HomeMy WebLinkAboutBATCH - Supplemental - 1535 Spear Street (2)CITY COUNCIL
CITY OF SOUTH BURLINGTON
IN RE: APPLICATION OF CYNTHIA AND ROBERT HOEHL
This matter came before the South Burlington City Council pursuant to
the provisions of 24 V.S.A. Section 4410(d) on the application of Cynthia
and Robert Hoehl to construct improvements in the City of South Burlington
which fail to comply with the "Interim Zoning Regulations for the
Protection of the Spear Street Scenic Overlook District" adopted by the
Council on April 4, 1988. The City Council conducted public hearings on
this application on May 2nd, May loth, May 23rd, May 26th and June 6th. The
Hoehls were present at all three hearings and were represented by Ms. Leslie
Linton, Esq. Numerous adjoining property owners and neighbors were also
present at these hearings. At at least two of these hearings some of these
adjoining property owners and neighbors were represented by James Dumont,
Esq. A partial listing of those persons represented by Attorney Dumont is
attached as Exhibit A to this decision. On May 7th this City Council viewed
the site of the proposed development with the applicants and neighbors
present.
The May 2nd and May 1Oth hearings on this matter were attended by the
full City Council consisting of Mr. Farrar, Mr. Flaherty, Mr. Mona, Mr.
Murray and Mrs. Lambert. At the City election on May 17th, Mr. Dinklage was
elected to fill Mr. Mona's position on the Council. Mr. Dinklage
familiarized himself with the evidence presented to the Council at its
hearings on May 2nd and May loth and thereafter participated in the
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proceedings of the Council. Mr. Mona did not participate in the Council's
deliberation or decision in this matter.
Based upon the evidence submitted at the hearings mentioned above and
the Councils observations from the site visit, the Council hereby renders
the following decision on this application:
FINDINGS OF FACT
1. Cynthia and Robert Hoehl are the owners of the property which is
the subject of this application.
2. The subject property is located on the westerly side of Spear
Street, so-called. It has 160 feet of frontage on Spear Street and a depth
of approximately 600 feet.
3. The subject property adjoins on its southerly sideline the overlook
park owned by the City at the intersection of Spear Street and Deerfield
Drive.
4. The subject lot has an elevation of approximately 374 feet above
mean sea level on its easterly boundary where it adjoins the Spear Street
right of way and approximately 314 feet above mean sea level at its westerly
boundary where it adjoins lands presently owned by the University of Vermont
and operated as a horticultural farm.
5. By their application to the City Council the Hoehls seek approval
to construct a single-family residence on the subject lot. The Hoehls'
application with supporting plans dated March 28, 1988 and April 5, 1988
(hereinafter referred to as "Plan A") was filed with the City Zoning
Administrator on April 12, 1988. The Hoehls submitted revised plans dated
May 26th, 1988 (hereinafter referred to as "Plan B") for their proposed
residence to the Council on June 2, 1988.
6. The easterly building line of the proposed residence is
approximately 120 feet from the westerly edge of the pavement of Spear
Street. The house has an approximate depth of 45 feet so that the westerly
building line is approximately 165 feet from the westerly edge of the
pavement of Spear Street.
7. The proposed house, not including porches, has a total width of
approximately 85 feet. This width is composed of 3 sections: a northerly
wing approximately 28 feet in width; a central section approximately 43 feet
in width; and a southern wing approximately 14 feet in width.
8. The ridge line of the roof over the northern wing is approximately
382 feet above mean sea level; the ridge line of the roof over the central
section of the house is approximately 387.9 feet above mean sea level; and
the ridge line of the roof over the southerly wing is approximately 376.5
feet above mean sea level.
9. The proposed house contains two chimneys, each of which extends
above the ridge line of the central section of the house.
10. The finished grade for the proposed residence on its westerly side
is at an elevation of approximately 350 feet above mean sea level on Plan A.
The finished grade for the proposed residence on its westerly side is at an
elevation of approximately 353.9 feet above mean sea level on Plan B.
11. The proposed structure contains approximately 4000 square feet of
living space located in an improved basement, and a first and second floor.
The proposed structure also contains an attic area located above the second
floor and a two -car garage.
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12. At the proposed location, the Hoehls would be able to view
Shelburne Bay, Lake Champlain and the Adirondack Mountains from any floor of
the proposed residence.
13. The City of South Burlington owns park land adjoining and
immediately south of the Hoehl property. This park site has approximately
301 feet of frontage on Spear Street and extends westerly from Spear Street
approximately 266 feet.
14. The Hoehl property fronts on a portion of Spear Street which is
frequently used by bikers, joggers and pedestrians. It is posted as bike
route and is not authorized for general use by through truck traffic.
15. The Hoehl property is located in a portion of South Burlington
which is primarily residential in nature and will likely experience further
residential development in the future.
16. The Adirondack Mountains, Lake Champlain and portions of Shelburne
Bay are visible while standing on the Hoehl property at a point
approximately 500 feet westerly of Spear Street. At this point the Hoehl
property has an elevation of approximately 330 feet above mean sea level.
17. The residence proposed by the Hoehls will significantly block
views of the Adirondack Mountains, Lake Champlain and Shelburne Bay from
Spear Street.
18. If moved ten (10) feet north, the residence proposed by the Hoehls
will not interfere with views of the Adirondack Mountains, Lake Champlain
and Shelburne Bay from the westerly portion of the city —owned park land.
19. It is possible for the Hoehls to construct a residence of
comparable size to the one proposed on the westerly portion of their
property in a way that it would not obstruct views of Lake Champlain and the
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Adirondacks from either Spear Street or the City —owned park site. Such a
residence would, however, be readily visible in the immediate foreground
from the City —owned park site.
20. If allowed to construct their residence in the location they
propose, the Hoehls have agreed to maintain the westerly portion of their
property in its open and natural condition to preserve the view across the
westerly portion of their property.
CONCLUSIONS
The Interim Zoning Regulations for the protection of the Spear Street
Scenic Overlook District establish height limitations for structures and
vegetation located in the District. At the location proposed by the Hoehls
for the construction of their residence, the standard contained in the
Interim Zoning Regulations prohibits construction above an elevation of 372
feet above mean sea level. Since the ridge line of the roof over all three
sections of the proposed residence exceeds this elevation, the proposed
construction fails to comply with the Interim Zoning Regulations. For this
reason this Council must review and approve the proposed construction under
the provisions of 24 V.S.A. Section 4410(d) and (e).
1. 24 V.S.A. Section 4410(e)(1) requires this Council to consider the
effect of the proposed use on "the capacity of existing or planned community
facilities, services or lands". The proposed residence will connect to
public sewer and water services, both of which are available and contain an
adequate capacity. The proposed residence may also result in children being
placed in the South Burlington school system which also has adequate
capacity. Based on this, the Council concludes that construction of the
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proposed residence will not have an adverse impact on the capacity of
existing or planned community facilities, services or lands.
2. 24 V.S.A. Section 4410(e)(2) requires this Council to consider the
proposed use with respect to "the existing patterns and uses of development
in the area". The proposed residence is a single-family structure and is
located in a portion of the City developed with and zoned primarily for the
construction of single-family residences. Based on this, this Council
concludes that the proposed use is consistent with existing patterns and
uses of development in the area.
3. 24 V.S.A. Section 4410(e)(3) requires this council to consider the
proposed use with respect to "environmental limitations of the site or area
and significant natural resource areas and sites". Because the proposed
residence will be served by public water and sewer, this Council concludes
that there are no environmental limitations on the site which preclude the
development. However, this Council concludes that the proposed development
will occur on lands which constitute a significant natural resource area
because they offer spectacular panoramic views of the Lake Champlain Valley
including Shelburne Bay, Lake Champlain, and the Adirondacks. The proposed
residence will obstruct these views from Spear Street. If moved to the
north, the proposed residence will not obstruct views from the City -owned
Overlook Park. Further, if the residence is located on the easterly portion
of the property as proposed, the westerly portion of the property can be
maintained in its natural and open condition, thereby maintaining an
attractive foreground for the views to the west from the park site. Because
the modified siting of the Hoehls' residence protects views from the
Overlook Park and because the Hoehls are willing to maintain the westerly
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portion of their property in a natural and open condition to further enhance
the views from the Overlook Park, this Council concludes that the proposed
development does not adversely impact this significant natural resource
area. In reaching this conclusion this Council has been particularly
persuaded by the unique and specific location of the Hoehl property and
proposed structure in immediate proximity to the City's Overlook Park.
4. 24 V.S.A. Section 4410(e)(4) requires this Council to consider the
proposed use with respect to "municipal plans and other municipal bylaws,
ordinances or regulations in effect". The Comprehensive Plan for the City
of South Burlington recommends that the City act to preserve public access
to views of Lake Champlain and the Adironacks , with a strong emphasis on
City acquisition of scenic turnouts. (Comprehensive Plan, dated 1985 -
Aesthetics, History and Cultural Resources Chapter). While the proposed
development does restrict views from Spear Street, it protects views from
the City -owned Spear Street Overlook Park. Based on this, this Council
concludes that the proposed development complies with the Comprehensive Plan
for the City of South Burlington.
Zoning regulations in effect for the subject property limit the
maximum height of structures to 35 feet. Zoning Regulations Section
18.112(a). The structure initially proposed in this case (Plan A) exceeds
37 feet in height, measured from the elevation of the finished grade to the
elevation of the ridge line of the roof. For this reason this plan fails to
conform to the Zoning Regulations of the City of South Burlington and is
rejected. The structure proposed by Plan B is within the 35 foot height
limitation based on a measurement from the elevation of the finished grade
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to the ridge line of the roof and for this reason this Council approves
construction in accordance with Plan B.
5. 24 V.S.A. Section 4410(d) requires this Council to determine
whether the proposed construction is consistent with the "health, safety and
welfare of the municipality and the standards contained in subsection a".
For the reasons set forth in conclusions 1 through 4 above, this Council has
concluded that the proposed development is in conformance with the standards
set forth in subsection e. The Council is not aware of, and has not
received other information indicating any impacts other than those already
discussed on matters of public health, safety and welfare. Therefore, this
Council concludes that the proposed project can be constructed consistent
with the health, safety and welfare of the City of South Burlington.
DECISION
1. The request of Cynthia and Robert Hoehl pursuant to 24 V.S.A.
Section 4410 to construct a single-family residence on Spear Street, dated
April 12, 1988, is approved subject to the conditions and restrictions set
forth below:
a. The residence shall be constructed in accordance with the
plans submitted to the City, dated March 28, 1988 and April 5,
1988 as modified by the plans submitted to the City, dated May 26,
1988.
b. The proposed residence shall be relocated to the north on
the subject property so that the building setback on the northerly
side shall be reduced from 45' to 35'.
c. The Hoehls shall deliver to the City, as offered, an
appropriate open space restriction subjecting the westerly portion
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of the Hoehl property to a requirement that it be maintained
in its existing natural and open state, this document, to be
reviewed and approved by the City attorney. That portion of
the Hoehl's property subject to this open space restriction
shall be all lands lying west of a north -south line which
line shall commence in the Hoehl's northerly boundary line
at a point 200' west of the northeast corner of the
property and proceed in a southerly direction to the point
of intersection with the Hoehl's southerly boundary line
at a point 150' west of the southeast corner of the property.
d. This approval does not authorize any site work or
landscaping which fails to comply with the "Interim Zoning
Regulations for the Protection of the Spear Street Scenic
Overlook District" adopted by this Council on April 4, 1988.
Dated at South Burlington, Vermont this 14th day of June
1988.
CHAIRMAN, SOUTH BURLINGTON CITY
COUNCIL
STATE OF VERMONT ) Paul A. Farrar
CNITTENDEN COUNTY, ss.) At South Burlington in said county, this 14th day of June, 1988
personally appeared Paul A. Farrar and executed the above instrument
and acknowledged same to be his free act and deed. ___
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EXHIBIT A i
State of Vermont
Department of Fish and Wildlife
Department of Forests, Parks and Recreation
Department of Water Resources & Environmental Engineering
Natural Resources Conservation Council
Robert and Cynthia
4 South Hill Drive
Essex Junction, VT
Re: EC-4-1315
Hoehl
05452
Dear Mr. and Mrs. Hoehl:
AGENCY OF ENVIRONMENTAL CONSERVATION
Department of Water Resources
and
Environmental Engineering
Essex Junction Regional Office
111 West Street
Essex Junction, Vermont 05452
Tel. #879-6563
August 4, 1988
RECEIVED
AUG i8
MANAGER'S OFFICE
IClTY OF SO, BURLINGTON
Attached is Subdivision Permit Number EC-4-1315 and Notice
of Permit Recording. As outlined on the Notice, this Permit and
Notice must be recorded in the City of South Burlington Land
Records within 30 days of issuance and prior to the conveyance of
any lot subject to the jurisdiction of this permit. You are
responsible for the recording fees. Please ask the town clerk to
return the attached self-addressed, stamped postcard to this
offiice to verify recording.
Thank you for your cooperation. If you have any questions,
please call me at the above number.
Sincerely,
Ernest P. Christianson
Regional Engineer
Enclosures
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State
s
Subdivision Permit LAWS/REGULATIONS INVOLVED
CASE NO. EC-4-1315 Chapter 3, Subdivisions
APPLICANT Robert and Cynthia Hoehl Chapter 7, Sewage Disposal
ADDRESS 4 South Hill Drive Chapter 8, Water Supply
Essex Junction, VT 05452
This project, consisting of a single lot subdivision, Lot 6 (2.7
acres); removing Deferral of Permit D-4-0452, with municipal
water and sewer services located at 1535 Spear Street in the City
of South Burlington, Vermont is hereby approved under the
requirements of the regulations named above, subject to the
following conditions.
GENERAL
(1) This permit does not relieve you, as applicant, from
obtaining all approvals and permits as may be required from
the Act 250 District Environmental Commission, the
Department of Labor and Industry (phone 828-2106), the
Vermont Department of Health (phone 863-7220), and local
officials PRIOR to proceeding with this project.
(2) The project shall be completed as shown on the plans
Robert and Cynthia Hoehl, 1535 Spear Street, Sheet 1 "Site
Plan" dated July 1988 and Sheet 2 "Typcial Details Site
Facilities" dated July 1988 prepared by Lance Llewellyn,
P.E. of FitzPatrick-Llewellyn, Inc. and which have been
stamped "approved" by the Division of Protection. The
project shall not deviate from the approved plans without
prior written approval from the Division of Protection.
(3) Each prospective purchaser of the lot shall be shown a copy
of the approved plot plan and this Subdivision Permit prior
to conveyance of the lot.
(4) This project has been reviewed and is approved for the
construction of one single family residence on the approved
lot. Construction of other type dwellings, including public
buildings, duplexes, and condominium units, is not allowed
without prior review and approval by the Agency, and such
approval will not be granted unless the proposal conforms to
the applicable laws and regulations.
(5) The conditions of this permit shall run with the land and
will be binding upon and enforceable against the permittee
and all assigns and successors in interest. The permittee
shall be responsible for recording this permit and "Notice
of Permit Recording" in the City of South Burlington Land
Records within 30 days of issuance of this permit and prior
to the conveyance of any lot subject to the jurisdiction of
this permit.
(6) This permit shall supersede Deferral of Permit D-4-0452
dated October 4, 1979, thereby rendering it null and void.
WATER SUPPLY
e-lot is approved for water supply by connection to the
municipal water system. No other means of obtaining potable
water shall be allowed without prior review and approval by
the Division of Protection.
Subdivision Permit
EC-4-1315
Page 2
SEWAGE DISPOSAL
(8) The lot is approved for wastewater disposal by connection to
the municipal sewer system. No other method of wastewater
disposal shall be allowed without prior review and approval
by the Division of Protection, and such approval will not be
granted unless the proposal conforms to the applicable laws
and regulations.
Patrick A. Parenteau, Commissioner
Department of Environmental
Conservation
By 2 _
Mary K. Clotk
Assistant Regional Engineer
Dated at Essex Jct., Vermont this 4th day of August, 1988.
cc: Donald Robisky
City of South Burlington
Dept. of Health
Dept. of Labor and Industry
FitzPatrick-Llewellyn, Inc.
State of Vermont
Subdivision Permit
CASE NO. EC-4-1315
APPLICANT Robert and Cynthia Hoehl
ADDRESS 4 South Hill Drive
Essex Junction, VT 05452
LAWS/REGULATIONS INVOLVED
Chapter 3, Subdivisions
Chapter 7, Sewage Disposal
Chapter 8, Water Supply
This project, consisting of a single lot subdivision, Lot 6 (2.7
acres); removing Deferral of Permit D-4-0452, with municipal
water and sewer services located at 1535 Spear Street in the City
of South Burlington, Vermont is hereby approved under the
requirements of the regulations named above, subject to the
following conditions.
GENERAL
(1) This permit does not relieve you, as applicant, from
obtaining all approvals and permits as may be required from
the Act 250 District Environmental Commission, the
Department of Labor and Industry (phone 828-2106), the
Vermont Department of Health (phone 863-7220), and local
officials PRIOR to proceeding with this project.
(2) The project shall be completed as shown on the plans
Robert and Cynthia Hoehl, 1535 Spear Street, Sheet 1 "Site
Plan" dated July 1988 and Sheet 2 "Typcial Details Site
Facilities" dated July 1988 prepared by Lance Llewellyn,
P.E. of FitzPatrick-Llewellyn, Inc. and which have been
stamped "approved" by the Division of Protection. The
project shall not deviate from the approved plans without
prior written approval from the Division of Protection.
(3) Each prospective purchaser of the lot shall be shown a copy
of the approved plot plan and this Subdivision Permit prior
to conveyance of the lot.
(4) This project has been reviewed and is approved for the
construction of one single family residence on the approved
lot. Construction of other type dwellings, including public
buildings, duplexes, and condominium units, is not allowed
without prior review and approval by the Agency, and such
approval will not be granted unless the proposal conforms to
the applicable laws and regulations.
(5) The conditions of this permit shall run with the land and
will be binding upon and enforceable against the permittee
and all assigns and successors in interest. The permittee
shall be responsible for recording this permit and "Notice
of Permit Recording" in the City of South Burlington Land
Records within 30 days of issuance of this permit and prior
to the conveyance of any lot subject to the jurisdiction of
this permit.
(6) This permit shall supercede Deferral of Permit D-4-0452
dated October 4, 1979, thereby rendering it null and void.
WATER SUPPLY
(7) The lot is approved for water supply by connection to the
municipal water system. No other means of obtaining potable
water shall be allowed without prior review and approval by
the Division of Protection.
Subdivision Permit
EC-4-1315
Page 2
SEWAGE DISPOSAL
(8) The lot is approved for wastewater disposal by connection to
the municipal sewer system. No other method of wastewater
disposal shall be allowed without prior review and approval
by the Division of Protection, and such approval will not be
granted unless the proposal conforms to the applicable laws
and regulations.
Patrick A. Parenteau, Commissioner
Department of Environmental
Conservation
By
Mary K. Clptk
Assistant Regional Engineer
Dated at Essex Jct., Vermont this 4th day of August, 1988.
cc: Donald Robisky
City of South Burlington
Dept. of Health
Dept. of Labor and Industry
FitzPatrick-Llewellyn, Inc.
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Agency of Environmental C,,!, . i — ,"!,
Department of Water Resources
Environmental Engineering
,I11 West Street
Essex Junction, Vermont 05452
® USPS 1985
Be advised that the following referenced Land Use Permit has been
recorded as shown:
n
Permit:.. Eq..:.'...-..! l..S .....
oek�
.............................
Number Name
Recorded in Book No. ............................. Page No.................................
of the ..... ,. ..��i._.........;.�( e. ...I ............. Land Records.
Town
_............................ ........................
Date Recorded Town Clerk
STATE OF VERMONT
AGENCY OF NATURAL RESOURCES
DIVISION OF PROTECTION
I8 V.S.A.-1218-1220
TO: Municipal/City Clerk, RE: LAND USE PERMIT# EC-4-1315
City of South Burlington
NOTICE OF PERMIT RECORDING
As Municipal Clerk for the Town/City noted above, in
Vermont, you are hereby notified that this Notice of Permit
Recording and the above mentioned Permit are to be recorded in
the Municipal Land Records under the authority of 27 V.S.A. "603
605. The grantor(s) shall be Robert and Cynthia Hoehl
whose lands are identified in Book 214, Page 222-225; and the
grantee shall be the State of Vermont, Agency of Natural
Resources. The grantor(s) and the grantee shall be listed in
the index in the Claimant's Book and in the general index for
deeds.
The grantee's interest is limited to the lands of the
grantor(s) identified in the Book(s) and Page(s) specified above
(and the proposed improvements) as issued under the authority of
18 V.S.A.-1218-1220 and the Environmental Protection Rules.
I swear that, to the best of my information and belief, the
statements above are true.
Dated at Essex Junction, Vermont, this 4th day
of August, 1988.
Ernest P. Christianson
Regional Engineer
AGREEMENT AND EASEMENT
THIS AGREEMENT AND EASEMENT, made this day of July, 1988,
by and between ROBERT HOEHL and CYNTHI:A HOEHL of Essex Junction,
Vermont (hereinafter referred to as "Grantors") and the City of South
Burlington, a Vermont municipal corporation situated in Chittenden County,
Vermont (hereinafter referred to as "Municipality").
W I T N E S S E T H:
WHEREAS, the Grantors are the Owners of certain lands in the
Municipality which they acquired by Warranty Deed of Raymond J. Murphy
and Carolyn M. Murphy, dated October 23, 1985 and recorded in Volume 214
at Pages 222-224 of the Land Records of the Municipality; and
WHEREAS, Municipality is owner of certain lands in the Municipality
which it acquired by Warranty Deed of Spear Street Associates, dated
November 26, 1985, and recorded in Volume 215 at Pages 221-222 of the
Land Records of the Municipality; and
WHEREAS, Municipality acquired the above -described parcel of land for
the specific purpose of establishing a scenic overlook for the benefit of
Municipality's residents and visitors to the Municipality; and
WHEREAS, a portion of the above -described lands of the Grantors lie
to the north and west of Municipality's scenic overlook and constitute a
portion of the foreground readily visible from the parking area of said
overlook; and
W14EREAS, the legislative body of the Municipality has, pursuant to 24
Vermont Statutes Annotated, Section 4410 (d), authorized the issuance of a
building permit to Grantors, permitting construction of a residence on a
portion of their land on Spear Street;
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WHEREAS, the Grantors and Municipality recognize the value of
retaining the character of said lands and preserving them in their scenic
condition and in so doing furthering their aesthetic value; and
WHEREAS, Title 10, Chapter 155, Vermont Statutes Annotated, permits
Vermont municipalities to acquire interests in land in the nature of
conservation and open space easements; and
WHEREAS, the Municipality desires to acquire a conservation and open
space easement regarding certain lands of the Grantors.
NOW, THEREFORE, the Grantors for and in consideration of ten dollars
in hand paid by Municipality, the facts above recited, and the mutual
covenants, terms, conditions and restrictions herein contained, do hereby
freely give, grant and convey unto the Municipality, its successors and
assigns an easement, as described hereafter, over the property described in
Exhibit A attached hereto and made a part hereof (hereinafter referred to as
"the Property").
SECTION 1.
With respect to that portion of the Property designated as "Section 1"
in Exhibit A and described therein the interests of the municipality shall
consist of the following:
1. The right of public view of Section 1 in a natural, scenic and
open condition as further defined below;
2. The right of the official representatives of Municipality in a
reasonable manner and at reasonable times, and upon reasonable notice to
the Grantors to enter and inspect Section 1.
3. The right of the Municipality and the Municipality alone to
enforce, by injunction or proceedings at law or in equity, the covenants
7
hereinafter set forth; and in furtherance of the foregoing affirmative rights,
the Grantors, for themselves and their heirs, executors, administrators,
successors and assigns, make the following covenants, which shall run with
and bind Section l in perpetuity except upon the occurrence of one or more
of the reversion conditions set forth hereafter.
a. There shall be no construction or placing of any building or
structure of any kind, temporary or permanent, on Section 1
unless the view of the building or structure from the
Municipality's scenic overlook is screened by vegetation. The
term structure as used herein shall mean an assembly of materials
for occupancy or use, including, but not limited to a building,
mobile home or trailer, billboard, sign, wall or fence, antenna,
utility poles (including towers and lines). In any event, no
building or structure shall exceed an elevation of 376 feet above
mean sea level minus 4.0 feet for each 100 feet that said building
or structure is horizontally distant from the base line next
described. The base line shall commence at the current
intersection of the pavement for Deerfield Road and Spear Street
in the northwesterly quadrant of said intersection and proceed
along the current westerly edge of the pavement of Spear Street
in a northerly direction to the northeasterly corner of the
Grantor's Property.
b. The Grantors, their successors or assigns, shall have the right to
maintain Section 1 in an orderly and presentable manner,
including the right to plant shrubbery from time to time and to
keep the grass trimmed and to take any other normal maintenance
3
action in maintaining the pleasant appearance of Section 1.
However, landscaping and other vegetation located on Section 1
shall be maintained so that it does not exceed an elevation of 376
feet above mean sea level minus 4.0 feet for each 100 feet that
said landscaping or vegetation is horizontally distant from the
base line next described. The base line shall commence at the
current intersection of the pavement for Deerfield Road and Spear
Street in the northwesterly quadrant of said intersection and
proceed along the current westerly edge of the pavement of Spear
Street in a northerly direction to the northeasterly corner of
Grantor'sXperty.
C. There shall be no storage or parking of snowmobiles, dune
buggies, motorcycles, all -terrain vehicles or any other type of
motorized vehicles on Section 1.
d. With respect to Section 1, there shall be no dumping of ashes,
trash, garbage or other unsightly or offensive material, such as
landfill, except during construction and completion of the project
as approved.
SECTION 2.
With respect to that portion of the Property designated as "Section 2"
in Exhibit A and described therein the interests of the Municipality shall
consist of the following:
1. The right of the official representatives of Municipality in a
reasonable manner and at reasonable times, and upon reasonable notice to
the Grantors to enter and inspect Section 2.
4
Viva uu►�s Cat. ►ztw Ui ►►► v�w►y, L►►c cUVGiittnLs
hereinafter set forth; and in furtherance of the foregoing affirmative rights,
the Grantors, for themselves and their heirs, executors, administrators,
successors and assigns, make the following covenants which shall run with
and bind Section 2 in perpetuity except upon the occurrence of one or more
of the reversion conditions set forth hereafter;
M
No part of any structure within Section 2 shall exceed an
elevation of 376 feet above mean sea level minus 4.0 feet for
each 100 feet that said part of a structure is horizontally distant
from the baseline next described. The base line shall commence
at the current intersection of the pavement for Deerfield Road
and Spear Street in the northwesterly quadrant of said
intersection and proceed along the current westerly edge of the
pavement of Spear Street in a northerly direction to the
northeasterly corner of the Grantor's roperty. The term
structure as used herein shall mean as assembly of materials for
occupancy or use, including, but not limited to a building, mobile
home or trailer, billboard, sign, wall or fence, antenna, utility
poles (including towers and lines). By way of example, permissible
structures shall include, but not be limited to, arbors, fences,
swimming pool(s), gazebos, tennis courts, and such other customary
buildings and structures accessory to single family residences.
Landscaping and other vegetation shall be maintained so that i�—
does not exceed the elevation described in (a) immediately above.
5
C. There shall be no storage or parking of snowmobiles, dune
buggies, motorcycles, all -terrain vehicles or any other type of
motorized vehicles on Section 2.
d. With
respect to Section
2, there shall be no
dumping
of ashes,
trash,
garbage or other
unsightly or offensive
material,
such as
landfill, except during construction and completion of the project
as approved.
The Grantors, for themselves, and their heirs, executors,
administrators, successors and assigns, agree to pay real estate taxes or
other assessments levied by competent authorities on Grantor's�operty
according to law. This Easement and covenants set forth herein shall not
create in the Municipality any obligation in the Municipality to maintain
the Property.
The Grantors agree that the terms, conditions, restrictions and purposes
of this grant will be inserted by reference in any subsequent deed, or other
legal instrument, by which the Grantors convey either fee simple title or
possessory interest in the Property.
TO HAVE AND TO HOLD the said easement and restriction unto the
Municipality and its successors and assigns forever subject, however, to the
following conditions:
All right title and interest acquired by the Municipality pursuant to
this agreement shall revert to the Grantors, their heirs, executors,
administrators, successors and assigns if any one or more of the
following events occurs:
r��
a. The building permit granted to Grantors by the City Council,
dated June 14, 1988 is not approved in substantially the same form
HT
as a consequence of appeal of same; er, in the event the Superior
W4�4 4,
Court approves the building permit in a form which j*over-
�,�... * S --A c7 r �, c. �
and Grantors choose to build their homy
anft+ f� f7ww. C.a•.�'i e/r/Pwva�t f� tw/-e-vM .sfvf Istwv..�t
b. Interim zoning, presently known and designated as "Interim Zoning
Regulations for the Protection of the Spear treet Scenic
Overlook District" is not enacted as permanent zoning on or
before Ap it j, 990 (two years from the date of the enactment of
interim zoning) as,' currently is drafted or in some alternative
form;
C. The parcel of land currently owned in fee simple by the
Municipality (Volume 215, page 221-222) and used as a scenic
overlook ceases to be owned or in the possession of the City of.
South Burlington; or
d. The parcel of land currently owned in fee simple by the
Municipality (Volume 215, page 221-222) and currently used as a
scenic overlook ceases to be used by the City of South
Burlington as a scenic overlook park or as an accessory to an
overlook.
In the event that any of the foregoing conditions occurs, and a
reversion thereby results, the City of South Burlington shall reconvey
to the Grantors, their heirs, executors, administrators, successors, and
assigns, all right title and interest acquired herein in a form
satisfactory to assure that this transfer no longer operates to
encumber the Property in any manner. If the City of South
7
Burlington fails to execute documentation reasonably requested, it shall
be liable for, and agrees to pay, all necessary expenses, including
reasonable attorney's fees incurred by Grantors, their heirs, successors
and assigns in securing clear title.
It is the intention of the parties hereto that the grant of easements
and covenants herein is pursuant to the authority set forth in Title 10,
Chapter 155, Vermont Statutes Annotated, as presently enacted and from
time to time hereinafter amended, and that all of the provisions of said
Chapter shall be binding upon the Grantors, their heirs, executors,
administrators, successors and assigns and upon the Property, and shall inure
to the benefit of the Municipality its successors and assigns, subject to the
conditions set forth herein.
If any part of this agreement shall be decreed invalid by any court of
competent Jurisdiction, such decree shall not be interpreted so as to
invalidate the remainder of this agreement.
Although this conservation restriction and easement will benefit the
public as provided above, nothing herein shall be construed to convey a
right to the public of access or use of the Property except as heretofore
granted or irrevocably offered for dedication, and the Grantors, for
themselves and their heirs, executors, administrators, successors and assigns,
shall retain exclusive right to use the Property for all purposes not
specifically restricted by this easement.
"
Dated at _ _, Vermont this _ day of
y, 1988..
IN PRESENCE OF: CITY OF SOUTH BURLINGTON
BY:
duly Au—th(irized gent
Dated at South Burlington, Vermont this _ day of July, 1988.
IN PRESENCE OF:
STATE OF VERMONT
COUNTY OF CHTITENDEN, SS.
At South Burlington this day of July, 1988 personally appeared
aorized agent of the City of South
ur in�ton, and he ac owe ged the foregoing instrument by him sealed and
subscribed to be his free act and deed and the free act and deed of the City
of South Burlington.
Before me,
Notary ublic
STATE OF VERMONT
COUNTY OF CHITTENDEN, SS.
At this day of July, 1988 personally
appeared L and CYNTHRTA HOEHL and they acknowledged the
foregoing instrument by them sealed and subscribed to the their free act and
deed.
H.-ease
Before me,
Notary Public
0
1 '
5
FXNTRTT A
ge1ng a portion of Lot No. 6 on the Plan entitled "Proposed Nowland
prr,perty Land Division - Spear Street," South Burlington, Vermont, dated
April 27, 1.977 and recorded in Map Volume 105 at Page 84 of the South
Burlington Land Records, and more particularly described as follows:
SECTION 1.:
Commencing at a point in the northerly sideline of said Lot No. 6,
which point is located 300 feet westerly of the northeasterly corner of said
Lot; thence proceeding westerly 303.15 feet along the northerly boundary of
said Lot to a point marked by an iron pin which point is the northwesterly
corner of said Lot; thence turning to the left and proceeding southerly
197.30 feet, in and along the common boundary of the University of Vermont
and State Agricultural College to a point marking the southeasterly corner of
said Lot; thence turning to the left and proceeding easterly 327.60 feet in
and along the southerly boundary of said Lot to a point located 250 feet
westerly of the southeasterly corner of said Lot; thence turning to the left
and proceeding northerly in a straight line to the point of beginning.
SECTION 2:
Commencing at a point in the northerly sideline of said Lot No. 6
which point is located 200 feet westerly of the northeasterly corner of said
Lot; thence proceeding westerly along the northerly sideline of said Lot a
distance of 100 feet to a point, said point being the northeasterly corner of
Section 1, above; thence turning to the left and proceeding along the
easterly sideline of Section 1 to a point marking the southeasterly corner of
Section 1; thence turning to the left and proceeding easterly a distance of
100 feet to a point located 150 feet westerly of the southeasterly corner of
1
Lot b; thence turning to the left and proceeding northerly in a straight line
to the point of beginning.
F)
UNTON &. HOBSON, P.C.
ATTORNEYS AT LAW
P.O. Box 906
BURLINGTON, VERMONT 05402
TEL: (802) 863-2000
(802) 863-4455
L�+ESLIE S. LINTON
EDWIN L. HoBsoN
PHILLIP C. LINTON
OF COUNSEL
June 16, 1988
Richard Ward, Zoning Administrator
575 Dorset Street
City of South Burlington
South Burlington, VT 05403
HAND DELIVERED
Dear Dick:
OFFICE LOCATED AT:
WATERFRONT PLACE
86 LAKE STREET
BURLINGTON, VT
Pursuant to the written approval now issued by the City Council would you kindly
issue a building permit for Cynthia and Robert Hoehl. I enclose your fee in the
amount of $175.00 (3500 sq. feet to be finished - basement will be done later). I
am uncertain of the status of the sewer line and therefore enclose an inspection fee
of $10.00.
Sincerely,
( C- - Ck. � ct i 9-1 J--
Leslie S. Linton
H:ward.ltr
Enclosures
l \A 011 1( 1 ti
SLSS10NS. K L I N L K DIIMON I (3AKN1.S
&HAM K SESSIONS III %P COIIR I S1REE 1
KOBERI P KEINER MIDDLEBLIRI \A RMON I 0575 i
TAMES A DLIMONT (Wl) 188 4906
BONNIE BARNES
GORDON P BLACK
June 6, 1988
Members of the City Council
575 Dorset Street
South Burlington, Vt. 05403
I CHRISFOPHER FRAPPILR
U(,.V1 AWS(A111
Re: Application of Robert and Cynthia Hoehl for building
permit.
Dear Mr. Chairman and members of the City Council:
I write only to respond briefly to the constitutional
issues raised by the Attorney Linton's letter to you. I
believe it highly unlikely that any court would find there to
be a "taking".
She cites two recent United States Supreme Court
decisions. The First English Evangelical Lutheran Church
case does not support her contention in the least. The
decision actually addressed how an inverse condemnation court
decision should proceed, not what constitutes a "taking". In
passing the court noted that "all use" of the land in
question had been forbidden by the county. See 96 L.Ed. 2nd
at 267. The conclusion at p. 268 makes this clear: "We hold
that where the government has worked a taking of all use of
property..."
The other case, Nollan v. California Coastal Commission,
97 L. Ed. 2d p. 677 addressed only whether or not "the
appropration of a public easement across a landowner's
premises" constitutes a taking. p. 685. The court held that
"the right to exclude others" was critical, and by taking
that right away the California Coastal Commission had caused
a taking. See p. 686.
Neither case has any bearing on the Hoehls' application.
They can still build a beautiful house with a beautiful view.
Their property is still extremely valuable. Very far Erom
"all uses" have been taken, much less affected. They retain
all rights to exclude others. (Indeed the effect of the
interim zoning is far less than the effects of other aspects
of your permanent zoning laws. Are they all takings?) It
would be absurd and unprecedented to label this a taking.
7mes
rely,
Allan Dumont
ons, Keiner, Dumont & Barnes
cc: Leslie Linton, Esq.
SESSIONS KEINER
IAUMONT & BARNES
72 COURT STREET
'.400LEBURV. VT. 05753
(802) 388-4906
No Text
No Text
No Text
No Text
To: South Burlington City Council cl,e,
From: Cynthia and Robert Hoehl
Re: 35' Height Restriction
Date: 5/31/88
For almost 2 months and five meetings with members of
the City Council, we have respected the City Council's desire
to be fair to all. At times it was a tough pill to swallow,
but we had to tell ourselves you were just doing your job the
best you could under trying circumstances; however, this
issue of the way you or someone wishes to measure our house
in regard to the 35' limitation, we find to be prejudicial
against us at best and downright harassment at worst.
We have talked with numerous architects and builders who
have built many houses in South Burlington and every single
one of them, without exception, state that this is the first
time the rules you wish to apply to us have ever been
applied. We could point out at least 4 houses just to the
south of where we wish to build our home that do not meet the
35' restriction, if it were to be applied (i.e. measured) as
you are applying it to our plan. To support this position,
we offer the following:
1. Copy of letter from Richard Ward to Attorney Greg
Wilson (attorney for Tim Jamieson) that states "Be advised
that we agree that the finish grade will be at the top of the
foundation for the fireplace". If our house were measured
this way, we would have no problem.
2. Our architects also designed another house in the
development just south of the overlook. According to the
builder, Concord Construction, the complete plans for this
house, including elevations, were supplied to the City of
South Burlington when applying for a building permit. We
have seen the architectural plans for this house and they
represent the identical situation as our house. Yet, they
were allowed to build and we are being denied.
3. Another property owner just south of us was
concerned about the 35, limit when they were building and so
they called the City of South Burlington to ask how the 35,
limit was measured. They were told that an average of the
elevation was used, meaning that on a sloping piece of
property, the average of the finished grade would be used.
An average is not being applied to us, only the worse case.
4. In each of the above cases, as well as numerous
others, the interpretation has not been the same as the one
being applied to ours. Additionally, if the interpretation
applied to the above were applied to ours, we would not be in
the predicament we are in now.
5. From what I've been able to ascertain, the rules
being applied to our house now have never before been applied
to any other non-commercial building in South Burlington.
6. Our architects, having built a number of other homes
in South Burlington, have researched this issue. They cannot
find, among numerous other town and city ordinances, any
interpretation like the one you are attempting to apply to us
now. Please see letter attached. Coupled with the above,
can you understand why we feel we are being treated unfairly
and prejudicially at this time?
7. If one were to consider this way of measuring, it
would preclude, forever, the building of a standard 2 story
house with a chimney and a walk out basement or garage
underneath. Is this really your intent?
8. Our architects tells us that chopping our chimneys
down will harm the aesthetic appearance of the house
dramatically. We belive you can see this for youselves from
the new drawings. Does this really serve the purpose of the
ordinance?
9. It is my understanding, in the statutes that existed
prior to 4/18/88 or possibly even 21 days after that date,
that the chimney was not part of the measurement. This has
been substantiated for me by numerous lawyers, architects and
builders, as well as the written word in the way the
ordinances read ("roof" not "chimney"). Subsequent
legislation has been passed, after our building permit
submission, adding chimney to the height restriction. There
are those who would say that they always included chimneys.
I would beg to differ, given other houses in the nearby area.
We also are of the belief that the law comes from the written
word and not an individual's desire or interpretation to suit
the purpose at a specific time. At the time we submitted our
building permit, there was no mention of chimney in the
statutes and now there is.
10. BOCA, a widely recognized organization by
architects and builders, has established standards for the
measurement of the heights of houses. The way South
Burlington is wishing to measure my house currently is in
complete contradiction to these standards.
11. The ordinance defines height as the maximum
vertical distance between the highest point vertically
(vertically being a key word, I believe, i.e. not projected)
from the finished grade. We believe the enclosed diagram
proves that no part of our original house plans is beyond 35'
vertically from the finished grade. Please see diagram.
12. We don't understand why, after having our house
plans for almost 2 months, someone now decides to measure our
house in a totally unorthodox way. All of the many builders
and architects we've talked to also indicate it to be
unprecedented, both inside and outside South Burlington.
We do not believe we have asked for any special favors.
We do not ask for any now. We ask only to be treated like
everybody else who comes to the City of South Burlington
wishing to build their house. It is not we, but others, who
have created this situation. Please let this end now with
fairness and without prejudice to anyone.
II
- - - ---------------- . ............. ....... .
�tl
,I)AWr— 61, 1-koxr- r-r It
3-r IV gow--r 0% C4 11-1
rorre5t/UQ5chmacher - 9rchitact5
May 31, 1988
Robert and Cynthia Hoehl
c/o IDX
Box C1070
1500 Shelburne Road
Burlington, VT 05402-1070
Dear Bob and Cynthia:
Regarding your house design with respect to the South Burlington
zoning height regulations:
The regulations state that the maximum height shall be 35 feet,
or 2 1/2 stories, and as applied to a structure, this is the
"maximum vertical distance measured from the finished grade to
the peak of the roof." Since the wording does not take into
account a varying grade, such as on a sloping site, we have
always kept our designs a maximum of 35' from the highest point
vertically to the corresponding finished grade on the slope.
In our experience, while zoning regulations may vary
considerably from town to town, there is no case that we know of
where the height of the structure on a sloping site is
determined by measuring the projected distance from the lowest
elevation of the grade at the structure to the highest point of
the structure. Indeed, South Burlington cannot have been using
this method to determine allowable height because there are
several houses built recently near your site which would violate
the regulations if measured this way. In general, any full 2
story house with a walk -out basement on the downhill side and a
roof pitch of more than 6" in 12" would have to violate the
height restrictions if measured from basement floor to top of
roof. I am sure there are many such houses recently built in
South Burlington.
If we measure the vertical distance from the proposed finish
grade up to the top of the chimney of your house, as shown on
the North Elevation on Sheet A7, we see it is exactly 351,
which, in fact, is how we established the height of the chimney!
Brian Forrest
Guy Teschmacher
26 State Street Montpelier Vermont 05602 ■ 802 229 5774
Robert and Cynthia Hoehl
Page 2
May 31, 1988
In any case, I am told that at least two homeowners have been
instructed by the town to measure their heights in a manner
similar to the method we have used for your house.
Incidentally, the inclusion of chimneys in the height
restriction requires rewording for clarification of the zoning
regulations. I was under the impression that a public vote is
required for any such change or addition.
From an aesthetic standpoint, if the requirement becomes to
measure the projected distance from lowest grade to highest
point of structure, anyone like yourself who wants a full 2
story house with walk -out basement will have to build a flatish
roof, which on a traditional house design probably seems rather
out of place. Most important, either interpretation of the
regulation will not require you to lower your roof ridge; the
only consequence is that you may not be able to have a walk -out
basement. Thus, the "projected distance" method of measuring
height will not affect the visual impact of your house one iota!
Here also is the wording of several other towns' height
regulations --as I say, we have never run into a situation like
yours where the most extreme elevation differences are used to
determine the height: an average or vertical measurement is
always used, in our experience.
Montpelier: 45 feet or 3 stories. Zoning Administrator
interprets this to mean height from average grade to highest
point of building including chimneys.
Shelburne: 35 feet. Vertical distance measured from average
elevation of the proposed finish grade to the higher point of
the structure.
Waitsfield: 35 feet except operating farm silos to a height of
75 feet measured from the finished grade at the foundation to
the highest point of the building --Zoning Administrator
interprets this to mean average grade on a sloping site.
Colchester: 30 feet or 2 1/2 stories. On sloping terrain, the
vertical distance measured from the average ground level of the
grade at the building to the average height between eaves and
ridge for gable roofs.
Brian Forrest
Guy Teschmacher
26 State Street Montpelier Vermont 05602 ■ 802 229 5774
Robert and Cynthia Hoehl
Page 3
May 31, 1988
In summation, I think the most important thing here is that the
most extreme interpretation of the South Burlington regulations
will not require you to lower your roof, only to eliminate the
walk -out at the basement, which greatly affects your use of the
house but does not at all affect the visual impact of the house
on the neighborhood. Since other owners have not been required
to meet the regulations in this way, I think this is very unfair
to you.
Sincerely,
Guy Tesc
GT/scc
Brian Forrest
Guy Teschmacher
26 State Street Montpelier Vermont 05602 ■ 802 229 5774
City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
PLANNER ZONING ADMINISTRATOR
658-7955 November 3, 1987 658-7958
Attorney Greg Wilson
3 Main Street
Essex Junction, Vermont 05452
Re: Jamieson, 13 Deerfield Road
Dear Greg:
Having recently discussed height requirements with Tim
Jamieson and Harold Junger regarding the dwelling at 3 Deerfield
Road.
Be advised that we agree that the finish grade will be at the
top of the foundation for the fireplace and that the maximum from
that point will be thirty-five (35') feet, which will include
the chimney.
If you have any questions please don't hesitate to call me.
Ver truly yours,
Richard Ward
Zoning Administrative Officer
cc: Chairman, Planning Commission
No Text
LESLIE S. LINTON
EDWIN L. HOBSON
PHILLIP C. LINTON
Or C UW+ ..
UNTON & HOBSON, P.C.
ATTORNEYS AT LAW
P.O. Box 906
BURLINGTON, VERMONT 05402
TEL: (802) 863-2000
(802) 863-4455
RELEWED
JUN - 1 10W
MANAGER'S OFFICE
CITY, OF, SO. BURLINGTON,
OFFICE LOCATFII AT:
WATERFRONT PIACF
86 LAKE STRFFT
BURLINGTON, Vr
June 1, 1988
Members of the City Council
575 Dorset Street
So. Burlington, VT 05403
Re: Application of Robert and Cynthia Hoehl for building
permit
Dear Mr. Chairman and members of the City Council:
Per the meeting of May 26, 1988, I am enclosing for your
consideration revised plans for the proposed Hoehl residence.
The changes reflect a move of the house 10 feet in a generally
northerly direction, decreased size of the chimney, and fill
around what was to have been a walk -out basement. I am also
authorized to say that the Hoehls are willing to plant
landscaping, (hedge, trees, or other vegetation) which would
assist in minimizing the presence of the house to visitors to
the overlook park.
The Hoehls request that these revised plans be treated as
alternative plans, not as substitute plans. They do not
withdraw their original proposal and request that your decision
reflect a determination with respect to the sufficiency of each
plan with findings regarding each.
The following issues merit your consideration:
1. General Height Ordinance. It is apparent from the
comments of the Council that the existing zoning ordinance is
being interpreted in a manner inconsistent with its application
throughout South Burlington heretofore. We understand your
current position to be that the 35 feet height limitation is
measured by locating the highest possible part of the chimney
and then projecting this point out to draw a straight line after
locating the lowest possible grade around the house. This
interpretation is completely contrary to past practice in South
Burlington and is unlike any interpretation of height ordinances
that we have been able to locate. Please see the detailed
comments of Mr. Hoehl and of his architect, Guy Teschmacher
on this issue which are enclosed.
Page 2
June 1, 1988
Also, please keep in mind that the language of the
ordinance in effect at the time of the Hoehl submission did not
cover chimneys in the measure of height. This is a change
which was not even voted on until after the Hoehl's plans had
been submitted and referred to the City Council. The minutes
of the April 18 reflect the passage of the revisions and, as
Jane LaFleur noted at that time, would not take effect for 21
days. It is no answer to say that it was customary to include
the chimney even before the amendment occurred. Zoning laws
.the
in derogation of property rights and are to be strictly
construed in favor of the landowner. Where the language says
"peak of the roof' the City council must be bound by the
written word.
2. Interim Zoning.
I presume that the City Council has verified our previous
representations at our initial hearing regarding the Planning
Commission approval of the 6 lot subdivision of which the
Hoehl lot is a part. The City's files reflect a lengthy
subdivision process which went through multiple hearings and
*culminated in approval of the lots in question. They also
reflect that part of the deal that was struck with the
landowners was the dedication to the City of a right of way
for potential future use as a road, the dedication to the City
of a pedestrian easement, and an agreement to allow the City
to negotiate for the purchase of a scenic turn-off. The
dedication documents were signed as required by the City and
the lots thus encumbered by the City's interests as expressed
therein. The records reflect that the City did not negotiate to
buy the scenic turnout at that time. The one year lapsed
without action on the part of the City. It was not until 1985
that the park was conveyed to the City in connection with a
large subdivision done by Gerald Milot. The City affirmed its
earlier agreement with the landowners when it allowed the
landowners to incur additional expense in the installation of
their municipal sewage system line across their properties.
It is neither legal or equitable that the City retract its
approval of the lots in question and further encumber them
with restrictions which will make it impossible for the
landowners to take advantage of the views they bargained and
paid for. You have documentation in your files from earlier
hearings which demonstrates the significant expenditures which
have been made by the Hoehl family in reliance upon the
approvals issued by the City of So. Burlington.
A municipality such as So. Burlington cannot appropriate a
view easement over these 6 lots by simply publishing a legal
Page 3
June 1, 1988
notice in the Free Press of the City's intention to enact
interim zoning. Although the City Council passed the interim
zoning following a public hearing (unattended by any of the
property owners because none of them had notice of the City's
designs on their land), the zoning was not in effect at the
time Mr. Hoehl submitted his request for a building permit. I
understand that the City Attorney relies on 24 V.S.A. Section
4443 �c) in support of his contention that authorization must
issue rom the City Council before a permit can be issued.
Smith v. Winhall Planning Commission, 140 Vt.178 (1981)
provides that the zoning in effect at the time of the
application should govern. Due process requires that a permit
issue to the Hoehls. I submit that the City Council cannot
fairly, equitably or legally apply the interim zoning to the
Roehls given all of the facts and circumstances.
Municipalities must focus on their legitimate public interests.
Zoning power is not unlimited. 24 V.S.A. Sections 4404, 4405.
The over -regulation of property interests constitutes an
unconstitutional taking. The taking occurs at the time an
invalid restriction is enacted against a landowner. First
English Evangelical Lutheran Church of Glendale vas An eles
o nty, 107 S.Ct. 1 of an v. California Coastal
Commission, 107 S. Ct. 3141 (19
Even if these had not been pre -approved, subdivided lots,
each of which had been encumbered by City rights of way
during the subdivision process, the attempt to zone these 6 lots
exclusively is not consistent with the equal protection
mandates of the zoning statutes and the federal and state
constitutions. See our earlier memos of May 2, 1988 and May
10, 1988. Assuming that it was proper to zone view easements
for the benefit of the public, for the sake of argument on land
which had not previously been subdivided or developed, common
sense and decency would require that it be done in a
methodical manner, with notice to those landowners whose
property will be affected.
Our City did conduct such a methodical examination of the City
in constructing its master plan. Nowhere in the plan is there
reference to the concept of obtaining view easements over
property through the use of zoning. The plan specifically
speaks of obtaining public access to views through "fee simple
acquisition." This the City has done in acquiring Overlook park.
There has been much talk of "compromise." The Hoehls are
accused of selfishness. The public has enjoyed the benefit of
these six lots as a result of the fact that the landowners have
not built on their pre -approved lots for a long time. The
Page 4
June 1, 1988
public has become accustomed to enjoying these landowners'
property. All of the landowners have allowed people to walk
and park on their land at will. Now their generosity and good
will is being penalized. The City Council is being subjected to
pressure from a small group of vocal opponents who submit
that the Overlook Park, the pedestrian trails across this land,
the existing height limitations and setback restrictions (also
scenic corridor restrictions imposed by deed on Lots 2, 3, and
4) are simply not enough. It is said that the public should
enjoy all of the land. The Hoehls should content themselves
with a 1 1/2 story house 400 feet from the road down the
slope with a greatly diminished view and no guaranteed view
protection from future development at the present site of the
UVM Horticultural Farm. The public should take the top 2/3
of the lot as well as the rights of way already in place at the
bottom.
I respectfully submit that the application of the interim zoning
to the Hoehl lot is completely contrary to So. Burlington's
greater interests. We have illustrated to the Council, at
length, and the Council has been able to view the site to see
that the placement of the Hoehl home in the foreground of the
view from the Overlook Park would truly detract from the
public's ability to enjoy the park and its lovely views, far more
than situating the Hoehl home closer to Spear Street, out of
the range of the views. Attractive landscaping could further
minimize the impact of the house on the overlook.
I submit that a higher public purpose will also be served by
respecting the rights of the landowners and respecting the
previous commitments made by the City in designing and
implementing its master plan and in approving this lot for
subdivision. We have a government of laws and protections for
a reason. Our representatives are charged with the duty to
uphold the law and protect the rights of individual citizens.
H:council
cc: James Dumont, Esq.
Sincerely,
Leslie S. Linton
To: South Burlington City Council elC
From: Cynthia and Robert Hoehl �-
Re: 35' Height Restriction
Date: 5/31/88
For almost 2 months and five meetings with members of
the City Council, we have respected the City Council's desire
to be fair to all. At times it was a tough pill to swallow,
but we had to tell ourselves you were just doing your job the
best you could under trying circumstances; however, this
issue of the way you or someone wishes to measure our house
in regard to the 35, limitation, we find to be prejudicial
against us at best and downright harassment at worst.
We have talked with numerous architects and builders who
have built many houses in South Burlington and every single
one of them, without exception, state that this is the first
time the rules you wish to apply to us have ever been
applied. We could point out at least 4 houses just to the
south of where we wish to build our home that do not meet the
35' restriction, if it were to be applied (i.e. measured) as
you are applying it to our plan. To support this position,
we offer the following:
1. Copy of letter from Richard Ward to Attorney Greg
Wilson (attorney for Tim Jamieson) that states "Be advised
that we agree that the finish grade will be at the top of the
foundation for the fireplace". If our house were measured
this way, we would have no problem.
2. Our architects also designed another house in the
development just south of the overlook. According to the
builder, Concord Construction, the complete plans for this
house, including elevations, were supplied to the City of
South Burlington when applying for a building permit. We
have seen the architectural plans for this house and they
represent the identical situation as our house. Yet, they
were allowed to build and we are being denied.
3. Another property owner just south of us was
concerned about the 35, limit when they were building and so
they called the City of South Burlington to ask how the 35'
limit was measured. They were told that an average of the
elevation was used, meaning that on a sloping piece of
property, the average of the finished grade would be used.
An average is not being applied to us, only the worse case.
4. In each of the above cases, as well as numerous
others, the interpretation has not been the same as the one
being applied to ours. Additionally, if the interpretation
applied to the above were applied to ours, we would not be in
the predicament we are in now.
5. From what I've been able to ascertain, the rules
being applied to our house now have never before been applied
to any other non-commercial building in South Burlington.
6. Our architects, having built a number of other homes
in South Burlington, have researched this issue. They cannot
find, among numerous other town and city ordinances, any
interpretation like the one you are attempting to apply to us
now. Please see letter attached. Coupled with the above,
can you understand why we feel we are being treated unfairly
and prejudicially at this time?
7. If one were to consider this way of measuring, it
would preclude, forever, the building of a standard 2 story
house with a chimney and a walk out basement or garage
underneath. Is this really your intent?
8. Our architects tells us that chopping our chimneys
down will harm the aesthetic appearance of the house
dramatically. We belive you can see this for youselves from
the new drawings. Does this really serve the purpose of the
ordinance?
9. It is my understanding, in the statutes that existed
prior to 4/18/88 or possibly even 21 days after that date,
that the chimney was not part of the measurement. This has
been substantiated for me by numerous lawyers, architects and
builders, as well as the written word in the way the
ordinances read ("roof" not "chimney"). Subsequent
legislation has been passed, after our building permit
submission, adding chimney to the height restriction. There
are those who would say that they always included chimneys.
I would beg to differ, given other houses in the nearby area.
We also are of the belief that the law comes from the written
word and not an individual's desire or interpretation to suit
the purpose at a specific time. At the time we submitted our
building permit, there was no mention of chimney in the
statutes and now there is.
10. BOCA, a widely recognized organization by
architects and builders, has established standards for the
measurement of the heights of houses. The way South
Burlington is wishing to measure my house currently is in
complete contradiction to these standards.
11. The ordinance defines height as the maximum
vertical distance between the highest point vertically
(vertically being a key word, I believe, i.e. not projected)
from the finished grade. We believe the enclosed diagram
proves that no part of our original house plans is beyond 35'
vertically from the finished grade. Please see diagram.
12. We don't understand why, after having our house
plans for almost 2 months, someone now decides to measure our
house in a totally unorthodox way. All of the many builders
and architects we've talked to also indicate it to be
unprecedented, both inside and outside South Burlington.
We do not believe we have asked for any special favors.
We do not ask for any now. We ask only to be treated like
everybody else who comes to the City of South Burlington
wishing to build their house. It is not we, but others, who
have created this situation. Please let this end now with
fairness and without prejudice to anyone.
3ft
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rorreSt/Le5chmacher - clrchitect5
May 31, 1988
Robert and Cynthia Hoehl
c/o IDX
Box C1070
1500 Shelburne Road
Burlington, VT 05402-1070
Dear Bob and Cynthia:
Regarding your house design with respect to the South Burlington
zoning height regulations:
The regulations state that the maximum height shall be 35 feet,
or 2 1/2 stories, and as applied to a structure, this is the
"maximum vertical distance measured from the finished grade to
the peak of the roof." Since the wording does not take into
account a varying grade, such as on a sloping site, we have
always kept our designs a maximum of 35'-from the highest point
vertically to the corresponding finished grade on the slope.
In our experience, while zoning regulations may vary
considerably from town to town, there is no case that we know of
where the height of the structure on a sloping site is
determined by measuring the projected distance from the lowest
elevation of the grade at the structure to the highest point of
the structure. Indeed, South Burlington cannot have been using
this method to determine allowable height because there are
several houses built recently near your site which would violate
the regulations if measured this way. In general, any full 2
story house with a walk -out basement on the downhill side and a
roof pitch of more than 6" in 12" would have to violate the
height restrictions if measured from basement floor to top of
roof. I am sure there are many such houses recently built in
South Burlington.
If we measure the vertical distance from the proposed finish
grade up to the top of the chimney of your house, as shown on
the North Elevation on Sheet A7, we see it is exactly 35',
which, in fact, is how we established the height of the chimney!
Brian Forrest
Guy Teschmacher
26 State Street Montpelier Vermont 05602 • 802 229 5774
Robert and Cynthia Hoehl
Page 2
May 31, 1988
In any case, I am told that at least two homeowners have been
instructed by the town to measure their heights in a manner
similar to the method we have used for your house.
Incidentally, the inclusion of chimneys in the height
restriction requires rewording for clarification of the zoning
regulations. I was under the impression that a public vote is
required for any such change or addition.
From an aesthetic standpoint, if the requirement becomes to
measure the projected distance from lowest grade to highest
point of structure, anyone like yourself who wants a full 2
story house with walk -out basement will have to build a flatish
roof, which on a traditional house design probably seems rather
out of place. Most important, either interpretation of the
regulation will not require you to lower your roof ridge; the
only consequence is that you may not be able to have a walk -out
basement. Thus, the "projected distance" method of measuring
height will not affect the visual impact of your house one iota!
Here also is the wording of several other towns' height
regulations --as I say, we have never run into a situation like
yours where the most extreme elevation differences are used to
determine the height: an average or vertical measurement is
always used, in our experience.
Montpelier: 45 feet or 3 stories. Zoning Administrator
interprets this to mean height from average grade to highest
point of building including chimneys.
Shelburne: 35 feet. Vertical distance measured from average
elevation of the proposed finish grade to the higher point of
the structure.
Waitsfield: 35 feet except operating farm silos to a height of
75 feet measured from the finished grade at the foundation to
the highest point of the building --Zoning Administrator
interprets this to mean average grade on a sloping site.
Colchester: 30 feet or 2 1/2 stories. on sloping terrain, the
vertical distance measured from the average ground level of the
grade at the building to the average height between eaves and
ridge for gable roofs.
Brian Forrest
Guy Teschmacher
26 State Street Montpelier Vermont 05602 - 802 229 5774
Robert and Cynthia Hoehl
Page 3
May 31, 1988
In summation, I think the most important thing here is that the
most extreme interpretation of the South Burlington regulations
will not require you to lower your roof, only to eliminate the
walk -out at the basement, which greatly affects your use of the
house but does not at all affect the visual impact of the house
on the neighborhood. Since other owners have not been required
to meet the regulations in this way, I think this is very unfair
to you.
Sincerely,
Guy Tesc
GT/scc
Brian Forrest
Guy Teschmacher
26 State Street Montpelier Vermont 05602 - 802 229 5774
City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
PLANNER ZONING ADMINISTRATOR
658-7955 November 3, 1987 658-7958
Attorney Greg Wilson
3 Main Street
Essex Junction, Vermont 05452
Re: Jamieson, 13 Deerfield Road
Dear Greg:
Having recently discussed height requirements with Tim
Jamieson and Harold Junger regarding the dwelling at 3 Deerfield
Road.
Be advised that we agree that the finish grade will be at the
top of the foundation for the fireplace and that the maximum from
that point will be thirty-five (35') feet, which will include
the chimney. -
If you have any questions please don't hesitate to call me.
Ver�,,truly yours,
Richard Ward
Zoning Administrative Officer
cc: Chairman, Planning Commission
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June 2, 1988
To the members of the South Burlington City Council:
E C � M ■ \ E
h^ANAI-ER', 0; F}CE
CITY, O.F. ;;0. BURLINGTOIJ.
I have been following the hearings regarding Mr. Hoehl's application for a
conditional use permit under So. Burlington's interim zoning. I have
attended two of the meetings regarding this application, one at which Terry
Boyle presented an alternate use plan for the property, and the second when
the dispute over the actual height of the building arose. I would like to
congratulate the City Council on maintaining a level of fairness and
professionalism throughout the course of these meetings, yet I am convinced
with unfaltering certainty that to grant the applicant this permit would
represent a true disservice to the people of South Burlington.
Additionally, although I realize that your loyalty is to the residents of
South Burlington, please realize that the implications of your decision
reach well beyond the borders of this city, in fact, beyond the borders of
Chittenden County. This issue hits at the heart and soul of many
Vermonters.
I hope that you believe that this decision is much more than an issue of
possible legal action. In fact, it is very upsetting to me (and other lay
members of the audience) to think that the issue of litigation is what is
causing apparent turmoil within the city council, as well as panic and
frustration among the community and applicant. If this is the guiding force
behind your decision, then your service to this community has been
diminished. Perhaps a few moments alone at the overlook during sunset would
clear some of the smoke.
Naturally, however, your decision must be based on supporting legal
documentation. Although I do not claim an extensive knowledge of law, I
have reviewed both the interim zoning regulations and 24 VSA s4410 and can
see no reason why a decision against the applicant would represent an
inconsistent interpretation of these rulings. In fact, if the permit were
issued, I would have to ask what is probably becoming a familiar question to
the City Council by now, and that is, "just what is the purpose of interim
zoning?" Again, if your decision is based on a legal technicality that only
the City Council and city lawyers are privy to, please confess.
Because I do not believe that we should leave all solutions to this problem
up to the overworked members of the city council, I would like to mention
the following points that may allow a workable, acceptable solution.
1. I believe Terry Boyle presented an excellent alternative that would allow
the landowners and other residents to continue to enjoy this magnificent
resource. If Terry could prepare this alternative in less than a week,
there must be other alternatives. Regarding the UVM Horticultural Farm,
a two-story structure could be placed just 200 feet below the current
fence and not obstruct any part of the lake view of any house located in
Mr. Boyle's plan.
2. As you probably know, the Vermont Housing and Conservation Trust has been
infused with a significant appropriation this year. This organi,ztion is
willing to explore options to assist the city in purchasing the land (or
a part of) to protect it as a park. Yes, the Trust is primarily
concerned with affordable housing and they would most likely require an
affordable housing element as part of their agreement. However, it seems
to me that the city of South Burlington will have to address the housing
issue very shortly, if not by choice then by the mandate of the new
planning and growth bill (H. 779) recently passed. Wouldn't it be
appropriate for the city to begin considering this alternative before it
becomes a crisis? This option should be further explored.
3. Regarding H. 779, goal #4 of the planning process reads "Special areas
shall be identified, development shall be planned so as to protect and
preserve them and, when necessary, they should be placed in whatever form
of public or private ownership that would best maintain and utilize their
value to the public. Special areas include the following: ... (cc).
significant scenic roads, waterways, and views, particularly along the
interstate network and other scenic corridors;" I see this as a clear
indication that the state of Vermont is in support of the protection of
'special areas'?
4. Were the land to be purchased by the city, other options for financing
this land do exist. Some of these options include: the formation of a
South Burlington Land Trust, placing impact fees on future development
along Spear St., and the passage of a bond vote. I believe a
reasonable approach to this situation would be to deny this application
on the basis of interim zoning and prepare permanent zoning according the
expressed wishes of the people of South Burlington, after all options
have been explored?
In summary, I think I can safely state that, if given a choice, people would
overwhelmingly support the preservation of the overlook. I dare say that
the entire City Council would choose this option versus development.
Unfortunately, the choice is not that simple. People assume that ownership
of land gives them certain rights, and they are willing to fight for those
rights. However, the city has passed interim zoning and this application
must be considered inconsistent with the rules of interim zoning. I realize
this is only one house on a fairly long strip of land, but I believe that
even one house along Spear St. would present a true visual assault.
Besides, I'm sure you've heard the saying about the floodgates.
Thank you for your consideration.
Sincerely
0i
Richard Germain
45 Overlook
S. Burlington
LAW OFFICES
SESSIONS. KEINER. DUMONT & BARNES
WILLIAM K SESSIONS III
ROBERT P. KEINER
JAMES A. DUMONT
BONNIE BARNES
GORDON P. BLACK
June 1, 1988
Mr. Paul Farrar
Chair
South Burlington
South Burlington
575 Dorset St.
South Burlington,
72 COURT STREET
MIDDLEBURY. VERMONT 05753
(802) 388-4906
City Council
City Offices
VT 05403
Re: Application of Cynthia and Robert Hoehl
Dear Mr. Farrar:
I have received a copy of
from Attorney Linton to you.
the holiday weekend, and this
respond.
1, CHRISTOPHER FRAPPIER
LEGAL AS5ISTANI
l4u'-Y
crop
the letter dated May 26, 1988
It arrived at my office over
is my first opportunity to
As I understand Leslie's letter, she is making thwo
points. She appears to be claiming: (1) that the interim
ordinance was not in effect at the time the Hoehls submitted
their application; and (2) that the City Council can grant
the permit under 24 VSA S4443(c). Both coAentions are
incorrect.
First, the interim zoning ordinance was in effect. The
statute on interim zoning does not incorporate the 21-day
waiting period found in the statute on adoption of permanent
zoning. I believe I can explain this fairly quickly.
Section 4404 contains the procedures generally
applicable to the adoption, amendment or repeal of by-laws.
Subsection (a) states that a hearing must be held by the
legislative body not less than 30 nor more than 120 days
after the proposal is submitted by the planning commission
under S4403. And the proposal must either be drafted by the
planning commission or be studied by the commission before it
is submitted to the legislative body. Subsection (b)
requires the legislative body to hold additional hearings if
the proposal is changed prior to the vote. Subsection (c)
states that the proposals may be adopted by majority vote in
an urban municipality, after the public hearing, and includes
the 21-day delay. But under subsection (d) in a rural town
adoption must be by Australian ballot or other popular vote.
Subsection (e) imposes upon an urban municipality a 2/3
majority vote requirement if an adequate protest has been
filed.
Section 4410, in contrast to section 4404:
(1) contains no time limits in which the legislature
must hold a public hearing -- rather the hearing can be
held "after public notice as an emergency measure";
(2) contains no requirement that the proposal either
originate in or be studied first by the planning
commission;
(3) Requires no additional hearings if changes are made
(although this might be a good ideal);
(4) Authorizes the legislative body to adopt interim
zoning even in a rural town;
(5) Does not require a 2/3 majority vote when there has
been a protest;
(6) Contains unique provisions for repeal of interim
zoning -- unlike 44041a procedures, which treat repeal
the same as enactment or amendment (i.e., first there
must be study by the planning commission, etc. ), 4410
allows repeal of interim zoning simply by vote of the
legislative body "upon pubic notice". Moreover, a
petition of 5 percent of the voters "filed with the
clerk of the municipality" (not the planning commission)
can force a vote on repeal.
In short, the entire procedure for adoption and repeal of
interim zoning is independent of the procedures in section
4404. If we were to adopt Attorney Linton's argument --
that the 21-day delay from 4404(c) applies to 4410 -- we
would also have to conclude that only the general electorate
in a rural town could adopt interim zoning (4404(d)), that
interim zoning could only be adopted after review by the
planning commission (4404(a)), that interim zoning could be
repealed only after study by the planning commission
(4404(a)) , and so on. The entire point of interim zoning
is that it is an "emergency" measure, to quote the statute.
A 21-day delay is contrary to that concept. Such a delay
has absolutely no basis in section 4410.
SESSIONS. KEINER.
DUMONT G BARNES Leslie's second point, that the City Council can
72 COURT STREET authorize the permit under section 4443(c), obviously is
MIDDEBURY, VT. 0,,,Vnfounded, because interim zoning in fact does apply.
COCO 386-4906
Section 4443(c) by its explicit terms applies only to
amendments of by-laws before their effective date. And
the interim zoning went into effect upon being adopted, as
noted above, because the 21-day delay does not apply.
If the Hoehls and their attorney truly believed that
section 4443(c) governed this case, they should have said so
in their application to the City Council. This would have
allowed the City Council to duly and properly warn the public
hearing as a hearing under that section. This did not occur,
through no fault of the City Council.
I am providing six additional copies of this letter, so
that the other members of the Council may each have copies.
I also would like to take this opportunity to thank you
and the entire Council for the court (and endurance) you
demonstrated throughout the heari . j
cc: Leslie Linton, Esq.
Steve Stitzel, Esq.
(jadoo7#13)
SESSIONS, KEINER.
DUMONT & BARNES
72 COURT STREET
PADOLEBURV, VT. 05753
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PUBLIC HEARING
SOUTH BURLINGTON
CITY COUNCIL
The South Budineron City
Council will hold a public hearing
of the South Burlington City Hall,
Conference Room, 575 Dorset
Street, South Burlington, Vermont
on Monday, May 2, 1988, at
7:30 P.M. to consider the follow-
in4-
Application of Robert and Cyn-
thia Hoehl of 4 South Hill Drive,
Essex Junction, Vermont for au-
thorization to construct a single-
family dwelling which exceeds
the height requirement as set-
forih under the Interim Zoning
Regulations for the protection a
the Spoor Street Scenic Overlook
District, odoptd March 7, 1988,
on a parcel located at 1535
Spear Street.
Copies of the plan are available
for public inspection at the South
Burlington City Hall.
Richard Word,
Zoning Administrative Officer
April 16, 1988 -
t '0.
PROPOSED HOEHL FAMILY HOME AT 1535 SPEAR STREET
HISTORY
- Purchased property 10/23/85
- Planned to wait until this summer to build to minimize
impact on children and schooling. Fourth child
going off to college, fifth one graduating
from eighth grade and sixth going from
elementary school to middle school.
- Fall of 1985 contacted town to get copies of documents
regarding height restrictions and curb cuts.
11/85 through 12/86 began planning for the house we
wanted by reading and cutting pictures out of
magazines.
11/6/86 Received offer from Jamison to swap part of my
land for a right of way through his land.
Refused offer because we didn't want to risk
someone building in back of us and detracting
from the view.
- 1/87 Began working with architects
1/87 thru 4/88 worked with architects on design of
house.
- 4/5/88 Heard from a fellow employee about the Spear
Street Scenic Overlook District Zoning which
made it impossible for us to build our -
home.
- 4/7/88 Received final plans from architects.
- 4/12/88 Submitted request for building permit to Dick
Ward.
EXISTING INVESTMENT
Topography $266.25.
- Architects fees totaling $13,503.40 a= of 4/20/80.
Taxes to City of South Burlington for 3 Years. Aprox.
$3900.00.
Time planning and designing our house for a period of
2 1/2 years.
- Real Estate people through existing home to do
appraisal in preparation for sale.
- A third of Robert H. Hoehl's time over the last month
attempting to build case that will allow us to
build our house.
LOSSES, COSTS AND DAMAGES
- Above existing investment
- An estimated minimum of $100,000.00 in decreased land
value. Based on $200,000.00 original value and
can no longer build on top (best) 112 of land.
- Loss of protection of view for lot. Something could be
built on what is now the UVM Horticultural Farm
that would hurt or destroy view. If allowed to
build where planned the back of lot affords
protection for loss of view.
- In being precluded from building our home we have lost
2 1/2 years of opportunity to find another piece
of property suitable for building our house.
- Legal fees.
- Additional building cost. To get the same number of
sq. feet, the foundation would have to be twice
as large. According to my builder this would
cost an estimated $30,000.00 based on an
additional $20 per sq. foot.
- An estimated $10,000.00 in additional fill and
site work would be required because of the
370 foot set back vs 120.
- Additional ongoing costs over th life of the house for
maintaining a 370 foot driveway and front lawn.
More than 112 the view is lost by building 370
feet back (see pictures). Additionally
Shelburne Bay is mostly obscured and the view
of the Marina is entirely gone. The view of
the Marina was particularly important to us.
- Small house (1 story) built 370 feet back will look
lost and foolish in comparison to planned home.
- Each day that goes by further delays the planned
move. The already existing delay has made it
impossible to complete a house before school
starts. Each additional day could cost dollars
if our family has to stay in a motel because we
had to vacate our current house to people who
wish to move before school started.
- Most importantly the complete loss of the land
as far as our family is concerned. We
have always lived in a 2 story home. We have
always wanted a traditional 2 story house for our
dream home someday. The new zoning makes it
impossible to build a 2 story house anywhere on
the land. If we are not permitted to build a 2
story house on this land, ale will be forced
to sell the land and look elsewhere. Therefore
as far- as the Hoehl family and lot #6 is
concerned, the new zoning takes our land away.
COMPREHENSIVE PLAN
The following quotes are taken directly from The City of
South Burlington's Comprehensive Plan.
- Purchase land for views.
Page 49: "public access to views can be attained by
fee simple acquisition." and "The best form of
access us provided to pedestrians and the elderly
and handicapped by scenic turnouts and public trails
incorporated into future park acquisitions."
Page '76: "trail easements and public land
acquisition will improve access to these views."
Page 77: "3. Public access to views, open space,
parks and pedestrian trails should be acquired,
maintained and improved. Development in visually
significant areas should be limited by the City
during subdivision and site plan review."
- Slot build.
Page 49: "The concept of staggered layouts of
building or lot lines can be implemented to help
alleviate the conflict between the development of
vacant land and the reduction of views and property
values of nearby properties."
- Overlooks. Protect view from overlooks
Page 33: "3) Scenic lookouts should be provided on
the summit of ridges and hills."
Page 49: "The best form of access is provided to
pedestrians and the elderly and handicapped by
scenic turnouts and public trails incorporated into
future park acquisitions"
Page 50: "4) The City shall incorporate scenic
turnouts and public trails in parkland to provide
access to pedestrians including the elderly and
handicapped."
- Number of places in South Burlington.
Page 29: "five hills or ridges" "indication of the
value attached to these views is implicit in real
estate values in adjacent residential areas."
Page 46: Pedestrian Easement - "Nowland, Spear
Street 3,000" includes 200 ft across back of our
land. Page 49: "spectacular views of Lake Champlain,
the Adirondacks and the Green Mountains from many
locations throughout the City."
-- Safety
Page 76: "While the enhancement of viewing areas
from the major roadways is an important goal, safety
factors are also important features to weigh during
development reviews."
Rights
Page 76: "At the same time that public access is an
important goal, home buyers are also willing to pay
high prices for the private access to the views and
to the aesthetic qualities of the area. The rights
and interests of both parties are important
considerations during the implementation of this
plan and during development reviews.
- Summary
I could not find, anywhere in the South Burlington
Comprehensive Plan, that public access to views
should be gotten by taking existing property owners
views through height restrictive zoning, On the
contrary the whole tenor of the plan is to acquire
such views via purchase and development of overlooks
and parks and the protection of such purchases and
overlooks and parks.
OVERLOOK UNOBSTRUCTED BY HOEHL HOUSE
The view from overlook is still spectacular and will not
be hurt in anyway by proposed Hoehl house. Statements made at
previous City Council. meetings that " 112 the view is gone"
just aren't true.
- See pictures and diagrams.
- The view from the overlook would be adversely effected
by building 370 feet back (required by new zoning for 1 story
20 foot high house) rather then 120 feet back as I wish to
do. Instead of a clear pastoral setting to look at the view
over one would be looking over the roof of a house. (see
picture)
LESLIE S. LINTON
EDWIN L. HoBsoN
PHILLIP C. LINTON
OF COUNSEL
Members of the South
595 Dorset Street
LINTON & HOBSON, P.C.
Arm)RNEYS AT LAW
P.O. 13()X 906
BURLINGTON, VERMONT 05402
TEL: (802) 863-2000
(802)863-4455
Burlington City Council
So. Burlington, VT 05403
Dear Members of the South Burlington City Council:
OFFICE LOCATED AT:
WATERFRONT PLACE
86 LAKE STREET
BURLINGTON. V r
May 2, 1988
I represent Robert and Cynthia Hoehl. The Hoehl family has applied for
a building permit to construct a residence at 1535 Spear Street. The
house is to be of standard two story height. Since the Hoehl's 2.4 acre
lot lies in the newly designated "Scenic Overlook District," the zoning
administrator has referred this matter to you for authorization as a
conditional use under 24 VSA Section 4410 (d). The following is a
summary of the basis for this appeal.
1. Introduction. The Hoehl's lot is one of 6 lots lying on the
west side oT-S`pear , treet, just north of the scenic overlook. The Hoehl
lot is the southerlymost lot and borders the overlook. The Hoehl lot is
appro)dmately 577 feet deep, while the scenic overlook is 266 feet deep.
The interim zoning ordinance makes it impossible for the Hoehls to build
their home anywhere on their lot. It appears that the only structure
which might comply would be no more than one story in height and
would have to be set back a minimum of 370 feet from Spear Street.
The house would then be located in the field below the overlook and
would be directly in the line of vision of visitors to the public overlook.
The panorama currently enjoyed from the overlook would thus be further
compromised.
By contrast, the Hoehls propose to site their house in a location closer
to Spear Street. As proposed, the Hoehl home would not interfere with
the panoramic views enjoyed from the City owned scenic overlook. The
field would remain undeveloped, with the possible addition of a pond at
some time in the future which would further enhance the view available
to park visitors.
2. Background.
a. Subdivision approval. In 1976 Mrs. Aurora Nowland
applied to the So. Burlington Planning Commission
for permission to subdivide her land in this area.
The plan was reviewed in depth by the Natural
Page 2
May 2, 1988
Resources Committee, the planning office, and the
planning commission. The file indicates that the
views on Spear Street were discussed at length.
Finally, after two or three hearings over the course
of a year, the project was approved with certain
restrictions. The relevant restrictions include a 60
foot right of way for possible development of a
connecting City street and a 15 foot pedestrian
easement for use by the public. The City also
negotiated the right to negotiate for a period of one
year for a 200 foot by 100 foot parcel south of the
approved lots to be used as a scenic overlook.
The deeds to each of the 6 lots also carry perpetual
setback and height restrictions designed to protect
the land across the street that Mrs Nowland
reserved. The Hoehls' deed includes a 75 foot
setback and requires that no tree within the
setback may be permitted to exceed 20 feet in
height. Additionally, the deed requires that any
dwelling erected shall rise no more than 18 feet in
height above the center of Spear Street. The
Hoehls' proposal comports with these requirements.
b. Scenic overlook acquisition. The City did not
negotiate and purchase the land for the overlook
from Mrs. Nowland. In late 1980, early 1981, the
Ray Pecor/ Gerry Milot subdivision was being
proposed on land further south along Spear Street.
A donation to the city of a scenic overlook was a
suggested condition to approval. The plan initially
was for a turn-off which would accommodate several
cars. The concept was expanded to include an area
where people could get out of their cars. A scenic
overlook of approximately 300 feet in length and
266 feet in depth was ultimately deeded to the City
by Spear Street Housing Partnership in November,
1985.
3. Purchase of Hoehl property. Lot 6 of the Nowland subdivision
was conveyed to obert an ynthiaoehl in October 1985. Installation
of a sewer line which serves all six of the lots in question was complete
shortly before the transfer. Mr. Hoehl consulted with Jane LaFleur in
connection with his purchase of the property in order to understand
requirements relating to curb cuts, sewer, and height. At that time a
dwelling up to 35 feet in height was permitted.
The Hoehls planned from the beginning to build their home during the
summer of 1988 and to move during the fall so that the two youngest
Page 3
May 2, 1988
children would change school systems at a time when they would have to
be changing schools anyway (elementary to middle and middle to high
school). They began the planning of their home right away.
In January of 1987, the Hoehls began working with an architect. Since
then, they have designed and redesigned their new home, always intending
to build a two story structure. They have invested heavily in their new
home, spending substantial sums for their architectural design work as
well as very significant amounts of their time. See outline of Robert
Hoehl.
4. Enactment of interim zoning. On April 4, 1988, the City
Council enacted interim zoning which severely restricts the use of the 6
lots located along Spear Street just north of the City owned overlook.
The effect of the zoning on the Hoehl lot is to prohibit any building or
planting on the top 2/3 of the lot. The back 60 feet are subject to the
City's right of way and pedestrian easement. This leaves a relatively
small area where a one story dwelling might be built, notwithstanding the
fact that such a structure must be below the city owned overlook within
the viewing area. A two story structure cannot be built anywhere on the
lot.
Notwithstanding the drastic consequences of the proposed ordinance, none
of the six lot owners was informed of the proposal. A public hearing
was warned in the legal section of the Free Press. Mr. Hoehl learned of
the enactment after the fact from an employee at his business.
5. Criteria of 24 V.S.A. Section 4410 (d) e)_ This statute sets out
standards for the approval of a conditional use permit by the City
Council when land development is not in compliance with the interim
bylaw. The statute presupposes that the interim zoning bylaw has been
validly enacted and is properly enforceable against the landowner. The
Hoehl's dispute the validity of the bylaw and request that the City
Council issue the necessary authorization for the requested building
permit. (See discussion in paragraphs 6-10 below.) Even if the bylaw
was valid, however, the Hoehls' permit request meets the criteria
enumerated in the statute.
a. The ca acity rof existin T or lanned community
fac-iIities services or lands. his lot has always
been intended to accommodate a single family
dwelling. The proposal does not alter this. The
proposal is well within density requirements, the
Hoehl lot being 2.4 acres, more or less.
b. The e3disting patterns and uses of devel9p ent in the
area. The land south and west o -pear tre�—
seen a great deal of development over the last few
years. Most recently, the Milot development has
Page 4
May 2, 1988
been and continues to be built. Harbor Heights, also
recently developed, lies further to the south.
Significantly, almost all, if not all of the homes built
in these developments, are two story homes. This is
undoubtedly a reflection of the demands of the
housing market and a recognition of the very
significant cost of attempting to build a large home
all on one floor (vastly increased costs for
foundation work, plumbing and other building
materials including roofing).
C. Environmental limitations of the site or area and
Sig �m scant natural resource areas and sites,. 7fie site
is now served by the City sewer and water systems.
If the Hoehls are not permitted to build as
requested, they will be forced to sell the lot.
Someone might buy the lot at a price reflective of
the new zoning requirement and build in the field
below the overlook. As noted above, we do not
believe that to be in the City's best interest.
Further, it is not in the interest of the owner of
this lot as the lot will no longer have its own view
protected. The one story structure which is the only
dwelling possibly permitted would have to be situated
so far down and back on the lot that the view from
that location could easily be destroyed by any
structure built further down the hill. View
protection was one of the essential qualities of this
lot and substantially influences it's value.
The interests of the City (to allow city residents and
visitors to experience the panoramic views of the
lake and mountains) have been served in the exaction
of a pedestrian easement along the westerly boundary
of this property. Together with the scenic overlook
owned by the City, there is plentiful public access.
To further restrict the use of the subject land
would serve as an unconstitutional "taking" of the
Hoehls' property.
d. Municipal plans and other municipal b laws
ordinances or rejzulations in effect. o. urlington's
municipal -pan recogn s the va ue of scenic views
and describes a means of protecting the City's
interests.
So. Burlington is fortunate to be blessed with
spectacular views of Lake Champlain, the
Page S
May 2, 1988
Adirondacks and the Green Mountains from
many locations throughout the City. the
concept of staggered layouts of buildings or lot
lines can be implemented to help alleviate the
conflict between the development of vacant land
and the reduction of views and property values
of nearby properties. Public access to views
can be attained by fee simple acquisition. The
best form of access is provided to pedestrians,
the elderly and handicapped by scenic turnouts
and public trails incorporated into future park
acquisitions. (p.49.)
While the enhancement of viewing areas from
the major roadways is an important goal, safety
factors are also important features to weigh
during development reviews. At the same time
that public access is an important goal, home
buyers are also willing to pay high prices for
the private access to the views and to the
aesthetic qualities of the area. The rights and
interests of both Varties are important
considerations duringthe imp ementation of this
plan and during development reviews. (p.76.)
6. Failure to issue a building permit as requested would serve as a
"taking-" While zoning is an effective and necessary tool to effective
al nd use planning, it cannot be used to a propriate a public amenity
without paying the owner. First English l�_v_a_nge_lical Lutheran Church of
Glendale v. Los Angeles CountV, 107 S. Ct. 237 1 of an v.
a i ornia Coastal Commission—. 107 S. Ct. 3141 (1987). hT e -Vermont
Constitution also recognizes and protects private property interests from
excessive government regulation.
That private property ought to be subservient
to public uses when necessity requires it,
nevertheless, whenever any person's property is
taken for the use of the public, the owner
ought to receive an equivalent in money.
(Article 2nd).
The Hoehls will not be able to use their parcel of land. A one story
home could not economically or aesthetically satisfy the needs of the
Hoehl family. Mr. and Mrs. Hoehl have 6 children and they want to build
a large home to accommodate their family.
The law now recognizes that overregulation, which reaches beyond the
legitimate needs of the public, will permit the damaged landowner to
Page 6
M, y 2, 1988
recover money damages. The Hoehls do not want to litigate. They
simply want to build the home for their family they have always planned.
7. Enforcement of the bylaw, against the Hoehls will result in
denial of eq—ual protection of the law. THe ordinance m question does
not app y uniformly to landowners in the City of So. Burlington. There
are many areas of the City which enjoy scenic views, but no other
landowners have been subjected to the severe restrictions of this
ordinance. Other areas of Spear Street en joy views, including the view
of Camel's Hump on the other side of Spear. Dorset Street also features
many lovely views.
It appears that the Hoehls and the other three owners of the affected
lots have been singled out for regulation because their land is near the
City owned overlook. This is true even though the view from the
overlook will not be compromised by the homes proposed, only the view
from the street. The City is effectively deciding to expand its overlook
without paying for it.
8. The ordinance is inconsistent with the City Master plan. See
discussion a ove. a ity ounce s ou d not preempt the planning
process with hastily drafted interim zoning designed to stop -gap a few
proposed homes. Zoning changes and changes to the master plan should
be permitted to go through the hearing process and fully subjected to the
scrutiny of the public. Interim zoning is appropriate only where a truly
critical need exists. Since the public already enjoys views from the
scenic overlook and has a pedestrian easement over the Hoehl land, it is
hard to envision how critical the public need is to take the Hoehl's land.
9. The CITY estopped from den}nn , the requested building
permit. The history out i— nl' ed above demonstrates that the ity has
a rea y reviewed the lot plan for this subdivision. At that time the City
contemplated several means of protecting the views in the area including
purchase of land, the scenic overlook, the pedestrian easement, the height
restrictions and setback requirements, widening of roads and granted it's
approval subject to negotiated restrictions designed to protect the public
interests. The Hoehls relied on the City's agreement as set forth in the
approvals when they purchased their lot and designed their home.
10. Conclusion. The scenic overlook "district" ordinance represents
a reaching. t is s an attempt to expand the City's overlook to cover
privately held property. It severely restricts the use of the Hoehl's land.
Moreover, applying the ordinance to the Hoehl property will not improve
the view from the City overlook proper. Rather, it will compromise it.
The City Council is urgged to authorize the issuance of a building permit
to Hoehls forthwith. It is the Hoehls' fervent wish that their home be
completed in time to permit their children to attend So. Burlington
schools this fall. Your action is needed at this time.
Page 7
May 2, 1988
Thank you for your careful consideration of this application.
Sincerely,
l," L ; n C11---
Leslie S. Linton
.4
UNION & HOBSON, P.C.
ATTORNEYS AT LAW
P.O. Box 906
BURLINGTON, VERMONT 05402
TEL. (802) 863-2000
(802) 863-4455
LESLIE S. LINTON
EDWIN L. HOBSON
PHILLIP C. LINTON
OF COUNSEL
April 19, 1988
Richard Ward, Zoning Administrator
575 Dorset Street
City of South Burlington
South Burlington, VT 05401
HAND DELIVERED
Dear Mr. Ward:
OFFICE LOCATED AT:
WATERFRONT PLACE
86 LAKE STREET
BURLINGTON, VT
Enclosed herewith for filing please find "Notice of Appeal' of Robert and Cynthia
Hoehl.
Sincerely,
Leslie S. Linton
H:ward.ltr
Enclosure
E
1JNMN & HOBSON, P.C.
ATTORNEYS AT LAW
P.O. Box 906
Two WATERFRoNT PLACE
86 LAIC STREET
BuRuNMN, VT 05402
IN RE:
APPLICATION FOR BUILDING PERMIT NOTICE OF APPEAL
ROBERT HOEHL
and
CYNTHIA HOEHL
NOW COME ROBERT HOEHL
and
CYNTHIA HOEHL,
by and through
their attorneys, Linton & Hobson, P.C.,
and
hereby appeal to the
South
Burlington Zoning Board of Adjustment the following actions:
a. Denial of application for permit by City of South Burlington
Zoning Administrator, Richard Ward; said application was
submitted on or about April 12, 1988 and seeks a permit to build
a two-story residence at 1535 Spear Street, South Burlington.
b. Enactment by the South Burlington City Council on or about
April 4, 1988, of an interim zoning ordinance designated "Interim
Zoning Regulations for the Protection of the Spear Street Scenic
Overlook District."
This appeal is filed pursuant to 24 V.S.A. Chapter 117 and The South
Burlington Zoning Ordinances and Master Plan.
Appellants request that the permit be issued in the form requested and
that the interim zoning ordinance referenced above be invalidated.
Defendants grounds for the requested relief are:
1. The Appellants are entitled to issuance of a permit based on
historical actions of the city with respect to the affected parcel
under the doctrines of estoppel, reliance, equity and law.
2. The City of South Burlington was not and is not empowered by
law or the Master Plan to enact the ordinance in question.
3. The ordinance was not enacted in accordance with procedural
requirements of the laws of the State of Vermont, the ordinances
of the City of South Burlington, and applicable principles of
equity and fairness.
4. The ordinance is contrary to the Constitutions of the United
States and the State of Vermont, and further is unconstitutional
as applied to appellants.
Dated at Burlington, Vermont, this 19th day of April, 1988.
Robert Hoehl and Cynthia Hoehl
4 South Hill Drive
Essex Junction, VT 05452
By: L-coL—
Linton & Hobson, P.C.
Their Attorneys
By: Leslie S. Linton
cc: Steven Stitzel, City Attorney
Richard Ward, Zoning Administrator
Margaret Picard, City Clerk
Secretary of the Zoning Board of Adjustment, c/o Richard Ward
Paul Farrar, Chairman, South Burlingotn City Council
UNTON & HOBsoN, P.C.
ATTORNEYS AnTnIAw
P.O. Box 906
Two WATERFRONT PLACE
86 IAn STREET
BURUNGTON, VT 05402
VTY GOVT. Ch. 117
Ch. 117 MUN. & RECIt►NAL PLAN. K I►EVEL. T.24 § 4410
town could not condition grant of
(c) Interim bylaws shall be administered and enforced in ac•cord-
e, of a sewer construction permit.
ance with the provisions of this title applicable to the administration
253.388 A.2d 371.
and enforcement of permanent bylaws, except that uses other than
:ces in area in which state sought to
ne-family dwelling. (2) professional
those permitted by an interim zoning bylaw may be authorized as
1. (5) public outdoor recreation. (6)
provided for in subsection (d) of this section.
ion, and (8) community center, the
(d) Under interim 'roninE,r bylaws, the legislative body may, upon
e- and lower court's use of (fiction-
application, authorize the issuance of permits for any type of land
Nance of the facility under the zon-
development as a conditional use not otherwise permitted by the
and of adjustment could properly
-equirements of its for law'
bylaw after public hearing preceded by notice in accordance with
its were not met. StateLate B 13uilJings
section 4447 of this title. The authorization b the legislative body
Y
0980) 1,18 Vt. 25n, 415 A.2d 188.
shall be granted only upon a finding by the body that the proposed
use is consistent with the health, safety, and welfare of the munici-
nlaries
pality and the standards contained in subsection (e) of this section.
croup homes. see 6 Vt. L. Rev; 509
The applicant and all abutting property owners shall be notified in
writing of the date of the hearing, and of the legislative body's final
determination.
(e) In making a determination the legislative body shall consider
has taken action to conduct
the proposed use with respect to:
held or is holding a hearing
3 comprehensive plan, or an
(1) The capacity of existing or planned community facilities,
services or lands;
ich bylaw or plan, the legis-
(c The existing patterns and uses of development in the area;
egulations, interim subdivi-
(3) Environmental limitations of the site or area and significant
ig regulations, interim flood
resource areas and sites;
.ffnatural
map regulating landity,
(4) Municipal plans and other municipal bylaws, ordinances or
icipall
cipalin order to protect
regulations in effect.
I welfare and provide for
(f) The legislative body of the municipality may extend or reenact
such interim bylaws shall be
.ded by the legislative body
interim bylaws for a one-year period beyond the initial two-year
upon public notice a
period authorized by subsection (a) of this section in accordance
.g
with the procedures for adoption in that subsection.
shall be limited to two yearss
y
(g) A copy of the adopted, amended, reenacted or extended in-
nd may be extended or re-
terim bylaw shall be sent to adjoining towns, the regional planning
:tions (f) and (g) of this sec-
commission of the region in which the municipality is located and to
Linder this section may be
the agency of development and community affairs. —Added 1967,
)tic notice by the legislative
No. 334 (Adj. Sess.), § 1, eff. March 23' 1968; amended 1969, No.
petition of 5 percent of the
116, § 9, 1971, No. 61, §§ 1, 2, eff. April 14, 1971; 1973, No. 12. § 1;
municipality, hold a public
1973, No. 261 (Adj. Sess.), § 5, eff. July 1, 1974; 1975, No. 50, § 1, eff.
nt or repeal of the interim
April 15, 1975.
led, or reenacted under this
HISTORY
-rized by permanent zoning,
Amendments-1975. Amended section generally.
ulations, subdivision regula-
—1973 (Adj. Sess.). Subsection (h): Amended generally.
-hapter.
subsection (c): Amended generally.
57
City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
PLANNER
658-7955
April 18, 1988
Mr. Robert Hoehl
4 South Hill Drive
Essex Junction, Vermont 05452
Re: 1535 Spear Street
Dear Mr. Hoehl:
ZONING ADMINISTRATOR
658-7958
After discussing your application to construct a dwelling on ,your
Spear Street land with the City Attorney, he is of the opinion that
your application requires approval by the City Council under the
recently approved Interim Zoning Regulations for the Spear
Street area in question. Therefore, we have scheduled your
application for a public hearing on Monday, May 2, 1988 at 7:30
P.M. to be held in the City Hall, Conference Room, 575 Dorset
Street.
I have enclosed a copy of Section 4410 sub section (d), this
section details the hearing procedure, along with a copy of the
notice which appeared in the Free Press. The hearing fee of
thirty ($30.00) dollars is due before the hearing date.
If you have any questions please don't hesitate to call me.
Very truly,
Richard Ward,
Zoning Administrative Officer
RW/mcp
Encls
PUBLIC HEARING
SOUTH BURLINGTON CITY COUNCIL
The South Burlington City Council will hold a public hearing
at the South Burlington City Hall, Conference Room, 575 Dorset
Street, South Burlington, Vermont on Monday, May 2, 1988, at 7:30
P.M. to consider the following:
Application of Robert and Cynthia Hoehl of 4 South Hill Drive,
Essex Junction, Vermont for authorization to construct a single-
family dwelling which exceeds the height requirement as set -forth
under the Interim Zoning Regulations for the protection of the
Spear Street Scenic Overlook District, adopted March 7, 1988, on
a parcel located at 1535 Spear Street.
Copies of the plan are available for public inspection at the
South Burlington City Hall.
Richard Ward,
Zoning Administrative Officer
To: South Burlington City Council
From: Cynthia and Robert Hoehl
Re: Building permit 1535 Spear- Street
Rather than repeat all of the information Attorney
Leslie Linton and I have submitted already. I hope you will
consider it also as you approach your final deliberations. If
you do need any further copies of any of the material, please
let me know and I will be happy to provide it.
THE VIEW IS NOT GONE
This is simply not so. There are a number of other
locations around South Burlington/that afford wonderful
views. The South Burlington Comprehensive plan makes
reference to five, none of which are actually our land
• although close ("just south of Swift Estates"). In addition
to these there is the knoll to the right of the entrance to
the Stonehenge Condos, the views of the lake and mountains
(the same view as from Spear Street) from Red Rocks Park, and
Allen road also affords a beautiful view at its top.
For those who must see the view while they are driving
(not safe), or jogging or bicycling by, I suggest Deerfield
Drive (see'picture #5 and #6) or Allen Road.
Our house will block only 71 of 166 feet (43%) of the
view of the lake and mountains (see diagram). While we wish
to have vegatation around our house, we are willing to leave
some space unobstructed to permit a view of the lake avid
mountains to be seen from Spear St. Each of the 6 lots along
Spear St. already has a minimum of 25 feet on each side as a
set back requirement. This means a minimum of 50 feet
between houses. In addition the lots are extra wide, 160-200
feet in my case, to allow for views between houses. It is
highly unlikely that anyone would build a house 110 feet wide
(160-50). Our house is e5 feet wide but only 71 feet of which
blocks the viea,, thereby leaving far more than 50 feet
between houses. This was all thought out and planned for
during the original subdivision which permitted single family
houses to be built on the six lots with reasonable
restrictions.
All else aside, the irw from the C;i t, of South
Burlington's Overlook is still spectacular. It is far better
than any view that exists in the development just south of
the Overlook. People in that development have paid thousands
of dollars to get the view trley, have. it =_eems to me that a
view from the Overlook, which is better than anv that people
paid thousands of dollar=_ T,-)r, but somehow is,,'t good enough
for those who paid nothing, t-n't, rea on.a!_,ic ,Jith ali of
the views available to the )i ington, we
believe it is totally unreason-,t, le f r the t. t,; to take the
entire stretch of pr ivatel n.,; cx± ! and aE r i 1 .
PROTECT THE OVERLOOK
Our contention from the beqinninq has been that the city
has the right and duty to protect the view from the Overlook.
The attached letter from our architects shows that building
our house where we want is in the best interest of the
citizens of South Burlington. In no way does it hinder or
detract from the view from the parkinq area of the Overlook.
The City of South Burlington owns an Overlook which is
266 feet deep from Spear St. The current overlook is 85 feet
deep from Spear St. We understand the back 1B6 feet (266-85)
is planned as an area for public picnic tables. Pictures #1
and #2 show that if a house were built according to the new
zoning restrictions, under the view line from Spear St., it
would totally block the view of the lake from the planned
picnic area. The top of the pole that the gentleman is
holding is 20 feet high which is the height that the proposed
interim zoning would permit. The idea of sacrificing the
views from the overlook to satisify the desires of a few (see
"What the people want") seems to be prejudicial and unfair.
We have already indicated that we would be willing to do
whatever is necessay with our house and property plans to
protect the view from the parking area of the overlook.
Picture #7 shows RHH standing in the field where we would be
perfectly willing to build our house to the right of. This
shows that -our house will not block any of the views from the
parking area of the overlook. We feel that the best way to
satisfy this issue is for us to grant view variances to the
City of South Burlington that, in no way, will our house
impinge on the views of the lake and Adirondack Mountains
from the parking area of the Overlook.
TWO STORY HOUSE
I believe it is inportant to first define what a one
story house is. The Boardman's house (the one just west of
Jamiscns') is not a 1 story house: it's a cape. Its roof line
is 24 feet and the top of the chimney is 29 feet above the
ground. Taking into account covenants in our deed, set back
ordinances, and the new zoninq restrictions, we could not
build a house like this anywhere on our land. We could build
a 20 foot high house 371 feet back. The only alternative
that leaves us is a ranch.
Mr. Dinklege. when we met at the Overlook. asked me.
"What's the hardship, really"%" And my answer at the time
was, "For me, total hardship, because my family wants a two
story house." At the time I wondered if that was a
reasonable response so I set out to try and find out.
If one .vas to drive from the nver l nok and take a r i , th t.
on Deertield Drive and t�(=n take the rtr-st left follc.;ed h:
the first right and fallna, on down to Lhelburne Road, one
would find 1 one-story house, b capes which also can't he
-wilt c-� my land) and 45 two �_tery houses. fhis indicates +r�
yh0
story house. In fact, 1 _Luid :-.ot f1r.c"! _..rgle 1 stoi
!louse (ranch) anywhere in } he ad j;3r-._ .if
development. The only I story house was an older home on the
corner of Spear and Deerfield Drive. We'd be very surprised
if they had b children growinq up in a that one story house.
Since the Burlington Free Press has given this issue so.
much publicity, we have received a lot of letters and
material from Real Estate Agencies who want to sell our
current house (Real Estate Aqents are the eternal optimists,
I guess). We have enclosed a recent insert from one of these
agencies which points out that 2 story houses are "in" (see
attached) in today's market.
Given what everyone else in the neighborhood and in the
know thinks, I don't believe we are unreasonable in wanting a
two story house.
MISCELLANEOUS
The statutes state that zoning is to protect the health,_
safety, and wealfare of the people of the community.
Hopefully, for all of us, there is no danger to the health of
anyone involved. It seems that safety should be a
consideration when what the opposition wants, at least in
part, is the ability to drive along Spear Street and loot: at
the view instead of the road, or park along the curb. s•,hich
is never a•safe action and against the law in most places,
except in case of emergency.
When Mr Jamison's house was first raised, we too were
taken back by it. As it rose we realizied it would block a
portion of our view. We thought about that and accepted the
fact that he had a right to build the house that best suited
him and his family on the land they bought and paid for. (See
picture #3).
As mentioned previously, we are very willing to build
our house such that it does nothing to block any of the views
from the parking area of the Overlook. We are perfectly
willing to move our house as far to the north as ordinances
allow. We believe this is more than enough to avoid blockinq
any views of the lake and mountains from the parking area of
the Overlook.
WHAT THE PEOPLE WANT
At the last City Council meetinq, 1 too iaas impressed
by the amount of opposition to the buildino of our house. It
wasn't until I got home that I realized it was b people (each
talking 2-4 times) who represented the citi,ens of South
Burlington. Subsequent to that !.,ie counted 4 letters to the
editor in the Free Press. Of those, two of the first three
we could not find in the phnne boob: and the last F:evi n Lin,,.
listed in the Free Pass as from South Burlington, is 1:c�ter1
from Hinesburg according to the phone hook The point -je are
tryinq to make is that the number L•,ho are tr inq tn fic;ht
this are not as many as it might .:�t first appear. 1•je co-int M
at the meetinq and 4 letters to the editor makinq lv. It ;t
would help, or make 3 difference, Lie �-iould have tin pr ,biem
with and gladly br.nq foward far more than ten people to
speak for our side. We have not chosen to do this thus far
because we believe that facts and what is right will decide
this versus how many want what.
Yesterday, a women attemptinq to collect signatures
for a petition to protect the view from Spear Street, stopped
by Nancy Boardman's house. One of the reasons she gave for
stopping the building of any houses up on Spear Street was
that she might lose her view of the sunrise. Last time we
checked the sun rose in the east. The lake and mountain view
is in the west. This was certainly a different and scary
slant. If someone can circulate a petition to stop someone
from building their home because it would block their view of
the sunrise, then alot more people than our family are in big
trouble.
We understand that some people are circulating a
• petition or petitions to try and block our building permit.
While we understand that it is their right, we also believe
that signing a petition does not constitute evidence, which
is what the City Council expressly requested. It would not
be surprising if numerous people signed a petition that asked
simply, "Save the View" without any indication of what that
entailed or could possibly cost. Why not sign it, It sounds
good and doesn't cost a thinq right now.
ALTERNATIVES
We believe there are still a number of alternatives
available to the City Council:
1. Continue to fill the existing Overlook westward and
raise it approximately 10 feet. If the Overlook were raised
to this height, the lake and mountains could once again be
seen over the top of Jamison's house. If this were done, sje
believe the major cause of everyone's problem would be
solved. Is there any question, that if people could see over
the Jamison house, we wouldn't be going through this.
Z. Raise the height of Spear Street. If the people of
South Burl inqton want the whole view of Spear Street, then
could pay to have Spear Street raised to accommodate this.
3. Buy another L.lverlook. If the people truly feel that
this overlook is ruined (it isn't, see pictures #8 & #9),
then they should consider buyinq the knoll next to the
entrance to Stonehenge, property across the street from the
current overlook, or pronerty from Mr. Milot to the south of
the current overiook.
4. This alternative wP offer solely as a point of
perspective and do not mean to sugge=_.t it as a reasonable
thing to do. If the City to take =_omeone'9 land, it -vnuiLl
be far less cost!'/ to takes ,_i single piece of property LIhic'
blocks the view than take the sir. (b) lots alonq Spear
Street.
r=orre.Nt/ Ea5chmachar - 9rchitact5
May 18, 1988
Bob & Cynthia Hoehl
c/o IDS
Box C1070
1500 Shelburne Road
Burlington, VT 05402-1070
These are our thoughts on the effect of your proposed house with
respect to the City's Overlook property:
The attractiveness of the view for the Overlook is not due
solely to the sight of Shelburne Bay, but is also in large part
due to the open field in the foreground. Now that the two
houses directly in front of the Overlook have been built, anyone
standing at the Overlook naturally looks to their right, where
the vacant field which is your property, is still open and
permits an attractive foreground to the Bay. Any house built on
your lot which conforms to the requirements of the Interim
Zoning will have to be built about 300' away from Spear Street,
which would be directly in the way of the remaining good view
from the Overlook. People would be able to look over such a
house and see the Bay because it would have to be only one story
high to conform to the Interim Zoning, but the attractive
foreground would be gone, especially because a one-story house
of an area appropriate to such a valuable lot would be much
wider than your two-story design. You can see for yourself what
effect a one-story house in the foreground has on the
attractiveness of the view by looking over the one-story house
already built in front of the Overlook.
We have proposed to locate your house much higher on the hill
(closer to Spear Street) for reasons which are in your best
interests, but it turns out that our proposed location also
helps most to preserve the attractiveness of the view from the
Overlook by preserving the open field foreground. Our proposed
location for your house would cause virtually no effect on the
Overlook's view, since the house would lie outside of the field
of view of Shelburne Bay from the Overlook.
For these reasons, we feel that the City should re -think the
Interim Zoning regulation, or, at the very least, grant an
exception in your case and let you build where we propose,
because a house on your lot could potentially cause very great
harm to the Overlook's view if built in conformance with the
Interim Zoning as it now stands.
Y urs tru y,
Guy Tes h a her
Brian Forrest
26 State Street Montpelier Vermont 05602 • 802 229 5774
Guy Teschmacher
Robert F. Cooper
408 So Beach Road
So Burlington, VT 05403
May 19, 1988
City Council
City of South Burlington, Vermont
Dear City Council Members,
RF
CS4�J
lyqy ��
�� Mq l �
O eORp�F,c�
N�r�ti
I own Lot #5 on Spear Street which has had recent height restrictions
imposed by interim zoning. I am writing in response to your meeting of May
10, 1988 when Mr. Hoehl's application for a building permit was tabled until
May 23, 1988, primarily for the purpose of considering alternatives to the issue
of Spear Street views.
I do not agree with zoning, alternatives or compromises that restrict my
view,the use of my property, and lower the property value.
I believe the issue is and should be the Overlook Park. Currently, the
view from the Park is spectacular; however, the house directly to the west does
obstruct a small portion of the total view. There are certain things that could
be considered to improve the view from the park.
1. Raise the level of the park. After standing on a step ladder, I
believe the park could be raised high enough so that the broad
lake and Adirondack Mountains became visible
over
the house.
2.. Raise the level of Spear Street to help raise the
level
of the
parking area of the park.
3. Move the parking area of the park further west
so homes to the
north do not block northwesterly views.
4. The city purchase property on the east side of
Spear
Street for the
park.
5. Whatever improvements are made to the park
should
be done
in a timely fashion to make it a more pleasant
place
than it is
currently.
To restate my position as a property owner, I do not want my view
restricted and property value lowered. I am not willing to give up the use of
my land or put restrictions on it.
I believe the City Council agrees that the issue is making the Overlook
Park a nice place to view the lake and mountains. The issue is not protecting
the view as one drives along Spear Street, and certainly parking on Spear
Street is a traffic hazard, and therefore, not an issue. The Overlook Park is for
parking and viewing.
ncerely,
t40y-
oert F. Cotper
LAW OFFICES OF
SYLVESTER 6 MALEY, INC.
P. O. BOX 1053
BURLINGTON, VERMONT 05402-1053
HAROLD C. SYLVESTER
ALAN F. SYLVESTER
JOHN P. MALEY
H. JOSEPH GAMACHE
MICHAEL S. BROW
GEOFFREY M. FITZGERALD
MARGARET A. MANGAN
May 5, 1988
Members of the
South Burlington City Council
595 Dorset Street
South Burlington, VT 05403
Re: Spear Street Overlook District
Dear Members of the South Burlington City Council:
TEL. 802-864-5722
OFFICES AT: 78 PINE STREET
MAY - i9A8
C7OV
This firm has been retained by Robert Cooper, Anne and Victor
Ratkus and Douglas Meredith to represent them in connection
with the possible impact of the new interim zoning regulations
adopted by the South Burlington City Council on April 4, 1988
on their respective Spear Street properties.
At this point, we are proceeding on the assumption that the
City Council will grant Bob and Cindy Hoehl's application
for a conditional use permit and will accord our.clients similar
treatment if and when they decide to build.
If, however, the City Council denies the Hoehl permit appli-
cation on the grounds that it fails to comply with the so-called
"Spear Street Overlook District" enacted by way of temporary
interim zoning, the City Council should know that we categori-
cally endorse Attorney Leslie Linton's letter dated May 2,
1988 and the legal positions contained therein. Furthermore,
it is a fundamental principle of law that zoning ordinances
must bear a substantial relation to public health, safety,
morals or the general welfare and cannot discriminate against
certain individuals so as to impose upon them burdens which
should and must be borne by the public as whole. A cursory
look at the development allowed by the City in this same general
Spear Street area clearly illustrates how the interim zoning
discriminates against my clients.
I hope that we are able to avoid litigating the validity of
the interim zoning ordinance generally and as it specifically
relates to my clients. However, we are prepared to do so
May 10, 1988
To the City Council
Pay ljnjuworhe, C/uiner
P.O. BOX 4060
SOUTH BURLINGTON, VERMONT 05404
(802) 862-0480
SPEAR OVERLOOK
First off, let me say that I certainly believe whole
heartedly in private property rights. Here however, we have
a serious public concern which is in conflict with the rights
of private property.
We have here not merely a one house issue. *At jeopardy
is South Burlington's paramount view. There is no other view
like it in South Burlington and perhaps in no other nearby
town. If there are similar views, they are from remote dirt
roads or inaccessible hilltops, not from a heavily traveled
public street. This view is irreplaceable.
Twenty five years ago the then town of South Burlington
could very reasonably have purchased the Allenwood property on
the lake, fully landscaped, with roads, a pier and tennis courts.
This was a one time opportunity that was missed. This could
significantly have enriched the lives of our residents.
In the 1960's with other Selectmen we had difficult and
protracted negotiations with the State Highway Department to
have what is now known as Kennedy Drive built. Think of how our
traffic snarl would now be without Kennedy Drive,
The point is that this is an irreplaceable asset for the
citizens which the city should preserve. But the city should
also expect to pay for any diminution of property rights at
public expense. I thoroughly believe such expense is justified.
Normally similar situations consists of a "taking" by the
town and then a lengthy court battle. Here I would like to see
this view preserved and the property values settled by prompt
arbitration, as a quicker and less expensive means of equity
to preserve the very essential Scenic Overview.
spectf4ily,
Ray Unsworth
TWO BEDROOM TOWN HOUSES
THE LEDGES, SOUTH WILLARD STREET AT CHITTENDEN DRIVE. BURLINGTON
VILLAGE GREEN APARTMENTS, 75 HINESBURG ROAD. SOUTH BURLINGTON
COMMERCIAL SHOP AND STORAGE SPACE
HOWARD SPACE CENTER, FINE STREET FROM HOWARD STREET TO MARBLE AVE., BURLINGTON
No Text
No Text
m
May 19, 1988
To: City Council
City of South Burlington
From: Victor L. and Anne O. Ratkus
Topic: Lots one and two - Spear Street - Nowland Subdivision
Evidence: We relied on the City of South Burlington in the
following manner: 1) We bought two building lots
that were zoned Residential in 1979. These lots
had numerous restrictions in the deeds. 2) In 1985,
with city approval, we installed a sewer system at a
great expense. 3) In 1987 we paid $8,000. for land fill
to be put on our building lots with the approval of the
City of South Burlington. Therefore, the city, in
realizing our reliance should allow us to build on our
land according to the restrictions in our deeds which
were recorded and approved by the City of South Burlington.
Facts: 1) Our Constitutional Rights should protect us from
being discriminated against on our own private land.
2) Because a house was built in front of the overlook,
we as neighbors, should not be penalized. 3) Our lots
should not be depreciated in value, nor should there be
"a -taking" of our land.
Request: If Mr. and Mrs. Hoehl receive their approval to build
a house on lot six, their approval should be so worded
that this issue is settled once and for all for all
six lots of the Nowland subdivision.
Possible
Solutions: Move the overlook to the west twenty to thirty feet
or as far as the city owns. 2) Beautify the overlook
with landscaping and an inviting small sign - South
Burlington Overlook. 3) Raise the overlook if possible.
4) Remind the residents of the city of the beautiful
views of the lake from the 100 acres that the city owns
at Red Rocks.
We are relying,on your sense of fairness to settle this matter.
Signed: /Z_'/ X'/A' A6 ,
Victor L. and Anne O. Ratkus.
May 19, 1988
To: City Council
City of South Burlington
From: Victor L. and Anne O. Ratkus
Topic: Lots one and two - Spear Street - Nowland Subdivision
Evidence: We relied on the City of South Burlington in the
following manner: 1) We bought two building lots
that were zoned Residential in 1979. These lots
had numerous restrictions in the deeds. 2), In 1985,
with city approval, we installed a sewer system at a
great expense. 3) In 1987 we paid $8,000. for land fill
to be put on our building lots with the approval of the
City of South Burlington. Therefore, the city, in
realizing our reliance should allow us to build on our
land according to the restrictions in our deeds which
were recorded and approved by the City of South Burlington.
Facts: 1) Our Constitutional Rights should protect us from
being discriminated against on our own private land.
2) Because a house was built in front of the overlook,
we as neighbors, should not be penalized. 3) Our lots
should hot be depreciated in value, nor should there be
"a -taking" of our land.
Request: If Mr. and Mrs. Hoehl receive their 4pproval to build
a house on lot six, their approval should be so worded
that this issue is settled once and for all for all
six lots of the Nowland subdivision.
Possible
Solutions: Move the overlook to the west twenty to thirty feet
or as far as the city owns. 2) Beautify the overlook
with landscaping and an inviting small sign - South
Burlington Overlook. 3) Raise the overlook if possible.
4) Remind the residents of the city of the beautiful
views of the lake from the 100 acres that the city owns
at Red Rocks.
We are relying,on your sense of fairness to settle this matter.
Signed: ��� C/ ,� —
Victor L. and Anne O. Ratkus.