HomeMy WebLinkAboutAgenda 06_CU-18-12B_30 Myers Ct_Washburn
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
TO: South Burlington Development Review Board
FROM: Marla Keene, Development Review Planner
SUBJECT: CU-18-12B 30 Myers Court
DATE: March 3, 2021 Development Review Board meeting
Remanded conditional use application #CU-18-12B of Paul J. Washburn to amend previously approved
conditional use permit #CU-18-02 for construction of a 14’ x 17’ detached accessory structure to be used as a
186 sq. ft. accessory residential unit. The application has been remanded due to changes in regulations
governing accessory residential units. The amendment consists of reducing the rear setback to five (5) feet,
increasing the height to fifteen (15) feet, and increasing the size to 248 sq. ft., 30 Myers Court.
The Board reviewed the project on January 20, 2021 and continued the hearing for the purpose of deliberating
and taking additional testimony if needed.
Staff has included in this packet:
• Applicant’s application narrative following Environmental Court remand, dated 1/6/2021
• Site plan and elevation sketches
• The Environmental Court Entry of October 26, 2020, remanding the case to the Board
• Full text of Act 179
• The Board’s 4/17/2019 and 2/21/2020 decisions (#CU-18-12 and #CU-18-12A, respectively)
• Staff comments from 1/20/2021
• Applicant’s supplemental written testimony provided on 1/20/2021
A) Applicability
On January 20, the applicant testified that they believe the Act 179 modifies the City’s LDR such that the
structure as it exists is allowed.
1. Staff recommends the Board provide feedback on this topic for the applicant’s benefit prior to proceeding.
Does Act 179, which modifies 24 VSA § 4412, apply to the conditional use applications #CU-18-12 and
#CU-18-12A for 30 Myers Court?
Staff offers the following two pieces of evidence to assist the Board in making this determination.
1. Vermont Statute 1 V.S.A. § 214(b) reads as follows.
(b) The amendment or repeal of an act or statutory provision, except as provided in subsection (c) of this
section, shall not:
#CU-18-12B
2
(1) affect the operation of the act or provision prior to the effective date of the amendment or repeal
thereof;
(2) affect any right, privilege, obligation, or liability acquired, accrued, or incurred prior to the
effective date of the amendment or repeal;
(3) affect any violation of the act or provision amended or repealed, or any penalty or forfeiture
incurred thereunder, prior to the effective date of the amendment or repeal;
(4) affect any suit, remedy, or proceeding to enforce or give effect to any right, privilege, obligation,
or liability acquired, incurred, or accrued under the amended or repealed provision prior to the
effective date of the amendment or repeal; and the suit, remedy, or proceeding may be instituted,
prosecuted, or continued as if the act or provision had not been repealed or amended.
2. The Environmental Court’s Entry on October 26,2020, the full text of which is included in the packet for the
Board, includes the following statement:
“…we hereby REMAND the pending application to the DRB so that it may receive and rule on, in the
first instance, Applicant’s suggestion that the revised SS 4412 should govern his pending application.”
B) Determination
2. Regardless of the Board’s conclusion pursuant to (A) above, Staff recommends the Board provide findings
on the application as though Act 179 does apply, in order to facilitate environmental court review in the
event of an appeal of this Board’s decision. Staff recommends the Board invite the applicant to provide
testimony on the staff notes of January 20 in support of this analysis, but does not consider additional
testimony beyond that which has already been provided to be necessary to making a determination.
On January 20, the applicant argued that the portion of the LDR allowing accessory structures up to 5-feet from
the property line is applicable to the structure but the portion of the LDR restricting the height of accessory
structures is not. Staff considers this interpretation to be incorrect. As stated in the 1/20/2021 staff notes, Act
179 allows municipalities to review accessory dwelling units under the same rules as single family homes (“A
bylaw may require a single-family dwelling with an accessory dwelling unit to be subject to the same review,
dimensional, or other controls as required for a single-family dwelling without an accessory dwelling unit”).
In the case of the South Burlington LDR, Staff considers the structure would not be allowed under the rules for
a single-family dwelling (see Staff analysis of 3.06J(3) from 1/20/2021). The South Burlington LDR provides an
alternative path forward for accessory dwelling units outside of the single family home regulations. This is
neither required nor prohibited by Act 179. This alternative path is described in LDR 3.10 Accessory Structures
and Uses and LDR 14.10 Conditional Use Review. The Board found in CU-18-12 and CU-18-12B the structure
does not meet the requirements of 3.10 and 14.10. Therefore Staff considers if the Board finds Act 179 applies,
the application must be reviewed as presented in the staff notes for January 20, which leads to substantially
similar criteria upon which the Board previously denied the application.
C) Additional Considerations
The full text of 24 V.S.A. § 4412(1)(E) and (F), as revised by Act 179, follows.
24 V.S.A. § 4412(1)(E) Except for flood hazard and fluvial erosion area bylaws adopted
pursuant to section 4424 of this title, no bylaw shall have the effect of excluding as a
permitted use one accessory dwelling unit that is located within or appurtenant to a single-
family dwelling on an owner-occupied lot. A bylaw may require a single-family dwelling with
an accessory dwelling unit to be subject to the same review, dimensional, or other controls as
required for a single-family dwelling without an accessory dwelling unit. An accessory
#CU-18-12B
3
dwelling unit means a distinct unit that is clearly subordinate to a single-family dwelling, and
has facilities and provisions for independent living, including sleeping, food preparation, and
sanitation, provided there is compliance with all the following:
(i) The property has sufficient wastewater capacity.
(ii) The unit does not exceed 30 percent of the total habitable floor area of the single-
family dwelling or 900 square feet, whichever is greater.
(F) Nothing in subdivision (1)(E) of this section shall be construed to prohibit:
(i) a bylaw that is less restrictive of accessory dwelling units; or
(ii) a bylaw that regulates short-term rental units distinctly from residential rental
units
It is relevant to note that the modified text of 24 VSA 4412 defines an accessory dwelling unit as clearly
subordinate to a single-family dwelling.
3. Staff recommends the Board include in their decision a determination on whether the structure is clearly
subordinate to the single-family dwelling, given their relative sizes and heights, again for the purpose of
facilitating Environmental Court review in the case of an appeal.
RECOMMENDATION
Staff recommends the Board discuss the project with the applicant and close the hearing.
275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM
Via Email
January 6, 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. As you know, in 2019, Mr. Washburn filed an amendment to permit #CU-18-02 and application #CU-18-12 so as to raise the permitted height of an accessory dwelling unit located at 30 Myers Court from 12’9” to 15’ and to reconstruct the existing roof on one accessory dwelling unit the so as to lower its height to 15 feet. That request was denied by the South Burlington DRB
on February 21, 2020.
The basis for the DRB’s denial was through the DRB’s application of the conditional use criteria then applicable to Mr. Washburn’s application by way of Section 3.10E of the South Burlington Land Development Regulations (Accessory Structures and Uses) Section 3.10E stated
that the proposed structure shall be reviewed as a conditional use and shall meet the conditional
use standards of Section 14.10(E). In applying those standards the DRB denied request because the DRB determined that the request violated Section 14.10(E)(2) in that a 15 foot high accessory structure negatively affected the character of the area.
The February 21, 2020 decision was appealed to the Vermont Superior Court
Environmental Division. During the pendency of that appeal Vermont Law changed. To address these changes in law, the permit was remanded to the DRB. In order for the DRB to understand how changes in the Vermont law have an impact on
this case, I refresh your recollection as to the history of this matter. Applicant received a permit to
construct the accessory dwelling unit on March 21, 2018 (#CU-18-02). The approval imposed a maximum height of 12’9”. Mr. Washburn did not build a 12’9” structure. For various reasons, the structure was built so that it now measures approximately 17.5’ above pre-construction grade. The structure itself (floor to peak) is exactly the same as proposed. The floor grade was just raised
during construction. Aside from being taller than originally permitted, the accessory unit is a lovely small house. It is clean, well built and serves as the dwelling for Mr. Washburn’s girlfriend, her
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275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
dog, and her cat. It exactly the sort of space saving, low impact housing that South Burlington
needs. After being notified of the height violation, Mr. Washburn sought approval for the height as built via the waiver provision in Section 3.07 of the South Burlington Land Development
Regulations (“LDRs”). In that request, no changes were proposed to the actual structure and no
screening was proposed. Mr. Washburn’s request was denied by this DRB on April 17, 2019 (#CU-18-12). Mr. Washburn appealed this ruling to the Vermont Superior Court Environmental Division.
During the course of that appeal, Mr. Washburn offered design changes to the accessory dwelling
unit so that it would measure 15’ from pre-construction grade. At the time, that was the max height permitted in the R4 district. As these changes to the structure were not reviewed by the DRB, the Environmental Division remanded the matter back to the DRB so that DRB could review the changes in the first instance. It was on this remand that the DRB denied Mr. Washburn’s request
on February 21, 2020.
This was appealed to the Environmental Court. As discussed below, during that appeal Vermont law dramatically changed. Due to Rule 5 (g) of the Rules of Environmental Court Procedure, the Court could not address these changes in law while the case was on appeal.
However, it is unquestionable an applicant may avail itself of changes in the law. See e.g. In Re.
Berlin Associates, No. JW0584-14-EB (Vt. Envtl. Bd. Jan. 10, 1992). Therefore the matter was remanded to the DRB so that the changes in law could govern this application. The change in law is substantial. On October 12, 2020 Governor Scott signed Act 179 (S.
237) “An Act relating to Promoting Affordable Housing.” Act 179 became effective immediately
and dramatically altered how towns like South Burlington can regulate accessory dwelling units like Mr. Washburn’s. As of October 12, 2020 the following provision of law applies to the regulation of accessory dwelling units:
24 V.S.A. 4412(1)(E): Except for flood hazard and fluvial erosion area bylaws
adopted pursuant to section 4424 of this title, no bylaw shall have the effect of excluding as a permitted use one accessory dwelling unit that is located within or appurtenant to a single-family dwelling on an owner occupied lot. A bylaw may require a single-family dwelling with an accessory dwelling unit to be subject to
the same review, dimensional, or other controls as required for a single-family
dwelling without an accessory dwelling unit. An accessory dwelling unit means a distinct unit that is clearly subordinate to a single-family dwelling, and has facilities and provisions for independent living, including sleeping, food preparation, and sanitation, provided there is compliance with all the following:
(i) The property has sufficient wastewater capacity.
(ii) The unit does not exceed 30 percent of the total habitable floor area of the single-family dwelling or 900 square feet, whichever is greater.
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275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
Act 179 as enacted:
https://legislature.vermont.gov/Documents/2020/Docs/ACTS/ACT179/ACT179%20As%20Enacted.pdf Mr. Washburn’s unit is less than 900 square feet. There is wastewater capacity. It therefore falls within the purview of the new 24 V.S.A. §4412. The key of this regulation is that towns now
may only subject accessory units to the same dimensional and other controls as single family residences. That has major implications on the provisions of the LDRs at issue here. Section 3 of the LDRs regulate Accessory Dwelling Units. Section 3.07(E)(1) states that Accessory Structures shall not exceed 15 feet in height. See Section 3.07(E), Table C-2. Single
Family Residences in the R4 District may be up to 28 feet in height with a pitched roof. See Table C-2. Thus as written today, Section 3.07(E) and table C-2 violate Act 179 in that they subject an accessory dwelling unit to a separate “dimensional” control that is not applicable to a single family residence in the underlying district.
Further, Section 3.07(E)(1)(c) states that if the accessory structure exceeds the height of the principal structure, the accessory structure shall be reviewed under the Section 14 Conditional use Criteria. This is an “other control” that applies to Accessory Dwelling Units in the R4 District that does not apply to Single Family Residences in the R4 District. It too therefore violates Act 179 in that it subjects an Accessory Dwelling Unit to an “other control.”
Section 3.10(E) also violates Act 179. It subjects Accessory Dwelling Units to conditional use review when there is the construction of a new accessory unit. See Section 3.10(E). In the R4 District, single family residences and/or the construction of a new single family residence are not subject to conditional use review. See Section 4.03, Table C-1 (a/k/a Appendix C). Rather they are
“permitted” structures and uses. Therefore section 3.10(E) of the LDRs violates Act 179 to the extent that it subjects an Accessory Dwelling Unit to conditional use review. That is an “other control” not applicable to single family residences. Act 179 thus invalidates and renders unenforceable the regulations and standards that this
DRB used to deny Mr. Washburn a permit. It renders the 15 foot height limitation invalid and unenforceable. The application of the conditional use criteria to Mr. Washburn’s unit is also now illegal. Because the 15 foot height limitation and the conditional use criteria no longer apply to Applicant’s accessory dwelling unit, the DRB must rule in applicant’s favor and withdraw their decision. Further because the 15 foot height limit no longer applies, Applicant is revising its
request as to raise the permitted height to 18 feet over preconstruction grade and as-built drawings are provided. This height is within the height allowed for single family residences and thus allowable under Act 179. 1
Thank you, /S/ Alexander LaRosa
1 Because the procedure to take advantage of a change in law is unclear and it isn’t clear whether remand alone is sufficient or whether applicant must also filed a new application. Therefore Applicant is also submitting a new application for an 18’ height accessory unit in order to approve the unit as built.
- 4 -
275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com
Alexander J. LaRosa
ajlarosa@mskvt.com CC: Paul Washburn Marla Keene
Jeffrey Messina, Esq. (counsel for the Cuchural Family Trust)
Colin McNeil, Esq. (counsel for the City of South Burlington)
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No. 179 Page 1 of 7
2020
VT LEG #350807 v.1
No. 179. An act relating to promoting affordable housing.
(S.237)
It is hereby enacted by the General Assembly of the State of Vermont:
* * * Municipal Zoning * * *
Sec. 1. 24 V.S.A. § 4412 is amended to read:
§ 4412. REQUIRED PROVISIONS AND PROHIBITED EFFECTS
Notwithstanding any existing bylaw, the following land development
provisions shall apply in every municipality:
(1) Equal treatment of housing and required provisions for affordable
housing.
* * *
(E) Except for flood hazard and fluvial erosion area bylaws adopted
pursuant to section 4424 of this title, no bylaw shall have the effect of
excluding as a permitted use one accessory dwelling unit that is located within
or appurtenant to an owner-occupied a single-family dwelling on an owner-
occupied lot. A bylaw may require a single-family dwelling with an accessory
dwelling unit to be subject to the same review, dimensional, or other controls
as required for a single-family dwelling without an accessory dwelling unit.
An accessory dwelling unit means an efficiency or one-bedroom apartment a
distinct unit that is clearly subordinate to a single-family dwelling, and has
facilities and provisions for independent living, including sleeping, food
No. 179 Page 2 of 7
2020
VT LEG #350807 v.1
preparation, and sanitation, provided there is compliance with all the
following:
(i) The property has sufficient wastewater capacity.
(ii) The unit does not exceed 30 percent of the total habitable floor
area of the single-family dwelling or 900 square feet, whichever is greater.
(iii) Applicable setback, coverage, and parking requirements
specified in the bylaws are met.
(F) Nothing in subdivision (1)(E) of this section shall be construed to
prohibit:
(i) a bylaw that is less restrictive of accessory dwelling units; or
(ii) a bylaw that requires conditional use review for one or more of
the following that is involved in creation of an accessory dwelling unit:
(I) a new accessory structure;
(II) an increase in the height or floor area of the existing
dwelling; or
(III) an increase in the dimensions of the parking areas
regulates short-term rental units distinctly from residential rental units.
* * *
(2) Existing small lots. Any lot that is legally subdivided, is in
individual and separate and nonaffiliated ownership from surrounding
properties, and is in existence on the date of enactment of any bylaw, including
an interim bylaw, may be developed for the purposes permitted in the district
No. 179 Page 3 of 7
2020
VT LEG #350807 v.1
in which it is located, even though the small lot no longer conforms to
minimum lot size requirements of the new bylaw or interim bylaw.
(A) A municipality may prohibit development of a lot not served by
and able to connect to municipal sewer and water service if either of the
following applies:
(i) the lot is less than one-eighth acre in area; or
(ii) the lot has a width or depth dimension of less than 40 feet.
* * *
Sec. 2. 24 V.S.A. § 4414 is amended to read:
§ 4414. ZONING; PERMISSIBLE TYPES OF REGULATIONS
* * *
(3) Conditional uses.
(A) In any district, certain uses may be allowed only by approval of
the appropriate municipal panel, if general and specific standards to which
each allowed use must conform are prescribed in the appropriate bylaws and if
the appropriate municipal panel, under the procedures in subchapter 10 of this
chapter, determines that the proposed use will conform to those standards.
These general standards shall require that the proposed conditional use shall
not result in an undue adverse effect on any of the following:
(i) The capacity of existing or planned community facilities.
No. 179 Page 4 of 7
2020
VT LEG #350807 v.1
(ii) The character of the area affected, as defined by the purpose or
purposes of the zoning district within which the project is located, and
specifically stated policies and standards of the municipal plan.
(iii) Traffic on roads and highways in the vicinity.
(iv) Bylaws and ordinances then in effect.
(v) Utilization of renewable energy resources.
* * *
(E) A multiunit dwelling project consisting of four or fewer units
located in a district allowing multiunit dwellings may not be denied solely due
to an undue adverse effect on the character of the area affected.
* * *
Sec. 3. 24 V.S.A. § 2291 is amended to read:
§ 2291. ENUMERATION OF POWERS
For the purpose of promoting the public health, safety, welfare, and
convenience, a town, city, or incorporated village shall have the following
powers:
* * *
(29) To regulate by means of an ordinance or bylaw the operation of
short-term rentals within the municipality, provided that the ordinance or
bylaw does not adversely impact the availability of long-term rental housing.
As used in this subdivision, “short-term rental” means a furnished house,
condominium, or other dwelling room or self-contained dwelling unit rented
No. 179 Page 5 of 7
2020
VT LEG #350807 v.1
to the transient, traveling, or vacationing public for a period of fewer than
30 consecutive days and for more than 14 days per calendar year.
Sec. 4. 27 V.S.A. § 545 is added to read:
§ 545. COVENANTS, CONDITIONS, AND RESTRICTIONS OF
SUBSTANTIAL PUBLIC INTEREST
Deed restrictions, covenants, or similar binding agreements added after
January 1, 2021 that prohibit or have the effect of prohibiting land
development allowed under a municipality’s bylaws shall not be valid. This
section shall not affect the enforceability of any property interest held in whole
or in part by a qualified organization or State agency as defined in 10 V.S.A.
§ 6301a, including any restrictive easements, such as conservation easements
and historic preservation rights and interests defined in 10 V.S.A. § 822. This
section shall not affect the enforceability of any property interest that is
restricted by a housing subsidy covenant as defined by section 610 of this title
and held in whole or in part by an eligible applicant as defined in 10 V.S.A.
§ 303(4) or the Vermont Housing Finance Agency.
* * * Mobile Home Parks * * *
Sec. 5. MOBILE HOME PARK INFRASTRUCTURE
(a) The Department of Environmental Conservation shall:
(1) assist the Town of Brattleboro and the Tri-Park Cooperative in the
implementation of the Tri-Park Master Plan and Deerfield River & Lower
Connecticut River Tactical Basin Plan, including through restructuring or
No. 179 Page 6 of 7
2020
VT LEG #350807 v.1
forgiveness of State Revolving Loans RF1-104 and RF3-163 and additional
loans to the extent possible, to allow for improvements to drinking water,
wastewater, and stormwater infrastructure needs;
(2) provide similar assistance to the extent possible to similarly situated
mobile home parks that also have infrastructure needs; and
(3) identify statutory and programmatic changes necessary to assist in
the implementation of the plans and to improve access and terms by mobile
home parks to the Clean Water Revolving Loan Fund, Water Infrastructure
Sponsorship Program and the Drinking Water State Revolving Fund.
(b) On or before January 15, 2021, the Department shall report on actions
taken and recommendations for statutory or programmatic changes to the
Senate Committees on Economic Development, Housing and General Affairs
and on Institutions and to the House Committees on General, Housing, and
Military Affairs, on Natural Resources, Fish, and Wildlife, and on Corrections
and Institutions.
Sec. 6. 10 V.S.A. § 10 is amended to read:
§ 10. VERMONT STATE TREASURER; CREDIT FACILITY FOR LOCAL
INVESTMENTS
(a) Notwithstanding any provision of 32 V.S.A. § 433(a) to the contrary,
the Vermont State Treasurer shall have the authority to establish a credit
facility of up to 10 percent of the State’s average cash balance on terms
acceptable to the Treasurer and consistent with prudent investment principles
No. 179 Page 7 of 7
2020
VT LEG #350807 v.1
and guidelines pursuant to 32 V.S.A. § 433(b)–(c) and the Uniform Prudent
Investor Act, 14A V.S.A. chapter 9.
(b) The amount authorized in subsection (a) of this section shall include all
credit facilities authorized by the General Assembly and established by the
Treasurer, and the renewal or replacement of those credit facilities. The
Treasurer may use amounts available under this section to provide financing
for infrastructure projects in Vermont mobile home parks and may modify the
terms of such financing in his or her discretion as is necessary to promote the
availability of mobile home park housing and to protect the interests of the
State.
* * * Effective Date * * *
Sec. 7. EFFECTIVE DATE
This act shall take effect on passage.
Date Governor signed bill: October 12, 2020
#CU‐18‐12
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CITY OF SOUTH BURLINGTON
DEPARTMENT OF PLANNING AND ZONING
PAUL JAMES WASHBURN – 30 MYERS COURT
CONDITIONAL USE APPLICATION #CU‐18‐12
FINDINGS OF FACT AND DECISION
Conditional use application #CU‐18‐12 of Paul J. Washburn to amend a previously approved
conditional use permit for construction of a 14’ X 17’ detached accessory structure to be used as
a 186 sq. ft. accessory residential unit. The amendment consists of reducing the rear setback to
five (5) feet and increasing the height to fifteen (15) feet, 30 Myers Court.
The Development Review Board held a public hearing on November 20, 2018 and January 29
and March 19, 2019. The applicant represented himself.
Based on the plans and materials contained in the document file for this application, the Board
finds, concludes, and decides the following:
FINDINGS OF FACT
1. Paul Washburn, hereinafter referred to as the applicant, is seeking to amend a
conditional use approval for an accessory structure by reducing the rear setback to five
(5) feet and increasing the height to fifteen (15) feet, 30 Myers Court.
2. The owner of record of the subject property is Paul James Washburn.
3. The subject property is located in the Residential 4 Zoning District.
4. The application was received on November 2, 2018.
5. The plan set submitted consists of a four (4) page set of plans, page one (1) entitled “30
Myers Court Current State”, prepared by the applicant and received November 2, 2018.
6. Structures on the property currently include a single family home and a storage shed.
The current structures conform with the dimensional standards of the district.
7. The applicant has separately received approval for construction of an attached garage,
extending the existing driveway and paving a parking area for three additional spaces
behind the existing principal dwelling unit (#ZP‐18‐030). Construction of these
improvements has not yet been completed.
8. The applicant received approval for construction of a similar structure on March 21,
2018 (#CU‐18‐02). Staff visited the subject property during construction and
determined that the structure as built exceeded the setback and height approved by the
Board in the 2018 decision. This application seeks approval for the height and setback
as built. The project is subject to conditional use review under Section 3.10E.
#CU‐18‐12
‐ 2 ‐
A. ZONING DISTRICT & DIMENSIONAL REQUIREMENTS:
R4 Zoning District Required Existing Proposed
Min. Lot Size 9,500 SF 9,761 SF 9,761 SF
Max. Building Coverage 20 % 8.6% 17.4%
Max. Overall Coverage 40 % 14.5% 36.1%
Min. Front Setback 20 ft. 35 ft. No change
Min. Side Setback, Principal
Structure
10 ft. 13 ft. No change
Min. Rear Setback, Principal
Structure
30 ft. > 30 ft. No change
Min. Setback, Accessory 5 ft. side & rear 5 ft. side & rear 18 ft. side, 5 ft.
rear
Max. Building Height,
Principal (pitched)
28 ft. 23 ft. No change
@ Max. Building Height,
Accessory
15 ft. N/A 17‐18 ft.
1
√ Zoning Compliance
@ Non‐compliance
During the hearing, based on measurements taken by Catamount Consulting Engineers,
PLLC, an independent technical reviewer, and summarized in their memorandum of
December 4, 2018, it became known that the applicant’s representation of the actual
height of the building at 14’ 3” and their request for a maximum height of 15 feet was
incorrect and the structure as constructed is in fact between 17 and 18 feet above pre‐
construction grade, and 16’ 5 3/4” above existing grade. The applicant testified that they
located the foundation of the building at existing grade and place fill around the structure.
Based on the corrected dimensions as measured by Catamount Consulting Engineers, the
Applicant verbally amended their originally submitted request to the Board and
requested instead the Board grant approval for the structure to be 15 ft. high measured
from a point higher than the average pre‐construction grade as allowed under Section
3.12.
#CU‐18‐02 granted a rear yard setback of 7 ft. for the accessory residential unit. The
applicant has requested a 5 ft. rear yard setback in this application. The Board finds a 5
ft. rear yard setback acceptable.
3.12 Alteration of Existing Grade
A. Permit Required. The removal from land or the placing on land of fill, gravel, sand,
loam, topsoil, or other similar material in an amount equal to or greater than
twenty (20) cubic yards, except when incidental to or in connection with the
construction of a structure on the same lot, shall require the approval of the
Development Review Board. The Development Review Board may grant such
approval where such modification is requested in connection with the approval of a
site plan, planned unit development or subdivision plat. This section does not apply
#CU‐18‐12
‐ 3 ‐
to the removal of earth products in connection with a resource extraction operation
(see Section 13.16, Earth Products.)
Section 3.12 allows an applicant to seek approval for alteration of existing grade in
connection with site plan approval, planned unit development or subdivision. Outside of
site plan, planned unit development or subdivision, the Board may grant approval for
alteration of existing grade as part of a miscellaneous permit. Since conditional use and
miscellaneous approval may be reviewed as part of the same application, the Board finds
the application is eligible for review under this standard.
B. Standards and Conditions for Approval.
(1) The Development Review Board shall review a request under this Section for
compliance with the standards contained in this sub‐Section 3.12(B). and
Section 3.07, Height of Structures of these regulations. An application under
Section 3.12(A) above shall include the submittal of a site plan, planned unit
development or subdivision plat application showing the area to be filled or
removed, and the existing grade and proposed grade created by removal or
addition of material.
(2) The Development Review Board, in granting approval may impose any
conditions it deems necessary, including, but not limited to, the following:
(a) Duration or phasing of the permit for any length of time.
(b) Submission of an acceptable plan for the rehabilitation of the site at the
conclusion of the operations, including grading, seeding and planting,
fencing, drainage, and other appropriate measures.
(c) Provision of a suitable bond or other security in accordance with Section 15.15
adequate to assure compliance with the provisions of these Regulations.
(d) Determination of what shall constitute pre‐construction grade under Section
3.07, Height of Structures.
The applicant testified that he raised the grade of the accessory structure in order to allow
sewer to flow by gravity from the accessory structure to the existing sewer in the primary
structure.
B. ACCESSORY RESIDENTIAL UNITS
One (1) accessory residential unit constructed within or attached to a primary single‐family
dwelling or within an existing, permitted accessory structure shall be a permitted single family
use, in accordance with the following criteria:
(1) Floor space of the accessory residential unit shall not exceed thirty percent (30%) of
the total habitable area of the single‐family dwelling unit.
The habitable area of the existing dwelling unit is 634 square feet. In the initial
conditional use approval for the project, the applicant represented that the first floor
habitable area of the accessory residential unit is 186 square feet. As part of the
#CU‐18‐12
‐ 4 ‐
current application, the applicant testified that the structure has a loft in addition to
the first story, and that the loft takes up approximately 1/3 the footprint of the unit,
providing an additional approximately 62 square feet. “Habitable area” is not defined
in the LDRs, therefore Standard 2.01F applies:
Any word or phrase that is not defined in this section or elsewhere in these
regulations shall have its plain and commonly accepted meaning.
The Board concludes that if the applicant wishes to request approval to keep the loft
area, the applicant must provide plans showing that he will make at least 193 sq. ft.
of the approved attached garage habitable space that is directly connected with the
habitable area of the existing dwelling unit. This will result in the accessory dwelling
unit, at 248 sq. ft., being exactly 30% as large as the primary dwelling unit at 826 sq.
ft. The Board finds this solution acceptable.
(2) The principal dwelling shall be owner‐occupied.
The applicant testified this would be the case. The Board notes that this is an ongoing
requirement under the Land Development Regulations.
(3) The accessory dwelling unit shall be an efficiency or one‐bedroom unit.
The accessory dwelling unit is an efficiency. The Board finds this criterion met
(4) Adequate wastewater capacity is available to service the accessory unit, as
demonstrated by issuance of a Wastewater Allocation or on‐site wastewater permit
pursuant to the South Burlington Ordinance Regulating the use of Public and Private
Sanitary Sewerage and Stormwater Systems.
The applicant has already obtained final wastewater allocation for the unit as part of
their prior approval. The Board finds this criterion met.
(5) Two (2) additional off‐street parking spaces shall be provided on the same lot, either
in a garage or in a driveway, and not in any areas required to meet coverage
limitations, or any front yard area other than a driveway, required by these
Regulations.
The Board finds the two additional parking spaces approved as part of zoning permit
#ZP‐18‐030 meet this criterion.
(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.
This criterion is not applicable.
(7) A zoning permit shall be required for each accessory residential unit.
A zoning permit is required to enact any approvals granted by this Board.
C. CONDITIONAL USE CRITERIA
Pursuant to Section 3.10E of the South Burlington Land Development Regulations (Accessory
Structures and Uses), the proposed structure shall be reviewed as a conditional use and shall
meet the following standards of Section 14.10(E):
#CU‐18‐12
‐ 5 ‐
14.10(E) General Review Standards. The Development Review Board shall review the proposed
conditional use for compliance with all applicable standards as contained in these regulations.
The proposed conditional use shall not result in an undue adverse effect on any of the following:
(1) The capacity of existing or planned community facilities.
This project will have no adverse effect upon community facilities. The Board finds this
criterion met.
(2) The character of the area affected, as defined by the purpose or purposes of the zoning
district within which the project is located, and specifically stated policies and standards
of the municipal plan.
The stated purpose of the Residential 4 District, which is “to encourage residential use
at moderate densities that are compatible with existing neighborhoods and undeveloped
land adjacent to those neighborhoods.” The Board finds that the requested height of 15
feet measured from existing grade, or 17 to 18 feet above average pre‐construction
grade, is not consistent with the planned character of the area.
(3) Traffic on roads and highways in the vicinity.
This project will have no adverse effect on traffic on roads and highways in the vicinity.
The Board finds this criterion met.
(4) Bylaws and ordinances then in effect.
The Board finds this criterion met.
(5) Utilization of renewable energy resources.
This project will not affect renewable energy resources. The Board finds this criterion met.
CONCLUSIONS OF LAW
1. 3.12B(1) requires the applicant to submit a plan showing the area to be filled or removed and
the existing grade and proposed grade created by removal or addition of material. 3.12B(2)
allows the Board to determine what shall constitute pre‐construction grade but does not
obligate the Board to grant an adjusted pre‐construction grade. The Board concludes the
applicants desire for gravity sewer does not overcome the impacts of the structure being 17
to 18 feet above pre‐construction grade. The Board concludes that the sewer could have
been constructed differently and therefore does not concur with the applicant’s request for
an adjusted pre‐construction grade. Therefore the Board does not concur with the applicant’s
request for the structure to be 15 ft. high measured from a point higher than the average pre‐
construction grade.
#CU‐18‐12
‐ 6 ‐
DECISION
Motion by Matt Cota, seconded by John Wilking to approve Conditional Use application
#CU‐18‐12 of Paul Washburn
Mark Behr Yea Nay Abstain Not Present
Matt Cota Yea Nay Abstain Not Present
Frank Kochman Yea Nay Abstain Not Present
Bill Miller Yea Nay Abstain Not Present
Jennifer Smith Yea Nay Abstain Not Present
Brian Sullivan Yea Nay Abstain Not Present
John Wilking Yea Nay Abstain Not Present
Motion failed by a vote of 0 – 7 – 0. The application is denied.
Signed this ____ day of April, 2019, by
_____________________________________
Bill Miller, Chair
Please note: An appeal of this decision may be taken by filing, within 30 days of the date of this
decision, a notice of appeal and the required fee by certified mail to the Superior Court,
Environmental Division. See V.R.E.C.P. 5(b). A copy of the notice of appeal must also be mailed
to the City of South Burlington Planning and Zoning Department at 575 Dorset Street, South
Burlington, VT 05403. See V.R.E.C.P. 5(b) (4)(A). Please contact the Environmental Division at
802‐828‐1660 or http://vermontjudiciary.org/GTC/environmental/default.aspx for more
information on filing requirements, deadlines, fees and mailing address.
The applicant or permittee retains the obligation to identify, apply for, and obtain relevant
state permits for this project. Call 802.477.2241 to speak with the regional Permit Specialist.
#CU‐18‐12A
‐ 1 ‐
CITY OF SOUTH BURLINGTON
DEPARTMENT OF PLANNING AND ZONING
PAUL JAMES WASHBURN – 30 MYERS COURT
REMANDED CONDITIONAL USE APPLICATION #CU‐18‐12A
FINDINGS OF FACT AND DECISION
Remanded conditional use application #CU‐18‐12A of Paul J. Washburn to amend previously approved
conditional use permit #CU‐18‐02 for construction of a 14’ X 17’ detached accessory structure to be
used as a 186 sq. ft. accessory residential unit. The amendment consists of reducing the rear setback to
five (5) feet, increasing the height to fifteen (15) feet, and increasing the size to 248 sq. ft., 30 Myers
Court.
The Development Review Board reopened previously‐denied application #CU‐18‐12 on the basis of a
remand by the Environmental Court and held a public hearing on #CU‐18‐12A on February 4, 2020. The
applicant was represented by A. J. LaRosa and Paul Washburn. Board member Brian Sullivan recused
himself from the hearing and did not participate in the decision.
Based on the plans and materials contained in the document file for this application, the Board finds,
concludes, and decides the following:
FINDINGS OF FACT
1. Paul Washburn, hereinafter referred to as the applicant, is seeking to amend a conditional use
approval for an accessory structure by reducing the rear setback to five (5) feet and increasing
the height to fifteen (15) feet, 30 Myers Court.
2. The owner of record of the subject property is Paul James Washburn.
3. The subject property is located in the Residential 4 Zoning District.
4. The application was received on December 23, 2019.
5. The plan set submitted consists of one elevation sketch, undated. The plans related to
application #CU‐18‐12 plans remain applicable.
6. Structures on the property include a single family home and a storage shed. These structures
conform with the dimensional standards of the district.
7. The project is subject to conditional use review under Section 3.10E.
8. On April 17, 2019, the Development Review Board denied application CU‐18‐12 on the basis of
non‐compliance with LDR 14.10E(2).
9. This decision only addresses the applicant’s proposed alternative approach to compliance with
LDR 14.10E(2); compliance with other standards is unchanged from CU‐18‐12 and not addressed
in this decision.
#CU‐18‐12A
‐ 2 ‐
10. The applicant appealed the Board’s decision on CU‐18‐12 to the Environmental Court. On
November 22, 2019, the Court remanded the matter back to the DRB and dismissed the appeal
without prejudice. The applicant’s cover letter briefly describes that during the court
proceedings the applicant proposed an alternative approach to meeting the LDR. The matter
was remanded to allow the Development Review Board to make a determination on the
compliance of the alternative approach, because the approach is new information not
previously presented to the Board.
11. The applicant received approval for the original application, #CU‐18‐02, to construct a 12’‐9”
accessory residential unit 7‐feet from the rear property line. The unit was constructed 17’‐18’
above preconstruction grade and 5‐feet from the rear property line. The applicant submitted
application #CU‐18‐12 requesting after‐the‐fact approval to amend the original approval (#CU‐
18‐02) to allow the unit to be 15’ above preconstruction grade, the maximum allowable under
LDR 3.07E(1), and 5‐feet from the rear property line, the minimum allowable under LDR
3.10A(3). During the course of the hearing on #CU‐18‐12, the applicant requested the Board
grant an adjustment of pre‐construction grade so that the building would be effectively
considered 15’ high, without requiring any modifications to the structure. The Board denied
that request, thus requiring a denial of the application based on the constructed height of the
building.
12. Height is defined in the LDR as follows:
The vertical distance of a building measured from the average preconstruction grade
level at the base of the building to the highest point of the roof if the roof is flat or
mansard, or to the average level between the eaves and the highest point of the roof
if the roof is of any other type.
13. The Board finds that an average preconstruction grade must be established. The applicant has
requested the Board allow them to retain a qualified professional to determine preconstruction
grade prior to issuance of a zoning permit. The Board finds the applicant must retain a qualified
professional to determine the average pre‐construction grade of the building based on soil
exploration through test pits or soil borings prior to issuance of a zoning permit.
14. Under the present application, the applicant is proposing to reconstruct the roofline by creating
a gambrel roof and lowering the eaves, thus resulting in a lower calculated height. The applicant
is not proposing to lower the apex of the roof. The applicant has prepared a schematic
elevation drawing how they propose to reconstruct the roofline. The applicant has noted on
their schematic that the building would be 15‐feet to the midpoint of the roof measured from
preconstruction grade.
15. The applicant testified that the existing windows on the loft will be retained and recessed into
the proposed roof. The current roof will remain the same at a 9:12 pitch, with the ends of the
rafters removed and a gambrel treatment applied to lower the calculated height.
16. The applicant is no longer requesting an adjustment of preconstruction grade under Section
3.12.
A. BOARD REVIEW OF CONDITIONAL USE CRITERIA
#CU‐18‐12A
‐ 3 ‐
Pursuant to Section 3.10E of the South Burlington Land Development Regulations (Accessory Structures
and Uses), the proposed structure shall be reviewed as a conditional use and shall meet the following
standards of Section 14.10(E):
14.10(E) General Review Standards. The Development Review Board shall review the proposed
conditional use for compliance with all applicable standards as contained in these regulations. The
proposed conditional use shall not result in an undue adverse effect on any of the following:
(2) The character of the area affected, as defined by the purpose or purposes of the zoning district
within which the project is located, and specifically stated policies and standards of the
municipal plan.
The stated purpose of the Residential 4 District, which is “to encourage residential use at
moderate densities that are compatible with existing neighborhoods and undeveloped land
adjacent to those neighborhoods.”
The applicant’s originally approved plan was for a 12’‐9” structure located 7 feet from the
property line. The Board found the originally proposed structure to meet this criterion.
While the regulations allow for an accessory structure to be a maximum of 15‐feet high and
located 5‐feet from a property line, accessory residential structures require conditional use
review because of the potentially higher impacts such structures may have on a neighborhood.
The applicant’s proposed roof modification will result in a detached accessory residential unit
building with a height greater than the height of the existing building. The accessory building is
located, at its nearest point consisting of a bump‐out for utilities, 5 feet from the rear property
line, and has a second story loft space. The overall height of the apex of the roof is at least 20‐
feet above estimated pre‐construction grade.
The proposed modification will result in a height of 15 feet measured to the midpoint of a
gambrel roof extending below the top of the first‐story front windows. The proposed
modification does not lower the total height of the structure.
The applicant has worked with the adjoining property owner to the rear and is proposing a row
of arborvitaes to be placed between the building and the rear property line, to be 8‐feet high at
time of installation with a spacing of 4‐feet on center. They are proposing to maintain the trees
to prevent damage to the existing fence on adjoining property owner’s land.
The Board finds the proposed roof modification and screening does not result in a structure
which is consistent with the planned character of the area as the structure is too large and the
installation of a gambrel roof does not modify the actual or perceived height of the structure.
CONCLUSIONS OF LAW
1. The Board concludes the proposed roof reconfiguration creating a 15‐foot high building with a
gambrel roof does not result in the project complying with 14.10E(2). The proposed structure will
remain taller than the existing home and be occupied as a dwelling unit within 5‐feet of the adjoining
#CU‐18‐12A
‐ 4 ‐
property line. The proposal remains inconsistent with the district’s purpose of moderate density
compatible with existing neighborhoods. Therefore the Board does not concur with the applicant’s
proposal.
DECISION
Motion by John Wilking, seconded by Mark Behr, to approve Conditional Use application #CU‐18‐12A of
Paul Washburn
Mark Behr Yea Nay Abstain Not Present
Matt Cota Yea Nay Abstain Not Present
Jim Langan Yea Nay Abstain Not Present
Dawn Philibert Yea Nay Abstain Not Present
Elissa Portman Yea Nay Abstain Not Present
John Wilking Yea Nay Abstain Not Present
Motion failed by a vote of 0 – 5 – 0. The application is denied.
Signed this ____ day of February, 2020, by
_____________________________________
Matt Cota, Chair
Please note: An appeal of this decision may be taken by filing, within 30 days of the date of this
decision, a notice of appeal and the required fee by certified mail to the Superior Court, Environmental
Division. See V.R.E.C.P. 5(b). A copy of the notice of appeal must also be mailed to the City of South
Burlington Planning and Zoning Department at 575 Dorset Street, South Burlington, VT 05403. See
V.R.E.C.P. 5(b) (4)(A). Please contact the Environmental Division at 802‐828‐1660 or
http://vermontjudiciary.org/GTC/environmental/default.aspx for more information on filing
requirements, deadlines, fees and mailing address.
The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state
permits for this project. Call 802.477.2241 to speak with the regional Permit Specialist.
21
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
TO: South Burlington Development Review Board
FROM: Marla Keene, Development Review Planner
SUBJECT: CU‐18‐12B 30 Myers Court
DATE: January 20, 2021 Development Review Board meeting
Remanded conditional use application #CU‐18‐12B of Paul J. Washburn to amend previously approved
conditional use permit #CU‐18‐02 for construction of a 14’ x 17’ detached accessory structure to be used as a
186 sq. ft. accessory residential unit. The application has been remanded due to changes in regulations
governing accessory residential units. The amendment consists of reducing the rear setback to five (5) feet,
increasing the height to fifteen (15) feet, and increasing the size to 248 sq. ft., 30 Myers Court.
A. PROJECT HISTORY
The applicant initially received approval #CU‐18‐02 to construct a 12’‐9” accessory dwelling unit. The unit was
constructed 17 – 18 ft above preconstruction grade. The applicant then submitted application #CU‐18‐12 to
amend the original approval to allow the unit to be 15‐ft above preconstruction grade, the maximum allowable
under LDR 3.07E(1). On April 17, 2019, the Development Review Board denied the application on the basis of
non‐compliance with LDR 14.10E(2). On February 21, 2020, the Development Review Board denied a revised
application for a modified structure on the basis of the same criterion.
LDR 14.10E(2) The character of the area affected, as defined by the purpose or purposes of the zoning district
within which the project is located, and specifically stated policies and standards of the municipal plan.
The Board’s decision on #CU‐18‐12A stated the following:
The Board concludes the proposed roof reconfiguration creating a 15‐foot high building with a gambrel
roof does not result in the project complying with 14.10E(2). The proposed structure will remain taller
than the existing home and be occupied as a dwelling unit within 5‐feet of the adjoining property line.
The proposal remains inconsistent with the district’s purpose of moderate density compatible with
existing neighborhoods. Therefore the Board does not concur with the applicant’s proposal.
B. ENVIRONMENTAL COURT APPEAL AND REMAND
The Board’s 4/17/2019 and 2/21/2020 decisions are included in the packet for the Board.
The applicant appealed the Board’s decision on CU‐18‐12A to the State Environmental Court (Docket No. 24‐3‐
20 Vtec).
#CU‐18‐12B
2
On October 12, 2020, Governor Scott passed into law Act 179, an act related to promoting affordable housing.
The applicant asked the Court to consider a revised statement of questions1 and the Court elected to remand
the matter back to the DRB for consideration in light of Act 179.
In the amendments relevant to this application, Act 179 amends 24 V.S.A. Section 4412 related to bylaws for
accessory dwelling units. These amendments set a regulatory floor for local bylaws when regulating accessory
dwelling units. The full text of the Act is included in the packet for the Board.
The Court on remand has asked that the Board make a determination whether these amendments invalidate
any relevant LDR provisions to this application, and if so, whether that alters the Board’s final decision on the
matter.
The applicant has not submitted any proposed modification to their plans. Act 179 revises 24 V.S.A. §
4412(1)(E) to state the following.
24 V.S.A. § 4412(1)(E) A bylaw may require a single‐family dwelling with an accessory dwelling unit to be
subject to the same review, dimensional, or other controls as required for a single‐family dwelling without an
accessory dwelling unit. An accessory dwelling unit means a distinct unit that is clearly subordinate to a
single‐family dwelling, and has facilities and provisions for independent living, including sleeping, food
preparation, and sanitation, provided there is compliance with all the following:
(i) The property has sufficient wastewater capacity.
(ii) The unit does not exceed 30 percent of the total habitable floor area of the single‐family dwelling
or 900 square feet, whichever is greater.
The applicant has previously testified that the principal structure would be owner‐occupied, has obtained
wastewater allocation, and does not exceed 900 square feet. Staff considers these criteria met.
Accordingly, Staff presents herein a review of the ADU as though it is a single family dwelling, with the noted
supplemental requirements above.
1 A “statement of questions” is the Environmental Court’s version of a “complaint.” It frames the issues and relief the
appellant seeks from the appeal.
#CU‐18‐12B
3
D. ZONING DISTRICT & DIMENSIONAL REQUIREMENTS
The project is located within the Residential 4 zoning district. The following dimensional standards apply.
R4 Zoning District Required Existing SFH Proposed ADU
Min. Lot Size 9,500 SF 9,761 SF 9,761 SF
Max. Building Coverage 20 % 8.6% 17.4%
1
Max. Overall Coverage 40 % 14.5% 36.1%
1
Min. Front Setback 20 ft. 35 ft. >35 ft.
Min. Side Setback 10 ft. 21 ft. 18 ft.
X Min. Rear Setback 30 ft. > 30 ft. 5 ft.
Max. Building Height, pitched 28 ft. 23 ft. 18 ft.
√ Zoning Compliance
X Zoning Non‐compliance
1. percentages represent combined coverage of principal and accessory structure
LDR 3.06J applies to lots in existence prior to February 28, 1974.
3.06J. Exceptions to Setback and Lot Coverage Requirements for Lots Existing Prior to February 28, 1974. The
following exceptions to setbacks and lot coverages shall be permitted for lots or dwelling units that meet the
following criteria: the lot or dwelling unit was in existence prior to February 28, 1974, and the existing or
proposed principal use on the lot is a single‐family dwelling or a two‐family dwelling.
Since this section applies to single or two family dwellings, Staff considers it applicable under Act 179.
1. Staff recommends the Board require the applicant to demonstrate when the lot was created. If the
applicant can demonstrate that the lot was in existence prior to February 28, 1974, Staff considers the
following analysis would apply.
(1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a
distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a
structure have a side setback of less than five (5) feet.
This setback encroachment is allowed by right. In the R4 District, the rear and side yard setbacks for
principal structures are 30 feet and 10 feet, respectively. This subsection and would therefore allow a side
setback of 5 feet and a rear setback of 15 feet. The applicant has constructed the ADU with a 5‐foot rear
setback, therefore this criterion is not met.
(2) Front Setbacks. A structure may encroach into a required front setback up to the average distance to
the building line of the principal structures on adjacent lots on the same street frontage, but in no
event shall a structure have a front setback of less than five (5) feet.
There is no issue with front setbacks, therefore this criterion is not applicable.
(3) Additional Encroachment Subject to DRB Approval. Encroachment of a structure into a required
setback beyond the limitations set forth in (1) and (2) above may be approved by the Development Review
Board subject to the provisions of Article 14, Conditional Uses, but in no event shall a structure be less than
three (3) feet from a side or rear property line or less than five (5) feet from a front property line. In addition,
the Development Review Board shall determine that the proposed encroachment will not have an undue
adverse affect on:
Note: the Board previously reviewed the proposed ADU pursuant to the Article 14 Conditional Use criteria
referenced above as part of CU‐18‐02, and found LDR 14.10E(2) to be not met. The Board previous findings
#CU‐18‐12B
4
on Conditional Use Criteria are discussed below.
(a) views of adjoining and/or nearby properties;
Staff considers this criterion related to Board’s prior concern about character of the area, but that it may
not be specifically applicable.
Without undertaking a detailed analysis, since no testimony has been presented on this criterion, Staff
considers the neighbor, who has entered an appearance in the Environmental Court appeal as an
interested person, has made a claim that the ADU has an adverse effect on their property. The applicant
proposed a row of evergreen trees between the ADU and the neighboring property in their application
on CU‐18‐12A which Staff considers may partially mitigate this impact.
2. Staff considers the adjoining and/or nearby properties to certainly be affected, but recommends the
Board discuss whether the rear encroachment represents an undue adverse effect to views. Staff
considers in order to make a finding on this criterion, the Board should first determine what is meant by
“views,” and then review whether the ADU detracts from them. The Board may wish to require a line of
sight study prepared by a professional architect or similar in evaluating this criterion.
(b) access to sunlight of adjoining and/or nearby properties;
The property is located directly south of another small residential property. In the past, the Board has
relied on shadow studies to determine the impact of allowing additional encroachment. Specifically, the
Board has relied on shadow studies when the adjoining neighbors have expressed concern about the
proximity of the structure to their property.
3. Since the adjoining neighbors have expressed concern here, Staff recommends the Board ask the
applicant to testify on this criterion, and recommends the Board request a shadow study if the provided
testimony does not sufficiently demonstrate whether this criterion is met.
(c) adequate on‐site parking; and
Staff considers the proposed encroachment has no undue adverse effect on adequacy of on‐site parking.
(d) safety of adjoining and/or nearby property.
Staff considers the proposed encroachment has no undue adverse effect on safety.
(4) Processing of a Request. Any request under subsections (1) ‐ (3) above to expand an existing
structure, or place a new structure, to within less than ten (10) feet of any property line shall include the
submission of survey data prepared by a licensed surveyor showing the location of affected property lines,
existing and/or proposed structures, and any other information deemed necessary by the Administrative
Officer.
4. The applicant has not provided any professionally prepared plans pursuant to this application. Staff
suggests the Board only require such a survey if they are inclined to positive findings on the other
criteria of this section. If the Board denies the application, Staff considers a professionally prepared
survey to be superfluous.
E. CONDITIONAL USE CRITERIA
Pursuant to Section 3.06J of the South Burlington Land Development Regulations (Exceptions to Setback and
Lot Coverage Requirements for Lots Existing Prior to February 28, 1974), the proposed structure shall be
reviewed as a conditional use and shall meet the following standards of Section 14.10(E):
#CU‐18‐12B
5
14.10(E) General Review Standards. The Development Review Board shall review the proposed conditional use
for compliance with all applicable standards as contained in these regulations. The proposed conditional use
shall not result in an undue adverse effect on any of the following:
(1) The capacity of existing or planned community facilities.
The Board found in CU‐18‐12 and CU‐18‐12A the proposed ADU has no adverse effect upon community
facilities. Staff considers that reviewing the ADU as a single family home has no impact on the previous
findings for this criterion.
(2) The character of the area affected, as defined by the purpose or purposes of the zoning district within
which the project is located, and specifically stated policies and standards of the municipal plan.
Findings of CU‐18‐12 on this criterion are as follows.
The stated purpose of the Residential 4 District, which is “to encourage residential use at moderate
densities that are compatible with existing neighborhoods and undeveloped land adjacent to those
neighborhoods.” The Board finds that the requested height of 15 feet measured from existing grade, or
17 to 18 feet above average pre‐construction grade, is not consistent with the planned character of the
area.
In CU‐18‐12A, the applicant proposed to modify the roofline of the ADU and to install a row of arborvitaes
along the property line to better comply with this criterion. The Board’s findings in CU‐18‐12A are as
follows.
The Board finds the proposed roof modification and screening does not result in a structure which is
consistent with the planned character of the area as the structure is too large and the installation of a
gambrel roof does not modify the actual or perceived height of the structure.
Staff considers that reviewing the ADU as a single family home has no impact on the previous findings for
this criterion, and therefore this criterion continues to not be met. For recordkeeping purposes, Staff notes
the applicant is no longer proposing a gambrel roof.
(3) Traffic on roads and highways in the vicinity.
The Board found in CU‐18‐12 and CU‐18‐12A the proposed ADU has no adverse effect upon traffic on roads
and highways in the vicinity. Staff considers that reviewing the ADU as a single family home has no impact
on the previous findings for this criterion.
(4) Bylaws and ordinances then in effect.
Staff considers that reviewing the ADU has a single family home results in the project not meeting elements
of 3.06J(3) and 14.10E(2) as described herein.
(5) Utilization of renewable energy resources.
The Board found in CU‐18‐12 and CU‐18‐12A the proposed ADU has no adverse effect upon utilization of
renewable energy resources. Staff considers that reviewing the ADU as a single family home has no impact
on the previous findings for this criterion.
F. OTHER
24 V.S.A. § 4412(1)(F) Nothing in subdivision (1)(E) of this section shall be construed to prohibit:
(i) a bylaw that is less restrictive of accessory dwelling units
#CU‐18‐12B
6
Staff considers that this section of 24 V.S.A. § 4412(1) amended by the recently passed Act 179 allows the City
to permit an ARU as an accessory structure with reduced setbacks and reduced level of review compared to a
single family home, provided the other criterion applying to accessory structures are met. In other words, an
ARU could be permitted as an accessory structure if it meets the provisions of 3.10A2. The Board has already
issued a denial of the ARU as an accessory structure, and Staff considers those findings stand.
3.12B Alteration of Existing Grade
In CU‐18‐12, the Board denied the applicant’s request for adjustment of preconstruction grade to existing
grade. The Board’s specific conclusion on the matter was as follows.
3.12B(1) requires the applicant to submit a plan showing the area to be filled or removed and the
existing grade and proposed grade created by removal or addition of material. 3.12B(2) allows the
Board to determine what shall constitute pre‐construction grade but does not obligate the Board to
grant an adjusted pre‐construction grade. The Board concludes the applicants desire for gravity sewer
does not overcome the impacts of the structure being 17 to 18 feet above pre‐construction grade. The
Board concludes that the sewer could have been constructed differently and therefore does not concur
with the applicant’s request for an adjusted pre‐construction grade. Therefore the Board does not
concur with the applicant’s request for the structure to be 15 ft. high measured from a point higher than
the average pre‐construction grade.
The applicant has not requested reconsideration of this finding, nor does Staff consider reconsideration
appropriate. The standard and conclusions apply equally to a principal building and an ADU.
RECOMMENDATION
Staff recommends the Board discuss the project with the applicant and close the hearing.
2 3.10A includes requirements that accessory structures be located no less than 5‐ft from the side or rear lot lines, no more
than 2 accessory structures may be on a single lot, the accessory structure may not be located nearer to the front lot line
than the principal structure, and the total footprint of accessory structures must be less than 50% of the footprint of the
principal structure, among others.
275 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).
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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.
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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.”
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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