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HomeMy WebLinkAboutAgenda 07_30 Myers Ct275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM Via Email January 20, 2021 Dalila Hall Administrative Officer City of South Burlington Office of Planning and Zoning 575 Dorset Street South Burlington, VT 05403 Re: 30 Myers Court Permit Amendment Application – Remand to DRB to be Heard January 20, 2021 Dear Ms. Hall: I write on behalf of Paul Washburn, owner of 30 Myers Court and the applicant for this project. I write in response to Ms. Keene’s staff comments posted in advance of this application’s hearing. I am writing to address a core errors in Ms. Keene’s analysis. A fundamental mistake is that Ms. Keene is applying all the standards for a single family residence to this application. That is not proper. The impact of Act 179 is not that accessory units must meet all the standards for a single family residence. Rather the impact is to invalidate any standards for accessory units if those standards are more exacting than exist for single family residences. Thus Act 179 sets an outer boundary for limitations on accessory units. Under Act 179 a town may adopt a bylaw that puts the same limits on accessory units that it puts on single family residences and no more. A town may of course adopt less restrictive regulations for accessory units under Act 179. Thus under Act 179 to the extent a bylaw provision places a greater or more exacting standard on accessory units, that provision is invalid. Provisions that place less restrictive standards remain valid under Act 179. As to the setbacks, Mr. Washburn’s project complies with the setblack limitations for assessor structures. Mr. Washburn is proposing an accessory structure housing an accessory dwelling unit. Under the Town of South Burlington Land Development Regulations, Mr. Washburn may place an accessory structure five feet from the rear property line. Section 3.10.A(3) states as such in no uncertain terms: “(3) Accessory structures shall be located a minimum of five (5) feet from all side and rear lot lines.” As Mr. Washburn’s accessory structure is 5 feet (technically 5’2”) from the rear lot line at the closest point, it is in compliance with Section 3.10.A(3). Ms. Keene’s analysis applying all the standards for a single family dwelling including the much greater setbacks is inaccurate and improper. It ignores the obvious compliance with Section 3.10.A(3). - 2 - 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com Further, Ms. Keene’s analysis ignores section 3.10.E. which regulates Accessory Residential Units. Act 179 does not eliminate this provision and thus Section 3.10.E cannot be ignored. Section 3.10.E states that accessory uses are permitted uses when the following seven conditions are met: (1)Floor space of the accessory residential unit shall not exceed thirty percent (30%) ofthe total habitable area of the single-family dwelling unit.1 (2) The principal dwelling shall be owner-occupied.(3) The accessory dwelling unit shall be an efficiency or one-bedroom unit.(4) Adequate wastewater capacity is available to service the accessory unit, asdemonstrated by issuance of a Wastewater Allocation or on-site wastewater permitpursuant to the South Burlington Ordinance Regulating the use of Public and Private Sanitary Sewerage and Stormwater Systems.(5) Two (2) additional off-street parking spaces shall be provided on the same lot, either ina garage or in a driveway, and not in any areas required to meet coverage limitations, orany front yard area other than a driveway, required by these Regulations.(6) If occupancy of the unit is to be restricted in the deed of the single-family home to a disabled person, no additional off-street parking is required.(7) A zoning permit shall be required for each accessory residential unit Mr. Washburn’s unit meets all these criteria. His unit thus must be considered a permitted use and no DRB review should even take place. This DRB must direct Ms. Keene to issue the permit. The only way DRB review was triggered previously was under Mr. Washburn’s prior request to re-set preconstruction grade and under the following clause of Section 3.10.E: Conditional Use Review by the Development Review Board pursuant to Article 14, Section 14.10 shall be required if the establishment of the accessory residential unit involves the construction of a new accessory structure, an increase in the height or floor area of the existing single-family dwelling or existing accessory structure, or an increase in the dimensions of the off-street parking areas (i.e. garages and driveway areas) presently existing on the site. As to this clause, Act 179 makes it illegal. This clause sets forth an “other control” (a conditional use review) to accessory units that does not currently apply to single family residences in the R4 district. It is therefore illegal and unenforceable. Further, as to Mr. Washburn’s prior request to re-set pre-construction grade and the DRB review that flowed from that, that is now irrelevant as the height limitation that triggered Mr. Washburn’s issues is now illegal. In 2018 Mr. Washburn received a permit for an accessory structure housing an accessory unit with said unit to be built to 12’9”. He then constructed an accessory structure housing an accessory unit taller than 15’ – the maximum allowed height. He was then notified that the structure, as to its height, was therefore in violation. He sought to remedy the violation by asking this Board to re-set pre-construction grade. This Board refused that request in its decision on application #CU-18-12. Mr. Washburn then sought to adjust the height to 15’ – 1 By Act 179 this is amended to also include ARUs that are less than 900 square feet, whichever is greater. - 3 - 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com the permitted height – through adjustments to the structure with application #CU-18-21A. That too was rejected through this Board’s application of the now illegal condition review clause from Section 3.10.E and the 15’ height limitation in table C-2. Under Act 179, the height limitation is illegal as is the conditional use review. Thus Mr. Washburn’s proposal meets all the dimensional standards of the Land Development Regulations that are applicable to an accessory structure/unit as amended by Act 179. There is no conditional use triggered and DRB approval is not required for the permitted and complying use. This DRB must therefore direct Ms. Keene to issue the permit and reject the suggestion of conditional use review. That would be a violation of the Land Development Regulations. Lastly, Ms. Keene’s re-analysis of the setbacks is a collateral attack on a final and binding permit and approvals. This board therefore has no authority to reconsider the prior approved rear setbacks which are at least five (5) feet, but under no circumstances are not at least seven feet. This DRB has already approved a seven foot rear setback for this accessory structure/unit. That approval as to a 7’ setback is final and binding. In #CU-18-02, Mr. Washburn received approval to construct this accessory unit 7’ from the rear property line. That condition was never appealed by the Town or any neighbor. It was not appealed by Mr. Washburn. It is final. Thus the Town and parties have no ability or legal position to argue that a 7 foot rear-setback is not already allowed for this structure. It is our view that this Board and the parties also have no ability to argue for a greater than five foot setback. (Leaving aside the fact that such is allowed by the Land Development Regulations). After construction of Mr. Washburn’s unit, a minor utility bump-out in the lower portion of the structure encroached into the approved 7’ setback by 1’10”.2 Thus in application #CU-18-12, Mr. Washburn requested approval for the minor encroachment and a 5 foot setback. This Board approved of the 5 foot setback and wrote: “[t]he Board finds a 5 ft. rear yard setback acceptable.” See Findings of Fact and Decision, #CU-18-12, April 17, 2018. The sole basis for the denial in #CU-18-12 was the height the height. The 5’ setback was approved and found to be acceptable. That determination was not appealed by the City or any neighbors. The sole issue brought to the Court when Mr. Washburn appealed the denial of #CU-18-12 was the Board’s determination as to the height of the structure and denial of his request to adjust pre-construction grade. During the course of that appeal, Mr. Washburn wanted to appease the City and proposed certain changes that would address the Board’s concerns as to height. Namely he proposed an alteration of the roof line and the installation of screening trees. Because these had not been presented to the DRB the matter was remanded to the DRB for consideration of just the amended roof structure and screening. The five foot setback approval was never remanded for reconsideration as that issue was not on appeal and was final. In application #CU-18-21A, a remand of #CU-18-12, Mr. Washburn brought to the DRB the changes described above so as to lower the height of the unit to 15 feet- the limit on the height 2 In Mr. Conner’s October 4, 2018 letter to Mr. Washburn alerting him of the alleged violations he wrote: “[t]the rear setback in the approval is for 7 feet….you have agreed to cut this back to meet the approved setback.” - 4 - 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com of an accessory structure per table C-2. This was the sole issue before the DRB and the sole issue on remand. This DRB denied Mr. Washburn’s requested changes. It did so by applying the conditional use criteria of Section 3.10. The DRB made no mention of the previously approved setbacks (either the 7’ feet as originally approved or the 5’ as approved in #CU-18-12). On remand to the DRB there was no challenge by the City, or any party, to the already approved rear setbacks either. The issue was determined with finality. Again, when this Board’s denial of #CU-18-21A was brought back to the Environmental Court the only issues on appeal related to the height of the structure and the imposition of conditional use criteria as to the height of the structure. No party, including the City, cross-appealed or raised any issue with regards to the previously approved rear-setback. As Act 179 eliminates any height limitation lower than 28 feet and the conditional use standards as applied to height, Mr. Washburn sought to apply Act 179 to his application while it was on appeal. The Court could not process that request due to statutory limits on its authority and thus remanded the matter to this Board with the direction to apply Act 179 to #CU-18-21A. As noted above, the only issue in #CU-18-21A is the height modification. Thus, with the application of Act 179, the height limitation is removed as is the condition use review that this board used to deny Mr. Washburn a permit. Accordingly the remand before you must be limited to an analysis of Act 179 as to the imposition of a 15 foot height limitation and the Board’s prior analysis through the conditional use criteria. The Board must conclude that these two issues are not allowed by Act 179 and that a permit must be issued by Ms. Keene or the Zoning Administrator. The rear-yard setback is set and determined. For this board to reconsider its allowance of either the seven foot rear setback, or the five foot rear setback is impermissible. It is a collateral attack on final and binding determinations. To the extent this board can consider anything relating to setbacks it is only whether to apply the seven foot setback from CU-18-02 or the five foot setback from CU-18-12. If that is the issue the board wants to discuss, then the applicant states that it will meet the seven foot setback as originally approved in CU-18-02. Thank you, /S/ Alexander LaRosa Alexander J. LaRosa ajlarosa@mskvt.com CC: Paul Washburn Marla Keene