 97-54. 46. Constructing a single family dwelling on Lot 49 that exceeds the twenty-eight foot (281) height limitation contained in Zoning Permit 97-54 constitutes a violation of said Zoning Regulations and of 24 V.S.A. §4443. 47. At all times material to this matter, Defendant Larkin, individually or in his capacity as a principal of Larkin-Milot Partnership, has held himself out as the agent, representative or contact for the above -named defendants. 48. The City has specifically notified Defendant Larkin, through his attorney, regarding the above -referenced violation. 49. Despite having received notice of said violation, Defendant Larkin has failed and/or refused to comply with the 10 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 requirements of the Zoning Regulations and applicable provisions of Chapter 117 of Title 24. The other named Defendants have similarly failed and/or refused for comply with the requirements of the Zoning Regulations and applicable provisions of Chapter 117 of Title 24. 50. As of the date of this Complaint, none of the Defendants have taken any action to correct the violation referenced in Paragraph 44, above, and said violation continues. COUNT III 51. Plaintiff herein repeats and reaffirms the allegations contained in Paragraphs 1 through 50, above. 52. The property located at Lot 49 does not comply with the above -cited provisions the Zoning Regulations and the law of the State of Vermont, to wit: the building located thereon does not comply with required elevation standards or the twenty-eight foot (281) height limitation contained in Zoning Permit 97-54. 53. Defendants Michael and Kathryn Luciano, as the current owners and occupants of Lot 49, are liable for the violations set forth in Counts I and II, above. RELIEF REQUESTED WHEREFORE, the City of South Burlington respectfully requests that this Court provide the following relief: 1. Issue a preliminary and permanent injunction requiring Defendants to modify the single family dwelling located on Lot 49 of the Property to comply with the maximum elevation standards 11 contained in the attachments to the several Notices of Development Conditions, referred to in Paragraphs 9-11, 13-14, 21-24 and 27, above, and in Article XXII of the Zoning Regulations; 2. Issue a preliminary and permanent injunction requiring Defendants to modify the single family dwelling located on Lot 49 of the Property to comply with the twenty-eight foot (281) height limitation contained in Zoning Permit 97-54; 3. Award the City fines and penalties in the amount of $100.00 per day for every day from July 8, 1999, that Defendant Larkin has been in violation of the Zoning Regulations and 24 V.S.A. §4443. 4. Award the City fines and penalties in the amount of $100.00 per day for every day from July 8, 1999, that Defendant Milot has been in violation of the Zoning Regulations and 24 V.S.A. §4443. 5. Award such other relief as this Court deems appropriate. DATED at Burlington, Vermont, this fla _LJ day of October, 2000. SON718.LIT STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitze Page & Fletcher, P.C. 12 ph S. McLean STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER (-ALSOADMITTED IN NY) Carl Lisman, Esq. Lisman, Webster, (802) 660-2555 (VOICEITDD) FAX (802) 660-2552 or 660-9119 E-MAIL (FIRM2555igF1RMSPF.COM) WRITER-S E-MAAIL (JMCLEANTFIRMSPF.COM) WRITER'S FAX (802) 660-2552 October 17, 2000 Kirkpatrick & Leckerling, P.C. P.O. Box 728 Burlington, VT 05402 Re: Appeal of Larkin Vermont Environmental Court Docket No. 159-9-99Vtec Dear Carl: JOSEPH S McLEAN TIMOTHY M EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY I am writing in response to your letter to me dated September 20, 2000, relative to the above -referenced matter. Specifically, I am notifying you by this letter that the City Council for the City of South Burlington met last night to discuss Mr. Larkin's proposal to resolve his appeal involving the house located at #69 (formerly #6/Lot 49) Pinnacle Drive in the City by lowering the peak seven (7) inches. Upon due consideration, the Council unanimously rejected said proposal. Accordingly, it appears that we must go forward with the pending appeal at this time. In an effort to fully resolve this matter, the City will be commencing a parallel enforcement action in the Environmental Court relative to the alleged violations of the City's Zoning Regulations. I hope to serve you with a copy of the City's complaint in short order. Please let me know if you are not willing to accept service on behalf of Mr. Larkin. With regard to the pending appeal, I would greatly appreciate it if you would take this opportunity to review and supplement, as appropriate, your answers to Appellee's First Set of Interrogatories and Requests to Produce (copy attached). In particular, please reconsider your answers to Interrogatories 3-6 in light of the information recently provided to you by the City regarding the measured height of the building at #69 Pinnacle Drive. I would appreciate receiving any supplemental responses from you by November 1, 2000, so that we may review them prior to trial. Carl Lisman, Esqq. October 17, 2006 Page 2 Thank you for your attention to this matter. Please let me know if you have any questions. ruly yours, ph S. Mc Enclosure cc: Raymond J. Belair (w/ closure) Charles Hafter (w/o enclosure) 07-19'=2001 FRI 11:07 AM ST?TZEL PAGE FLETCHER PC FnX NO. 8026602552 P, 02 LISNI-kN,'k1'fRSTFR, KIRKPATRICK cis Lf:C'KY'Y I TNG, P.C. CAR I. I I I I4AfAN AI.I.1'ND WCIISTY:R,CPA MRYU NWIPAIKICK I: WILUANI I.r.mr. X40 MR, Rlll$ N1,11IK0 Qtl114iflt RICI IAW, W RO/.LOWSKI CIIAf,.WNA A IIAN W I•:,lialul,lut.. tiIlmP,rs Joscph S. McLean, R,sn. Stiuct, Page & Vletcher, P.C. 171 13attcsy Strect, P.O. Box 1507 Bulrlingtoll, V'1' 05402-1507 Dem. Joe; AlTORNINS Al' I,AW I' 17, Jim "-AIu u IW 1t)N, VVkNrWr 03402 I'cicphotw 802-864-5756 'rciccopier $02464-3629 Direct !.inc 902-965.2500 ext. 225 Web%ilo Addremm www.Ilsm;m.com I?.. n l Addrems: clismtln@1ismlu eam October 15, ?001 �._L'urlinz?tonlL�lrkin OG t fr'l:g IN FINANCIAL 1'L.A% A AT 9.1 PINI•. STIU.I:T nt/RI.YIu'; l'pt4,"JTi1tAt6NT 31.1kx A 1W 1.1f,ht AN MANY P. ICE1102 M NSM. I �OCT 7 zoos , i • S71TZ L,pC lu connection with this mattcr, I am enclosing the StipUlation, signed by Mr. Larkin for all (Wendanls and approved by me, as well as the proposed Order, also approved by me. Mike: Graveline will contact Fay to coorditkitc the work. V N {:1114;my l nel, cc.: Mike Graveline SUaxipltA(111,awm'„+ole;ul,!A!!LI Wild OCT-19- Of11 FFI I- l�& ,AM SiI -FADE Fi.-iGHE�t PC FAX NO, �1 6602552 STITZ13L, PAGE & FLE".CC HER, P.C. A`'TORNEYS A'CLAW 171 BAT"! mI y suuE'f 11,0, BOX 1507 BURUN(YrON, VEHIT MONT 05,,i02-1507 (B02) 660-2545 (VOTC,UMD) VM ($02) 660-2552 or 660-9119 C'A1II Ii. PACiI'" libit�[l.(I'IitMlti5$ic�PJRiNSPF.COM) ItC11t1i1t'1' I:'i'C'F.MR WJiI'CiSl2•ti ii-hG11� (IMCI1.r9N(a l il;M�ilr�`�.C'.D11� J ."V,PFi $. A7ri. i,.1h1 WRITER'S GAX (902) 660.2552 21h1��'i'1IY M1C. t'I3';:ACF, (-Al Vn A)Wiiliv r) IM 9 V) October 17, :2001 Cjjah:•11+-,b Rafter, City Manager city of. South Burlington 5,15 Borset street Scutl, Rur,lingtcil, VT 05,103 rye: Ci+-y,. Q. . i=- Rurll;iaciiy-, John. Larkin, et al. nnar Chu(,!k : A MiANDA S. R. I.AFFP,RTY EDWARD Ci. AWMAN F icl osad is the Stipulation for Fnt.ry of Order in connect.icn With tho above-„'e:fercnc:ed matter, Please sign and return to my ri 'r f,:Llix-jg with the Environmental Court. Thank you.. Singrj1y, Jr,eph S . McLean ,:rsr�1; Viz, zoil l 616 ' V'riv CCT-19-2001 FRI I1: 08 :9N ST ITEEi_ PAGE F'LETCHER PC FAX NO. 8025EOH52 P, 04, SRIIT,L> PA01"o A1' )RNT1YS AT LAW r.n 110K I r'07 UV14IdNG40N,Vrrl-' K. 0iY(m irwr STATE OF VERMONT ENVIRONMENTAL COURT SIB RE APP9AL OF ( OHN LARXIN Environmental Court CITY OF SO=H BURI(INGTON ) Docket Nos. 159-9-99Vtec V. } & 244-10-00 ,.70HN LARKIN, ST AL. } STIPULATION POR ENTRY OF ORDER NOW COMES John Larkin, individually, and John :parkin et al., (collcctively 'Larkin") by and Lhruuy�l hio/heir attorneys, Lisman, Webster, Kirkpatrick & Leckerling, P.C., and the City of South Burlington (the "City"), by and through its ,attorneys, Stitzel, Page & F letc'n_er, P.C., and hereby stipulate and agree that the Court: may enter an Order in these matters as set forth boIow. WHEREAS, Larkin has appealed to the Environmental Court from a decision of the South Burlington Development Review Board upholding the Zoning Administrator's determination that z house constructed by him at #69 (formerly #6/Lot 49) Pinnacle Drive in the City it in violation of the Scenic View Protection (SVP) Overlay District standard;-, contained in the City of South Burlington "Coning Regulations; and WHEREAS, the City has commenced a zoning enforcement action in the Environmental Court against Larkin and others to obtain complitanco with it o Zoning Regulations; and 1 OCT-19-2001 F?I 11:09 Ali ST:TZEL P:9GE FLETCHER PC FAX NO. 3026602552 P. 05 STYUNT 11M,X & YLP'CURTIZ, FC. ATTOR,NMN AT 7,MV 111 iin11'GilPj;�PliY1 Y' f1i lIVAN VUN. V1ii:MVP: 1' V.09.1 W 4 WHEREAS, the violaLicn of the SVP zone standards was first brought to Lhe City's attention by Larkin himself; and WHEREAS, the violation of the SVP zone standards, while the result of negligence, was unintentional; and WHEREAS, Larkin has proposed to make structural alte.ratiens tc t.hr roof of the house at -469 Pinnacle Drive, to pay a penalty for the violation of tho SVP zone standards, including a portion of the City's litigation-xelated expenses; and WHEREAS, Larkin and the City agree that it is in their mutual best: interest to resolve their dif'ferencos by this Stipulation and Order, rather than through litigation in the Snvironmonta1 Court; NOW WHEREFORE, in consideration of these premises, the parties hez7eto st:ipulatc and agree that the Environmental Court inay enter an Order dismissing the above matters, subject to the fa].lowing : 1. Within thirty (30) days of the date that said Order is executed by the Environmental Court, Larkin shall take appr:op,iato steps to reduce the height of the uppermost roof -Line on the house at ##69 Pinnacle Drive by at least one (1) foot_ 2, Prior to commencing the work referenced in Item 1, above, Larkin shall provide the City's zoning Administrative officor with at. least 7-day notice of the same. 2 OCT-19-2001 FRI 11:09 MM S71T7EL FMGE FLETCHER PC FAX NO, 8026602552 F, 06 IT171 ZE1, rnr r! L ITI, .'1'CHFVL, P.C. A311101M1 rh Nil I AA1V 471 RATTMICHT( ill P C)14.1\ Iul tVl llq,ll'J(TTG'Y77N, Vli7tNt i1v 9' 0!r(n Jno? 3. Prior to commencing the work referenced in item 1, td.)ove, Larkin's representative and the City's representative shall meet to determine the benchmark from which the oxisting height of the house at 469 pi,naacle Drive shall be measured, the existing heigl,Zt (kof the house from that benchmark, the point to which the roof -line shall be lowered relative to the benchmark, ari6 the methodolcgy for de,ermining that the required 1-foot reduction has been complwed with. 4. Within fifteen (15) days of the, date on which the work referenced in Ttem 1, above, is complete, Larkin's representative and the City'u represez,.tative shall agree and attest:, in writing, that the work has been completed and that the height of the uppermost roof -line on the house at W Pinnacle Drive has been reduced by at least one (1) foot relative to the agreed upon benchmark, which shall be specifically identified therein. Said at Lectatioii shall be submitted to the Environmental Court, and incorporated into its Order as Exhibit A. S. Upon receipt by the City of said attestation, the Zoning A.clmi ni ,trator shall prorrtpcly .issue to Larkin, or his designee, a Co tificat:e of Occupancy for the house at ##69 Pinnacle Drive, G. With7-n 30 days of the date that this Order is executed by t.hc- Environmental Court, Larkin shall pay to the City, by cex;tified check or money order, monies in the amount: of Li OCT-19-2001 FRI 11:10 AM STITZEL PAGE FLETCHER PC FAX NO, 3026602552 P. 0 STITZ3',I.,, VAGr & I,'wn-.nlrrt, r,c. NIVOfdQEY'i AT LAW Y U:TUR 1541 Moi 81 0,000.00 dollars, which sum shall include both a penalty and a Porti011 Of the C:ity's legal fees and expenses to date. 7. Failure to comply with the terms of the Environmental Court,'s Order shall. be enforceable in a proceeding for contempt. In any contempt proceeding arising out of an alleged violation of t:h'i ,s Order, if it is established that Larkin has failed to Comply with tho required 1-foot height reduction, by any amount whatscovor, the City shall be entitled to specific performance by ila.r.kin to comply with tho required 1-foot height reduction, and to recovor all, of its costs and fees, including its attorneys fens. By executing this docurtiont, the part:ics hereto waive the requirement of ser.-vice of the same as a prerequisite to commence any conte.mpt proceeding. i DATSD at Surl..incgton, Vermont, this it day of Sep tuber, 2001, JOHN LARKIN, ET AL. By Wc n Larkin, fdr himself Wd all named Defendants DATID at South Burlington, Vermont, this day of Septcmber, 2001. M CITY OF SOUTH BURLINGTON By: Charles Rafter, its duly authorized agent OCT-19-2001 FRI 11 11 STITZEL PAGE FLETCHER PC FAX NO. 8028602552 P. 08 APPROVE Carl 14.�lisman7 Eaq,, Attotii ,y for Larkin et al. A�y rr wepl S WMcLean, Esq., ttorney for City mou799.lit $4'C'I'Llily l:4C{': n xivillm, ra aT1' ?NM14AT LAW 171 uA'PAft 61v3u"1.1T PS) IKTX 1lJAI lit 11;1,1N r61xYNN0v'r fW141 1407 5 COT-19-2001 FRI 11:11 V 3T TZEL FACE FLETCHER FC FAX NO, 3025602552 F. C9 FLET(:31e.h. M11 A9Tc]RNIIY4 AT t,AW UCH l: A Nli IYl J, V lillMf IN'I' oraog. Irm? STATE OF VERMONT ENVIRONMENTAL COURT IN RE APPEAL OF JOHN LARKIN Environmental Court CITY OF SOC7' M BURLINGTON ) Docket Nos. 159-9-99Vtec V. ) & 244-10-00 JOHN LARKIN, ET AL. ) ORDER On the basis of a Sti.puiation for Entry of Order, dated August 2001., execrated by the parties hereto and Flied with thc: Environmental Court, this Court hereby orders as follows. By this order, the above -captioned matters are DISMISSED, with prejudice, subject to the fallewIng conditions: 1. Wit:hin thirty (30) days of the date that this Order is executed by the Environmental Court, Larkin, shall. take 4appropr_-are steps to reduce the height of the uppermost roof. -line ou the, house at 469 Pinnacle Drive by at least one (1) foot. 2. Prior to commencing the work referenced in Item I., above, Larkin shall provide the City's zoning Administrative Officer with at lease: 7-day notice of the same. 3, Pricy- to ccrimencing the work referenced in Item 1, abovc, Larkin's representative and the City' s representative shall meet to determine the benchmark from which the existing height of the house at #69 Pinnacle Drive shall be measured, the existing height of the house from that benchmark, the point to which the roof -lint shall be lowered relative to the benchmark, 1 QCT-19-2001 FRi 11:12 V ST T%E*- PAGE FLETCHER PC FAX NO, 3026602552 P, 10 STJ r�'ri,, Jim;1h & 111,11,TGE M, rc, krTC1n1 +GY 9 AT i.A'W J'A 11AI1'LM N'1'AIIAIW ." N1.1 N" lUM, W'11MNNY' M, ICU I and t 1e R-ieLlicdology for determining that the required 1-foot redrrcrion has been complied. wi.th. ,g , W.l;:1in fifteen (15) days of the date on which the wort: referenced In item i, above, is complete, Larkin,`s representative and the: City's representative shall agree aria at,Zest, in writing, that thy: work has been completed and that the- height of the uppc:rinost roof -line on the house at #6a Pinnacle Drive 'sza.s been i:educcd by at least one (1) Foot relative to the agreed upon benchmark, which shall, be epec:ifically identified therein. Said attestation shall be submitted l:o the Environmental Court, and incorporated herein as Fx,hibit A. 5, Upon receipt by the City of said at_estation, the Zoning Administrator, shall, promptly issue to Larkin, or his designee, a Cex: t iz iccrte of Occupancy for the house at: #69 Pinnacle Drive. G. Wit:hin 30 days of the date that this Order is executed by the Environmental court, Larkin shall pay to the City, by certified check or money order, monies, in the amount of $10,000.00 dollars, which sum shall include both a penalty and thy-. C;,ty's legal fees and expenses to date. 7, Failure to comply with the terms of this Order shall be enforceable in a proceeding for contempt. In any contempt T;Jrocceding arising out of an alleged violation of this Order, if it is established, that Larkin has railed to comply with the required 1-foot height reduction, by any amount whatsoever, the 2 CCT-19-2001 FRI i1:12 AM STITZEL PAGE FLETCHER PC FA,x, NO, 8026602552 F. i"- CiLy shall be entitled to specific performance by 'Larkin to comply with the required 1-toot height reduction, and to recover all of its costs and fees, including its attorneys fees. By axecuting this document, the parties hereto wave the requirement of service. of the same as ca prerequisite to commence any contempt proceeding. pre; 1 AP Fit ®RM ; Carl H. Lisman, Csq., *t:'e" ey for Larkin et al. Jo, eph S. McLean, Esq.,� _,.fit - tornay for City :aonPO�.11t RUT2.FT, PAGS, & A'T'[Y}RNEYSA'C LAW 372 hRl`PgR4 HTIµ -Al MAI iNarum. 1iUIMu:BT Ow , vor Date OCT-19-2001 FRI 1113 AN ST?TZEL PAGE FLETCHER PC FAX NO, 3025602552 UACTF,& ArTOHNPAS AT l,A1N 171M•CIylity A1111mir 1' n[ 1 YU 1N170K, N" WI- N 1 IM•UIL LOP STAVE OY VERMONT ENVIRONMENTAL COURT IN RE APPEAL OV JOHN LARKIN Eraviro=ental Court CITY OF 5O` ITH BURLINGTON ) Docket Nos. 159- 9 - 99Vtec V. ) & 244-10-00 JOHN LARKTN, ET AL. ) MZ 1§ T A NOW CODE the duly authorized representative of John Larkin, Lndividua.l.ly, and 7chn Larkin et al . , (collectively "Larkin") and the duly authorized representative cf she City of South Burlington (the "City"), and hereby stipulate and agree that the work referenced in a Stipulation for Entry of Order and an Order of the Vermont Environmental Court, prepared in connection with the above -referenced matter, has been satisfactorily completed, and that the height of the uppermost roof -line (---�--, the top of tho ridge vent) on the house at 469 (formerly #6/Lot 49) Pinnacle Drive in the City has been reduced by at least one (1) foot. DATED at. , this day of , 2001, IIy: Duly autt � ��cel�-�� re of the City VE O STU t7 AA C,r_JAn-�7 � r. i _Uv'" A'.Ct<; F" �:.MC)t�i'T �i COUNTY OF ._11 1__ ) as. + to aY K-- ?fit _ r, on the day of !rsonally appeared and liG/ :n.L1u uc rliowieagea this in ntrument r)y him/her, sealed and subscribed, to be his%her free acr. qnd deed. 1 OCT-19-2001 FRi 11:1AST TGEP.GFETCHER PC FAX N0, 302660255P. 133 12 Before mu, tsotary Pubis My Coiiimission Expires., DATED ;:t_ this day of 2001. By, I;uly authorized representative of =he John Larkin and Larkin et al. STATE OF VERMONT C'0137NTY OU ss . At _ on the day of — , 2000, personally 1 appeared _ _ , and he/she acknowledged tr,is instrument by him/Yicr,- sealed and subacribed, to be his/her free act and dF�d. Before inc, D011a 4.11t PITH ET,. rnr;r. & PLET( IRr 4, PC. AIVOR'N KYS AT LAW 1'!t o�.rl'r,�cr ry'u�aer 1movix 11:o 2n!W. ,iTbN,WIWiNIr VIM 4tl!Y Notary Public My Commission Expires: �- 2 MEMORANDUM To: Chuck Hafter, City Manager From: Raymond J. Belait,'�X ministrative Officer Re: John Larkin, Zoning Violation, 69 Pinnacle Drive Date: October 13, 2000 This is to give you and the Council some background information on this zoning violation. On April 14, 1977 Dick Ward issued Zoning Permit #97-54 to "A & M Construction," Defendant Larkin's builder. By its terms, Zoning Permit 97-54 authorized a structure twenty-eight feet (28') in height. Following the issuance of the permit, A&M Construction constructed the single family dwelling. In preparation for the sale of the house, the prospective purchaser asked Mr. Larkin to certify that the house did not exceed the height limitations. He hired a survey crew and they measured the house at 419.21 feet above mean sea level (MLS). The maximum allowable height for a structure on this lot is 417.5 feet above MSL. This is the limit allowed by the view protection zone in the zoning regulations. As part of the approval for the Pinnacle at Spear development, Mr. Larkin was required to record a "Notice of Conditions" (see attached), which gave the maximum allowable height for each lot in the development. The maximum height for this lot (lot #49) is 417.5 feet. Mr. Larkin contends that he was issued a permit for a 28 foot high house (see attached) and built a 28 foot high house. The City hired Civil Engineering Associates to measure the house from a MSL point of view and from the average post construction grade (see attached). This investigation showed that he built a 29.3 foot house and that it is at elevation 419.0 MSL. This is 1.5 feet higher than allowed by the zoning regulations and 1.3 feet higher than he said he would build. The problem seems to be that the builder started the house at too high an elevation. Had the house been started at a lower elevation, a 28 foot high house could have been constructed to meet the 417.5 foot height limitation. The builder was careless and this is the result. 1 a-13-2000 1 1: 4SAt 1 FRUM BURT PAQU I N FORD 9 1 802 524 734 , .�• •.>„ .g...vrwJt0U4d Se�^F`e�dbY. OC —®1-3V)N W6957p n VmWcs it. 2MO Th t-4 nAmbezi of tr South Bsa<li n tray trayy ell" WC are ow —,. wsl homes in the P:i WAC sttbdiwtsioA. War =dw tared ttw Mr, Larkro ire pmposed tm remove 7 incht3 Em m the pexL of tip bsartae w 69 ptea: Drive. ats sar de ment oi'the t Wi % claim UHd the hotw's height v�xz= thhe City's ordinatare establistilx4 at view corridor using A point ease of D r€at Suet as its base. I: = wntiM to I&VC AMCvai of the Wpomd setttetaertt. Aa zoan As Ms. INLA leaped of star passible via Iran, he irnmediaWy notified the City. btatha try try to hide sae pwblem, he wu Wfiwn ueith the City and hope&l tact as amicable solta an mould be miccd out. Mr. La:rkln hw ;NMffMtd'iltat the tt -=rein g: s&auw5azwr atsasu'cd him tha the proper way W rftaure a buildza#'s heig bi :uas to "dais a Adngt" &Wn tie pftk of the toof to the SCmMd. By deal ar ell-temamt, thw bQ iaa ake is 01.ght t thtm six iwfaes tees tfiil. OUr Gis"M is poly zwathEti,c. PA120vin 7 , ch,, will not kvolue tLc str letum, inw scily of Ow home and V All mot cfim e ks wMeriar uppewws in any mmeraingfaal way, However. t+cYr mli of MM LVAM ? imbes will fora ft Ccst V=or to Alm the peak in an tsammaactisre wad•. If the Citlr betaeseas thjj likokhood with the ftW estt ids Whisk 3UiCt LorxtpURWC Would regUire, it 8ga= to us thM 160 &11e shvWd rap w w*14 pMOvmS do arL hitgctwW design of the i ornt. 'We t h% W=V iag 7 i the peak it a wluiian aaars idwed by the taEwyt:rs for MIa. L&ridn nod tttie C41Y. This is a guard soladM aA we se wMgend t c the City Cvurw sp�pmve it- Nwnc- Addrm: l/-r �6 5�� . 1 P _- _ r am ■ CITY OF SOUTH BUR)<,fl9a2'TON PERMIT Nql f .....:.. � APPLICATION FOR ZONING PERMIT lot. Copy CODE OFFICER and. Copy CITY ENGIRIEER 3rd. Copy CITY ASSESSOR 4th Copy APPLICANT Date ................................ � .. �.. 99;✓ �.. The und®rd9ned horaby applies for parmiotlon to make certain building Improvements oa dmcrlbad below. (Plena to be Dubrnittod If requi7od by Suilding inapsctor.) All conotruetlon to Ise completed In accordance with the Zoning Laws and Building Regulations of the City of South Burlington and the Stato of Vermont, end con- form to the Regulation¢ of the National Board of Firo Underwriters and any and all Federal Regulations now in affect. STREET NUMBER . • . s :. •, -��.- •- iBUILDER , -SEWAGE SUPPLY: Public Cy Private 0 ■■■-WATER DISPOSAL: Public Ej Septic Tank 0 Permit ROAD OPENING: (Show layout) Permit -Underground to • . ■ • Permit - • mom: Plot to scale Lot and Building Improvements, 3howing width of Front, Side and Rear Vords. Mark N at Compass point Indicating North. Concrete lEi�■��� ■a■■■■■a■aaa■ ■as■■■■■■■■/■■■■■■■■■■■■■■■■�-.. ►■■1 Concrete Block �����■■■■■■■■■■■ia■n■■■■aa■■■■■■■■■■■■■■■■■■■■I Brick or Stone ■■11■■■■■■■■■■■!r■■■■■■■■■■■■■■■■■■■■i■■■tl!■■■■■� Cellar Area Full ON ■■11■■■■■■a■■■1+1■■■■�■a■■■■■■■■■■■■■■■■■■I:�■■aatl M-Recreat. Room ■■n�er��le� 1■■��I■a■■ ■■■■■■a■/■■■■■■■■■■■1■■■■a■I No Cellar ■■1l11�■■■■■U■■■■■■■■■■■■■■■■■■■■■■■■■■■■■I!■■■■■� Clapboards ..11.......1I■.a■■■■■■��■■I!■■■■■■■aa■■■■.a...... • Air■■I■■a■■al■■I aa■a■■■■■ ..!■■■a■■■■■a■a■�■1......, ■■i!■■■■a■■1'?I■■■■a■■■a■■■■I!a■f"====='I�alsaw I■��l �l1!//■!M - �Forced Air Furn.Asbas. � ■aaI■■■■■■7Cora■■■■■■■■■■■■■�=_�:I■■■■■ui■i■■■11e�ra■a;.� Wood Shingles Shingles =Stucco =■■I■■■■■■■■Irk■■.■■■■■■■■■■■■■!I■■■■■11■■■■■■!!■■a■■1 MJllt.a■■a■■19I■■■■■■■■■■■■■■■■�l■■■■■1:1■■■■■■1■■a■■I on rrame - No Heating ®,i■■■a■■11f■161a■■■■■■■a■■■■■■■a■■■■■1'1■■■■■■I■■■■aa 1Q�1■■■a■a11■Ifla■■■a■■■■■a■■■a■■■■■■a11■■■■■al ■■■a/■' Stucco on Tile Brick Veneer Brick on Tile �. - ■1■■■■■�■■aa■■■■ ■■■■■■■■gin■■.■a■■■■■■■I■■■■■■ ■■I�■■■■■■a■■■■■■■■■a■a■■■�.a■■■■■■■■■■■■!■/■■■/1 Solid Brick • ° ■■u■■■■■■■r.r••�■■■■�Iclaa■■■■ea■■a®�■■■■■■!■■■anal Stone V _Sm veneer PLUMBING ■■i!■■■■aa■11■■■■■■■a3ii■■■■■■■■■■■�!!■■■■■■Ii■■1■■ Conc. or Cind. BI. Bathroom:■■■■■■■/■■■/■■■■■■/■■■■■■■■■■■■■■i■■■■■sal■a■■■■ = ■■lt■■■■■■■■■■■■■■■■■!■■■■■■■■■■■■■■■■a■alga■a■)• ■■■■■■■■■■■■■■■■■■■■a■■■■a■■■/■■■■■■■■■■r�■■■a■' Terra Cotte '=_Water Closet Kitchen Sink Plate Glass Insulatio Weatherstrip im .•. u . •. •. - •. Asph. Shingles Composition c -� FEE COMPUTATION $ n!ti ''3/f ` SBC;NATORE of OWNER or BUILDER A1'Pflelfi&TION. e REJECTED ❑ APPROVEE) ISSUED / r TO/ Plans received, Yes ❑ No ❑ ADDR SS of OWNER SIGNATURE OF CODE OFFICER Date PtEFRWIM W/ (LRID AOlA A= W10IM`tTHA PfMANOlr SUPBJECT TO APMEAL @4ifnTHON 15 10AV9 Ian nn a rPn wr= nc*n owff% --1 ci PLANNING & ZONING PERMITS --- GRANTOR: MILOT, GERALD & JOHN LARKIN GRANTEE: SOUTH BURLINGTON, CITY OF ADDRESS: PINNACLE DR., 6, LOT 49 INSTRUMENT: NOTICE OF VIOLATION NV-99-04 FILED IN PLANNING/ZONING 06/30/99 Post -it® Fax Note 7671 Date Jp Lb pagges� To V -'t�-410 j From /0'/ Co./Dept. Co. Phone # Phone # Fax # Fax # CITY OF SOUTH BURLINGTON NOTICE OF RECORDING Grantor C Location of premises Type of instrument: ❑ Zoning permit ❑ Subdivision approval ❑ Site plan approval ❑ Certificate of occupancy ❑ Conditional use/variance approval �Y Notice of violation ❑ Certificate of compliance ❑ Health/sewer permit ❑ Land Development Permit ❑ Design Review Project description ,4A i Date Issued L ' MLAcipal official 471 59 1' And the Grantors, for themselves and their successors and assigns, does covenant with the Grantees, and successors and assigns of the Grantees, that until the ensealing of these presents the Grantors are the sole owners of the premises, and have good right and title to convey the same in manner aforesaid, that they are FREE FROM EVERY ENCUMBRANCE, except as aforesaid; and that the Grantors hereby engage to WARRANT AND DEFEND the same against all lawful claims whatever, except as aforesaid. J IN WITNESS WHEREOF, the Grantors have caused this deed to be executed this 39-day of February, 2000. IN PRESENCE OF: bl k_ J�--:�1..�.._l�z_ itness r / _. A.,i,ndCc �l✓4.r�,Qp� Witness itness STATE OF VERMONT CHITTENDEN COUNTY, SS. John/ Larkin Gerald C. Milot, by John P. Larkin!atAney- in fact pursuant to a power of attorney, dated June 12, 1995, recorded in Volume 409, Page 192 of the City of South, Burlington Land Records LARKIN MILOT PARTNERSHIP B Y ...._ Jo . Larkin, a General Partner At South Burlington this � day of February, 2000, John P. Larkin, individually and as attorney -in -fact for Gerald C. Milot, personally appeared, and he acknowledged this instrument, by him sealed and subscribed, to be his free act and deed and the free act and deed of Gerald C. Milot. Before me n ('4G 'L49• (///CLh �dvr1 Notary Public Print Name: L ', k% ki k �Z)X> N 5.0 � My commission expires: 'L - 10 - 03 STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this � day of February, 2000, John P. Larkin, a general partner of Larkin Milot Partnership personally appeared, and he acknowledged this instrument, by him sealed and subscribed, to be his free act and deed and the free act and deed of Larkin Milot Partnership. Before me t n de, �• �/ ✓ [L �-z d r'r) Notary Public Print Name: L i ►�i> i �� A /Y `��f/ My commission expires: ; - 1 v - 1s 3 Prepared by Lisman & Lisman, P.O. Box 728, Burlington, VT 05402 (802) 864-5756 20014\084\1 eg a I\ward eed.ddp Trn-!;fer Tax Varmont Property Ci,ap 231 RrT•`.'��;,r.? 'i:�aY.ta�d�)ifi:A'�:"i�:: }:�hL'1 CEfiLfiECO ' 'fR' Date i a r'ia Y ri CITY CLERK'S OFFICE cI✓ Rsceived '`-af.�.� -// WARRANTY DEED Recorded in Vol.oa page Of So, Burlington Land RNO ALL MIN'BY THESE PRESENTS: � A f h,t JkD C. MILOT and JOHN P. LARKIN, individually and doing business as "" `ll I T PARTNERSHIP, a Vermont general partnership having its principal place of business in Burlington in the County of Chittenden and State of Vermont (the "Grantor"), in consideration of TEN AND MORE DOLLARS paid to the Grantor's full satisfaction by MICHAEL LUCIANO and KQ4TI4; LUCIANO, husband and wife, as tenants by the entirety kc,TM rfn of South Burlington in the County of Chittenden and State of Ve ont the "Grantee" g ty ( ), by these presents, do freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the Grantee, and its successors and assigns of the Grantee forever, a certain piece of land in the City of South Burlington in the County of Chittenden and State of Vermont, described as follows, viz: Being a portion only of the lands and premises conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed, dated July 8, 1990, from Rheal C. Gagnon and Helen N. Gagnon, recorded in Volume 296, Page 538 of the Land Records of the City of South Burlington, and a portion of the lands and premises conveyed to Gerald C. Milot and John P. Larkin pursuant to a warranty deed, dated March 17, 1992, from Marie Underwood, recorded in Volume 322, Page 188 of the Land Records of the City of South Burlington. Being Lot No. 49, as shown and depicted on a plan entitled Nowland Two South Burlington Vermont Plat of Subdivision of Lands of Gerald C. Milot, et. al. dated July 1992, prepared by Fitzpatrick -Llewellyn Incorporated, recorded in Map Volume 286, Pages 111 and 112 of the Land Records of the City of South Burlington. As depicted on the plan, the Lot contains 16,900 square feet, more or less. Said lands and premises are subject to certain rights, easements and covenants, of record, including, without limitation, (a) the Declaration of Covenants and Condition for The Pinnacle at Spear, dated as of February 3, 1995, recorded in Volume 373, Page 253- of the Land Records of the City of South Burlington, as amended and supplemented (including, without limitation, a Supplement to Declaration, dated December _, 1999, recorded in Volume _, Page _ of the Land Records of the City of South Burlington); (b) easement deed, dated January 14, 1994, to New England Telephone Company, recorded in Volume 361, Page 551 of the Land Records of the City of South Burlington; (c) easement, dated March 9, 1995, to Green Mountain Power Corporation and NYNEX, recorded in Volume 377, Page 66 of the Land Records of the City of South Burlington; (d) such other interests as may be of record and which do not interfere with the use or enjoyment of the Lot; and (e) conditional use determination file no. 90-110, issued by the Vermont Agency of Natural Resources, dated March 10, 1994, recorded in Volume 371, Pages 624-632 of the Land Records of the City of South Burlington. Also conveyed herewith are easements over the roadways depicted on the plan and on the plan recorded in Volume 286, Pages 111 and 112 of the Land Records of the City of South Burlington, until such time as they are accepted by the City of South Burlington as City roads. Said lands and premises are subject to, and benefitted, by a Land Use Permit, dated May 23, 1994, recorded n Volume J62-1 Page 625- of the Land Records of the City of South ' - Burlington, as it may have been or be amended from time to time. Reference is hereby made to the aforementioned instruments, the records thereof and the references therein in further aid of this description. TO HAVE AND TO HOLD said granted premises, with all the privileges and appurtenances thereof, to the said Grantees, and the heirs, successors and assigns of the Grantees, to their own use and behoof forever; STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/I'DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660.9119 PATTI R. PAGE• E-MAIL (FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) (•ALSO ADN97TED IN N.Y.) WRITER'S FAX (802) 660-2552 August 28, 2000 Honorable Merideth Wright Vermont Environmental Court 255 North Main Street, VFloor Barre, VT 05641 Re: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Judge Wright: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY I am writing with regard to the "back up" hearing set for August 31, 2000, in the above -referenced matter. To date, Appellant has not filed a statement of questions as he was required to do by August 7, 2000, in accordance with the Court's Decision and Order on Motion to Dismiss or Remand, or for Summary Judgment, dated May 29, 2000. Therefore, the City of South Burlington does not know what issues, other than the variance, this Court will address at the hearing. In addition, Appellant only provided the City with responses to its interrogatories on August 22, 2000, nearly four months after he agreed to do so in the Discovery Stipulation and Order, signed by this Court on March 31, 2000. In the short time that the City has had to review Appellant's discovery responses, it has determined, based on these responses, as well as other outstanding requests for information that the City has made of Appellant, that it needs additional time both to conduct further investigation in this matter and to prepare for any hearing that occurs. Therefore, for all the foregoing reasons, the City respectfully requests that the Court not go forward with the "back up" hearing set for August 31, 2000. Thank you. Sincerely, (� Amanda S. E. Lafferty cc: Ray Belair Carl Lisman, Esq. Son708.lit STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/I'DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATT1 R. PAGE* E-MAIL (FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) (-ALSO ADMITTED IN NY) WRITER'S FAX (802) 660-2552 August 18, 2000 Carl A. Lisman, Esq. Lisman, Webster, Kirkpatrick & Leckerling, PC PO Box 728 Burlington, VT 05402-0728 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Carl: JOSEPH S.McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY I am writing with regard to the above -referenced .. order to satisfy the City's obligations under V.R.C.P. 2b� my correspondence dated July 31, 2000, I asked you to submit outstanding discovery to me by August 8, 2000. To date, I have received nothing. Please forward responses to the City's First Set of Interrogatories and Requests to Produce to me no later than August 23, 2000, to avoid the necessity of a Motion to Compel. In addition, pursuant to the Court's Decision and Order on Motion to Dismiss or Remand, or for Summary Judgment, dated May 29, 2000, your client was required to file a statement of questions, with regard to the DRB decision dated July 11, 2000, no later than August 7, 2000. To date, no such statement has been filed. Please file said statement with the Court no later than August 23, 2000, so that the City may prepare for the "back up" hearing set for August 31, 2000. Finally, Attorney McLean requested documentation as to the actual height of the house located at 69 Pinnacle Drive, and you agreed to provide him with that information. Please notify us as to the status of that request no later than August 23, 2000. Thank you. Sincerely, Amanda S. Lafferty /asel cc: Raymond Belair Son705.1ic CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 2, 2000 John Larkin 410 Shelburne Road South Burlington, VT 05403 Re: Appeal of John Larkin, 6 Pinnacle Drive Dear Mr. Larkin: Enclosed please find a copy of the July 11, 2000 Development Review Board meeting minutes. If you have any questions, please give me a call. Sincerely, Sarah MacCallum Planning & Zoning Assistant Enclosure CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 2, 2000 Carl Lisman Lisman & Lisman P.O. Box 728 Burlington, VT 05402 Re: Appeal of John Larkin, 6 Pinnacle Drive Dear Mr. Lisman: Enclosed please find a copy of the July 11, 2000 Development Review Board meeting minutes. If you have any questions, please give me a call. Sincerely, Sarah MacCallum Planning & Zoning Assistant Enclosure STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER (*ALSO ADMITTED IN N. Y,) Carl A. Lisman, Lisman, Webster, 84 Pine Street PO Box 728 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL (FIRM2555 a FIRMSPF.COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 July 31, 2000 Esq. Kirkpatrick & Leckerling, PC Burlington, VT 05402-0728 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Carl: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDF.S AMANDA S.E. LAFFERTY I am writing with. regard to the discovery schedule to which we agreed and which the Court approved and ordered on March 31, 2000. To date, I have not received your client's responses to the City of South Burlington's First Set of Interrogatories and Requests to Produce, with which you were served on March 31, 2000. According to the Discovery Stipulation, responses were due by May 1, 2000. In light of the upcoming potential hearing date, please provide me with your client's responses to the City's Interrogatories and Requests to Produce no later than August 8, 2000. Thank you. ASEL/bjl cc: Ray Belair Son694.1it Sincerely, ( vv4w o Amanda S. E. 1 Laffert CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGPON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 12, 2000 Cart Lisman Lisman & Lisman P.O. Box 728 Burlington, VT 05402 Re: Administrative Officer Appeal, 6 Pinnacle Drive Dear Mr. Lisman: Enclosed please find a copy of Finding of Facts of the Development Review Board meeting on July 11, 2000. Please note that there are thirty (30) days in which this decision may be appealed. If you have any questions, please give me a call. Sincerely, Sarah MacCallum Planning & Zoning Assistant Enclosure CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 12, 2000 John Larkin 410 Shelburne Road South Burlington, VT 05403 Re: Administrative Officer Appeal, 6 Pinnacle Drive Dear Mr. Larkin: Enclosed please find a copy of Finding of Facts of the Development Review Board meeting on July 11, 2000. Please note that there are thirty (30) days in which this decision may be appealed. If you have any questions, please give me a call. Sincerely, Sarah MacCallum Planning & Zoning Assistant Enclosures CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 7, 2000 Carl Lisman Lisman & Lisman P.O. Box 728 Burlington, VT 05402 Re: Appeal of John Larkin, 6 Pinnacle Drive Dear Mr. Lisman: Enclosed is the agenda for next Tuesday's Development Review Board meeting. Please be sure someone is present on Tuesday, July 11, 2000 at 7:30 p.m. to represent your request. If you have any questions, please give me a call. Sincerely, Raymond J. Belair, Administrative Officer RJB/mcp 1 Encl CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 7, 2000 John Larkin 410 Shelburne Road South Burlington, VT 05403 Re: Appeal of John Larkin, 6 Pinnacle Drive Dear Mr. Larkin: Enclosed is the agenda for next Tuesday's Development Review Board meeting. Please be sure someone is present on Tuesday, July 11, 2000 at 7:30 p.m. to represent your request. If you have any questions, please give me a call. Sincerely, Raymond J. Belair, Administrative Officer RJB/mcp 1 Encl CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 June 30, 1999 Gerald Milot & John Larkin P.O. Box 4193 Burlington, Vermont 05402 Re: Zoning Violation, 6 Pinnacle Drive Dear Messrs. Milot & Larkin: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, you have initiated the following activities on the above -described property: You have constructed a single family dwelling on lot 949 at the Pinnacle at Spear development which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Reduce the height of this structure so as not to exceed the 471.565 foot mean sea level elevation. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to fifty ($50.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. Messrs. Gerald & John Larkin Zoning Violation June 30, 1999 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) days of the date of this letter with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincerely, ry �' •+ � �/, � 1, /� � f / � � Raymond J. Belair, Administrative Officer RJB/mcp cc: Joseph S. McLean, City Attorney 1 Encl Certified letter #Z 462 927 053 Lot #49 Pinnacle Drive (Corner Lot) The following elevations were determined by Krebs and Lansing Consulting Engineers on Thursday, June 24, 1999. Note 1 ertical datum i.s based on tem1m)rary bench marks cripplied by Eit-xrrrick-I.lewellyn Inc. • Top of ridge vent (west end) - 419.21' • Top of ridge vent (east end) = 419,20' • Centcrline of road at center of lot (wcst side of house) — 389.19' • Centerline of road at center of lot (north side of house) = 388.69' ZO'd S196-8ZB-ZO8 sgO-AN -O j,_AOgOb 99:Zi 66-bZ-unc, DEVELOPMENT REVIEW BOARD MEMO JULY 11, 2000 MEETING L All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2. This recommendation for approval of the proposed addition is based on the application's compliance with the design review criteria contained in Section 24 of the South Burlington Zoning Ordinance. The Code Officer shall make the determination of whether or not this application complies with all other requirements contained in the zoning ordinance. 3. The applicant shall maintain the current color scheme of the building as depicted in four photographs dated 6/9/00. 4) CONTINUED: JEFFREY & ELIZABETH GOLDBERG - 5 LOT SUBDIVISION PRELEVHNARY PLAT APPLICATION —1760 DORSET STREET This application was continued from the May 16, 2000 meeting to the July 11, 2000 meeting to provide staff an opportunity to consult with counsel. Enclosed is staffs 5/16/00 memo for your review. A report from counsel will be available at the meeting. Not included in the 5/16/00 memo is the recommendation that Lot 5 be mowed to preserve the open character of the existing field. 5) GUH LETTE —ADMINISTRATIVE OFFICER'S DECISION APPEAL — 314 PATCHEN ROAD This application was continued from the June 6, 2000 meeting to the July 11, 2000 meeting to provide staff and Board Members an opportunity to consult with counsel. Enclosed is staff's 6/6/00 memo for your review. 6) GUILLETTE — VARIANCE REQUEST — 314 PATCHEN ROAD This application was continued from the June 6, 2000 meeting to the July 11, 2000 meeting to provide staff and Board Members an opportunity to consult with counsel. Enclosed is staff s 6/6/00 memo for your review. 7) LARKEN ADMINISTRATIVE OFFICER'S DECISION APPEAL — 6 PINNACLE DRIVE This appeal is per order of the Vermont Environmental Court. The appellant, John Larkin, argued before the Court that when he went before the Zoning Board of Adjustment on 7/6/99 for a variance (see enclosed decision) he really was appealing the Notice of Violation. The violation was discovered during a phone conversation with the appellant that the house at 6 Pinnacle Drive (lot #49) exceeded the height limitation by "about a foot and a half." He was then sent a Notice of Violation (see enclosed). The house at 6 Pinnacle Drive (lot #49) is located in the Dorset Park View Protection Zone A which has a maximum height limit of 417.565 feet above mean sea level. 2 DEVELOPMENT REVIEW BOARD MEMO JULY 11, 2000 MEETING Information provided by the appellant indicates that the maximum height of the house is 419.21 feet above mean sea level (see enclosed) or 1.645 feet higher than permitted. 8) rDORSET LAND COMPANY - AMENDMENT TO FINAL PLAT & DESIGN REVIEW APPLICATION - HAWTHORN SUITES — 421 DORSET STREET The project consists of amending a final plat application of Dorset Land Company, Inc. for a previously approved planned unit development consisting of a 184 unit congregate housing facility and a 104 unit extended stay hotel in two (2) buildings. The amendment consists of 1) a expanding a previously approved 9' x 32' addition to main hotel building to be 12 feet by 30 feet in dimension, and 2) relocating the addition from the north side of the front entrance to the interior courtyard. This addition was previously approved by the Development Review Board on April 4, 2000 (minutes enclosed). The property located at 401 and 415 Dorset Street lies within the CD3 and R7 Districts. It is bounded on the east by Dorset Street, on the north by Aspen Drive, on the south by a GNP substation, and on the west by the congregate housing portion of the PUD. Design Review: The Development Review Board waived review by the Design Review Committee at the June 6, 2000 meeting (minutes enclosed). The proposed alterations will nullify previously approved elevations and keep the exterior facades visible to the public as they currently exist (approved previously by the DRC and the DRB). Coverage/setbacks: CD3 District (adjusted): Building coverage is 25.7% (maximum allowed is 40%). Overall coverage is 47.4% (maximum allowed is 90%). Coverage in the R7 zoned portion of the PUD (congregate housing) will not change. Setback requirements are met. Sewer: No additional sewer allocation has been requested. Landscaping: The applicant has stated that the building costs will not change and therefore no new landscaping has been proposed. Floor Area Ratio (F.A.R.): The F.A.R. for the area of the PUD zoned CD3 is unchanged at 0.63 (maximum allowed by the standard is .7). 9) VERMONT GAS, FINAL PLAT AMENDMENT, GENERATOR INSTALLATION, 85 SWIFT STREET This projects consists of amending a previously approved final plat application for a planned unit development consisting of the existing Vermont Gas building and a 38,428 square foot building for general office use and a bank with drive -through service, 69 and 85 Swift Street as approved on July 15, 1997 (minutes enclosed). The amendment consists of 1) installing a 30kW generator (Capstone Nlicoturbine), and 2) installation of a sidewalk. These properties are located at 69 and 85 Swift Street lie within the C1 District. They are bounded on the east by the access to Darrell Park, on the north by Swift Street and an auto CARL LISMAN ALLEN D. WEBSTER, CPA MARY G. KIRKPATRICK E. WILLIAM LECKERLING DOUGLAS K. RILEY MARK D. OET TNGER RICHARD W. KOZLOWSKI JUDITH L. DILLON CHRISTINA A. JENSEN Clerk Environmental Court 255 North Main Street, 1 st Floor Barre, VT 05641 Dear Ladies: LISMAN & LISMAN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW P.O. BOX 728 BURLINGTON, VERMONT 05402 — OFFICES IN FINANCIAL PLAZA Telephone 802-864-5756 AT 84 PINE STREET BURLINGTON, VERMONT Telecopier 802-864-3629 LOUIS LISMAN BERNARD LISMAN COUNSEL April 21, 2000 In Re: Appeal of John Larkin Docket No. 159-9-99Vtec E-Mail Address: clisman@lisman.com In connection with this matter, we are enclosing Appellant's Opposition to City's Motion for Summary Judgment. Very ly , Carl H. Lisman CHL/ddp Enclosure cc Amanda S.E. Lafferty, Esq. 20014\071 4NIVIN STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF LARKIN ) DOCKET NO. 159-9-99 Vtec APPELLANT'S OPPOSITION TO CITY'S MOTION FOR SUMMARY JUDGMENT The appellant in this matter opposes the City's motion for summary judgment. It is clear that the City mishandled the appellant's appeal to the Zoning Board and has now only realized that a de novo hearing in the Environmental Court — on the theory relied on by the appellant in his appeal to the Zoning Board — will be successful. Accordingly, the City is attempting to avoid a hearing by first arguing that no basis exists for a variance (which is true because that's not why the appellant is in this Court) and then arguing for a remand (which is inappropriate and which would only result in unnecessary and prejudicial delay. The Facts 1. The appellant agrees with paragraphs 1, 2, 3, 4 (except to the extent that it sets forth a legal conclusion) and 6 of the City's Statement of Undisputed Facts, dated April 13, 2000. 2. The building permit specifically states that the height of the building shall be 28 feet. Exhibit 1. There does not appear to be any claim by the City that the building -- as constructed — exceeds 28 feet in height. What the City claims is that the permit issued by its Administrative Officer does not mean 28 feet; it means 28 feet, reduced by some unstated amount to meet the maximum elevation provisions of the zoning ordinance. 3. After receiving the Administrative Officer's notice of violation (referred to in paragraph 6 of the City's Statement), the appellant petitioned the Zoning Board for relief. Prior the hearing, LISMAN & LISMAN, ATTORNEYS AT LAW, P.O. BOX 728, BURLINGTON, VT 05402 864-5756 1 the appellant's lawyers wrote to the Zoning Board to explain the relief being requested. See Exhibit 2. 4. At the hearing, the appellant sought to explain that he was not asking for a variance but for relief from the Administrative's Officer's determination of a violation, because he had built the building in strict compliance with the provisions of the building permit issued by the Administrative Officer. The Zoning Board then decided to deny issuance of a variance which had not been requested. The Issues The appellant filed a Statement of Questions in September, 1999. Now — six months later — the City wants to recast the issues on appeal. It is too late to do that. The issues are as they were stated then. Summary Judgment This remedy is not available at this time to either party in this proceeding. As to the City's motion, it is based wholly on its assertion that the proceeding before the Zoning Board was a request for a variance. The contrary appears from Exhibit 2 as well as the appellant's own words at the hearing on July 26, 1999. This raises a fundamental dispute of a material fact; summary judgment cannot be granted under these circumstances. Samplid Enterprises v. Ver.—nont :National Bank, 165 Vt. 22 (1996). Remand It is clear that the City has misunderstood what the appellant has been seeking since last summer: Entitlement to rely on the issued building permit height limitation (see Exhibit 1) based on theories of estoppel and fair dealing. This matter is just about ready for a merits hearing; depositions LISMAN & LISMAN, ATTORNEYS AT LAW, P.O. BOX 728, BURLINGTON, VT 05402 864-5756 2 will be taken next week and discovery — at least the first round — will be done. As far as the appellant is concerned, he wants that hearing to occur as soon as possible,' Conclusion The appellant believes that he has a legitimate right to rely on a building permit issued by the Administrative Officer. In reliance on ---- and in strict compliance with — the permit, the appellant constructed a dwelling. The Administrative Officer then claimed that the building exceeded the ordinance's elevation limit, even though it complies with the permit. Established principles of equity mandate that the City not be able to take this position. The City's motion should be denied, and the matter set for a merits hearing as soon as possible. DATED at Burlington, Vermont this 21" day of April, 2000. CA 20014\067\1ega1\oppsumjudgment.chl LISMAN &1SM",)P.C. Carl H. Lisi'nan, Esq ' If the Court were to remand for a hearing before the Zoning Board — and retain jurisdiction in the event that the appellant's requested relief is not granted, so that this proceeding would go forward without a significant delay — then the appellant would not object to a remand. There is still the issue of the amount. if any, of fines to be imposed. It is the appellant's position that imposition of a daily fine should, at the very least, exclude the time attributable to the City's delays in getting this matter to a final decision. LISI•IAN & LISMAN, ATTORNEYS AT LAW, P.O. BOX 728, BURLINGTON, VT 05402 864-5756 3 CITY OF SOUTH RURIINGTON PERMrr 1., Post -it' Fax Ncte -1 APPLICATION FOR ZONING PERMIT To vv n Ihte ......................... /� L` 19t� rx Fax fi r' f.er •nl wlon c0 me.• eerteln Dulidi'•• b+•vbmitt-d 11 ..pvlr.d .y 11v11d7n• 1n"peClpr•) ' .cco. d.nc. wfer V%* Zoning LA —find 901dine q.4. Mt1oro O1 1h. City o. Sov lh •urlln/ran Ind M. 5%V10 of V.rmoert, er•d ap, .O.m 10 in• n. �rntlOn• Or m• N.tlOnel •o—d Of Fir. Underwrl tery find ny end fill ; do-# R••vleflw now In .ff •ct. CONSTRUCTION STREET (Ti , , ,(- L ; I_ , r NUMBER OCCU►ANCY FLOORS LOT SIZE: Frontage C• Depth / Lot No- SfnO• Femily • 1 7 9 Two Femlly OWNER f.,., BUILDER AO•.tn.nt No, F.m• sonh Son Pine WATER SUPPLY: Public Private p O•flc.fi Mfi.dWOe4 ws.sno .. I WA Til. GE DISPOSAL: Public &t Septic Tank O Permit 0 I_III__[EVA... ■■gm • . OPENING: (Show layout) Permit * :. . . lv�. Carl ■ - 1Cj lid • � � ...taro■.s■.■.■11000 . ........■i■.■..■.■■ Monona ■■. l�C"l ;���/� ■■■■■■■■■■■■■■m■wuu■■■■■■■w■■i■�■iiia■mtiiisF' -ai Igm■�fi��fi������e�r. rfir■ssr ����•�.raeweeere.�rrw..r.%■aMfg _�■■.- ■q■■■■■■■■■■■■■N■■■■■■■■■■■r■�■■■e mo■■■■■ ■■■q■■■■■R■■m■■ ■q■■■ ■■■■■■mum■■■■■!■muse >•■a!�■r��■ e■mssw■■■■�■■■■■■■>•■■■■■■mm■m■■rsmf■fe - ■■■■■■■■■■Ice■■■■■■�i■■■■■rm■m■■■■■■■■■mmmwuawMM■ at■awrrrn�nt�■.rrr■■■wrrrr�asaanrwiiu•■aawa�n::paa • muumuu■�U■t1■■■■■■■■■■■■■■m■m■■■■■Nm■■■mmr■■!ma■ = • = m■■■!■■■mEl■■■Tim■■■!1■■■■■■■Aq■■■A■■■■■m7■ mmm■ �. :• � w■■w■c�ww■■■■ww■■rwwww■wwaw■w■■a■Mw■Maat■wm■a■ ■■■■■m■a■mwww■■■q■■w■■■■■■■wwM■■■■MONSOO■ _ ■rwww■ww■w■w■w■■■■■wfwww■■w■■www■wwwrit■w■u■■ ■�a■■qm■■■■■■■■■■■■■■■�mm■■w■/■■w■■■w■■■■Mang = w■wuawwwaa■■■w■■■u■■aawwsmum■■w■ww■m■■Mfg ■wt•��M rem r�N��Nir.���rM�N 2■■a■e . •. . ■ — Data E IFF'S BIT CARL H. LISMAN ALLEN D WEBSTER. CPA MARY G KIRKPATRICK E. WILLIAM LECKERLING DOUGLAS K. RILEY MARK D OETTINGER RICHARD W KOZLOWSKI JUDITH L. DILLON CHRISTINA A JENSEN City of South Burlington Zoning Board of Adjustment 575 Dorset Street South Burlington, VT 05403 LISMAN & LISMAN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW P 0 BOX 728 BURLINGTON, VERMONT 05402 —•••• OFFICES IN FINANCIAL PLAZA Telephone 802-864-5756 AT 84 PINE STREET Telecopier 802-864-3629 BURLINGTON. VERMONT July 23, 1999 Appeal of John Larkin, 6 Pinnacle Drive Dear Zoning Board Chairman and Members: LOUIS LISMAN BERNARD LISMAN COUNSEL E-Mail Addren dnlcy /�ylisma com We represent John Larkin in this matter. A hearing of our client's application to you is scheduled for your meeting on Monday, July 26, 1999. This letter sets out the legal basis of Mr. Larkin's claim. The building permit for this house was granted to the contractor by Dick Ward. The permit allows the house to be 28 feet high. As it turns out, 28 feet high is roughly one foot above the height allowed by the Dorset Park View Protection Zone Regulations. Mr. Larkin would like your approval of construction of the house to the 28-foot height allowed by the permit. Any portion of the roof that projects above this height will be removed to comply with the permit. This request is not a request for a variance in the usual sense. Rather, it is a request that the City honor the terms of the permit, upon which our client and his contractor relied in good faith. To require reconstruction of the roof to the height literally mandated by the Dorset Park View Protection Zone would result in substantial and unnecessary cost for no real benefit. The Vermont Supreme Court decided many years ago that a municipality can be held legally to the terms of a permit it issues, even if the permit does not comply in all respects with the PLAINTIFF'S EXHIBIT 2 City of South Burlington Zoning Board of Adjustment July 23, 1999 Page 2 regulations under which it was issued. The Supreme Court decision is My Sister's Place v. City of Burlington, 139 Vt. 602 (1981). I have enclosed a copy of this decision. The case involved a proposed restaurant in a building in Burlington. The fire marshal gave the applicants a list of improvements that he would require before approving the construction. He then changed his mind (stating that he had not been aware of the regulations earlier) and denied permission to construct the restaurant. The proponents of the restaurant sued the City for the cost of the preparatory work they did on the restaurant. The Vermont Supreme Court agreed that the proponents of the restaurant were entitled to money damages from the City. The Court observed that the fire marshal was a "duly authorized agent of the City charged with the duty of enforcing the National Fire Safety Code." The Court went on to rule that a part of the fire marshal's duty was "knowing the law and properly advising the public." Since he acted within his authority, the municipality for which he works was "estopped", or legally barred, from later imposing more stringent requirements than he originally imposed. We request, on Mr. Larkin's behalf, that you instruct the Zoning Enforcement Office to allow this project to proceed with a roof height of 28 feet. Thank you for your understanding and consideration. V tru yours, ouglas K. Riley 1 DKR:k enclosure S:00014\071 \LE77ERS\ZONINGBD. RKB PUBLIC HEARING SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD The South Burlington Development Review Board will hold a public hearing at the South Burlington City Hall Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, July 11, 2000, at 7:30 P.M. to consider the following: 1) Appeal #ZBA-99-30 of John Larkin to overturn the Administrative Officer's Notice of Violation dated June 30, 1999 that the appellant is in violation of the zoning regulations for having constructed a single family dwelling at 6 Pinnacle Drive which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations. 2) Application #CU-00-15 of Chase Properties and Development, LTD seeking conditional use approval from Section 26.05, Conditional Uses, and Section 26.65, Multiple Structures and Uses on Lots, of the South Burlington Zoning Regulations. Request is for permission to allow light manufacturing use in conjunction with warehousing, storage and distribution use, 5 Green Tree Drive. 3) Final plat application #SD-00-33 of Vermont Gas Systems, Inc. to amend a previously approved planned unit development consisting of the existing Vermont Gas building and a 38,428 square foot building for general office use and a bank with drive -through service, 69 and 85 Swift Street. The amendment consists of the installation of a 30kW electrical generator (Capstone Micoturbine) and sidewalk, 85 Swift Street. 4) Final plat application #SD-00-30 of Dorset Land Company to amend a planned unit development consisting of a 184 unit congregate housing facility and a 103 unit extended stay hotel in two (2) buildings. The amendment consists of: 1) adding one (1) hotel unit, and 2) constructing a 12' x 30' addition in place of a previously approved 9' x 32' addition, 401 and 415 Dorset Street. John Dinklage, Chairman South Burlington Development Review Board June 24, 2000 City of South Burlington Application to Board of Adjustment Official Use APPLICATION # HEARING DATE FILING DATE FEE AMOUNT Name of applicant(s) 0A u; L-- Address ��-C�J�_/ �L �"�Gl Telephone # Represented by Landowner �GI'Z �— J�/C//—Mdress_� Location and description of property �� d fL- -101-/Y�2 Adjacent property owner(s) & Address /� /�/�- c� 2 i� % d tt.�, 13! 2e (a to Type pplication check one: ( )appeal from decision of Administrative Officer ( )request for a conditional use ( request for a variance I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month, (second and fourth Mondays). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of hearing. Provision of zoning ordinance in question Reason for appeal Other documen tion Date Do not write below 7'r �'-_ a+_ -- e7 IIZ-e-g ---------------------------------------------------------------------------------------------------------------------------------------------------- SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24, V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Monday, �A4 A � IIti1�Fs at 7:00 P.M. to consider the following: ' er Appeal of seeking a N-&Avf vas from Section of the South Burlington Zoning Regulations. Request is for permission to e(,6(k.r 1 G �� a P/M�-q hill, - �lC� 40e Lot #49 Pinnacle Drive (Corner Lot) The following elevations were determined by Krebs and Lansing Consulting Engineers on Thursday, June 24, 1999. Note: Vertical datum is based on temjx)rary bench marks .supplied by Fitzpatrick -Llewellyn Inc. • Top of ridge vent (west end) 419.21' • Top of ridge vent (east end) = 419,20' • Centerline of road at center of lot (west side of house) s 389.19' • Centerline of road at center of lot (north side of house) = 389.691 ZO'd 9196-RZR-ZOR sq&-AN •O 4_AOgob 45:ZL 66-bZ-unC STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL (FIRM2555(&_FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) (*ALSO ADMITTED M N.Y.) WRITER'S FAX (802) 660-2552 June 1, 2000 Raymond J. Belair Zoning Administrator City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Mr. Belair: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY Amanda asked me to send you the enclosed Decision and Order on Motion to Dismiss or Remand, or for Summary Judgment from Judge Wright in connection with the above -referenced matter. Sincerely, Joan Popovici Secretary JP Enclosure CC: Joseph S. McLean Son4328.cor STATE OF VERMONT ENVIRONMENTAL COURT In re: Appeal of } John Larkin } Docket No. 159-9-99 Vtec } } R r r �. 2 I FJ 20NMENTAL COURT Decision and Order on Motion to Dismiss or Remand, or for Summary Tudgment Appellant appealed from a August 9, 1999 decision of the then -Zoning Board, of Adjustment (ZBA) of the City of South Burlington. Appellant is represented by Carl H. Lisman, Esq.; the City is represented by Amanda S.E. Lafferty, Esq. The City has moved to dismiss or remand, or in the alternative for Summary Judgment. Appellant filed an application on April 14, 1997 for a zoning permit to build a house at 6 Pinnacle Drive. (Lot #49), in Zone A of the City's Dorset Park View Protection zoning district; the application was approved that day by Richard Ward for the City, and was not appealed. A formula in §22.401 of the Zoning Regulations sets a maximum elevation for the top of the building at 417.565 feet above mean sea level. The application form contains standard language that all construction is "to be completed in accordance with the Zoning Laws and Building Regulations of the City of South Burlington." The application shows the frontage of the lot as 105 feet and its depth: as. 150.42 feet, shows the footprint of the proposed house, and shows the height of the proposed house as 28 feet. At some time before June of 1999, the house was fully constructed. Any writing in the "remarks" section of the application is illegible on the copy provided to the Court attached to Appellanes memorandum. If we were to reach the summary judgment motion, material facts would be in dispute as to that writing, as to the slope of the lot, and as to whether Appellant had represented on the application or any accompanying 1 materials that the maximum elevation for the house would not exceed 417.565 feet (see Minutes of July 26, 1999 ZBA meeting, page 3, fifth sentence). In addition, material facts would be in dispute as to whether the view protection zoning had been newly adopted, whether there were any tables available for calculating the allowed height or elevation, as to any calculations or other representations made by the City representative who approved the permit, and as to the prior experience of Appellant with the zoning regulations in general and with the elevation requirements of this district in particular (see Minutes of July 26, 1999 ZBA meeting, last paragraph of page 1 and page 2, generally). As constructed, the elevation of the top of the ridge vent of the house ranges from- 419.20 feet above sea level at the east end to 419.21 feet at the west end. On June 30, 1999) the Zoning Administrator issued a Notice of Violation to Appellant and to Gerald Milot for commencing land development without obtaining a permit, and specifically for constructing a single family dwelling `which exceeds the 417.565 mean sea level elevation rnaxii-num." The Notice of Violation gave them seven days to "reduce the height of this structure" so as not to exceed the maximum elevation, and advised them that they "may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal (see enclosed)" within fifteen days. In small print in the upper left corner, the form is entitled "Application to Board of .Adjustment" and contains the following three alternatives under "type of application," with directions to check one: appeal from decision of Administrative Office.,; request for a conditional use; or request for a variance. The form does not offer "appeal of a Notice of Violation" as an option. Appellant checked "request for a variance," and�tated "see 26" under "provision of zoning ordinance in question." Under "reason for appeal," Appellant stated: "confusion over interpretation of height [requirements]." (Emphasis added.) Appellant filed the form on July 6, 1999, which was within the time allowed for an appeal of the Notice of Violation. No enforcement action has been filed by the City based on the Notice of Violation. The warning of the hearing to be held on July 26, 1999, was prepared by the Zoning 2 Administrator and was published in a newspaper at some time on or about July 10, 1999. It stated that Appellant was seeking a "variance" and that Appellanes request is for permission to allow the house to "project 1.645 feet above the maximum elevation." On July 23, 1999, before the scheduled hearing, Appellant's attorney wrote to the ZBA setting out "the legal basis" of Appellanes claim and stating that "[t]his request is not a request for a variance in the usual sense. Rather, it is a request that the City honor the terms of the permit, upon which our client and his contractor relied in good faith." At the hearing, Appellant reiterated that he was not asking for a variance, but instead for the City to "honor the permit.." The minutes of the hearing reflect that the ZBA chair addressed twice during the hearing whether the problem was due to an error on the part of the City (Minutes, p. 2, 2nd full paragraph and p.3, 4`' full paragraph). The only mention of the variance criteria during the hearing was a ZBA member's statement that "the Zoning Administrator had reviewed the 5 criteria and said that the request should be denied" and the ZBA member's comment that "he had heard nothing to override that." Appellant was given the opportunity to "withdraw and research the issue fiirther," but declined to do so. The ZBA then voted to adopt the Zoning Administrator's findings of fact, which have not been provided to the Court. The City has moved to dismiss the appeal on the basis that the June 30, 1999 Notice of Violation was never appealed, but that instead Appellant had applied for a variance. The City argues that the variance was denied by the ZBA, yet Appellant has not addressed any of the variance criteria in his statement of questions. In the alternative to dismissal of the appeal, the City asks that this matter be remanded for the now-DRB to consider the appeal from the Notice of Violation, arguing that the Court has no jurisdiction to convert the proceedings to an appeal of the Notice of Violation without the DRB's having had an opportunity to consider and rule on the matter. The City also asks, in the alternative to either dismissal or remand, that the Court grant summary judgment in its favor that the permit's specification of a 28-foot height did not 3 relieve Appellant of the responsibility of compliance with the elevation requirements of the zoning regulations. As stated above, material facts are in dispute regarding the circumstances of the approval of the application sufficient to deny the motion for summary judgment. Ambiguities in zoning regulations and procedures are to be construed in favor of the landowner. In re Appeal of Weeks,167 Vt. 551, 555-56 (1998). The following aspects of the appeals procedure are sufficiently ambiguous so that the landowner should be allowed the opportunity to present his appeal of the Notice of Violation. First, the instructions in the last paragraph of the Notice of Violation, specifically combined with the enclosure of the form, suggest that the filing of the form is sufficient to appeal the Notice of Violation, without regard to which box may be checked on the form. This ambiguity is perhaps inadvertently bolstered by the fact that the form provides a space for "reason for appeal," again not suggesting that the form might be read as an application for a variance (or a conditional use permit) rather than as an appeal. During the hearing, the ZBA did not advise Appellant that the only matter before the ZBA was his variance request and not an appeal of the Notice of Violation, nor did the ZBA refer to Appellants attorney's letter explaining that it was not a request for a variance "in the usual sense." Further, the ZBA Chair did allude to the issue Appellant wished to raise, that is, whether the City bore any responsibility for the existence of the problem, although that issue was not fully discussed at the hearing. Finally, Appellant was not asked whether he wished to withdraw his request for a variance, and to continue or come back on the appeal issue, but rather was asked, again ambiguously, whether he wished "to withdraw and research the issue further." From the totality of the circ-umstance�, we must conclude that Appellant raised or attempted to raise an appeal from the Notice of Violation by filing the form enclosed with that notice, and that the then-ZBA should have heard it as an appeal from the Notice of Violation or should have re -warned it upon receipt of Appellant's attorney's July 23, 1999 letter. However, the City is also correct that the then-ZBA did not vote or issue a decision on the issues Appellant sought to raise, but only actually voted on the denial of a variance. This 4 Court should not address a matter on which the municipal body did not issue a decision, even though the ZBA did peripherally discuss the issue. Accordingly, based on the foregoing, the City's Motion to Dismiss is DENIED and the City's Motion to Remand is GRANTED. The City's Motion for Summary Judgment is DENIED as material facts are in dispute, but without prejudice to filing further such motions after the remand proceedings. The present appeal is hereby remanded to the DRB for it to consider and rule on Appellanes appeal of the Notice of Violation. After a decision is rendered on that aspect of Appellanes appeal, those issues as well as the variance issues will be ripe for hearing in this Court. Accordingly, unless either party files a further motion for summary judgment, or motion to continue, or requests more than a half - day of hearing time, the merits of the matter as a whole are scheduled to be heard on August 3 1, 2000, beginning at 1 p.m. Any party appealing the DRB's decision after remand shall file a statement of questions not later than August 7, 2000, to allow the parties to prepare for that. hearing. The Court will be prepared to rule orally at that hearing if the parties wish the Court to do so; in which case the parties shall file trial memoranda at the hearing. Done at Barre, Vermont, this 29"' day of May, 2000. Merideth Wright T Environmental Judge 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (SSTITZEL@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ("ALSO ADMITTED IN N.Y.) Raymond Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ray: I have enclosed a copy Please review this and note Errata Sheet. Once you have please sign it and return it SFS/bj 1 Enclosure Son9311.cor May 1, 2000 OF COUNSEL ARTHUR W. CERNOSIA of the transcript of your deposition. any corrections on the enclosed reviewed it and noted corrections, to me. Sincerely, ,A Steven F. Stitzel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF VERMONT V ENVIRONMENTAL COURT ------------------------- IN RE: ) APPEAL OF LARKIN ) ------------------------- Docket No. 159-9-99 Vtecl D E P O S I T I O N - of - RAYMOND J. BELAIR taken on behalf of the appellant on Tuesday, April 25, 2000, at the offices of Stitzel, Page & Fletcher, P.C., Burlington, Vermont, commencing at 9:00 a.m. APPEARANCES: ON BEHALF OF THE APPELLANT, MR. LARKIN: CARL H. LISMAN, ESQUIRE Lisman & Lisman 84 Pine Street Burlington, Vermont 05402-0728 ON BEHALF OF THE CITY OF SO. BURLINGTON: STEVEN F. STITZEL, ESQUIRE AMANDA LAFFERTY, ESQUIRE Stitzel, Page & Fletcher, P.C. 171 Battery Street Burlington, Vermont 05402-1507 ALSO PRESENT: JOHN LARKIN DARLENE G. LITTLEFIELD COURT REPORTERS ASSOCIATES 117 BANK STREET BURLINGTON, VERMONT 05402 (802) 862-4593 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X RAYMOND J. BELAIR EXAMINATION BY MR. LISMAN: E X H I B I T S DEPOSITION EXHIBITS DESCRIPTION A Height restriction table B Application for Zoning Permit C Notice of Violation; 6-30-99 D Notice of Violation; 7-19-99 E Notice of Appeal F Site plan G ZBA decision H Notice of Development Condition I 7-23-91 letter to ZBA from Doug Riley (Original exhibits retained by Mr. Stitzel.) S T I P U L A T I O N S PAGE 3 PAGE 3 3 3 3 3 3 3 3 15 IT IS HEREBY STIPULATED AND AGREED by and among Counsel for the respective parties that this deposition is being taken in accordance with the Vermont Rules of Civil Procedure; that all objections as to Notice of this deposition are hereby waived; that all objections except as to form are reserved until the time of trial; and that the witness has reserved the right to read and sign the deposition after review by counsel. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 TUESDAY, APRIL 25, 2000; 9:00 A.M. (Deposition Exhibits A through H were marked for identification.) RAYMOND J. BELAIR, having first been duly sworn, testified as follows: EXAMINATION BY MR. LISMAN: Q. Good morning. A. Good morning. Q. No trick questions. If you don't understand, say SO. A. Okay. Q. Tell us your name, for the record. A. It's Raymond J. Belair. Q. And you hold a position with the City of So. Burlington? A. I do. Q. And what is that? A. Administrative Officer. Q. And for how long have you been the Administrative Officer? A. Since May of 1999. Q. And before that, did you have a position with the city? A. I did. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Q. And what was that? A. Planning and Zoning Assistant. Q. And were you the Planning and Zoning Assistant in April of 1997? A. Yes. Q. Was Dick Ward your predecessor in your current job? A. That's right. Q. Let's see if we can't set some foundation here. The So. Burlington zoning ordinance contains provisions regarding building height limitations in some parts of the city; is that true? A. Yes. Q. Now, there came a time in April of 1997 when an application was filed to build a house on lot 49 at Pinnacle at Spear. I don't know whether you know that or not. Let me show you Exhibit B for identification. A. Okay. Q. Are you familiar with that document? A. Yes, I am. Q. That's the Application for a Zoning Permit? A. That's correct. Q. And it's signed by John Larkin as the owner? A. Yes. Q. And by Richard Ward as the code officer? COURT REPORTERS ASSOCIATES 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's right. Q. This is a photocopy? A. Yes, it is. Q. Do we know where the original is? A. I have the original with me. Q. Could you pull it out? A. Certainly. Q. May I just take a look? A. Certainly. Q. So the first question -- the first tough question of the day, Ray, is who do we suppose wrote 28 feet for the building height? A. Don't know. Q. Certainly not you, because you weren't part of this? A. No, not me. Q. Okay. A fee was paid to the city? A. Yes. Q. And so far as you know, a building was built? A. Yes. Q. Now we jump forward in time. The next thing that happens, as far as you are concerned, is conversation with John Larkin; is that right? A. Yes. Q. Can you recall when or where that was? It's not COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I critical. A. It was I believe in the end of June, towards the end of June. It was a call from John saying I think we have a problem, the house is about a foot too high. Q. Okay. Now, this would be 1999? A. Yes. Q. Do you recall what you said? A. I'm sure I knew at that time, but I don't recall at the moment, no. Q. Did you go out to the house and look? A. No. Q. Based on the information that John Larkin provided to you in that telephone conversation, do you recall taking any action? A. Yes, I sent John a Notice of Violation for having the house too high. Q. And that was based on the information that he had provided to you? A. Yes. Q. Okay. And that notice would have been Exhibit C? A. Yes. Q. That's the earlier of the two letters. And then you followed that up with a letter 19 days later, Exhibit D? A. Yes. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 Q. What was the reason for sending a second letter? A. I don't recall. Q. They look awfully similar, don't they? A. Yes. Q. Could it be that they're the same letter sent twice? A. Yes, it appears to be identical. Q. Okay. And no recollection as to why? A. I don't -- no, I don't. Q. Is it possible that the first one didn't get sent, Exhibit C? A. No, I believe I have the certified mail receipts in the file for that letter. Q. The reason I ask you that is on the second page of both C and D is the certified letter number. A. Yes. Q. And they're different numbers? A. Yes. Q. And you have receipts for both? A. Yes. Q. Now, let's start with this. Exhibit A is a document called Table of Height Determination for Structures and Landscaping within the Dorset Park View Protection Zones and so on. A. Yes. COURT REPORTERS ASSOCIATES I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Where did that come from? A. From a requirement of the Planning Commission to record a notice of conditions in the land records which included this table. Q. Okay. And this table, among other properties, shows lot 49? A. That is correct. Q. I can turn the page. Did I go too far? A. Yes. Q. Yes, I did. There are four typed columns here? A. Yes. Q. Help me understand what the columns represent. A. Column 1 is the lot number in the development. Column 2 is the view protection zone. There are two zones on this property, zone A and zone D; and this indicates which zone the lot is in. Column 3 shows the distance from the Dorset Park View Protection Overlay District baseline to the center of the lot in linear feet. Q. Okay. A. And column 4 shows the maximum elevation that either landscaping or structure can be placed on the lot based on the limitations of the height view protection zone expressed in feet above mean sea level. Q. And for lot 49 that's -- that height limitation COURT REPORTERS ASSOCIATES I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is? A. 417.5. Q. Okay. Now, in addition to the four typed columns, there are two handwritten columns, one to the left of column 1 and one to the right of column 4. Do you know what those handwritten entries are? A. No. Those were written by Dick Ward, and I don't know what he was trying to tell himself when he wrote those. I don't know. Q. Okay. And this document, Exhibit A, came from the files of the Zoning Administrator? A. Yes. It may also have come from the actual document that was recorded in the land records. Q. Yes. Or said differently, the typed version was what was in the land records, but the one that you produced, Exhibit A, came from your files? A. Yes, that's correct. Q. Because the one that was recorded doesn't have the handwritten stuff? A. That's correct. Q. Now, let me show you Exhibit H for identification. This is a letter from me to you in January of 199, I think? A. January, yes. Q. In connection with the second phase at Pinnacle COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 which required also another Notice of Development Condition, as did the first phase. A. That's correct. Q. And attached to the Notice of Development Condition is a chart like Exhibit A? A. Yes. Q. The format is different, but would you agree with me that the numbers on lot 49 are the same or the entries on lot 49 are the same? A. Well, this number is different. The 417.5 is identical. Q. Now, when you say "this number," you were pointing to column 3? A. Yes, on Exhibit A. Q. And for the record, on Exhibit A the number for column 3 is what? This one. A. 5660. Q. And for Exhibit H? A. 5650. Q. Now, help me out, Ray, what is the significance for the purposes of maximum elevation of the distance from the baseline? A. The maximum elevation is determined by its distance from the baseline. Q. Okay. So Exhibit H says it's closer to the COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 baseline than Exhibit A says; is that right? A. Yes, 50 feet closer -- 10 feet closer, excuse me. Q. Okay. Now, after you sent the notices to John and Gerry Milot regarding the violation, did you have another conversation with John Larkin? A. I don't recall. Q. Exhibit E is an application to the Zoning Board of Adjustment; is that right? A. That's right. Q. Actually there's more than one page here, there are three pages. Do you have the original of this with you as well? A. I do. Q. Can I take a look at that? Thanks. Now, this says it was filed on July 6th, 1999? A. Yes. Q. And that would have been after the first letter, Exhibit C, and before the second letter, Exhibit D? A. Yes. Q. For whatever that means. Do you recall whether John Larkin came to your office to fill this out? A. I don't recall. Q. Do you recall how you received it? A. I don't recall that either. Q. Attached as the second page of Exhibit E are two COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 receipts? A. Yes. Q. One for $10, one for $75? A. Yes. Q. What were the payments for? A. The $75 was for the appeal fee, and the $10 was for recording the decision which will result from filing this appeal. Q. And the appellant pays the filing fee? A. Yes. Q. And then the third page is something called Lot #49 at Pinnacle Drive, Corner Lot. Where did this come from? A. This came from Mr. Larkin. Q. How did you get it? A. From Mr. Larkin. Q. Okay. A. I don't recall when. Q. You can't recall when, all right. And what does that tell you, if anything? A. Well, the information that I used in the June 30th Notice of Violation included numbers which are taken from this, this -- Q. So the implication is that this third page of Exhibit E was available to you on or before June 30th? COURT REPORTERS ASSOCIATES 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q. And you think that's the case? A. I think that's the case, now that I think about it, yes. Q. Okay. And what do these numbers tell you? A. That the elevations -- spot elevations were taken at the top of the ridge vent on the west end of the house by Krebs & Lansing Consulting Engineers on Thursday, June 24th, 1999, and that elevation was determined to be 419.21 feet. And the top ridge vent at the east end of the house was determined to be 419.20 feet. The elevation of the center line of the road of the lot on the west side of the house was determined to be 389.19 feet. And the center line of the road at the center of the lot north side of the house was determined to be 388.69 feet. Q. What significance, if any, are the elevations of the center line of the road? A. They have no relevance to me. Q. And based on Exhibit A, the maximum elevation was supposed to be 418.5 feet, and this page says it was 419.2 or .21, depending on where the measurement was taken. A. For the center of the road elevation? Q. No, I'm talking about the house, I'm sorry. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 Exhibit A says that the maximum elevation on lot 49 -- I'm sorry, I looked at the wrong number -- is 417.5? A. That's right. Q. And this says that they're more than that? A. That's correct. Q. Okay. By 1.7-ish? A. 1.656. Q. A foot and a half? A. A foot and a half. Q. Give or take. So Exhibit E is submitted by John -- is that his signature? A. It appears to be. Q. Okay. On or about July 6th? A. Yes. Q. And the box that's checked here says: Request for a variance? A. Yes. Q. Did you have any conversation with him about what it was that he wanted to accomplish from the Zoning Board? A. I believe I had at least with one of the conversations that I had with John, suggesting that the remedy was either to lower the house heighth or obtain a variance to leave the house where it is. Q. So based on that, this box got checked? COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A. Yes. Q. And then a hearing was scheduled for July 26th, 1999? A. That's correct. Q. And for the record, Exhibit G is the Zoning Board's decision? A. That's correct. Q. Now, before -- I knew I should have made a copy of this. Before the hearing was held by the Zoning Board, did it receive a letter dated July 23, 1999 from Doug Riley from my office? A. Yes, they did. Q. Do you have a copy of this letter? A. I do. Q. Can you put a sticker on your copy? Let's call this Exhibit I. (Deposition Exhibit I was marked for identification.) Q. Did the members of the Zoning Board actually receive that letter, or did it just go to you? A. I'm not sure. Q. Okay. And that's dated July 23, 1999, and it appears to have been faxed from Larkin Realty on July 26th, 1999. Did you get a copy by fax? A. I don't remember. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 Q. And then the Zoning Board met on the 26th? A. Yes. Q. And you were present? A. Yes. Q. And at that time Mr. Larkin expressed that he wasn't there to get a variance; is that right? A. I don't remember. Q. Okay. But in fact, the Zoning Board treated it as an application for a variance and then denied it? A. That's right. Q. Exhibit F is big. It's large size. It's two pages. The first page is an elevation for the building on lot 49? A. That's correct. Q. And the second page is at least part of the site plan for the Pinnacle at Spear, and it includes lot 49? A. That's right. Q. Is there anything on the second page that identifies maximum elevations? A. I don't see anything on here that refers to that. Q. Okay. So let's talk about the first page. Since this says elevations, it must. What does it show for elevations here? A. There's a statement on both the -- Q. If you want to turn to that, you can. COURT REPORTERS ASSOCIATES 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. -- south elevation and the north elevation. Quote, maximum heighth of structure elevation 417.50 feet. Q. Okay. Now, does it also say anywhere how tall the building will be? A. It shows a distance of 28 feet 6 inches from the finished grade of 389.00 feet. Q. How did you come in to possession of Exhibit F? A. This was provided by Mr. Larkin as part of the submission to the Zoning Board for the hearing. Q. In July of 1999? A. Yes, for the hearing on July 26th. Q. So the first time the Zoning Board would have seen this was -- A. At the meeting. Q. -- at that meeting in 1999, okay. Now, the building permit -- let's start again. The Application for a Zoning Permit said that the maximum height of the building would be 28 feet; is that right? A. It does say heighth. It doesn't say maximum. Q. I'm going back to Exhibit A and directing you to lot 49. The handwritten number to the left of column 1 is 389? A. Yes. Q. And the elevation shown on Exhibit F is also 389? COURT REPORTERS ASSOCIATES M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, it is. Q. Would that lead you to conclude that Mr. Ward had marked for each of the lots identified on Exhibit A the base elevations for all of the buildings? A. I'm not sure what you mean by "base elevation." Q. Well, I'm not sure I am either. All I know is that by comparing Exhibit A and Exhibit F the same number appears, and in Exhibit F it's called -- I'm sorry, on Exhibit -- yes, it is F -- it's called elevation. So these would be elevations? A. They appear to be -- Q. Okay. A. -- elevations. Q. Now, if we go over to the column to the right of column 4, what is that number? I can't read it. A. It's 394.0. Q. Opposite lot 33 in the handwritten right-hand column it says I think FFE 395? A. Yes. Q. Do you have any idea what that means? A. First floor elevation. Q. And opposite lot 34 it says E 390.5? A. Yes. Q. What do you suppose the E is? A. It could be elevation. COURT REPORTERS ASSOCIATES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you. MR. LISMAN: Okay, that's all I have. THE DEPONENT: You're welcome. MR. STITZEL: I have nothing. (The deposition concluded at 9:33 a.m.) 19 COURT REPORTERS ASSOCIATES 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SIGNATURE OF DEPONENT I, the undersigned, do hereby certify that I have read the foregoing deposition and find it to be a true and accurate transcription of my testimony, with any corrections so noted on the errata sheet. Date: ---�� ---- — ----- ---- YMOND J. BELAIR STATE OF �LLL--- COUNTY OF Subscribed and sworn to before me this l:�q day of _ 2000. NOTARY PUBLIC My commission expires: �10 COURT REPORTERS ASSOCIATES 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C E R T I F I C A T E I, Darlene G. Littlefield, Court Reporter and Notary Public, do hereby certify that the foregoing pages, numbered 3 through 19, inclusive, are a true and accurate transcription of my stenographic notes of the Deposition of RAYMOND J. BELAIR, taken before me on Tuesday, April 25, 2000, commencing at 9:00 a.m., for use in the matter of IN RE: APPEAL OF LARKIN, Docket No. 159-9-99 Vtec, as to which a transcript was duly ordered. DARLENE G. LITTLB�Fad ELD, RM, CRR COURT REPORTERS ASSOCIATES STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ('ALSO ADMITTED TN N.Y) VIA EXPRESS MAIL STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/FDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555 FIRMSPF.COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 May 1, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: OF COUNSEL ARTHUR W CERNOSIA Enclosed for filing with the Court is the City of South Burlington's Reply to Appellant's Opposition to the City's Motion for Summary Judgment. I also enclose my Certificate of Service evidencing service upon Appellant. Thank you. Sincerely, Oo % .j, (� - Amanda S. E. Lafferty ASEL/bjl Enclosure cc: Raymond Belair Carl Lisman, Esq. Son4310.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARRIN ) Docket No. 159-9-99 Vtec CERTIFICATE OF SERVICE I, AMANDA S.E. LAFFERTY, hereby certify that I served a copy of the City of South Burlington's Reply to Appellant's Opposition of City's Motion for Summary Judgment, dated May 1, 2000, upon Appellant's attorney, Carl A. Lisman, Esq., by causing a copy to be placed in U.S. Mail, postage -prepaid, this 15t day of May, 2000. DATED at Burlington, in the County of Chittenden and State of Vermont, this 1`t day of May, 2000. son667.1it STITZEL, PAGE k FLETCHER. P.C. ATTORNEYS AT LAN' I-N HATFEHY STREET P.O. HOX 1507 HORLIAGTOS. VERNIW0 l 05402 150 i CITY OF SOUTH BURLINGTON By: h111^VQV)11d/,P1 ` a Amanda S.E. Lafferty 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 RATTEHISTREET RO. BOX 1507 BURLINGTON. VERMONT 05402.1507 IN RE: APPEAL OF LARRIN STATE OF VERMONT ENVIRONMENTAL COURT Docket No. 159-9-99 Vtec CITY OF SOUTH BURLINGTON'S REPLY TO APPELLANT'S OPPOSITION TO CITY'S MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and submits the following reply to Appellant's Opposition to City's Motion for Summary Judgment, dated April 21, 2000. For the reasons set forth herein, and in the City's Motion to Dismiss, to Remand or, in the Alternative, For Summary Judgment, dated April 13, 2000, this Court should issue an order concluding this matter in the City's favor. Memorandum For the reasons discussed in its prior memorandum, dated April 13, 2000, the City continues to believe that dismissal is warranted in this case given Appellant's failure to address any of the statutory variance criteria in his Statement of Questions. There is no question that the issues, as stated by Appellant, fail to embrace any issue relevant to the variance application submitted to and reviewed by the City. And, this Court is without authority to simply convert this proceeding to an appeal from a decision of the City's Administrative Officer ("AO" herein), given the nature of his application, the warning and proceedings below, and Appellant's failure to timely appeal the Notice of Violation issued by the AO. To the extent that this Court is inclined to consider Appellant's appeal on the merits, it should issue an order granting summary judgment in the City's favor. Appellant's response to the City's motion is woefully inadequate, and does not even begin to meet the most basic requirements of V.R.C.P. 56(c). That provision provides in pertinent part The opposing party [to a summary judgment motion] shall include with the affidavits and memorandum filed under paragraph (1) a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. See V.R.C.P. 56(c). In this case, Appellant has failed to support his filing by affidavit, and he similarly fails to set forth a statement of the facts "as to which it is contended there exists a genuine issue to be tried." Id. (The City's Motion for Summary Judgment, which Appellant apparently did not read thoroughly, assumes that Appellant's appeal was an appeal from a decision on the Administrative Officer and is not "based wholly on . . . [the] assertion that the proceeding before the Zoning Board was a request for a variance," as Appellant contends). Further, Appellant fails to "controvert" any of the facts contained in the City's Statement of Undisputed Facts. Therefore, this Court must assume that the facts are as set forth in the City's submission. See V.R.C.P. 56(c). 2 It is axiomatic that summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, after giving the benefit of all reasonable doubts and inferences to the nonmoving party. See Breslauer v. Fayston School Dist., 163 Vt. 416, 422- 23 (1995) (citing State v. Delaney, 157 Vt. 247, 252 (1991); V.R.C.P. 56(c)). There is no genuine issue of fact for trial where the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. (citing Kelly v. Town of Barnard, 155 Vt. 296, 305 n. 5 (1990)). This case is particularly susceptible to resolution by summary judgment. There is no question regarding the requirements of the City's Zoning Regulations, the content of Appellant's permit or the elevation of the dwelling. (Indeed, Appellant, himself, provided the City with the information on the elevation of the dwelling). Thus, the only relevant issue for resolution by this Court is a legal one - to wit, whether the permit issued to Appellant authorizing him to build a house 28 feet in height also exempted him from compliance with the maximum elevation standards contained in the Zoning Regulations. It is the City's position that the permit had no such effect. It is well established that a municipality is not required to state all potentially applicable zoning requirements on every permit, see In re Kostenblatt, 161 Vt. 292, 300 (1994), and "[e]nforcement of the requirements of the bylaw against [a] landowner is not . . . a collateral attack on the permit." Id. 3 at 301. Appellant has offered nothing to suggest that compliance with all applicable requirements of the City's Zoning Regulations, including both permitted building height and maximum elevation, is impossible. Accordingly, this Court should render judgment in the City's favor. In his filing, Appellant attempts to make an issue of the posture of this appeal. Specifically, he argues that the question of whether Appellant's appeal to the ZBA was a request for a variance or an appeal from a decision of the Zoning Administrative Officer ("ZAO") precludes this Court from granting the City's motion. This argument is without merit. While it is clear that Appellant submitted to the City an application for a variance, and that the City warned and held a hearing on Appellant's application, the City's motion for summary judgment assumes that his appeal was from a decision of the AO. Given that assumption, the record as a whole could not lead a rational trier of fact to find in Appellant's favor. There is no question that he was obligated to meet all applicable requirements of the Zoning Regulations, including maximum elevation standards. Appellant also suggests, without any support whatsoever, that a hearing is necessary so that this Court may consider certain equitable arguments that he seeks to present. To the extent that Appellant seeks to present these arguments as a defense to the Notice of Violation issued by the City's AO, he is precluded from doing so at this time. See 24 V.S.A. §4472(a), (d). Further, Appellant has failed to point to any act by any 2 City official, other than the issuance of the permit itself, on which this Court could even begin to predicate an equitable estoppel. Instead, Appellant argument is that simply by issuing a permit for a 28 foot high dwelling, the City's AO induced his detrimental reliance such that he proceeded to construct a dwelling 28 feet in height, notwithstanding the maximum elevations standards clearly set forth in the Zoning Regulations. There are no other facts to support an estoppel argument by Appellant, and this claim is so weak that is may be disposed of by this Court without a hearing. First, the doctrine of estoppel must be applied with great caution where a municipality is the involved party. See My Sister's Place v. City of Burlington, 139 Vt. 602, 609 (1981). Further, even assuming the availability of the estoppel remedy, the generally accepted elements of equitable estoppel are simply not present here. In particular, it is clear that no one had knowledge of the true facts regarding the elevation of the dwelling until sometime after the permit was issued and the dwelling constructed. Unfortunately, it is Appellant, as the property owner, who is ultimately responsible for this mistake. There is absolutely no evidence to suggest that the City's AO, in issuing a permit for a 28 foot dwelling, knew that the construction of such a dwelling would necessarily violate other applicable zoning requirements, and that he authorized Appellant to proceed anyway. On the contrary, the zoning permit, on its 5 face, notified Appellant that he was responsible for compliance with other applicable requirements. The zoning permit issued in this case speaks for itself. There is no question that the City is bound by the terms of that permit, and it cannot contest the height limitations contained therein at this time. Nonetheless, the City is entitled to compliance with the other applicable standards in its Zoning Regulations, including maximum elevation limits. As noted above, the City need not specifically set forth those other requirements in the permit, itself. Appellant, however, did have an obligation to comply with all applicable zoning requirements. He failed to do so. Accordingly, the heart of Appellant's appeal - i.e., that the City somehow misled him by issuing a permit that contained express height limitations, but not maximum elevation limits - is without legal basis. This Court should reject his claims, and summary judgment should be granted in the City's favor. CONCLUSION For all of the foregoing reasons, the City of South Burlington asks this Court to issue an order granting summary judgment in its favor in the above -referenced matter. 6 DATED at Burlington, Vermont, this 15-� day of May 2000. CITY OF SOUTH BURLINGTON By: Stitzel, Page & Fletcher, P.C. Its Attorneys For Joseph S. McLean 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S.MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ('ALSO ADMITTED IN N.Y) April 25, 2000 HAND DELIVERED Carl H. Lisman, Esq. Lisman & Lisman 84 Pine Street Burlington, VT 05401 RE: Appeal of John Larkin Docket No. 159-9-99 Vtec Dear Carl: OF COUNSEL ARTHUR W. CERNOSIA Enclosed please find the City of South Burlington's Response to Appellant's Interrogatories and Requests to Produce. Additionally, I enclose Deposition Exhibits A -I. Please contact me if you have any questions. Thank you. Sincerely, c6v"A, Amanda S. E. ASEL/bjl Enclosure cc: Raymond Belair (w/o encl.) Son4305.cor �.L ` - HW Lafferty STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VO10E/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 OF COUNSEL PATTI R. PAGE* E-MAIL(FMW555@FIRMSPF.COM) ARTHUR W. CERNOSIA ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY (-ALSO ADMITTED IN N.Y.) April 25, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, ist Floor Barre, VT 05641 RE: Appeal of John Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: Enclosed for filing with the Court is the my Certificate of Service evidencing service of the City of South Burlington's Response to Appellant's Interrogatories and Requests to Produce. Thank you. Sincerely, ow,v,,,Ovv,,O .Qt i , (� . 4k Amanda S. E. Lafferty ASEL/bjl Enclosure cc: Carl Lisman, Esq. Raymond Belair Son9306.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) Vermont Environmental Court Docket No. 159-9-99 Vtec CERTIFICATE OF SERVICE I, AMANDA S.E. LAFFERTY, hereby certify that I served a copy of the City of South Burlington's Response to Appellant's Interrogatories and Requests to Produce, dated April 25, 2000, upon Appellant's attorney, Carl H. Lisman, Esq., by causing a copy to be hand delivered this 25th day of April, 2000. DATED at Burlington, in the County of Chittenden and State of Vermont, this 25�h day of April, 2000. Son662.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW -,I sATrERY STREE•r P.O. sox 1507 RORI.INCTON. VERMONT W,401.1507 CITY OF SOUTH BURLINGTON BY Amanda S.E. Lafferty 1 STITZEL, PAGE S FLETCHER, P.C. ATTORNEYS AT LAN' 7.1 RATTER)' STRITT Po, BOX 1507 RNPL)S(;TOC. VERMONT Of41)L 1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARRIN ) Vermont Environmental Court Docket No. 159-9-99 Vtec CITY OF SOUTH BURLINGTON'S RESPONSES TO APPELLANT'S INTERROGATORIES AND REQUESTS TO PRODUCE NOW COMES the City of South Burlington by and through its Administrative Officer, Raymond Belair and he responds, under oath, to Appellant's Interrogatories and Requests to Produce as follows: 1. State the name and title of each individual responsible for answering these Interrogatories and Requests to Produce. Response: Raymond Belair, Administrative Officer for the City of South Burlington 2. Produce a true and accurate copy of all correspondence, notices and other written communications between appellant and the City relating to the subject matter of this proceeding. Response: The City has possession and control of the following written notices and communications between the Appellant and the City of South Burlington: 1. John Larkin's Application for Zoning Permit, dated April 14, 1997; 2. Elevation measurements as documented by Krebs & Lansing Consulting Engineers, dated June 24, 1999; 3. South Burlington Zoning Notice, dated July 10, 1999; 4. Letter from Raymond Belair to Gerald Milot and John Larkin, dated June 30, 1999; 5. Request to South Burlington Zoning Board of Adjustment for a variance, dated July 6, 1999; 6. Letter from Raymond Belair to Gerald Milot & John Larkin, dated July 19, 1999; 7. South Burlington Zoning Board of Adjustment's Findings of Fact, Conclusions of Law & Order dated August 9, 1999; and a. Sketch demonstrating maximum elevation of the building. 3. Produce a true and accurate copy of all ordinances, regulations, rules or other official actions of the City establishing building height limitations applicable in this proceeding including, without limitation, any of the foregoing that show or tend to show how building height is to be measured, within the time and in the manner provided by V.R.C.P. 34. Response: A true and correct copy of the City of South Burlington's Zoning Regulations is attached hereto. DATED at Burlington, Vermont this day of April, 2000. By: STATE OF VERMONT ) CHITTENDEN COUNTY )ss CITIn OF SOUTH BURLINGTON V61nd Belair inistrative Officer ubscribed and sworn to before me at Burlington, Vermont on S , 2000, by Raymond Belair, who personally appeared b fore me. ZI/I Notary Public My Commission Expires: /U D Son661.lit CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 19, 1999 Gerald Milot & John Larkin P.O. Box 4193 Burlington, Vermont 05402 Re: Zoning Violation, 6 Pinnacle Drive Dear Messrs. Milot & Larkin: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, you have initiated the following activities on the above -described property: You have constructed a single family dwelling on lot #49 at the Pinnacle at Spear development which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Reduce the height of this structure so as not to exceed the 417.565 foot mean sea level elevation. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to fifty ($50.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. Messrs. Gerald & John Larkin Zoning Violation July 19, 1999 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) days of the date of this letter with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincerely) f' w iaymond J. Belair, Administrative Officer RJB/mcp cc: Joseph S. McLean, City Attorney 1 Encl Certified letter #Z 462 927 055 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEII'DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ('ALSO ADMTTTED IN N.Y.) April 20, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1s` Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with the Court is the City of South Burlington's Exhibit D in conjunction with its Motion to Dismiss, to Remand, or, in the Alternative, for Summary Judgment, dated April 13, 2000. I have determined that an affidavit from Krebs and Lansing Consulting Engineers, which I originally intended to send under separate cover, is not necessary. Therefore, any references in the City's Motion to Dismiss, etc., to an Affidavit from Krebs and Lansing should instead refer the Court to Exhibit D. Thank you for your attention to this matter. Sincerely, Amanda S.E. Lafferty /asel Enclosure cc: Raymond Belair Carl Lisman, Esq. Son4300.cor 1 FROM : City of So. B I I I I FAX NO. : 1 802 658 4748 Lot #49 (Z,) Pinnacle Drive (Corner Lot) Dec. 22 1999 10:37AM P1 The Mowing elevations were detaminod by Krebs and Lansing Consulting Engineers on Thursday, June 24, 1999. iNote: Verrical datum is hosed on temlxxrtry bench mm* .euppGed by 1itgwmick4jewe11)n 1w- • Top of ridge vast (weft end T 419.2 V Top of ridge vent (c wn ends 419,20' C:en tcrline of road at owner of lot (west side of house) — 389.19' S• Centerline of road at ceaW of lot (north side of house) = 388.69' I -- EXHIBIT D ( E STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/I'DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTYQFUZMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY (-ALSO ADI M-MD IN N.Y.) April 14, 2000 HAND DELIVERED Carl Lisman, Esq. Lisman & Lisman 84 Pine Street Burlington, VT 05401 RE: Appeal of Larkin Dear Carl: OF COUNSEL ARTHUR W. CERNOSIA Enclosed please find a Notice of Deposition of John Larkin in connection with the above -referenced matter. Thank you. Sincerely, okwxv-di A - q- . 9--CAe Amanda S. E. Lafferty ASEL/bjl cc: Raymond Belair Son4296.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET NO: 159-9-99 Vtec NOTICE OF DEPOSITION Please take notice that at 9:00 a.m. on the 25th day of April, 2000 at the offices of Stitzel, Page & Fletcher, PC, 171 Battery Street, Burlington, VT 05401, the Appellee, City of South Burlington, will take the deposition of John Larkin, upon oral deposition pursuant to the Vermont Rules of Civil Procedure, before a Notary Public or before some other officer authorized by law to administer oaths. DATED at Burlington, in County of Chittenden and State of Vermont this 14t° day of April, 2000. Son655.larkindepo.lit STITZEL, PAGE FLETCHER, P.C. ATTORNEYS AT LAW 1''. R:AT ERN STREET P o. Box 1507 RUR1.IMaTOn. X'1"RNIONT 05402- 1.`,U Al Amanda S.E. Lafferty, E Stitzel, Page & Fletcher, P.C. 171 Battery Street Burlington, VT 05401 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 OF COUNSEL PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ARTHUR W. CERNOSIA ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@ FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY (•ALSO ADMITTED IN N.Y.) April 14, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 15t Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: Enclosed for filing with the Court is my Certificate of Service evidencing service of the City of South Burlington's Notice of Deposition of John Larkin upon Mr. Larkin's attorney Carl Lisman, Esq. Sincerely, Amanda S. E. Lafferty ASEL/bj1 Enclosure cc: Raymond Belair Carl Lisman, Esq. Son9297.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET NO: 159-9-99 Vtec CERTIFICATE OF SERVICE I, AMANDA S.E. LAFFERTY, hereby certify that I served the City of South Burlington's Notice of Deposition of John Larkin, dated April 14, 2000, upon Appellant's attorney, Carl Lisman, Esq., by causing a copy to be hand -delivered this 14tr' day of April, 2000. DATED at Burlington, in the County of Chittenden and State of Vermont, this 141h day of April, 2000. Son656.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 B V TE It STR F: ET )'.0. BOA 1507 BO R1.1\OTON. VERMONT 05A0'G-150 7 CITY OF SOUTH BURLINGTON r J By: C _ - Amanda S.E. Lafferty 1 c STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 OF COUNSEL PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ARTHUR W. CERNOSIA ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES ANIANDA S.E. LAFFERTY (*ALSO ADMITTED IN N.Y.) April 13, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: Enclosed for filing with the Court is the City of South Burlington's Motion to Dismiss, to Remand or, in the Alternative, For Summary Judgment and Statement of Undisputed Facts in connection with the above -referenced matter. The Affidavit of Krebs and Lansing Consulting Engineers will be sent under separate cover. Thank you for your attention to this matter. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosures cc: Raymond Belair Carl H. Lisman, Esq. Son4295.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET NO. 159-9-99 Vtec APPELLEE CITY OF SOUTH BURLINGTON'S STATEMENT OF UNDISPUTED FACTS NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and submits the following Statement of Undisputed Facts for consideration by the Court in connection with its Motion for Summary Judgment. 1. At all times material to this motion, the City of South Burlington (the "City" herein) has had duly adopted Zoning Regulations in place. 2. On or about April 14, 1997, Appellant made application to the City's Administrative Officer for a zoning permit to construct a single family dwelling (the "Dwelling" herein), proposed to be 28 feet in height, at 6 Pinnacle Drive [or lot #491 in the City (the "Property" herein). Said permit application, on its face, requires "[a]ll construction to be completed in accordance with the Zoning Laws and Building Regulations of the City of South Burlington." Appellant signed the permit application. 3. On or about April 14, 1997, the Administrative Officer approved said permit application and it was not appealed. 4. The Property is located in Zone A of the City's Dorset Park View Protection Zone. Pursuant to a formula outlined in Section 22.401 of the Zoning Regulations, the completed Dwelling is prohibited from exceeding a maximum elevation of 417.565 feet above mean sea level. 5. On or about June 24, 1999, Krebs and Lansing Consulting Engineers determined that the elevation of the west end of the top of the ridge vent of the Dwelling is 419.21 feet above mean sea level and the elevation of the east end of the top of the ridge vent of the Dwelling is 419.20 feet above mean sea level. 6. On or about June 30, 1999, the City's Administrative Officer provided Appellant with a written notice of violation pertaining to his construction of the Dwelling in excess of the maximum permitted elevation by 1.645 feet. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. 7. Appellant did not appeal the notice of violation, and the time for taking an appeal has now passed. 8. On or about July 6, 1999 Appellant made application to the City's ZBA, seeking a variance. A true and correct copy of said application to the Board, marked as Exhibit B, is attached hereto. A duly warned public hearing was held with regard to said variance request on July 26, 1999. A true and correct copy of the published warning, marked as Exhibit C, is attached hereto. STITZEL, PAGE. & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 2 9. By decision dated August 9, 1999, the Board denied Appellant's application for a variance for failure to meet the statutory variance criteria. This appeal followed. DATED at Burlington, Vermont, this 13th day of April 2000. Son652.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 054041507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. It's Attorneys Amanda S.E. Lafferty -" 3 F STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET V.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) Docket No. 159-9-99Vtec CITY OF SOUTH BURLINGTON'S MOTION TO DISMISS, TO REMAND OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and asks that this Court issue an order dismissing or remanding the above -referenced appeal for the reasons set forth herein or, in the alternative, granting summary judgment in favor of the City. INTRODUCTION This is an appeal by John Larkin (the "Appellant" herein) from an August 9, 1999, decision of the South Burlington Zoning Board of Adjustment (the "ZBA") denying his application for a variance. At all times material to this appeal, the City of South Burlington (the "City" herein) has had duly adopted Zoning Regulations in effect (the "Zoning Regulations"). On or about April 14, 1997, Appellant made application to the City's Administrative Officer for a zoning permit to construct a single family dwelling (the "Dwelling" herein), proposed to be 28 feet in height, at 6 Pinnacle Drive in the City (the "Property" herein). Said permit application, on its face, requires 11[a]11 construction to be completed in accordance with the Zoning Laws and Building Regulations of the City of South Burlington." Appellant signed the permit application. On or STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT I.AW 171. BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 about April 14, 1997, the Administrative Officer approved said permit application and it was not appealed. The Property is located in Zone A of the City's Dorset Park View Protection Zone. Pursuant to a formula outlined in Section 22.401 of the Zoning Regulations, the completed Dwelling was prohibited from exceeding a maximum elevation of 417.565 feet above mean sea level. On or about June 24, 1999, Krebs and Lansing Consulting Engineers determined that the elevation of the west end of the top of the ridge vent of the Dwelling is 419.21 feet above mean sea level and the elevation of the east end of the top of the ridge vent of the Dwelling is 419.20 feet above mean sea level. On or about June 30, 1999, the City's Administrative Officer provided Appellant with a written notice of violation pertaining to his construction of the Dwelling in excess of the maximum permitted elevation by 1.645 feet. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. Appellant did not appeal the notice of violation, and the time for taking an appeal has now passed. On or about July 6, 1999 Appellant made application to the City's ZBA, seeking a variance. A true and correct copy of said application to the Board, marked as Exhibit B, is attached hereto. A duly warned public hearing was held with regard to said variance request on July 26, 1999. A true and correct copy L STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BA'17ERY STREE'P P.O. BOX 1507 BURLINGTON, VERMON'P 05i4021507 of the published warning, marked as Exhibit C, is attached hereto. By decision dated August 9, 1999, the Board denied Appellant's application for a variance for failure to meet the statutory variance criteria. This appeal followed. MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO REMAND There is no question in this case that Appellant, by application dated July 6, 1999, sought a variance from the City's ZBA. This is apparent from the face of the application form, where Appellant specifically checked the box labeled "request for a variance," and not the box labeled "appeal from decision of the Administrative Officer." On the basis of that application, the City warned a public hearing on Appellant's variance request, and the ZBA conducted a hearing on that request. During the hearing before the ZBA, Appellant, for the first time, stated that he was "not asking for a variance but just for the City to honor the permit that he got which was for a 28 f[oo]t house." See Zoning Board of Adjustment Minutes, dated July 26, 1999, at 2 [copy attached]. When the ZBA offered to allow Appellant to withdraw his variance application, however, he declined to do so. Id. Since Appellant's notice of appeal and Statement of Questions fail to raise any issues regarding the variance denial, a legal basis exists to dismiss this appeal, andl this Court should do so. 3 STITZEL, PAGE. & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Further, Appellant is precluded by 24 V.S.A. §4472 from raising the issues in his Statement of Questions in this proceeding. The exclusive remedy for persons aggrieved by local zoning decisions is to appeal any decision or act taken by the zoning administrative officer to the local board of adjustment. See Town of Charlotte v. Richmond, 158 Vt. 354, 356 (1992). In the absence of an appeal, all parties are bound by local zoning decisions, and "shall not thereafter contest, either directly or indirectly such decision or act . . .in any proceeding " Id. at 357. Appellant failed to appeal the notice of violation, a decision or act of the City Administrative Officer, to the ZBA. His right to make such an appeal was clearly stated in the notice of violation, but he chose instead to apply for a variance. Appellant is now bound by the notice of violation, and cannot contest it in this proceeding. Since Appellant failed to raise the issues in his Statement of Questions to the ZBA, this Court lacks jurisdiction to hear them. By Question 6 of his Statement of Questions, Appellant implies (and then parenthetically asserts) that the City misconstrued his application, treating it as an application for a variance while he "believed he was appealing from a decision of the Zoning Administrator." Even assuming that Appellant's contention is credible (and, for reasons discussed herein, the City believes that it is not), it is clear that there is no legal 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 basis for this Court to review his appeal as an appeal from a decision of the Administrative Officer at this time. As noted above, the City warned the public hearing on Appellant's application as a request for a variance. Given that warning, neither the ZBA, nor this Court, has the authority to simply convert this proceeding into an appeal from a decision of the Administrative Officer without first complying with statutory notice requirements. See In re Torres, 154 Vt. 223, 236 (1990). Instead, the remedy in such instance is to remand the matter to the ZBA for further proceedings, upon proper notice. Id. at 237. MOTION FOR SUMMARY JUDGMENT SUMMARY JUDGMENT STANDARD Rule 56(c) of the Vermont Rules of Civil Procedure provides that summary judgment shall be rendered forthwith where it is shown that "there is no genuine issue as to any material fact andl that any party is entitled to judgment as a matter of law." Rule 56 provides "a mechanism for the disposition of issues, claims, and defenses which do not merit a full trial." Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264 (1981). Opposition to a summary judgment may not rest on allegations in pleadings to rebut credible documentary evidence or affidavits. Id. Even if this Court was to determine that it is inappropriate either to dismiss or to remand this case, and that Appellant is 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURL.INGTON, VERMONT 05402-1507 entitled to have his appeal reviewed as an appeal from a decision of the Administrative Officer, it should nonetheless grant summary judgment in the City's favor. The facts necessary to render a decision in favor of the City are not in dispute, and are set forth in the Affidavits of Raymond J. Belair and employee of Krebs and Lansing Consulting Engineers, attached hereto. As an initial matter, this Court should note that Appellant is an experienced real estate developer who has worked on numerous residential and commercial projects in the City. He is familiar with the Zoning Regulations, routinely makes application for zoning -related permits and approvals, and has appeared regularly before City boards and commissions, including the ZBA/DRB. Further, Appellant has constructed at least 12 other dwellings in the Dorset Park View Protection Zone that were also subject to elevation related limits. Accordingly, the City does not believe that any claims by Appellant that he did not understand the zoning appeals process or the elevation limitations contained in the Zoning Regulations are credible. In this case, it is undisputed that Appellant received a permit from the City to construct a dwelling 28 feet in height. That permit was not appealed, and cannot be challenged by any party, including the City, at this time. See Graves v. Town of Waitsfield, 130 Vt. 292, 295 (1972). Notwithstanding the issuance of said permit, however, the City is entitled to 1.1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 compliance with all of the duly adopted standards in its Zoning Regulations, provided that they are not inconsistent or otherwise invalid. Indeed, as noted above, the permit that Appellant received from the City, on its face, states that "[a]11 construction is be completed in accordance with the Zoning Laws and Building Regulations of the City of South Burlington." Here, Appellant received a permit to construct the Dwelling 28 feet high, and he focuses almost exclusively on the issue of height in his Statement of Questions. The City does not contend that Appellant failed to comply with the terms of his permit as it relates to building height, however. Rather, it is the City's position that Appellant, by constructing the Dwelling in the manner that he did, has violated a separate, enforceable standard in the Zoning Regulations - the maximum elevation limits for Zone A of the Dorset Park View Protection Zone. As noted above, this limitation, contained in Section 22.401 of the Zoning Regulations, prohibits dwellings located in Zone A from exceeding 417.565 feet above mean sea level. The Dwelling constructed by Appellant exceeds this maximum permitted elevation, in violation of the City's Zoning Regulations. See Affidavit of employee of Krebs and Lansing Consulting Engineers, attached hereto. The elevation limits contained in Section 22.401 and the 28 foot height limitation contained in Appellant's zoning permit are not inconsistent standards. It is quite possible to construct a 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 dwelling 28 feet high in Zone A of the Dorset Park View Protection Zone while complying with maximum elevation limits by undertaking appropriate site work, grading, or other pre - construction measures (i.e., recessing the dwelling, as necessary). The negligence of Appellant and/or his agents in failing to undertake these measures does not render the elevation and building height limitations contained in the Zoning Regulations and permit inconsistent or invalid; the City is entitled to compliance with both. Therefore, if this Court decides that it is appropriate to review Appellant's appeal as an appeal from a decision of the Administrative Officer, rather than as a variance, it should, for the reasons discussed herein, render judgment as a matter of law in the City's favor. CONCLUSION For all of the foregoing reasons, the City of South Burlington respectfully requests that this Court issue an order dismissing or remanding this appeal or, in the alternative, granting summary judgment in favor of the City. DATED at Burlington, Vermont, this 13th day of April 2000. Son651.lit CITY OF SOUTH BURLINGTON By: Stitzel Page & Fletcher, P.C., Its attorneys For Joseph S. McLean CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 June 30, 1999 Gerald Milot & John Larkin P.O. Box 4193 Burlington, Vermont 05402 Re: Zoning Violation, 6 Pinnacle Drive Dear Messrs. Milot & Larkin: UUL ` 2 IM STITZEL, PAGE & FLETCHER PC Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining permit from the City as have required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, y ou initiated the following activities on the above -described property: You have constructed a single family dwelling on lot #49 at the Pinnacle at Spear development which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Reduce the height of this structure so as not to exceed the 471.565 foot mean sea level elevation. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to fifty ($50.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. 0 EXHIBIT Z E A m Messrs. Gerald & John Larkin Zoning Violation June 30, 1999 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Board of Adjustment by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) days of the date of this letter with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincere, Raymond J. Belair, Administrative Officer RJB/mcp cc: Joseph S. McLean, City Attorney 1 End Certified letter #Z 462 927 053 r, City of South Burlington Official Use Application to Board of Adjustment APPLICATION # _ HEARING DATE -Z - FILING DATE FEE AMOUNT Z� Name ofapplicant(s) Address y� �J S j�7�,..e >2� )relephone Represented by �--- LandownerG% Location and description of property 9 CZ-07, O f - Adjacent property owner(s) & Address E q!�. ,a c� Y "l c' �� C-� ` j ' ( 0 tf-) Type application check one: ( ) appeal from decision of Administrative Officer ( ) request for a conditional use ( Cyrequest for a variance I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month, (second and fourth Mondays). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of hearing. Provision of zoning ordinance in question Reason for appeal C �q w� S/ c, r-� p Other documen tion 0 Date Do not write below this 7 s :_1 (D �. ------------------------------------------------------------------------------------- SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24, V.S.A. the South Burlington Zoning Board of Adiustment will hold a nuhlic hearing at the South Burlington Municipal Offices. Conference Room. i. SOUTH BURUNGTON : ZONING NOTICE In accordance with Ihe'. South Burlington Zoning.' Regulations and Chapter 117, Title 24, V.S.A., the South Burlington Zoning Board of Adjustment will 'hold a public hearing at the South Burlington Mu- nicipal Offices, Confer- ence Room, 575 Dorset Street, South Burlington, Vermont on Monday, July 26, 1999 at 7:00 P.M. to consider the fol- lowing: #1 Appeal of 'John Larkin seeking.'a van-i since. from- Section, 22.401,, Dorset Park Viewj Protection! Zone of the l South Burlington Zoning, Regulations. , Request is for permission to allow a' single family dwelling to'. project 1.645 feet above the maximum elevation' of 417.565 feet above mean sea level permitted' under the view protection zone, 6 Pinnacle Drive. #2 Appeal of Lodging North, Inc, d.b.a. Ra- mada Inn and Confer- ence Center seeking conditional use approval, from Section 26.05, Con- ditional Uses and Sec- tion 26.65 Multiple Struc-, lures and Uses Lots of the South Burlington; Zoning Regulations. Re- quest is for permission to operate an indoor rec- 'eational facility [indoor pool and fitness serv- ces] for 150 nonfiotel guests in conjunction with an existing hotel, Ind restaurant: use, 1117 Villiston Road.. taymond J. Belair administrative officer my 10, 1999 EXHIBIT ci m ZONING BOARD OF ADJUSTMENT 26 JULY 1999 The Zoning Board of Adjustment of the City of South Burlington held a regular meeting on Monday, 26 July 1999, at 7:00 p.m., in the Conference Room, City hall, 575 Dorset Street: Members Present: F. Blais, Chair; R. Kay, D. Johnston, L. Llewellyn G. Chamberland Also Present: R. Belair, Zoning Administrator; G. Farrell, J. Larkin, M. Gravelin, D. Warshaw, M. & J. Rogers, B. & A. Rippa, H. & J.Brattlie, Y. Donoghue, J. S. Bensky Mr. Blais announced that this would be the last formal meeting of the Zoning Board which will give way to the Development Review Board. The Zoning Board will meet to sign minutes, findings, etc. 1. Appeal of John Larkin seeking a variance from Section 22.401, Dorset Park View Protection Zone of the South Burlington Zoning Regulations. Request is for permission to allow a single family dwelling to project 1.645 feet above the maximum elevation of 417.565 feet above mean sea level permitted under the view protection zone, 6 Pinnacle Drive: Mr. Lleigellyn stepped down during this appeal due to a conflict of interest. Mr. Belair reviewed the history of the appeal. The applicant was submitted for the house on 4/14/97. A permit was issued and the house constructed. It was discovered through a prospective customer that there was a problem with the height of the house. The customer was told to call John Larkin since it would be his obligation to prove the house met the height limit. Mr. Larkin then called Mr. Belair. When the situation was investigated, it was discovered that the house was too high. Instead of cutting back the roof of the building, Mr. Larkin decided to ask for a variance. The contractor showed pictures of the house. He said it had been his understanding that the house should be 28 ft. from the finished first floor to the ridge line. Mr. Belair said the house in located in the Dorset Park View Protection Zone B where height is based on mean sea level, not pre - or post -construction grade. The maximum elevation allowable for the house is 417.565. A 28 ft. house could have been built on the lot but would have had to start lower down. The contractor indicated that when he came in for the permit, it was still a new zone and there were no tables for calculating. Dick Ward did the calculations himself. Mr. Belair noted that the tables are not part of the zoning regulations, but are simply an aid. ZONING BOARD OF ADJUSTMENT 26 JULY 1999 tables are not part of the zoning regulations, but are simply an aid. Mr. Larkin said he is not asking for a variance but just for the city to honor the permit he got which was for a 28 ft. house. In order to comply with the zoning regulations, he would now have to chop off the top of the house. He felt this would not improve the house. Mr. Blais said there is a question as to whether this is an error entirely on the developer's part or whether the city was part of the problem. He said he hadn't heard any evidence that there would be an adverse impact from granting a variance. Mr. Kay suggested that if the variance is granted, it could open up the whole issue with other homes. A member of the audience noted that their house had been built 3 years ago and they were told there would be no severe height restriction in their location as there would be in other areas. He felt the regulations were well known at that time. Another audience member expressed concern that allowing this variance could create a precedent for houses that are to be built behind their home, and the Zoning Board might then say it was OK to have built them higher than allowed. Another audience member shared the same concern. He noted that in the past, he had been chastised by Mr. Larkin and Mr. Milot for not knowing the restrictions when buying a lot. He felt the developers have a level of expertise and should have found out the right height and built it that way. He felt this was another instance of a zoning variance being used as a way out of obeying the rules. He said it was easy for the developer to just pay the fine and do what they want. Ms. Rogers said that they built their house just after this house and they knew the elevation restriction. They had received a packet from John Larkin with all the information. She also stressed that this is not a height restriction, it is an elevation restriction. Mr. Warshaw said they had built out of this zone because they were told they could only build a cape in this area. He felt that people spent a lot of time putting in a view protection zone and.it was not fair to disregard it. He, too, was concerned with the 27 new homes that will be going in. Mr. Donoghue said he wouldn't want to see the roof chopped off and 2 ZONING BOARD OF ADJUSTMENT 26 JULY 1999 didn't feel that the views were that important. Mrs. Rogers said nobody wants to see that. She is concerned with setting a precedent. She also said they would have loved to have built their house higher but obeyed the regulations. Mr. Kay disagreed with Mr. Donoghue and felt the city has a responsibility for providing assets to the public. Mr. Chamberland said the Zoning Administrator has reviewed the 5 criteria and said the request should be denied. He added that he had heard nothing to override that. Mr. Blais said the question is whether there was an error made on the part of the city when the permit was issued. It was noted that Mr. Larkin's drawings for the house indicate the maximum elevation is 417.5 ft. Members questioned why no one shot an elevation of the house before it was built. Mr. Kay reiterated that a 28 ft. house could have been built on the lot, starting lower down. Mr. Blais suggested the applicant could get a verdict from the Board, which did not seem to be sympathetic, or could withdraw and research the issue further. Mr. Larkin said he didn't want to withdraw. Mr. Chamberland then moved that the Zoning Board adopt the Zoning Administrator's Findings of Fact. Mr. Kay seconded. Motion passed 4-0. Mr. Llewellyn rejoined the Board. 2. Appeal of Lodging North, Inc, d.b.a. Ramada Inn and Conference Center seeking conditional use approval from Section 26.05, Conditional Uses and Section 26.65 Multiple Structures and Uses on Lots of the South Burlington Zoning Regulations. Request is for permission to operate an indoor recreational facility (indoor pool and fitness services) for 150 non -hotel guests in conjunction with an existing hotel and restaurant use, 1117 Williston Rd: Mr. Belair said the applicant wants to sell up to 150 non -guest memberships for the pool. just constructed. This would be like a health club in a hotel. It is a conditional use. Mr. Farrell explained that the want to make the facility available to local people as they did at the Sheraton. Motel patrons use the 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402 1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) Docket No. 159-9-99Vtec AFFIDAVIT I, Raymond, J. Belair, having been duly sworn, depose and state, based upon my personal knowledge, as follows: 1. I am the duly appointed Administrative Officer for the Appellee, City of South Burlington. This Affidavit is made in support of Appellee's Motion for Summary Judgment. 2. At all times material to this motion, the City of South Burlington (the "City" herein) has had duly adopted Zoning Regulations in place. 3. On or about June 25, 1999, I received information from John Larkin that the dwelling (the "Dwelling" herein) on Lot #49 at Pinnacle Drive (the "Property herein), owned by Mr. Larkin, had been built so that the elevation of the Dwelling exceeded the, maximum allowed elevation by about 1.6 feet above mean sea level.'I I suggested to Mr. Larkin that he either apply for a variance or remove the offending portion of the Dwelling. 4. After reviewing the permit issued to Mr. Larkin on April 14, 1997, as well as the City's Zoning Regulations, I determined that the Property is in Zone A of the City's Dorset Park View Protection Zone. Section 22.401 of the City's Zoning Regulations provides a formula for the determination of the maximum elevation of a structure in the Dorset Park View Protection Zone. I calculated the maximum elevation for the Dwelling on Lot #49 at Pinnacle Drive to be 417.565 feet above mean sea level. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 5. On or about June 30, 1999, I provided Mr. Larkin with written notice of violation pertaining to the construction of the Dwelling so that it exceeds the maximum permitted elevation of 417.565 feet above mean sea level. Mr. Larkin did not appeal the notice of violation and the time for taking an appeal has now passed. 6. On or about July 6, 1999, Mr. Larkin made application to the Zoning Board of Adjustment (the "ZBA" herein) for a variance. On or about July 10, 1999, I published notice of the public hearing, set for July 26, 1999, on Mr. Larkin's application for a variance. 7. The ZBA held a public hearing on Mr. Larkin's application for a variance on July 26, 1999. In a Findings of Fact, Conclusions of Law and Order, dated August 9, 1999, the ZBA denied Mr. Larkin's application for a variance. 8. On or•about August 23, 1999, Mr. Larkin provided the ZBA with written notice of appeal of the decision of the ZBA. DATED at South Burlington, Vermont. this 12th day of April 2000. STATE OF VERMONT CHITTENDEN COUNTY, SS. �f a nd J. Belair Af f iant Sworn and subscribed before me this 12th day of April 2000. otary Pub is My Commission Expires: Son653.1it 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555 @iFIRMSPRCOM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY(n FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S.MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ("ALSO ADMITTED IN N.Y.) Raymond Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 RE: Appeal of John Larkin Notice of Deposition Dear Ray: Enclosed please connection with the the deposition will a.m. at the offices Burlington. If you ASEL/bjl Enclosure Son4292.cor April 7, 2000 OF COUNSEL ARTHUR W. CERNOSIA find a copy of a Notice of Deposition in above -referenced matter. Please note that be held on Turhsday, April 27, 2000 at 9:00 of Lisman & Lisman on Pine Street in have any questions, please give me a call. Sincerely, �t1VVL6W� Amanda S. E. Lafferty / 1 01 2�,.,.,•...-- STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) DOCKET NO. 159-9-99 Vtec APPEAL OF JOHN LARKIN (6 Pinnacle ) Drive) ) NOTICE OF DEPOSITION PLEASE TAKE NOTICE that, pursuant to V.R.C.P. 30, plaintiff will take the deposition of Raymond Belair, Zoning Administrator upon oral examination before an officer authorized to administer oaths. Such examination shall begin at 9:00 a.m. on the 27th day of April, 2000, at the offices of Lisman & Lisman, 84 Pine Street, Fifth Floor, Burlington, Vermont, and shall continue from day to day until completed. You are invited to attend and cross-examine. Pursuant to V.R.C.P. 30(b)(5), the deponent is requested to bring with him all documents responsive to Appellant's Request for Production, dated March 22, 2000. DATED at Burlington, Vermont this bday $f April, 2000. ��NNEMMEN Carl H. Lisman, Esq. 01\20014\071\1ega1\notdepo.ddp LISMAN & LISMAN, ATTORNEYS AT LAW, P.O. BOX 728, BURLINGTON, VT 05402 864-5756 1 DEVELOPMENT REVIEW BOARD CITY OF SOUTH BURLINGTON Re: APPEAL OF JOHN LARKIN-DECISION OF ADMINISTRATIVE OFFICER This matter came before the South Burlington Development Review Board pursuant to the provisions of 24 VSA 4464(a) on appeal of John Larkin, hereinafter "Appellant', from the decision of the Administrative Officer that the appellant is in violation of the zoning regulations for having constructed a single family swelling at 69 Pinnacle Drive which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations. The Appellant was present at the public hearing held on 7/11/00 relative to this appeal. Based on the evidence submitted at the hearing and as part of this appeal, the South Burlington Development Review Board hereby renders the following decision on this appeal: FINDINGS OF FACT 1. The owners of record of this particular property are Michael & Kathryn Luciano. The owner at the time of the issuance of the Notice of Violation was John Larkin. 2. This property is located at 69 Pinnacle Drive (formerly 6 Pinnacle Drive). 3. This property is located within the Southeast Quadrant Zoning District and Dorset Park View Protection Zone A. This view protection zone limits any structure or portion of a structure to a maximum height limit of 417.565 feet above mean sea level. 4. Information provided by the appellant indicates that the maximum height of the house is 419.21 feet above mean sea level or 1.645 feet higher than permitted. 5. A Notice of Violation was sent to John Larkin on 6/30/99 informing him of the violation for exceeding the height limitation. CONCLUSIONS OF LAW The Development Review Board, based on the facts of the matter, concludes that the Administrative Officer acted properly in determining that the house at 69 Pinnacle Drive exceeds the view protection zone height limitation of 1.645 feet. DECISION Based on the above Findings of Fact and Conclusions of Law, the South Burlington Development Review Board hereby denies the Appellants request to overturn the Administrative Officer's decision of 6/30/99 and affirms said decision. Dated this day of July, 2000 at South Burlington, Vr. Chairman or Clerk South Burlington Development Review Board X 40 PM ST T T'7E7 PAGE F%IETNE.R PC FAX NO, 80 80602552 P, C2 Clru�.e ic.— Brno foes e uhca freed o-Joaui -I'fti,c ,Q o&.d TO: SOUTH BtJRLINGTON CITY COUNCIL FROM*. JOSEPH S. MCLEAN RE: IN RE APPEAL OF JOHN LARXIN/CITY OF SOUTH BURLINGTON V. LARRI N DATE.' AUGUST 8, 2001 Thin niomorandLlm is for consideration by tho South Burlington City Counc,i,l in exccutive session and is prepared in connection with settlement discussions relative to the above -referenced msatter u. It shall not ,be used for any other purpose. Currcritly, the City has two cases pending in the Vermont Environmental. Court involving John Larkin. The first, captioned Its re Apngal of J'Q��7,�zrl�in, i,s an appeal from a decision of the •South Burlington Devolopmont Review Board upholding the zoning A'LL1;ninistratorls determination that ci house GGnstruCtod by Mr. Larkil-z nt ;�69 Pinnacle Drive is in violation of the Scenic View Protoction (SVP) overlay District Standards contained in the City of South Burlington Zoning Regulations. The second, City v. n, is a zoning enforcement action commenced by the City to obtain compliance with the Zoning Regulations. Both matters are aw,ait,,ng a mori s nearing, tentatively scheduled for September ?00 1 . The douse located at. #69 Pinnacle Drive is located in Zone A or tho Dc sct. Park view Protection Zone. It has a maximum permitted elsvlt;ion, pa6od on a matrix prepared at the time the Pinnacle at Spear ,i bdivision was approved, of 417.5 feet msl. By its zoning permit, tht house is permitted to be a maximum height of 28 feet. As constructed, both the permitted height and elevation are exceeded by approximately 1.5 feet. While clearly the result of negligence, it is generally undisputed that the violation was unintentional; it was first brought to the City"s attention by Mr. Larkin himself. Through his attorney, Carl. Lisman, Es5 ., Mr. Larkin has approached the City and proposed a resolution to this matter. He has otferod to raduce the height of the building by ? foot, and to pay money to the City as a "penalty" and to cover the City's litigation -related expenses. The specific; amount of the penalty/fine has not been determined.. Lowering the roof by 1. foot would allow Mr. Larkin to bring the building into partial compliance without undertaking major structural alterations; it would largely preserve the existing roof lines. otherwise, he contends, the house will have a flat roof, visible to neighbors, and will. be ''lugly." Mr. Larkin states that this factor is a major concern ',;.o him, and an important reason not to require full compliance with the regulations. If the Council agrees to this proposed scttlement, we recommend preparation of a formal SFattlement Agxeemt�,nt, with terms providing for the issuance of a Certificate of Occupancy to the currant owners of #69 Pinnacle Drive upon Per. Latkin's compliance with the above, together with other zppropxaato conditions, including a anon -disclosure clause. le� 0_1k _�_ * 67 K, DEVELOPMENT REVIEW BOARD 11 JULY 2000 request for a variance to allow a single family dwelling to project 15'4" into the 50 foot front yard setback requirement, 314 Patchen Road for the following reason: The five criteria necessary for the granting of a variance have not been met. Mr. Roth seconded. Motion passed unanimously. 6. Appeal #ZBA-00-30 of John Larkin to overturn the Administrative Officer's Notice of Violation dated June 30, 1999 that the appellant is in violation of the zoning regulations for having constructed a single family dwelling at 6 Pinnacle Drive which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations: Mr. Belair noted the address is now 69 Pinnacle Drive. The change was made due to the location of the driveway. Mr. Belair said he had a discussion with John Larkin regarding the height of the house. The proposed purchaser asked him to certify that the house was not in .elation. Mr. Belair said he suggested the proposed buyer ask Mr. Larkin. The appellant hired Krebs & Lansing who measured the house and found it is a foot and a half too high. Mr. Larkin chose to apply for a variance which was denied by the Zoning Board. The case then went to court but was sent back to the DRB for an "appeal of violation." Mr. Belair said the facts are not in dispute. The house is 1.645 ft. higher than allowed. Mr. Lisman agreed that the facts are not being disputed and that the house exceeds the height limit. He said the building was built within the limits in the Zoning Permit issued by former Zoning Administrator Dick Ward (it called for a 28 ft. height limit). Mr. Lisman said they thought the issue at the Zoning Board was whether the appellant should be punished for complying with a zoning permit. Removing a foot and a half from the roof would make the house very ugly and would not, Mr. Lisman said, protect views which the regulation is trying to protect. He said they are asking that the building be allowed to stay as it is. Mr. Bigelow, who lives next door, said that during construction of his house, the same issue arose. They have complied with the regulation. He said he would not be offended if the Board issued a variance for the house next door. He noted that the house being built behind his house now has completely obscured their views, and that house is of legal height. DEVELOPMENT REIVEW BOARD 11 JULY 2000 Mr. Belair explained where the view base line was established and what views it was intended to protect. Ms. Rippa said she is concerned that if he can build in excess of the height restriction, others can too. She noted that the builder behind them raised the ground 5 ft. and then put in houses which block their views, even after they were told this would never happen. Ms. Rippa said that City Manager Chuck Hafter said he would see that those houses were measured. Mr. Gravelin said permits are now issued a different way at Pinnacle than they were when Dick Ward was Zoning Administrator. Mr. Belair noted that the appellant is not requesting that the issue of Dick Ward's permit be heard. Ms. Quimby then moved that based on the Findings of Fact and Conclusions of Law, the South Burlington Development Review Board hereby denies the Appellant's request to overturn the Administrative Officer's decision of 6/30/00 and affirms said decision. The motion was seconded and passed unanimously. 7. Public Hearing: Final plat application #SD-00-30 of Dorset Land Company to amend a planned unit development consisting of a 184 unit congregate housing facility and a 103 unit extended stay hotel in two buildings. The amendment consists of 1) adding one hotel unit, and 2) constructing a 12' x 30' addition in place of a previously approved 9' x 32' addition, 401 and 415 Dorset Street: Mr. Deslauriers said they feel it would be better to put the addition back into the courtyard. This doesn't change any coverages. This also means they don't lose any parking spaces. No issues were raised. Ms. Quimby moved the Development Review Board approve final plat application #SD-00-30 and design review application #DR-00-14 of Dorset Land Company, Inc., to amend a planned unit development consisting of a 184 unit congregate housing facility and a 103 unit extended stay hotel in two buildings. The amendment consists of 1) adding one hotel unit and 2) constructing a 12 foot by 30 foot addition in place of a previously approved 9 foot by 32 foot addition, 401 any: 415 Dorset Street, as depicted on a two page set of plans, page one entitled "Dorset Land Company Dorset Street South Burlington, VT Master Site Plan," prepared by Trudell Consulting Engineers, Inc., dated 11/4/96, with a stamped received date of 6/14/00, with the following stipulations: 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY (*ALSO ADMITTED INN. Y.) March 31, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, ls` Floor Barre, VT 05641 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Ms. Hutchinson: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with the court is the City of south Burlington's Certificate of Service evidencing service of the City's First Set of Interrogatories and Requests to Produce in connection with the above -referenced matter. Sincerely, Amanda S. E. Lafferty ASEL/bjl Enclosure cc: Raymond Belair Son4288.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET NO: 159-9-99 Vtec CERTIFICATE OF SERVICE I, AMANDA S.E. LAFFERTY, hereby certify that I served a copy of the City of South Burlington's First Set of Interrogatories and Requests to Produce, dated March 31, 2000, upon Appellant's attorney, Carl Lisman, Esq., by causing a copy to be hand - delivered this 31s' day of March, 2000. DATED at Burlington, in the County of Chittenden and State of Vermont, this 31`' day of March, 2000. Son649.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402 1507 CITY OF SOUTH BURLINGTON By: Amanda S.E. Lafferty 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 (802) 660-2555 (VOICFADD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FL�TCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S. MCLEAN TIMOTHY M. EUSTACE MIA KAR VONIDES AMANDA S.E. LAFFERTY (-ALSO ADMITTED IN N.Y.) March 31, 2000 Carl Lisman, Esq. Lisman & Lisman PO Box 728 Burlington, VT 05402-0728 RE: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Carl: OF COUNSEL ARTHUR W. CERNOSIA Enclosed please find the City of South Burlington's First Set of Interrogatories and Requests to produce in connection with the above -referenced matter. Sincerely, C� 'C" Amanda S. E. Lafferty ASEL/bjl Enclosure cc: Raymond Belair Son4287.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLING1'ON, VERMONT 05402.1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARRIN ) DOCKET NO. 159-9-99 Vtec APPELLEE'S FIRST SET OF INTERROGATORIES AND REQUESTS TO PRODUCE NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and submits the following interrogatories and requests to produce to the Appellant John Larkin. INSTRUCTIONS 1. Every interrogatory shall be answered separately and under oath. If any answer is based upon information and belief rather than personal knowledge, it shall state that it is made on that basis. 2. If the complete answer to an interrogatory is not known, so state and answer as fully as possible every part of the interrogatory to which an answer is known. 3. If an interrogatory seeks the identification of facts, persons having knowledge of facts, or documents supporting a particular allegation or contention, provide all information known to you at the present time, to be supplemented as further information becomes known. 4. These interrogatories and requests for production shall be continuing to the full extent permitted by law. 1 5. If any information is withheld under a claim of privilege, immunity or qualified immunity, including, without limitation, the work product doctrine or attorney/client privilege, the following information shall be provided: (a) the basis upon which the privilege, immunity or qualified immunity is claimed; (b) the identity of the person who is the source of the information; (c) the identity of the person to whom the information has been communicated; (d) whether the information, or any part thereof, is based upon or evidenced by or is contained within any document(s) and the identity of all such documents; and (e) the subject matter of the information sufficient for its identification. 6. Each interrogatory that seeks information relating in any way to communications to, from, or within a business, public office, individual and/or corporate entity is hereby designated to mean, and should be construed to include, all communications, to, from, and/or between representatives, agents, officers, directors, managers, employees, independent contractors of an entity or individual, and/or anyone acting on their behalf. DEFINITIONS 1. As used in these discovery requests, "you" and "your" means the Appellant John Larkin. 2. As used in these discovery requests, "City" means the City of South Burlington, and any and all of its agents, employees and contractors. 2 INTERROGATORIES 1. Please state the name and address of the person answering these interrogatories. 2. Please describe in complete and explicit detail how Appellant's application for a variance from the maximum allowed elevation under Section 22.401 of the South Burlington Zoning Regulations satisfies the variance criteria in Section 27.00 of the South Burlington Zoning Regulations and 24 V.S.A. §4468(a). 3. If you contend that your application to the City Development Review Board was an appeal from a decision of the Administrative Officer, please state in complete and explicit detail the basis of your appeal and all of the reasons why you believe that your appeal should have been granted. 4. If you contend that the City is estopped from demanding that you reduce the height of the house located on the property located at 6 Pinnacle Drive, please describe in complete and explicit detail your reasons for this contention. 5. Please identify and produce all documents, written or electronic, on which Appellant intends to rely at trial, whether or not such documents will be presented as exhibits, including all plans, maps, surveys, records, reports, recordings, photographs and studies. 5. Please identify and produce all exhibits which Appellantl',I intends to present at trial. 6. Please identify each person whom you expect to call as an expert at trial. For each expert: 3 A a. Please state the subject matter on which each expert or experts are expected to testify. b. Please state the substance of the facts and opinion to which each expert is expected to testify. C. Please state the summary of the grounds for each opinion. DATED at Burlington, Vermont this �15)�day of March 2000. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Son647.1it 4 Amanda S.E. Lafferty STITZEL, PAGE & FLETCHER, P.C. .ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 OF COUNSEL PATTI R. PAGE• E-MAIL(FIRM2555 n FIRMSPF.COM) ARTHUR W. CERNOSIA ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S.MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ('ALSO ADMITTED iN N.Y.) February 28, 2000 Carl Lisman, Esq. Lisman & Lisman P.O. Box 728 Burlington Vermont 05402 In Re: Appeal of Larkin Docket No. 159-9-99 Vtec Dear Mr. Lisman, Enclosed please find a revised proposed Discovery Schedule. I moved a few of the dates back because March is a very busy month for me. If acceptable, please sign and send to the Court, with a copy to me. Otherwise, please call me. Additionally, I plan to file a motion for summary judgment with regard to Question 6 in your Statement of Questions, which will probably push this schedule back even further. I may move for summary judgment on other issues, as well, but I think that Question 6 needs to be resolved before the Court considers the other questions. Finally, I noticed that in your proposed discovery schedule, you name yourself as attorney for Larkin Milot Partnership. However, John Larkin, individually, was the applicant during the local proceedings. Would you please verify that you represent John Larkin in his individual capacity? My e-mail and phone number are above. Thank you. Sincerely, � 1 Amanda S. E. Lafferty ASEL/bjl Enclosure cc: Raymond Belair son4256.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 R:\TTEHi STREET P.O- BOX 1.507 W HLI\GTON. VERMONT 0.�902F1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) APPEAL OF LARKIN ) DOCKET NO. 159-9-99 Vtec DISCOVERY STIPULATION AND ORDER NOW COME the parties, the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and Appellant, John Larkin, by and through his attorney Carl Lisman, Esq., and hereby stipulate and agree that the Court may order the following discovery schedule: 1. Interrogatories and requests to produce shall be sent to the opposing party no later than March 31, 2000, and answers thereto shall be sent no later than May 1, 2000. 2. Depositions shall be scheduled and taken no later than April 28, 2000. 3. Third parties shall be brought into the action pursuant to V.R.C.P. 14 no later than March 31, 2000. 4. All pretrial motions, except for a motion to dismiss for lack of subject matter jurisdiction, shall be filed by April 14, 2000. Responses to said pretrial motions shall be filed by April 24, 2000. Further responses shall be filed by May 2, 2000. 5. All discovery shall be completed and the case ready for a settlement conference, at which a trial date shall be set, by May 31. 1 DATED at Burlington, Vermont this day of March, 2000. By: LISMAN & LISMAN Attorneys for John Larkin Carl H. Lisman, Esq. DATED at Burlington, Vermont this 'day of February 2000. APPROVED AND ORDERED: Scn639.1it STITZEL, PAGE & FLETCHER, P.C. Attorneys for City of South Burlington By: �.14.1'VA,tovv' -- Amanda S.E. Lafferty, Es Date Judge Meredith Wright 2 Lot #49 Pinnacle Drive (Corner Lot) The following elevations were determined by Krebs and Lansing Consulting Engineers on Thursday, June 24, 1999. None. Vertical datum is based on temrwrary bench marks .aipplied by Fitpatrick4.lewellyn Inc. • Top of ridge vent (west end) - 419.21' • Top of ridge vent (east end) = 419,20' • C'entcrline of road at center of lot (west side of house) — 3W 19' • Centerline of road at center of lot (north side of house) = 388.69 Post -it® Fax Note 7671 Date To i From , Co./Dept. Co. Phone # Phone # Fax # Fax # ZO'd 2196-9L&-ZO8 squa. q "O -4 aagOb 99=Z1 66-bZ-unC CARL H. LISMAN ALLEN D. WEBSTER, CPA MARY G. KIRKPATRICK E. WILLIAM LECKERLING DOUGLAS K. RILEY MARK D. OETTINGER RICHARD W. KOZLOWSKI JUDITH L. DILLON CHRISTINA A. JENSEN Zoning Administration City of South Burlington 575 Dorset Street South Burlington, VT 05403 Ladies and Gentlemen: LISMAN & LISMAN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW P.O. BOX 728 BURLINGTON, VERMONT 05402 ------ OFFICES IN FINANCIAL PLAZA Telephone 802-864-5756 AT 84 PINE STREET BURLINGTON, VERMONT Telecopier 802-864-3629 LOUIS LISMAN BERNARD LISMAN COUNSEL September 13, 1999 Appeal of Larkin Docket No. 159-9-99Vtec E-Mail Address: driley@lisman.com In connection with this matter, we are required to give certain notices to "interested parties", including notice that an appeal has been filed. Please send us a copy of the list of interested persons. V Carl H. Lisman CHL/ddp cc Joseph McLean, Esq. 20014\071 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 September 27 , 1999 Carl H. Lisman, Esquire Lisman & Lisman P.O. Box 728 Burlington, VT 05402 Re: Appeal of John Larkin Dear Mr Lisman: Per your request, the following is a list of interested persons regarding the above matter: D. Warshaw M & J Rogers B & A Rippa H & S. Brattle K. Donahue J. A. Bensky Sincerely, p J Raymond J. Belair, Administrative Officer RW/mcp Encls cc: Joseph S. McLean, Esquire CARL LISMAN AU A;N D. Wr,03TQA, CIA MARY G. KIRKPATRICK I•, WII UAM MaKaKLINC DOUCI-Ag K. RILLY MARKID. OLT I'mGm t Rl(`.IIARI) W KOLLO\YSIC4 16'DITIIL. DIII.()N CILICMINA A. AIN�HUN Joseph McLean, Esq. Stitzel, Page & Fletcher, P.C. P.D. Box 1507 Burlington, VT 05402-1507 Dear ,doe: LISMAN & LISMAN A 1014%"yIONAL CORPOLMON ATTORNQN$ A'f LAM P,o aox no HVIMINGTON, WkMONT 711OZ Wephone 8O2.864•375( TOccopier $02-864-.36 i. September 22.. 1999 Arm? of T�arkin (5outli I'dLILtan OPPW P$ IN FINANCIAL PLAZA Al 14 PINR 61 k4.lil' 1JIIkUKTON, YMMON't LOUT! LISMAN W-ANAIM LISMAN COUN.M. f•Mail Addiews. dismnnolk",:,00m In coiuicction with this natter, I would really like's: file the Siatement of Questions with the Court but I cannot do so until I give notice of the appeal to interested persons, I have: twist. requested the list and have had no response. If die City is unwilling or unable to comply with tic rac)uirements of the Rule, !ct me know and I will notify the Court. Very t U Y.�It S. Carl It. Lisrna I CtiLJddp 20014M I I LJ, n sr�rzet r,a�s �FLETCHER 1?Cl ZO/ZO 'd Z59ZO99Z09 'ON XVad 3M IM119 Wd a121 NON 666I—LZ—d3S ST[TIEL, PAGE & FLE 1"CEIER, P. C. t1TT0RNEY;S AT L.A ,V 171 DXrl')'12X:31''t: T BURLINGTON, VERMONJT 1'5402-1507 (802) 660.231S (VOU.�l-r ]} s' Iivlixl 51'rPil L FAX (802) 66(1.2552 PATTIR PAGE* ri-MAR,. F MC553VIRMSPF. CM) ROMIRTI FLPTCiTR WRII-HIVS 77-NThrT, (N(CLBANfu,T?IR, 9SPF,C01,J) TBli1.1 f S. Mrti,.$AN ,'tndorlrrl.� Lsysi•.4cr ("ALSO ADNf Z-IN NX.) FACSIMILE TMNI SMITTAL SIIEET Date: September 27, 1999 To: Ray Belair Fax: 846-4101 Re: Appeal of Larkin Sender: Joe McLean You sho«ld receive 2 Page(s), including this cover sheet. If you do not receive all. the pages, please call 802) 666-2555^ MESSAGE bl+ COUNSLSL AR77WR W, CERNOSL, Transmitted hermlith is a copy of Carl Lisman's letter to me dated September 22, 1999. Would you please provide Carl, as requested, with a list of the interested parties in connection. with the above -captioned appeal. This mcesSdge is int.nalod only for the use of the a.ddreFame and tn2y con ain iitfp'[nstipn that is privilpgcd an; c')1LFd 1ial. if you arc net una intended rccipiomt, you arc hcroty tzptirjed that my dimmin;tion pfI is communication is ;lrictly pruhibiL-d. If you have received 011:8 ecmmunicatim in srtor, plcuse notifyus immediately by Merhas (302-660-2555). 'llns,nk YOU Or IO 'd Z99Z09HH 'ON ud.d Od N3H01.Z1.d Todd 73ZI11S Wd ;i , Zi NOW E661-1 i;-dES STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEITDD) STEVEN F. STITZEL FAX (802) 660-2552 PATTI R. PAGE• E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (JMCLEAN [@FIRMSPF.COM) JOSEPH S. MCLEAN TIMOTHY M EUSTACE ('ALSO ADMMED IN N.Y.) August 31, 1999 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 N. Main Street, 1st Floor Barre, VT 05641 Re: Appeal of John Larkin Dear Carolyn: OF COUNSEL ARTHUR W. CERNOSIA Enclosed for filing with regard to the above -captioned matter is a Notice of Appeal filed with the City of South Burlington by Attorney Lisman on behalf of John Larkin. However, the filing fee of $150.00 was not submitted. Our Entry of Appearance on behalf of the City of south Burlington is also enclosed. Thank you. If you have any questions, please give me a call. Si,rfc9i-ely, oseph S. McLean JSM/gmt Enclosures cc: Carl H. Lisman, Esq. Raymond J. Belair, Administrative Officer SON573.COR STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) DOCKET NO. APPEAL OF JOHN LARKIN (6 Pinnacle ) Drive) ) NOTICE OF APPEAL John Larkin, through his attorneys, hereby appeals to the Environmental Court from the decision of the South Burlington Zoning Board of Adjustment, made on July 26, 1999, requiring him to lower the height of a structure so as not to exceed the 471.565 foot median sea level elevation. It is Mr. Larkin's position that the City of South Burlington issued a building permit to him which permitted construction to exceed the limitation now claimed by the City of South Burlington. DATED at Burlington, Vermont this ?3 day 6f .August, 1999. i31 20014\071\IegaMotappea.ddp Carl H. Lisman, Esq. RECENcD AUG 2 5 1999 City of So. Burlington LISMAN & LISMAN, ATTORNEYS AT LAW, P.O. BOX 728, BURLINGTON, VT 05402 864-5756 1 ZONING BOARD OF ADJUSTMENT 26 JULY 1999 The Zoning Board of Adjustment of the City of South Burlington held a regular meeting on Monday, 26 July 1999, at 7:00 p.m., in the Conference Room, City Hall, 575 Dorset Street: Members Present: F. Blais, Chair; R. Kay, D. Johnston, L. Llewellyn G. Chamberland Also Present: R. Belair, Zoning Administrator; G. Farrell, J. Larkin, M. Gravelin, D. Warshaw, M. & J. Rogers, B. & A. Rippa, H. & J.Brattlie, K. Donoghue, J. S. Bensky Mr. Blais announced that this would be the last formal meeting of the Zoning Board which will give way to the Development Review Board. The Zoning Board will meet to sign minutes, findings, etc. 1. Appeal of John Larkin seeking a variance from Section 22.401, Dorset Park View Protection Zone of the South Burlington Zoning Regulations. Request is for permission to allow a single family dwelling to project 1.645 feet above the maximum elevation of 417.565 feet above mean sea level permitted under the view protection zone, 6 Pinnacle Drive: Mr. Llewellyn stepped down during this appeal due to a conflict of interest. Mr. Belair reviewed the history of the appeal. The applicant was submitted for the house on 4/14/97. A permit was issued and the house constructed. It was discovered through a prospective customer that there was a problem with the height of the house. The customer was told to call John Larkin since it would be his obligation to prove the house met the height limit. Mr. Larkin then called Mr. Belair. When the situation was investigated, it was discovered that the house was too high. Instead of cutting back the roof of the building, Mr. Larkin decided to ask for a variance. The contractor showed pictures of the house. He said it had been his understanding that the house should be 28 ft. from the finished first floor to the ridge line. Mr. Belair said the house in located in the Dorset Park View Protection Zone B where height is based on mean sea level, not pre - or post -construction grade. The maximum elevation allowable for the house is 417.565. A 28 ft. house could have been built on the lot but would have had to start lower down. The contractor indicated that when he came in for the permit, it was still a new zone and there were no tables for calculating. Dick Ward did the calculations himself. Mr. Belair noted that the tables are not part of the zoning regulations, but are simply an aid. ZONING BOARD OF ADJUSTMENT 26 JULY 1999 tables are not part of the zoning regulations, but are simply an aid. Mr. Larkin said he is not asking for a variance but just for the city to honor the permit he got which was for a 28 ft. house. In order to comply with the zoning regulations, he would now have to chop off the top of the house. He felt this would not improve the house. Mr. Blais said there is a question as to whether this is an error entirely on the developer's part or whether the city was part of the problem. He said he hadn't heard any evidence that there would be an adverse impact from granting a variance. Mr. Kay suggested that if the variance is granted, it could open up the whole issue with other homes. A member of the audience noted that their house had been built 3 years ago and they were told there would be no severe height restriction in their location as there would be in other areas. He felt the regulations were well known at that time. Another audience member expressed concern that allowing this variance could create a precedent for houses that are to be built behind their home, and the Zoning Board might then say it was OK to have built them higher than allowed. Another audience member shared the same concern. He noted that in the past, he had been chastised by Mr. Larkin and Mr. Milot for not knowing the restrictions when buying a lot. He felt the developers have a level of expertise and should have found out the right height and built it that way. He felt this was another instance of a zoning variance being used as a way out of obeying the rules. He said it was easy for the developer to just pay the fine and do what they want. Ms. Rogers said that they built their house just after this house and they knew the elevation restriction. They had received a packet from John Larkin with all the information. She also stressed that this is not a height restriction, it is an elevation restriction. Mr. Warshaw said they had built out of this zone because they were told they could only build a cape in this area. He felt that people spent a lot of time putting in a view protection zone and. it was not fair to disregard it. He, too, was concerned with the 27 new homes that will be going in. Mr. Donoghue said he wouldn't want to see the roof chopped off and 2 ZONING BOARD OF ADJUSTMENT 26 JULY 1999 didn't feel that the views were that important. Mrs. Rogers said nobody wants to see that. She is concerned with setting a precedent. She also said they would have loved to have built their house higher but obeyed the regulations. Mr. Kay disagreed with Mr. Donoghue and felt the city has a responsibility for providing assets to the public. Mr. Chamberland said the Zoning Administrator has reviewed the 5 criteria and said the request should be denied. He added that he had heard nothing to override that. Mr. Blais said the question is whether there was an error made on the part of the city when the permit was issued. It was noted that Mr. Larkin's drawings for the house indicate the maximum elevation is 417.5 ft. Members questioned why no one shot an elevation of the house before it was built. Mr. Kay reiterated that a 28 ft. house could have been built on the lot, starting lower down. Mr. Blais suggested the applicant could get a verdict from the Board, which did not seem to be sympathetic, or could withdraw and research the issue further. Mr. Larkin said he didn't want to withdraw. Mr. Chamberland then moved that the Zoning Board adopt the Zoning Administrator's Findings of Fact. Mr. Kay seconded. Motion passed A-n Mr. Llewellyn rejoined the Board. 2. Appeal of Lodging North, Inc, d.b.a. Ramada Inn and Conference Center seeking conditional use approval from Section 26.05, Conditional Uses and Section 26.65 Multiple Structures and Uses on Lots of the South Burlington Zoning Regulations. Request is for permission to operate an indoor recreational facility (indoor pool and fitness services) for 150 non -hotel guests in conjunction with an existing hotel and restaurant use, 1117 Williston Rd: Mr. Belair said the applicant wants to sell up to 150 non -guest memberships for the pool just constructed. This would be like a health club in a hotel. It is a conditional use. Mr. Farrell explained that the want to make the facility available to local people as they did at the Sheraton. Hotel patrons use the �l 3 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 27, 1999 Joseph S. McLean, Esquire Stitzel, Page & Fletcher, P.C. P.O. Box 1507 Burlington, Vermont 05401 Re: Notice of Appeal, John Larkin Dear Joe: Enclosed, please find the original Notice of Appeal on the above referenced matter and a copy of the transmittal letter from Carl Lisman. A check for the Environmental Court was not included. Please enter an appearance on behalf of the City. The names of the interested persons appearing at the hearing are as follows: D. Warshaw M & J Rogers B & A Rippa H & J Brattle K. Donahue J.A. Bensky If you have any questions, please give me a call. Sincere Ray J. Belair, Administrative Officer RIB/mcp Encls CARL LISMAN ALLEN D. WEBSTER, CPA MARY G. KIRKPATRICK E. WILLIAM LECKERLING DOUGLAS K. RILEY MARK D. OETTINGER RICHARD W. KOZLOWSKI JUDITH L. DILLON CHRISTINA A. JENSEN Clerk Zoning Board of Adjustment City of South Burlington 575 Dorset Street South Burlington, VT 05403 Ladies and Gentlemen: LISMAN & LISMAN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW P.O. BOX 728 BURLINGTON, VERMONT 05402 Telephone 802-864-5756 Telecopier 802-864-3629 August 23, 1999 OFFICES IN FINANCIAL PLAZA AT 84 PINE STREET BURLINGTON, VERMONT LOUIS LISMAN BERNARD LISMAN COUNSEL E-Mail Address: clisman@lisman.wM We are enclosing, on behalf of John Larkin, a Notice of Appeal from the decision of the Zoning Board made on July 26, 1999. Please provide us with a list of interested parties as set forth in VRCP 76(e)(2). 11 Carl H. Lisman CHL/ddp Enclosure cc Clerk, Environmental Court 20014\071 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) DOCKET NO. APPEAL OF JOHN LARKIN (6 Pinnacle ) Drive) ) NOTICE OF APPEAL John Larkin, through his attorneys, hereby appeals to the Environmental Court from the decision of the South Burlington Zoning Board of Adjustment, made on July 26, 1999, requiring him to lower the height of a structure so as not to exceed the 471.565 foot median sea level elevation. It is Mr. Larkin's position that the City of South Burlington issued a building permit to him which permitted construction to exceed the limitation now claimed by the City of South Burlington. DATED at Burlington, Vermont this day of August, 1999. :i 20014\071 \1 ega1\notappea. ddp L9"0[X.1.MylXBq� Carl H. Lisman, Esq. E C E I Ni eQ AUG 2 5 1999 City of So. Burlington LISMAN & LISMAN, ATTORNEYS AT LAW, P.O. BOX 728, BURLINGTON, VT 05402 864-5756 1 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 19, 1999 John Larkin Larkin Realty 410 Shelburne Road South Burlington, Vermont 05403 Re: Variance Application, 6 Pinnacle Drive Dear Mr. Larkin: Enclosed is a copy of the Findings of Fact and Decision on the above referenced project approved by the Zoning Board of Adjustment. Please note the conditions of approval. If you have any questions, please give me a call. Sincere , R/Vmond J. Belair, Administrative Officer JW/mcp 1 Encl Certified Letter #Z 462 929 537 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 16, 1999 John Larkin Larkin Realty 410 Shelburne Road South Burlington, Vermont 05403 Re: Variance Application, 6 Pinnacle Drive Dear Mr. Larkin: Enclosed is the agenda and my comments to the Zoning Board of Adjustment. Please be sure someone is present on Monday, July 26, 1999 at 7:00 P.M. to represent your request. If you have any questions, please give me a call. Sincerely,, ri } Rayo d J. Belair, Y Administrative Officer RJB/mcp Encls CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 16, 1999 John Larkin Larkin Realty 410 Shelburne Road South Burlington, Vermont 05403 Re: Variance Application, 6 Pinnacle Drive Dear Mr. Larkin: Enclosed is the agenda and my comments to the Zoning Board of Adjustment. Please be sure someone is present on Monday, July 26, 1999 at TOO P.M. to represent your request. If you have any questions, please give me a call. Sincerely, ✓i Ra mori J. BBelair, Y Administrative Officer RJB/mcp Encls CITY OF SOUTH BURLINGTON PERMIT 1\ 1st. Copy CODE OFFICER APPLICATION FOR ZONING PERMIT { 2nd. Copy CITY ENGINEER Zone: 3rd. Copy CITY ASSESSOR 4th Copy APPLICANT l J Date................................. .f. Is The undersigned hereby applles for permlsslon to make certain building Improvements as dascrlbed below. (Plans to be submitted If required by Building In% All construction to be completed in accordance with the Zoning Laws and Building Regulations of the City of South Burlington and the State of Vermont, a form to the Regulations of the National Board of Fire Underwriters and any and all Federal Regulations now in effect. CONSTRUCTION I STRi=FT ,. OCCUPANCY ■ e. Single Family Two Family ■ MEN Apartment No. Fam. ■L�■■■� Store ■�■■■� A Offices■�■■■ ■�EEO ' • . ■cam■■■■sue • . • . . • , No. Cars ■Gas . -, ■ Station I -�r�■� Additi. 01 = ■©© FOUNDATION Concrete ME! 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Shingles Slate ��lii�■Remarks ■ Tile ■ �= ■ FEE COMPIITION $ /Ix f/ .SIGNATURE of OWNER or BUILDER APPLICATION: REJECTED c APPROVED ' ISSUED TO Date �. 19'f ' •- r` - r Plans received Yes ❑ No ❑ ADDRESS of OWNER SIGNATURE OF CODE OFFICER PERMIT VALID FOR SIX MONTHS PERMIT SUBJECT TO APPEAL WITHIN 15 DAYS FROM DATE ISSUED MEMORANDUM To: South Burlington Zo 'ng Board of Adjustment From: Raymond J. Bela dministrative Officer Re: July 26, 1999 Agenda Items Date: July 16, 1999 1) JOHN LARKIN - HEIGHT VARIANCE - PINNACLE @SPEAR This application is to allow a single family dwelling at 6 Pinnacle Drive to project 1.645 feet above the maximum elevation of 417.565 feet above mean sea level. The Dorset Park View Protection Zone A limits the height of a house on this lot to 417.565 feet. The applicant constructed this house and due to an error constructed it 1.645 feet higher than is permitted. CRITERIA REVIEW 1. There are no unique physical circumstances or conditions, including irregularity narrowness or shallowness of lot size or shape, or exceptional topography or other physical condition peculiar to the particular property. The unnecessary hardship is due to an error by the builder by building the structure too high. The lot is .39 acres (16,988 square feet) which is 4,988 square feet larger than the minimum lot size. The lot is regular in shape with no topographical features. 2. Because there are no physical circumstances or conditions present there is a possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore not necessary to enable the reasonable use of the property. The need for the variance is due to an error by the builder. The house could have been built to comply with the zoning regulations. 3. The unnecessary hardship has been created by the appellant by constructing the structure too high. 4. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would impair the view of the public from the Dorset Park Scenic View Protection Zone Baseline. 5. The authorization of the variance would not represent the minimum variance that would afford relief, it would represent the most modification possible of the zoning regulations and of the plan. Staff recommends denial of the request since none of the five (5) criteria are met. SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24, V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Monday, July 26, 1999 at 7:00 P.M. to consider the following: # 1 Appeal of John Larkin seeking a variance from Section 22.401, Dorset Park View Protection Zone of the South Burlington Zoning Regulations. Request is for permission to allow a single family dwelling to project 1.645 feet above the maximum elevation of 417.565 feet above mean sea level permitted under the view protection zone, 6 Pinnacle Drive. #2 Appeal of Lodging North, Inc. d.b.a. Ramada Inn and Conference Center seeking conditional use approval from Section 26.05, Conditional Uses and Section 26.65 Multiple Structures and Uses on Lots of the South Burlington Zoning Regulations. Request is for permission to operate an indoor recreational facility (indoor pool and fitness services) for 150 non -hotel guests in conjunction with an existing hotel and restaurant use, 1 1 17 Williston Road. Raymond J. Belair, Administrative Officer July 10, 1999 SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT Rindiass in accordance with Section 4468 of the Plagnias Development Act ( i ) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional toposrahical or other physical conditions peculiar to the particular property. and that the unnecessary hardship is due to such conditions, and not the circuast.&Aces or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in Which the property is located; (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable the reasonable use of the property; (3) That such unnecessary hardship has not been created by the appellant; ( 4 ) That the variance, if authorized, will not alter the essential -character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; (S) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the zoning regulations and of the plan. 1 Appeal Date Appellant Vote: Yes Use Reverse side for No ET�Z3 Si9 addit"onal findings SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT Findings in accordance with Section 4468 of the Plagaing O-evelopment Act (1) That there are unique physical circumstances or conditions, including irresularity, narrowness, or shallowness of lot size or shape, or exceptional topograhical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumst&Aces or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located; (2) That because of such physical circumstances r conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable the reasonable use of the property; (3) That "such unnecessary hardship has not been created by the appel�ant, v �j (4) That t e variance, if authorized, will not lter the essential -character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; (5) Tha the variance, if authorized, will repro ent the minimum variance that will afford relief and will represent the least modification possible of the zoning regulations and of the 4an i Use Reverse side for additional findings SOUTH BURL,INGTON ZONING BOARD OF ADJUSTMENT Irindinss in accordance with Section 4468 of the Plaguing � Oovelopment Act (1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional toposrahical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumst aces or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located; • arc ,� ; _L(71 . /JCS , (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable the reason le use of the property; (3) That such unnecessary hardship has be n c eated by the appellant; (4) That the variance, if authorized, will not alter the essential -character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the p blic welt re, �." A� Tree c. i V Z l5 %J fi�..�,y 6/� �L, S�- C , (5) That the variance, variance that will least modification the plan. 1 if authorized, will represent the minimum afford relief and will represent the . possible the o in regulations and of -�- IV im, L 7 '��w, , ' ' Appeal t Date ?helg5 Appellant �c9 X�,, (0, , �— �, , Vote: Yes No L--J-'S isn Use Reverse side for additional findings T SOUTH BURLINGTON ZONING BOARD Of ADJUSTMENT Findings in accordance with Section 4468 of the Plagaint Oovetopment Act (t) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topograhical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumst"ces or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the proper71'2,6f is located; � ` U (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable Zhe reasonable use of the property; (3) That such unnecessary hardship has not been created by the appellant; f (4) That the variance, if authorized, will not alter the essential -character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; 1 (5) That the variance, variance that will least modification the plan. if authorized, will represent the minimum afford relief and will represent the . possible of the zoning regulations and of Appeal t Da to Appellant Vote: Yes r— v No Co Sign Use Reverse side for additional findings SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Reggulations and Chapter 117 Title 24, V.S.A., the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington Mu- nicipal Offices, Confer- ence Room, 575 Dorset Street, South Burlington, Vermont on Monday, July 26, 1999 at 7:00 p.m. to consider the fol- lowing: #1 Appeal of John jl Larkin seeking a vari ance from Section, 22.401, Dorset Park Viewi Protection Zone of thej South Burlington Zoning! Regulations. Request is for permission to allow a single family dwelling to project 1.645 feet above the maximum elevation, Of 417.565 feet above mean sea level permitted under the view protection zone, 6 Pinnacle Drive. #2 Appeal of Lodging North, Inc. d.b.a. Ra- mada Inn and Confer- ence Center seeking conditional use approval from Section 26.05, Con-, ditional Uses and Sec- tion 26.65 Multiple Struc-, tures and Uses Lots of the South Burlington Zoning Regulations. Re- quest is for permission to operate an indoor rec- reational facility [indoor pool and fitness serv- ices] for 150 non -hotel guests in conjunction with an existing hotel and restaurant use, 1117 Williston Road. Raymond J. Belair Administrative Officer July 10, 1999 CITY OF SOUTH BURLINGTON # Nv-Sy-may DEPARTMENT OF PUNNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VER.MONT 05403 (802) 846-4106 FAX (802) 846-4101 June 30, 1999 Gerald Milot & John Larkin P.O. Box 4193 Burlington, Vermont 05402 Re: Zoning Violation, 6 Pinnacle Drive Dear Messrs. Milot & Larkin: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, you have initiated the following activities on the above -described property: You have constructed a single family dwelling on lot 449 at the Pinnacle at Spear development which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning regulations. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Reduce the height of this structure so as not to exceed the 471.565 foot mean sea level elevation. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to fifty ($50.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. Messrs. Gerald & John Larkin Zoning Violation June 30, 1999 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Board fifteen JtT15) days oft e date of thisent by filing a written lletter ce of appeal (see enclosed) and eighty five ($85) dollars within with the Clerk of the Board of Adjustment at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincerely'; Z�'" ( fps, avymond J. BeIair, Administrative Officer RJ B/mcp 1 Encl cc: Joseph S. McLean, City Attorney Certified letter #Z 462 927 053 MEMORANDUM To: Zoning Board of Adjustment From: Joe Weith, Director, Planning & Zoning Subject: Variance Request of John Larkin Date: July 22, 1999 I would like to express two concerns with the appeal of John Larkin for a variance from Section 22.401, Dorset Park View Protection Zone. My first concern is with the variance criteria. This application clearly does not meet the criteria for approving a variance request, particularly the "hardship" criterion. The developer could have easily constructed a very large house that meets the requirements of the view protection zone. He could have built a cape style house or even a two story house with a lower roof pitch. The developer clearly made a mistake and he is asking the Board to in effect ignore the law and approve what he did. My second concern is with the precedent that will be established if this appeal is granted. Approving this request will in effect set up a waiver provision for the view protection overly zone. If a waiver provision is desired by the City, it should be expressly allowed in the zoning regulations, not handled through the variance process. In fact, the Planning Commission just last year proposed a waiver procedure for the view protection overlay zone. This amendment was forwarded to the Council and denied. Therefore, not only would approving this variance request set a bad precedent, but it would go completely against the City Council's expressed desires and intentions of the view protection overlay district. Thank you for considering my comments. Cc: South Burlington City Council South Burlington Planning Commission Chuck Hafter ' LISTON Neighbor od sale. Lamplite Acre 3rownell Rd. June th & 251h; 8:30 on. WILLISTON Sat-9-4. Community wn Sale. Pinecrest Vil le. Over 85 homes. 1s ht after driving range yards Williston Village. it tr x'r � WILLISTON Sat June 24, 8:30 468 Bittersweet Circle .LiSTON Terry Lane le. Fri. & Sat. 9am- m. Glassware, crystal, Its, lawn sweeper, dny mist. items. WINOOSKI 5 families Saturday 8:00 - 2:00 Is clothes & toys, furni- e, small appliances, ex- rsice equipment, ithes, womens plus es, air hockey table, I albums, silver, lots of usehold items. Main eet In Winooksi to La- mtain St., 2nd right to Niquette Court. IOOSKI & 6/24. 9-4. y wide tag sale. Pick up p of participating resi- nts at Chuck's Mobil or y Hall. Lots of neat rns from baby items to tiques. @•L-0SKE Multi family ive-way sale. Sat & in 10-6. Luggage set, wing machine, small p!iances, dishes, cloth- 1, & odds & ends. Shepherd St, AOOSKI Retirement rage sale! Years of lection, must sell ev- ithing, Fri & Sat, 9- m. 30 Bernard St. WINOOSKI Sat. 8am-4pm, Cedar St. Household ins, furniture, toys. IOOSKI Sat. & Sun. m-5pm. Hand tools, welder [225 amps], ,000 BTU Reddy star, nails & bolts. tSONALS b ABORTION? WHY? ONSIDER ADOPTION Warm, secure, loving me available for new- m baby. Please call at- ney at 1-800-606-4411. A-750 OPTION A call to us is iat we pray for! We are loving couple, longing share our hearts and me with a caucasian wbom or twins. All ad- ntages life has to offer, 11 any time, Melissa d Ron at 300-871-7190. OPTION House full of fighter, FT mom, m- antic couple, tong to rapt & share their lov- 1 home w/ a baby. penses paid. Call Ilect Dan & Barb 6]312-2993. OPT We'll offer you mpassion and give ur baby a lifetime of te. Expenses paid. 3ase call Irene & urge 1-800-278-1743 *SE A goose has re- ned to the gaggle. et to discuss cases of urn. Meadowbrook .Inv rih.. Rn i - --• ••- cena wur oe uve Tor Pic- 1 Hillside Dr. ture signing 654-3651 LLISTON Moving Sale - it. 7am-1 pm. 1 mile uth of Taft corners on e. 2 take a left on wthridge Rd. to #382.I ADVERTISEMENT LLISTON Multi family FOR BIDS rage sale. Computer City of Burlington 'printer, .compuTres,ter public Works Dept. useh toys, clothing, 33 Kilburn St. ue 24 & & yard items Burlington, VT 05401 ne 24 & 25. 9-4. 9 )man Pkwy & Gallop Sealed 81D for the Off Rte 2A construction of the 200( Street Proaram for As s phalt Recycling, Asphaf Grinding, Bituminous Finish & Wearing Course Replacemeni and Structure Adjust. ment, Contract# 2000-2, t will be received by the City of Burlington, Ver- mont, at the office of City Engineer, 33 Kilburn Street, P.O. Box 849, Burlington, Vermont 05402 until 1:00 p.m. [Daylight Savings Time] Friday, July 14, 2000 and then at said office pub- licly opened and read aloud. Approximately 5,- 400 tons of Wearing & Base Course Asphalt, 8,- 000 square yards of As- phalt Reclamation, 33,- 000 square yards of Asphalt Grinding and 235 Structure Adjustments are planned for Contract # 2000-2. Each BID must be ac- companied by a certified check payable to the OWNER for $5,000. A BID bond may be used in lieu of a certified check. Copies of the CON- TRACT DOCUMENTS may be examined or ob- tained at the office of the Public Works De- partment located at 331 Kilburn Street. Burling- ton,Vermont, upon pay- ment of $50.00 for each set. A Performance Bond and a Payment Bond each in an amount equal to one hundred percent [1 00% ] of the contract price, will be required. Ir- revocable letters of Credit from an approved bank may be used in lieu of the Performance and Payment Bonds or cash in the amount equal to one hundred percent [100 % ] of the contract price at the approval of the City Engineer. This contract is sub- ject to the Burlington Women In Construction Trades Ordinance. No bid will be accepted with- out a signed statement of intent to comply with this ordinance. A pre -bid conference will be held on Thursday, July 6, 2000 at 10-00 a.m- at the. Burlington Public Works i.e,Off33 Kilburn Street. All pro- spective bidders are en- couraged to attend. Any BIDDER, upon re- turning the contract doc- uments in good condition within 30 days after the actual date of BID open- ing, will be refunded their full payment, and any non -bidder upon so re- turning the CONTRACT DOCUMENTS will be re- funded $25.00. June 24, 25, 26, 27, 28, 29, 30, 2000 BURLINGTON SCHOOL DISTRICT REQUEST FOR BIDS The Burlington Board of f School Commissioners will receive sealed bids on or before, but no later than Friday, July 14 at 2.00 p.m. at Ira AOen Ad- ministration Center, 150 tions should Abe clear explained in writing. N bid shall be withdraw for a period of thirty [31 days after the opening c the bids. June 21, 22, 23, 24, & 25,2000 BURLINGTON SCHOOL DISTRICT REQUEST FOR BIDS The Burlington Schoc Department in associa tion with the Food Sent ice Director's Associa tion of Vermont, wil receive sealed bids on o before, but no later that Friday, June 30, 2000 a 2:00 p.m. at Burlingtoi High School Food Sery ice Office, 52 Instituti Road, Burlington, T 05401 for groceries in cluding dairy and non food items. The sealec proposals will be opened at 2:00 P.M. or Friday, June 30th at the same address. Notifica tion of the award if and will be made no later than 30 days 4rom the date of opening. Please address proposals to the attention of Doug Davis and type on the envelope "SEALED PROPOSAL - GROCERIES". No faxec bids are accepted. Con. tact Doug Davis, Director of Food Services at [802- 864-8416 for further in- formation. The Burlington Board of School Commissioners reserves the right to re- ject any or all bids and to accept or reject any part of any bid, to waive any or all informalities or ir- regularities in the bid, and to accept the bid which in the sole judge- ment of the Burlington Board of School Com- missioners is most ad- vantageous to the Bur- lington School Department, even though it may not be the lowest priced bid. Any excep- tions to the bid specifica- tions should be clearly explained in writing. No bid shall be withdrawn for a period of thirty [301 days after the opening of the bids. June 22, 23, 24, 2000 NOTICE OF FINDING OF NO SIGNIFICANT IMPACT AND NOTICE OF INTENT TO REQUEST A RELEASE OF GRANT FUNDS City of Burlington City Hall Burlinggton, VT 05401 [8021 865-7144 FIFTY] Users-865-7142] Issued: 6124/00 Expires 7/10/00 These Notices shall sat- isfy two separate but re- lated procedural require- ments for activities to be undertaken by the City of Burlington. REQUEST FOR RELEASE OF FUNDS On or about July 10, 2000, the City of Burling- ton will submit a request to the U.S. Department of Housing & Urban De- velopment [HUD] for the release of EDI [Special Purpose] funds under Ti- tle I of the Housing and Community Development Act of 1974, as amended, to undertake a project knows as Down- town Redevelopment, for the purpose of building demolition, site clear- ance and site prepara- tion at 82-90 and 92-94 , ne 1_,ny or rsurnngto certifies to HUD that th City of Burlington ,an Office of the Mayor cor sent to accep4 the juri: diction of the Feder: courts if an action t brought to enforce re sponsibilities in relatio to the environmental re view process and the these responsibilitie have been satisfiec HUD's approval of th certification satisfies it responsibilities unde NEPA and related law .and authorities, and al lows the City of Burling ton to use Progran funds. OBJECTIONS TO RELEASE OF FUNDS HUD will consider objec tions to its release o funds and the City o Burlington's certificatior for a period of fifteer days following the antici pated submission date o. its actual receipt of the request [whichever i; later] only if they are or one of the followinc bases: [a] the cer ifica tion was not executed b1 the Certifying Officer o the City of Burlington; lb the City of Burlington ha,, omitted a step or failec to make a decision of finding required by HUE regulations at 24 CFC Part 58; [c] the grant re- cipient has committee funds or incurred costs not authorized by 24 CFR Per 58 before ap- provaf of a release of funds by HUD; or [d] an- other Federal agencyy acting pursuant to 40 CFR Part 1504 has sub- mitted a written finding that the project is unsat- isfactory from the stand- point of environmental quality. Objections must be prepared and submit- ted in accordance with the required procedures [24 CFR Part 58] and shall be addressed to HUD at: U.S. Department of Housing and Urban Developement, 275 Chestnut Street, Man- chester, New Hampshire 03101. Potential objec- tors should contact HUD to verify the actual last day of the objection pe- riod. This material is available in alternate formats for persons with disabilities. Peter Clavefle, Mayor City Hell Burlington, VT 05401 June 24, 2000 NOTICE The annual tax filing of the Green Mountain Fund for Popular Strug- gle, Inc., 10 Machia Hill Road, Westford, VT 05494, Ann Lipsitt, Presi- dent, is available for in- spection during regular office hours at Julow and Welton, 25 Pinecrest Dr. Essex Jct., VT. 05452, 878-2218. June 24, 2000 NOTICE "The Board of School Di- rectors of the South Bur- lington School District re- quest sealed bids for the following on or before the acceptance dates. Rubbish & Recycling Bid - Friday, July 7, 2000 at 9.00 a.m. Bus Bid -Friday, July 7, 2000 at 11:00 a.m. For information and bid Jocuments, contact the f The South: Burfingto > fi�evelopmsnt Revie0 Board will hold a. pupptIrc hå at the South,8ur- lint�ton City Hall G6nfer- ence, Room, 5 Dorset Stree , Burlington, Vermont on Tuesday, July 11, 2000, at 7:90 P.M. to consider the fol- lowing: 1] Appeal #ZBA-99-30 o f John Larkin, to overturn the Administrative Offi- cer's Notice of Violation dated June 30, 1999 that the appellant is in viola- tion of the zoning regula- tions for having con- structed a single family dwelling at 6 Pinnacle Drive which exceeds the 417.565 foot mean sea level elevation maximum allowed under Section 22.401 of the zoning reg- ulations. 21 Application #CU-00- 15 of Chase Properties and Development, LTD seeking conditional use approval from Section 26.05, Conditional . Uses, and Section 26.65, Multi- ple Structures and Uses on Lots, of the South Burlington Zoning Regu- lations. Request is for permission to allow light manufacturing use in conjunction with ware- housing, storage and distribution use, 5 Green Tree Drive. 3] Final plat application #SD-00-33 of Vermont Gas Systems, Inc. to amend a previously ap- proved planned unit de- velopment consisting of the existing Vermont Gas building and a 38, 428 square foot building for general office use and a bank with drive -through service, 69 and 85 Swift Street. The amendment consists of the installa- tion of a 30kW electrical generator [Capstone Mi- coturbine] and sidewalk, 85 Swift Street- 4] Final plat application #SD-00-30 of Dorset Land Company to amend a planned unit develop- ment consisting of a 184 unit congregate housing facility and a 103 unit ex- tended stay hotel in two [21 buildings. The a m e n d - ment consists of: 1] add- ing one [11 hotel unit, and 21' constructing a 12' x 30' addition in place of a previously approved 9' x 32' addition, 401 and 415 Dorset Street - John Dinklage, Chairman South Burlington Development Review Board June 24, 2000 REQUEST FOR BIDS The Vermont State Hos- pital seeks a contractor to provide laundry serv- ices for the hospital. Laundry service must meet all standards of the Joint Commission on Ac- creditation of Hospitals. Please call 802-241-3005 for further information. June 21, 22, 23, 24, 25, 26, 27, 2000 L,J