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HomeMy WebLinkAboutAO-11-04 - Decision - 1302 1340 1350 Spear StreetAO-11-04 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AND ZONING WILLIAM & MAURENE GILBERT ET AL APPEAL #AO-11-04 FINDINGS OF FACT AND DECISION Appeal #AO-11-04 of William & Maurene Gilbert et al appealing the decision of the Administrative Officer to announce Master Plan Application #MP-11-01 and Preliminary Plat Application #SD-11-07 for hearing on August 3, 2011 before the City of South Burlington Development Review Board. The Development Review Board held a public hearing on September 20, 2011. Eric Farrell represented the applicant. Based on testimony provided at the above mentioned public hearing and the plans and supporting materials contained in the document file for this application, the Development Review Board finds, concludes, and decides the following: Notice of Decision on Appeal This matter was consolidated for hearing purposes such that, on September 20, 2011, that DRB heard evidence and argument regarding both an appeal by Appellants/Interested Persons, William and Maurene Gilbert, et al. (hereinafter "Appellants"), from a decision of the Administrative Officer to warn Master Plan Application #MP-11-01 and Preliminary Plat Application #SD-11-07 (the "Applications") for hearing before the DRB on August 3, 2011, and their request to "dismiss" the Applications for lack of DRB jurisdiction. A separate notice of decision has been issued regarding the timeliness of the preliminary plat application filing. Summary of Arguments Appellants contend that the City's Administrative Officer erred by improperly warning the Applications for hearing on July 14, 2011. They generally contend that the Applications should have been deemed incomplete because the sketch plan was not properly approved by this Board, prior sketch plan proceedings were defectively noticed and/or involved different property and the applicant, Farrell Real Estate ("FRE"), failed to submit its application for preliminary plat approval within the time required by the City's Land Development Regulations. The Applicant, FRE, contends that Appellants' appeal is untimely. Relevant Background Facts Page 1 C r AO-11-04 It is undisputed that this Board held a public meeting on July 6, 2010, on FRE's sketch plan application (#SD-10-20). On August 11, 2010, Mr. Farrell submitted Preliminary Plat Application#SD- 10-2 8 and Master Plan Application #MP-10-01 to the City. However, FRE withdrew those applications on January 27, 2011, due to changes in project boundary lines proposed after the sketch plan meeting. The following day, on January 28, 2011, FRE submitted the Applications to the City. On February 24, 2011, the City's Administrative Officer first warned the Applications for hearing on March 15, 2011 by posting notice and publishing the same in the "Other Paper," a newspaper of general circulation in South Burlington. The warned hearing did not go forward as noticed, however, and on March 16, 2011, the Administrative Officer again posted and published notice of a hearing scheduled for April 5, 2011. That hearing also did not go forward as scheduled. On July 14, 2011, public hearing notice regarding the Applications was again posted and published -- for the third time -- for a hearing on August 3, 2011. This appeal was filed 15 days later, on July 29, 2011. Decision on Appeal Under Vermont law, an interested person may appeal "any decision of act taken by the administrative officer" by filing a proper notice of appeal within 15 days of the date of that decision or act. 24 V.S.A. §4465(a). Appellants contend that the Administrative Officer's decision to "announce" a hearing on the Applications is an appealable under §4465(a) and that the act of warning a hearing includes an implicit determination that the application is timely and complete. Further, they argue that their first notice of this determination by the Administrative Officer occurred upon publication of the Applications in the Other Paper on July 14, 2011. Upon receiving an application for preliminary plat or master plan approval, the Administrative Officer has no authority to grant or deny a permit. Instead, he or she is limited to conducting an initial assessment of the components of the application to ensure that all of the necessary information has been provided, and scheduling the application for hearing. Nothing that the Administrative Officer decides during this initial process constitutes a "final" decision that cannot be challenged during the hearing on the preliminary plat or master plan application before the DRB. See Wesco Inc. v. City of Montpelier, 169 Vt. 520, 523 (1999). This is particularly true since a determination of completeness is typically made without notice to interested persons — the first notice of this decision is typically the public hearing notice, which is frequently posted/published outside of the 15 day appeal period referenced above. Thus, for example, if the Administrative Officer privately determines, during his initial assessment of an application, that the application is complete enough to warn for hearing, a project opponent may still argue before the DRB that some necessary application requirement has not been met (and the DRB may deny the application on that basis).' In this case, Appellants argue that their first notice of the Administrative Officer's completeness/timeliness determinations regarding the Applications was the July 14, 2011 public t Hence, an appeal from the actions of the Administrative Officer, like the one filed here, is not necessary since interested persons may raise issues regarding the completeness and timeliness of an application, in the first instance, during the direct hearing before the DRB or ZBA. Page 2 AO-11-04 hearing notice and, consequently, their July 29, 2011 notice of appeal is timely. Assuming, without deciding, that the Administrative Officer's decision to warn the Applications for hearing was an appealable decision or act under §4465(a), it is clear that this appeal was untimely. As noted above, the Administrative Officer first warned the Applications for hearing on February 24, 2011. Nothing about the Administrative Officer's decision to warn the Applications changed after that date. Therefore, the Appellants had actual or constructive notice of his decision to "announce" the applications for hearing as of February 24, 2011, and again on or about March 16, 2011, yet they waited until July 29, 2011 to file a notice of appeal. Therefore, their appeal is DENIED on timeliness grounds. DATED at South Burlington, Vermont, this 1 st day of November, 2011. Digitally signed by Mark C. Behr DN: cn=Mark C. Behr, o=Richard Mark C. Behr Henry Behr Architect P.C., ou, email=mark@rhbpc.com, c=US Date: 2011.11.01 09:1525 -04'00' DRB Chair Page 3