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Home My WebLink AboutBATCH - Supplemental - 1570 Spear StreetROBERT J. PERRY RONALD C. SCHMUCKER SUZANNE R. BROWN Joseph Weith, City Planner City of South Burlington 575 Dorset Street South Burlington, VT 05403 Dear Joe: PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON, VERMONT 05403 June 20, 1989 TELEPHONE (802) 863-4558 TELECOPIER (802) 862-0937 I would like to follow-up on our telephone conversation of Monday morning regarding the Nowland Estate three lot subdivision. The project received final plan approval, but the recording mylar was not signed because it was discovered after hearing that the plan was incorrect. It did not show the IBIS lot which had been conveyed on September 22, 1988. In my opinion, all substantive issues were dealt with at the previous public hearing. When the applicant tenders a proper plan, it would be my suggestion that the matter be re -worn for final plan in that the ninety day period has expired. A correct plan would show the IBIS lot as an unapproved lot. If the Planning Commission were to reconsider all issues or attempt to punish the applicants for the IBIS situation, the city would be open for substantial damages because of the additional costs incurred by the landowner. That is to say, the fact that the IBIS lot was not subjected to Planning Commission scrutiny does not mean that the northerly three lot subdivision can beheld hostage for park land issues. It would be considered bad faith if park land exactions were made for the subdivision when they were not considered at the time of previous approval. As I indicated to you, I have made substantial progress discussing park land issues with Nowland Estate representatives, the Gagnons, and the Underwoods. We intend to talk further when the Terry Boyle work is further along. Sincerely, Robert J. Perry, Esq. RJP / jr TELEPHONE MEMO Name: V16e kr/rp Date: ---- Contact: /,560 1:'F)ex S u b,j e c t "D" we? 4 a 41 " r 'n etc t is x4f ye4 Aenl Is M-r-� 0 fo-L," Ile SAi:� (� /,/� /" Y-� ` - � . - - - TSignature PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON. VERMONT 05403 ROBERT J. PERRY TELEPHONE RONALD C. SCHMUCKER (802) 863-4558 �,UZANNE R. BROWN TELECOPIER June 8, 1989 (802) 862-0937 Joe Weith, Planner Municipal Office Building 575 Dorset Street So. Burlington, VT 05403 Dear Joe: I am enclosing the copy of my proposed denial motion for the IBIS hearing scheduled for Tuesday night. Please advise me of the agenda and approximate time of the hearing. Sincerely, 4�� Robert J. Perry, Esq. RJP/nlm Enclosure MOTION The motion is made to disapprove the subdivision plat of IBIS Corporation for a three lot subdivision of land situated on the easterly side of Spear Street based on the following findings: 1. The proposed subdivision consists of a 1.3 acre parcel acquired by IBIS Corporation on September 27, 1984 and a 5.3 acre parcel acquired on September 22, 1988 from the Estate of Aurora W. Nowland, Marie N. Underwood, and Helen N. Gagnon. 2. The Nowland Estate, et al., own substantial additional land on the southerly and easterly sides of the subject parcel. They did not seek subdivision approval prior to conveyance of the parcel to IBIS but rather treated it as a boundary line adjustment. 3. As part of the transfer from the Nowland Estate, et al., to IBIS, the parties executed deeds and an offer of irrevocable dedication to the City of South Burlington for an 80 foot wide strip of land opposite Deerfield Way for highway purposes. 4. Neither the Planning Commission, nor any of its members individually, had knowledge of the transfers until November, 1988, when the Nowland Estate and individual owners sought further subdivision of their remaining lands. 5. The conveyance from the Nowland Estate, et al., to IBIS Corporation is not considered a boundary line adjustment in as much as potential developable lots are created. 6. The conveyance from the Nowland Estate, et al., to IBIS Corporation without Planning Commission review forecloses meaningful review of the subdivision and imposition of conditions reasonably appropriate under relevant statutes and ordinances. Review of the subject IBIS subdivision cannot occur until subdivision approval has been obtained for the subdivision by the Nowland Estate, et al. PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. 0. BOX 2323 SOUTH BURLINGTON. VERMONT 05403 ROBERT J. PERRY TELEPHONE RONALD C. SCHMUCKER (802) 663-4558 SUZANNE R. BROWN May 19, 1989 TELECOPIER (802) 862-0937 Joe Weith, Planner City of South Burlington 575 Dorset Street So. Burlington, VT 05403 Dear Joe: As I indicated in my previous letter, in my view, the conveyance by the Nowland Estate to IBIS Corporation was a subdivision of land and not a boundary adjustment. Neither the Planner, City Manager or any person or entity other than the Planning Commission has authority to approve subdivisions, and therefore the conveyance is without proper approval. You indicated to me that the Planning Commission members were not aware of the conveyance and had not given authority to the Planner to decide whether particular proposals were boundary adjustments or subdivisions. If the Planner or City Manager acted within the scope of their authority, the City would be bound by their action. However, since neither employee had authority to make subdivision decisions which are quasi judicial decisions made only by the Planning Commission, they could act within their authority. L'no4- The City may be estopped to deny the action on the Nowland subdivision. The Doctrine of Equitable Estoppel precludes a party from asserting rights which otherwise may have existed as against another party who has in good faith changed his position in reliance upon earlier representations. As stated in a recent Vermont case: "The Doctrine of Estoppel is based upon the grounds of public policy, fair dealing, good faith, and justice, and its purpose is to forbid one to speak against his o:;;n act, representations or commitments to the injury of one to whom they were directed and reasonably relied thereon." There are four elements which must be established: 1. The City must know all the facts. 2. The City employees must intend that their conduct shall be acted upon or must so act that the purchaser has a right to believe it is so intended. 3. The landowner (IBIS) must be ignorant of the true facts. PERRY & SCHMUCKER 4. IBIS must rely on the City's action to its injury. In the 1975 case of My Sister's Place v. City of Burlington, a nonprofit organization expended substantial sums of money renovating leased premises based on requirements imposed by the Deputy Fire Warden after inspection. At a later inspection, the Fire Warden withdrew his earlier approval claiming that he had been unfamiliar with certain provisions of the relevant fire codes. The Court held that the City was bound by the error made by the inspector. Our case is different in that the actors, the Planner and Engineer, did not have authority to make subdivision decisions. However, they have created a situation which reasonably could have been relied on by IBIS in purchasing the property. It is a close call whether a person acting without authority can bind the City; I would think he or she could not, but the issue has not been resolved in Vermont. LY'hiie 1 think the City can require review of the 1988 Nowland subdivision which led to the IBIS sale, I should caution that the action may well result in litigation and a claim for dollar damages, particularly against the individuals involved. If the Planner and Manager acted outside the scope of their authority, they do not have the shelter of immunity generally afforded public officers. If in fact, the landowner has incurred financial damage as al result of the City's action, the City can be held legally liable. Therefore, in reviewing this matter this potential liability should be kept in mind. If you have additional questions, please call. Sincerely, Robert J. Perry, Esq. RJP/nlm PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON, VERMONT 05403 ROBERT J. PERRY RONALD C. SCHMUCKER TELEPHONE (802) 863-4558 SUZANNE R. BROWN TELECOPIER May 3, 1989 (802) 862-0937 Joe Weith City Planner Municipal Office Building 575 Dorset Street So. Burlington, VT 05403 Re: 1570 Spear Street Boundary Adjustment Dear Joe: I have reviewed your letter of April 28, the material enclosed, and obtained copies of the deeds relating to the Nowland Estate / IBIS transfers. You have asked two questions, whether the transfer is a "subdivision" and what if any options are available to the Planning Commission at this point. The files and records disclose the following facts: (a) IBIS Corp. purchased a 1.3 acre parcel on September 27, 1984 from William R. Stevens (Volume 209, Page 155). The lot was the southerly of two lots subdivided from the Nowland farm by Planning Commission approval on October 9, 1979. (b) IBIS Corp. acquired the southerly adjacent 5.38 acre parcel on September 22, 1988 by Executor's Deed of the Chittenden Trust Company, Executor of the Estate of Aurora W. Nowland (Volume 268, Page 583). It simultaneously acquired the interest of Helen N. Gagnon and Marie N. Underwood by Warranty Deed dated September 22, 1988 (Volume 268, Page 595). The conveyance was made under a state deferral permit, D-4-1236. (c) An agreement between IBIS and the City of South Burlington dated September 22, 1988 (Volume 271, Page 600) provides that IBIS merges the 5.38 acre parcel with 590 feet of frontage with the land already owned by it to constitute one single lot for purposes of complying with City zoning and subdivision regulations. (d) An Offer of Irrevocable Dedication was executed by the Chittenden Trust Company, Executor, Helen N. Gagnon, and Marie Underwood on September 22, 1988 (Volume 271, Page 602) for a strip of land 80 feet in width extending easterly from Spear Street directly opposite Deerfield Way. FERRY & SCHMUCKER (e) A plan showing the original IBIS lot, the additional 5.38 acre parcel and the roadway strip, dated December 18, 1986, was recorded on September 29, 1988 (Volume 252, Page 87). (f) The deed from the Chittenden Trust Company to IBIS Corp., and the deed from Gagnon/Underwood to IBIS Corp. reserve an easement over the 80 foot strip of land considered to be an extension of Deerfield Way, reserve the right to construct a roadway, sidewalks, and utility easements, and require that IBIS join in a deed to convey the roadway interest to the City of South Burlington pursuant to the Offer of Irrevocable Dedication. (g) The Offer of Irrevocable Dedication executed by the land owners includes a Warranty Deed to the City of South Burlington conveying the 80 foot roadway land which is executed by IBIS Corp., Chittenden Trust Company, Helen Gagnon, and Marie Underwood. (h) The two deeds also provide that the land southerly of the 80 foot right of way, which has a frontage of 461 feet, shall only be used for single family residential lots and shall not be subdivided into more than three lots. (i) The location of the roadway land creates a strip of land northerly thereto with a frontage of 48.86 feet. The subdivision regulations contain the following relevant provisions: (a) Section 103 defines subdivision as "A division of any parcel or area of land, for the purpose of conveyance, transfer, improvement, or sale, in two or more lots, plots or parcels." (b) The section also defines subdivision as "Any development of a parcel of land involving the installation, extension, relocation, or modification of municipal facilities such as streets, sewer or water mains, storm sewers, etc." (c) So-called boundary line adjustments are covered by the subdivision definition 4(c) "Divisions of land such as for minor realignment of property lines, for municipal purposes which conforms to the comprehensive plan (such as road widening, easements, sidewalks, parks, etc.), or enlargement of existing lots, shall not be deemed a subdivision provided that no new developable lots result." (Emphasis added). The transactions must be reviewed together. They involve the reservation of highway land to reach remaining land of the Nowland Estate and the transfer of additional land both northerly and southerly of the roadway land. Standing only, the IBIS agreement could arguably be a boundary adjustment if there were a deed restriction prohibiting subdivision of the combined parcels. The September 22 agreement between IBIS and the City states in part: "In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance under the subdivision regulations in effect in the PERRY & SCHMUCKER Town, ...". The IBIS parcels will be considered a single lot. However, the agreement with the City reserves "full right to use, develop and subdivide said merged property in compliance with applicable City regulations." Viewing all of the documents together, the transaction itself creates a subdivision - an enlarged IBIS lot northerly of the roadway strip, a roadway strip irrevocably dedicated to the City, and a developable parcel southerly of the roadway. While it may be argued that the land southerly of the roadway cannot be considered as a separate parcel because of the agreement, the creation of the boundaries of the southerly parcel, in and of itself, falls within the intent of subdivision review. Stated another way, the boundary adjustment technique could be used to create lots not subject to current review, but submitted to review at a later time when the Planning Commission has substantially less control or discretion over the land division. In my view, both as a matter of intent of the subdivision regulation and the precise language of the subdivision definitions, the September, 1988, conveyancing is not a boundary adjustment but is in fact a three lot subdivision. The more troubling aspect of the situation is the options available to the Planning Commission. Is the City estopped from review of the situation because of the involvement of the City Planner and attorney or is the matter an ultra vires act which is a nullity. The authority to review subdivisions rests with the Planning Commission, not with the City council or any staff member. If the Planning Commission had no knowledge of the boundary adjustment decision, I would view the new lot as a nullity and require its review before reviewing the current IBIS proposal. If however, the discretion to make the subdivision/boundary adjustment decision has been delegated by the Commission to the Planner or if a procedure has been followed whereby the Planner advises the Planning Commission of the various boundary adjustment decisions made by him or her, the City is probably stuck with the decision, even if wrong. A key element is whether the Planning Commission had knowledge of the transaction by virtue of a memo or presentation to the Commission that the adjustment had been approved. If you can shed some additional light on the practice, I can provide a better answer to the available options. Sincerely, /7 J Robert J. Perry, Esq. RJP/nlm cc: Steve Stitzel, Esq. McNEIL & MURRAY ATTORNEYS AT LAW A PROFESSIONAL CORPORATION 271 SOUTH UNION STREET BURLINGTON, VERMONT 05401 TELEPHONE (802) 863-4531 FAX (802) 863-1743 JOSEPH C. McNEIL (1919-1978) JOSEPH E. McNEIL FRANCIS X. MURRAY JOHN T. LEDDY NANCY GOSS SHEAHAN STEVEN F. STITZEL PATTI R. PAGE* WILLIAM F. ELLIS LINDA R. LEROY (ALSO ADMITTED IN N.Y.) Joe Wieth, Planner City of South Burlington 575 Dorset Street South Burlington, VT 05403 May 12, 1989 RE: 1570 Spear Street Boundary Adjustment Dear Joe: OF COUNSEL ARTHUR W.CERNOSIA I have reviewed your April 28 letter and Attorney Perry's May 3 letter regarding the above -referenced matter. To the extent that it may be relevant to Attorney Perry's evaluation of this situation, I would like to offer a brief summary of my involvement in this matter. Approximately one year ago, Jane LeFleur advised me that IBIS Corporation was negotiating with the Nowland Estate to purchase a piece of property. It is my understanding that Dick Underwood, acting on behalf of the Nowland Estate, approached Jane to discuss a proposed conveyance. As proposed, the Nowland Estate would convey approximately five acres to be merged with an existing 1.3 acre parcel owned by IBIS Corporation. Dick advised Jane that it was not intended that the five acre parcel exist as a separate lot but that it be combined with the existing IBIS Corporation lot. Jane asked my opinion whether the proposed conveyance would constitute a "subdivision" or a "boundary adjustment" under the South Burlington Subdivision Regulations. I advised her that in my opinion the proposed conveyance would constitute a boundary adjustment if IBIS Corporation merged the 5 acre parcel with its existing 1.3 acre, as proposed. Jane then advised me that the involved property was located on the easterly side of Spear Street opposite the intersection of Spear Street and Deerfield Road. She advised me further that the City intended to extend Deerfield Road to the east across the involved property and possibility through to Hinesburg Road. She asked whether the City could compel dedication of a public road right-of-way across the subject five acre parcel if the Joe Wieth, Planner May 12, 1989 Page 2 conveyance of the parcel were regarded as a boundary adjustment. I advised her that the City could only compel dedication of a public road right-of-way in connection with review and approval of a subdivision plat. I further advised Jane that unless the resulting 6.5 acre IBIS Corporation property were at some point proposed for subdivision, the City would need to use its condemnation authority to acquire the needed right-of-way for the extension of Deerfield Road across the subject property. Following my discussion with Jane, she entered into discussions with Dick Underwood, and perhaps others, to obtain a voluntary dedication to the City of the necessary right-of-way for the extension of Deerfield Road. Shortly before she left the City in mid -June of 1988, she informed me that the Nowland Estate had agreed to voluntarily dedicate a right-of-way to the City. Sometime after that, I was contacted by Attorney Schweyer, representing the Nowland Estate, to review the necessary documents to accomplish the proposed conveyance and dedication of right-of-way. The point which I want to make clear by this brief summary is that the original Nowland Estate/IBIS Corporation proposal did not include a dedicated right-of-way. The right-of-way was requested by the City and voluntarily granted by the Nowland Estate and IBIS Corporation to address the City's request. Vetlryy-- truly yours, Steven F. Stitzel SFS#9/352 PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON. VERMONT 05403 ROBERT J. PERRY RONALD C. SCHMUCKER SUZANNE R. BROWN May 3, 1989 Joe Weith City Planner Municipal Office Building 575 Dorset Street So. Burlington, VT 05403 Re: 1570 Spear Street Boundary Adjustment Dear Joe: I have reviewed your letter of April 28, the material enclosed, and obtained copies of the deeds relating to the Nowland Estate / IBIS transfers. You have asked two questions, whether the transfer is a "subdivision" and what if any options are available to the Planning Commission at this point. The files and records disclose the following facts: (a) IBIS Corp. purchased a 1.3 acre parcel on September 27, 1984 from William R. Stevens (Volume 209, Page 155). The lot was the southerly of two lots subdivided from the Nowland farm by Planning Commission approval on October 9, 1979. (b) IBIS Corp. acquired the southerly adjacent 5.38 acre parcel on September 22, 1988 by Executor's Deed of the Chittenden Trust Company, Executor of the Estate of Aurora W. Nowland (Volume 268, Page 583). It simultaneously acquired the interest of Helen N. Gaanon and Marie N. Underwood by Warranty Deed dated September 22, 1988 (Volume 268, Page 595). The conveyance was made under a state deferral permit, D-4-1236. (c) An agreement between IBIS and the City of South Burlington dated September 22, 1988 (Volume 271, Page 600) provides that IBIS merges the 5.38 acre parcel with 590 feet of frontage with the land already owned by it to constitute one single lot for purposes of complying with City zoning and subdivision regulations. (d) An Offer of Irrevocable Dedication was executed by the Chittenden Trust Company, Executor, Helen N. Gagnon, and Marie Underwood on September 22, 1988 (Volume 271, Page 602) for a strip of land 80 feet in width extending easterly from Spear Street directly opposite Deerfield Way. TELEPHONE (802) 863-4558 TELECOPIER (802) 862-0937 PERRY & SCHMUCKER (e) A plan showing the original IBIS lot, the additional 5.38 acre parcel and the roadway strip, dated December 18, 1986, was recorded on September 29, 1988 (Volume 252, Page 87). (f) The deed from the Chittenden Trust Company to IBIS Corp., and the deed from Gagnon/Underwood to IBIS Corp. reserve an easement over the 80 foot strip of land considered to be an extension of Deerfield Way, reserve the right to construct a roadway, sidewalks, and utility easements, and require that IBIS join in a deed to convey the roadway interest to the City of South Burlington pursuant to the Offer of Irrevocable Dedication. (g) The Offer of Irrevocable Dedication executed by the land owners includes a Warranty Deed to the City of South Burlington conveying the 80 foot roadway land which is executed by IBIS Corp., Chittenden Trust Company, Helen Gagnon, and Marie Underwood. (h) The two deeds also provide that the land southerly of the 80 foot right of way, which has a frontage of 461 feet, shall only be used for single family residential lots and shall not be subdivided into more than three lots. (i) The location of the roadway land creates a strip of land northerly thereto with a frontage of 48.86 feet. The subdivision regulations contain the following relevant provisions: (a) Section 103 defines subdivision as "A division of any parcel or area of land, for the purpose of conveyance, transfer, improvement, or sale, in two or more lots, plots or parcels." (b) The section also defines subdivision as "Any development of a parcel of land involving the installation, extension, relocation, or modification of municipal facilities such as streets, sewer or water mains, storm sewers, etc." (c) So-called boundary line adjustments are covered by the subdivision definition 4(c) "Divisions of land such as for minor realignment of property lines, for municipal purposes which conforms to the comprehensive plan (such as road widening, easements, sidewalks, parks, etc.), or enlargement of existing lots, shall not be deemed a subdivision provided that no new developable lots result." (Emphasis added). The transactions must be reviewed together. They involve the reservation of highway land to reach remaining land of the Nowland Estate and the transfer of additional land both northerly and southerly of the roadway land. Standing only, the IBIS agreement could arguably be a boundary adjustment if there were a deed restriction prohibiting subdivision of the combined parcels. The September 22 agreement between IBIS and the City states in part: "In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance under the subdivision regulations in effect in the PERRY & SCHMUCKER Town, ...". The IBIS parcels will be considered a single lot. However, the agreement with the City reserves "full right to use, develop and subdivide said merged property in compliance with applicable City regulations." Viewing all of the documents together, the transaction itself creates a subdivision - an enlarged IBIS lot northerly of the roadway strip, a roadway strip irrevocably dedicated to the City, and a developable parcel southerly of the roadway. While it may be argued that the land southerly of the roadway cannot be considered as a separate parcel because of the agreement, the creation of the boundaries of the southerly parcel, in and of itself, falls within the intent of subdivision review. Stated another way, the boundary adjustment technique could be used to create lots not subject to current review, but submitted to review at a later time when the Planning Commission has substantially less control or discretion over the land division. In my view, both as a matter of intent of the subdivision regulation and the precise language of the subdivision definitions, the September, 1988, conveyancing is not a boundary adjustment but is in fact a three lot subdivision. The more troubling aspect of the situation is the options available to the Planning Commission. Is the City estopped from review of the situation because of the involvement of the City Planner and attorney or is the matter an ultra vires act which is a nullity. The authority to review subdivisions rests with the Planning Commission, not with the City council or any staff member. If the Planning Commission had no knowledge of the boundary adjustment decision, I would view the new lot as a nullity and require its review before reviewing the current IBIS proposal. If however, the discretion to make the subdivision/boundary adjustment decision has been delegated by the Commission to the Planner or if a procedure has been followed whereby the Planner advises the Planning Commission of the various boundary adjustment decisions made by him or her, the City is probably stuck with the decision, even if wrong. A key element is whether the Planning Commission had knowledge of the transaction by virtue of a memo or presentation to the Commission that the adjustment had been approved. If you can shed some additional light on the practice, I can provide a better answer to the available options. Sincerely, Robert J. Perry, Esq. RJP/nlm cc: Steve Stitzel, Esq. TELEPHONE MEMO Name: Vve%T4 Date: Contact: Subject 60 N VC, V~ r- wa-4 /�30 4r &L4 Aw -2�4 -Z 4 Z/ /W** -tea A —ZIOOI J!c 44e . . . . . . .... ........ .001 t-4t4 A o -- U i44 /,,/ OT I -- tpevhc_�— cze-r alra Is 4"O-A-L� Signature ire 113, r.,, PE rzp— Y 5' ` / / - `o/ /0 Z./"- ,f '?'� v " /z.. &,, /r W/� t '(.,I� V k t /�f� "'C lade L,�-m4-�°-� ado " 5,v—., :. 47 �j City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658-7955 April 28, 1989 Attorney Robert Perry Smucker & Perry 1480 Williston Road South Burlington, Vermont 05403 Re: Boundary line adjustment, 1570 Spear Street Dear Bob: ZONING ADMINISTRATOR 658-7958 As discussed over the telephone earlier today, the Planning Commission would like a legal opinion regarding whether the above referenced boundary adjustment was legal or whether it constituted a subdivision and, therefore, should have gone through the subdivision review process. Enclosed are the follow- ing items: 1) Copy of the recorded plat showing the boundary adjust- ment; 2) Copy of legal documents for.the 80 foot right of way dedication; and 3) Copy of subdivision regulations. The applicants, Marie Underwood and Helen Gagnon, worked with Steve Stitzel and former Planner Jane Lafleur last spring to perform the boundary adjustment with r.o.w. dedication. Basical- ly, it was Steve and Jane's opinion that what was being proposed did not consitute a "subdivision" because "no new developable lots result" (Section 103, definition of subdivision). The Planning Commission's concerns center on the definition of subdivision in the City's subdivision regulations (page 3). These concerns are summarized below: 1. Subsection 2 defines a subdivision as "any development involving the extension of municipal facilities such as streets." Is the 80 foot r.o.w. dedication considered an extension of a municipal facility and therefore classify this as a subdivision? Attorney Bob Perry Boundary line adjustment, 1570 Spear Street April 28, 1989 Page 2 2. Subsection 4(c) says that "minor realignment of proper- ty lines" is not a subdivision. This adjustment in- volved enlarging an existing lot from 1.4 acres to 6.8 acres and increasing an existing 150 foot frontage to a 740 foot frontage. Is this a "minor" realignment? Some Planning Commission members consider this a "major" realignment. 3. Subsection 4(c) also says that a subdivision does not occur if "no new developable lots result." Several Planning Commission members interpret an adjustment which creates the potential to subdivide as the crea- tion of a "new developable lot." 4. Does dedication of an 80 foot r.o.w. to the City auto- matically create a subdivision and therefore require subdivision review? In summary, the Planning Commission would like you to address the four concerns listed above and determine whether the boundary adjustment was legal or whether it was a subdivision, and there- fore should have gone through subdivision review. If in your opinion the adjustment is actually a "subdivision", the Planning Commission would like to know what their options are at this point. As mentioned over the telephone, a proposal is currently is front of the Planning Commission to subdivide this 6.8 acre parcel into 3 lots. If you have any questions, please do not hesitate to contact. me. Sincerely, oe Weith, City Planner Encls cc: South Burlington Planning Commission South Burlington City Council Bill Szymanski, City Manager Steve Stitzel — txA� A,�V- rho2t-� I-It-l' kA 7� 10i-YILO� � cagy W DEC 'r el'o-Are'to"Olf (� o � - vi I L14 s -T0 W) , examined at Vermont. May 2, 1987 City Hall, 575 Dorset Street, South Burlington, Peter Jacob, Chairman Planning Commission South Burlington STATE OF VERMONT CHITTENDEN COUNTY COURT FILED IN CLERKS OFFICE SEP z s 1yyu DIANE A. LAVALLEE CLERK COUNTY OF CHITTENDEN, SS. IN RE: 1570 SPEAR STREET ) CHITTENDEN SUPERIOR COURT SOUTH BURLINGTON, ) VERMONT ) Docket No. S842-89 Cnc FINAL ORDER This matter came before the Chittenden Superior Court, the Honorable fi%g,4jll i) presiding on a Stipulation for Entry of Order filed with the Court on September 199o. Based upon said Stipulation, this Court ORDERS, ADJUDGES and DECREES as follows: The proposed three lot subdivision of IBIS Corporation, as shown on a plat entitled "Final Plat, IBIS Corporation, South Burlington, Vermont" dated December 18, 1986, a copy of which is attached hereto as Exhibit A, is hereby approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the proposed City right of way that adjoins the north boundary of Lot 2 which must be located in the location shown on the plan attached to this Stipulation as Exhibit A. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition 9 below. Until such time as the proposed City right of way is constructed as a City Street, Lots 2 and 3 shall construct and maintain a driveway within the iTITZEL & PAGE. P.C. ATTORNEYS AT LAW 171 BATTERY STREET i V is 990 IURLINOTON. VERMONT06401 O "' T b i� I r q. &. rage, P.C. limits of said right of way with a single entrance onto Spear Street. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 3, the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residences to be constructed on lots 2 and 3 shall be located in building envelopes as shown on the plan attached to this Stipulation as Exhibit A. These building envelops shall be shown on the plan required by condition 9 below. 5. Neither residence shall exceed a height of 29 feet measured from pre -construction grade. 6. Those portions of lots 1, 2 and 3 located within the view protection zones specified on the plan attached to this Stipulation as Exhibit A shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each 100 feet that such improvements or landscaping 'ITZEL & PAGE, P.C. ATTORNEYS AT LAW 2 171 BATTERY STREET RLINOTON, VERMONT w4oi are located west of the lots' eastern boundary. This view protection zone shall be shown on the plan required by condition 9 below. 7. At such time as the driveway required to be constructed to serve lots 2 and 3 pursuant to condition 1 above is constructed, Applicant agrees to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the driveway. Thereafter, the curb cut for Lot 1 shall be maintained on said driveway and on the proposed City right of way when such is constructed. 8. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 9. Within 60 days of the date of this approval, Applicant shall prepare and deliver to the City Planner for his review and approval, as well as approval by the City Council, a survey of the subject property that incorporates the requirements imposed by conditions 1, 4, and 6 above. 10. This approval shall expire within three (3) years of the date set forth below if the applicant shall not have, within such time, conveyed lots 2 and 3 into separate and nonaffiliated ownership. 11. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. rITZEL do PAGE, P.C. ATTORNEYS AT LAW 3 III BATTERY STREET RUNOTON. VERYONT"I 12. Upon approval of the plat required under Condition 9 above by the City Council, said plat may be signed by the City Clerk and recorded in the South Burlington Land Records as a plat approved pursuant to the provisions of 24 V.S.A. Chapter 117. 13. A copy of the Court's Final Order entered in this matter may be recorded in the South Burlington Land Records. Dated at Burlington, Vermont, this day of 1990. Presiding Ju ge I Approved as to form: � Steven F. Stitz , Es . At rney for City South Burlington ry Keh e, E q. Attorne )for IBI Corporation v _ Brian F. Josl/n, Esq. Attorney for /Ci.ty of South Burlington H:\SON023.od 'ITZEL & PAGE. P.C. kTTORNEYS AT LAW - 4 - 171 BATTERY STREET RLINGTON. VERMONT OWI c s: \C J HCUSE ON LOT 2•CAH BE OCCUPIED \R STREET INTO LOT I MUST BE 0 2 SHALL BE FRCH THE 00' A(S PLAN AS '60' R.O.V. TO BE 3URLINGTON FOR FUTURE STREET - J ON LOT;2.CAH BE OCCUPIED. 05403 O per' 3.0 G 1 .7 4' 8 .0 0 ' 1— 1 7 0 . a 0' •� 2'I 6. 7_�' L v 011 0 ------------- y I T�OvV L ', =.act�aro Lti -vt.o. r i G% �I LoT � 1 �7� � C �• 2.60 ACZiEsz �1 I� . m e2, 12 So-. FT. In 80.00' �W \ F T' • ST.- .. —P A'R S"T'FLE�T " t-o fill so' ro i,O1af QP VC:,:LA,.os e.t _+ WA�C . . :tom=fin 1��.•i:.,�, ' HCUSE CN LOT 2•CAN BE OCCUPIEO 1 �,< < \R STREET INTO LOT 1 MUST BE.- �- �'lf 3 2 SHALL BE FRCM THE 00' u•� r1IS PLAN AS •00' R.O.W. TO BE 3URLINGTON FOR FUTURE STREET- 6 GC�� /lwv - �' ' `-� }�� •' 7 ON LOT.2 CAN BE OCCUPIED. A W 110W.LA?iD• ;'', r_'T AL I \� • r S:j C. 05.103 » s' e s' 3.0 t,'- I Ar \ . 9 t' 61.'14'17 O . O O' ^ i 'I 6 . -z-c.' L r • r O IO r_• • I P, I , `cl d a LEER ° sn � �" I 2.2e r•.cR� �' m T r I � 285 •SQ . r� � LOT 3 I LOT \ ; C'] � I C fn, Z.G0 NCztESz \3 IN2> 0c_5 SO.PT. �i1 c1 I.aj Res 0f I h I 0 O ct _ 15 C. O ��1 �' 1.570 / 1 SO .0o' 43.8C. 80.00' .1.70.00 W \ F T' • 3 T -- ♦� �'P A`F� S "c 80' - .p STATE OF VERMONT CHITTENDEN COUNTY COURT FILED IN CLERKS OFFICE SEP28NyU DIANE A. LAVALLEE CLERK COUNTY OF CHITTENDEN, SS. IN RE: 1570 SPEAR STREET ) CHITTENDEN SUPERIOR COURT SOUTH BURLINGTON, ) VERMONT ) Docket No. S842-89 Cnc FINAL ORDER This matter came before the Chittenden Superior Court, the Honorable r. %7�k/ presiding on a Stipulation for Entry of Order filed with the Court on September 199o. Based upon said Stipulation, this Court ORDERS, ADJUDGES and DECREES as follows: The proposed three lot subdivision of IBIS Corporation, as shown on a plat entitled "Final Plat, IBIS Corporation, South Burlington, Vermont" dated December 181, 1986, a copy of which is attached hereto as Exhibit A, is hereby approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the proposed City right of way that adjoins the north boundary of Lot 2 which must be located in the location shown on the plan attached to this Stipulation as Exhibit A. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition 9 below. Until such time as the proposed City right of way is constructed as a City Street, Lots 2 and 3 shall construct and maintain a driveway within the nTITZEL & PAGE, P.C. I D ATTORNEYS AT LAW - 1 1 r T" � iJx-_ f r i:_ III BATTERY STREET !IURLING""EWONT06401 OCT b i 090. limits of said right of way with a single entrance onto Spear Street. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 3, the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residences to be constructed on lots 2 and 3 shall be located in building envelopes as shown on the plan attached to this Stipulation as Exhibit A. These building envelops shall be shown on the plan required by condition 9 below. 5. Neither residence shall exceed a height of 29 feet measured from pre -construction grade. 6. Those portions of lots 1, 2 and 3 located within the view protection zones specified on the plan attached to this Stipulation as Exhibit A shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each 100 feet that such improvements or landscaping TITZEL & PAGE. P.C. ATTORNEYS AT LAW - 2 - 111 BATTERY STREET URUNOTON. VERMONT owl are located west of the lots' eastern boundary. This view protection zone shall be shown on the plan required by condition 9 below. 7. At such time as the driveway required to be constructed to serve lots 2 and 3 pursuant to condition 1 above is constructed, Applicant agrees to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the driveway. Thereafter, the curb cut for Lot 1 shall be maintained on said driveway and on the proposed City right of way when such is constructed. 8. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 9. Within 60 days of the date of this approval, Applicant shall prepare and deliver to the City Planner for his review and approval, as well as approval by the City Council, a survey of the subject property that incorporates the requirements imposed by conditions 1, 4, and 6 above. 10. This approval shall expire within three (3) years of the date set forth below if the applicant shall not have, within such time, conveyed lots 2 and 3 into separate and nonaffiliated ownership. 11. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. -'TITZEL do PAGE. P.C. ATTORNEYS AT LAW - 3 - ITI BATTERY STREET t URUNOTON. YERNONT06401 12. Upon approval of the plat required under Condition 9 above by the City Council, said plat may be signed by the City Clerk and recorded in the South Burlington Land Records as a plat approved pursuant to the provisions of 24 V.S.A. Chapter 117. 13. A copy of the Court's Final Order entered in this matter may be recorded in the South Burlington Land Records. Dated at Burlington, Vermont, this_ day of 19 9 0. Presiding Ju�ge I Approved as to form: Steven F. Stitz , Es . At rney for City South Burlington P. K� M.dry-Kehe, E q1 Attorne for ZBI. � Corporation 1 � Brian F. Josl n, Esq. Attorney for City of South Burlington H:\SON023.od MTZEL & PAGE, P.C. ATTORNEYS AT LAW III BATTERY STREET MILLINGTON, VERMONT06401 - 4 - HCUSE CN LOT 2•CAN BE OCCUPIED \R STREET INTO LOT I MUST BE 7 2 SHALL BE FRCM THE 80'— iIS PLAN AS '80' R.O.V. TO BE 3URLINGTON FOR FUTURE STREET 3 ON LOT.2 CAN BE OCCUPIED. A W .' 11oW.L.A�ip. 05403 0 8 .0 0 I ��— 1 ? O . 0 o ' A- 5. Low=\nowt..., 2.e r\c.R� el Lo o �; ( 99 , 295-Sn • �� 11� �� T 3 i P 2 L.oT \ ; I (�•ac`�vts:�a.o. �. .G0 CAG:iEsY �Ll >>1• t`Cl I . C'� 'R cs '� a1 F. 0 0. m 62., 12. S4. FT. �� I / / In +n I o 3 0 15-70 .oco f I �� ,��• 4G'-53,w �'y• . / -•,ISO .00 43.9c; ao.00" .1?0.00' 29\. 14' .r/ , �w \ v -r • sZ 'r\O Ji f ` .. ` LY_1. : ,: L.AMos�rt.•!� .�J .. � nl.. ... 'C♦ AAA\ 'V� AT i CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 September 3 , 1999 Jerry Johnson 1570 Spear Street South Burlington, Vermont 05403 Re: Sewer Allocation Dear Mr. Johnson: Please be advised that the City of South Burlington approves 450 gpd of sewer allocation to connect your existing residence at 1570 Spear Street to the City's sanitary sewer system. This property is served by the Bartlett Bay Wastewater Facility which has sufficient capacity to handle this additional demand. If you have any questions, please give me a call. Sincerely, Weith, Director fining & Zoning JWcp State of Vermont • Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation January 29, 1998 Franklin Lamoille Bank/Bank North Group P.O. Box 2429 West Brattleboro, VT 05303 - T �+CL1 • CJL Tn1L4 te'G. AGENCY OF NATURAL RESOURCES Department of Environmental Conservation Wastewater Management Division 111 West Street Essex Junction, Vermont 05452 Telephone #(802) 879-5656 Subject: Subdivision Permit #EC-4-1773, Two Lot Subdivision located off Spear Street, City of South Burlington, Vermont. On January 22, 1998, I wrote a letter to you advising that condition #7 of the above referenced permit had been satisfied. I would like to clarify that the inspection of the sanitary sewer line extension which provides sewer service to your lots was also approved in Subdivision Permit EC-4-1750 and was inspected by Donald L. Hamlin Consulting Engineers, Inc. for compliance with the conditions of Subdivision Permit EC4-1750. Their inspection also satisfied condition #7 of Subdivision Permit EC- 4-1773. Donald L. Hamlin Consulting Engineers, Inc. was not your consultant as stated in by letter. Further, the inspection report by Donald L. Hamlin Consulting Engineers, Inc. was dated November 21, 1995 and not December 16, 1997 stated in my letter to you. Please contact me at 1-802-879-5675 if you have any questions. Sincerely, Ernest P. Christianson Regional Engineer copies: City of South Burlington Donald L. Hamlin Consulting Engineers, Inc. Robin McCormick, Attorney at Law State of Vermont Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation January 22, 1998 Franklin Lamoille Bank/Bank North Group P.O. Box 2429 West Brattleboro, VT 05303 Dear Permittee: AGENCY OF NATURAL RESOURCES Department of Environmental Conservation Wastewater Management Division 111 West Street Essex Junction, Vermont 05452 Telephone #(802) 879-6563 Subject: Subdivision Permit #EC-4-1773, 2 lot subdivision located off Spear Street in the town of South Burlington, Vermont. Our office has received a construction a completion report dated 12/16/97 from your consultant, Donald Hamlin Consulting Engineers. This satisfies Condition(s) #7 of the above referenced permit. The sewer line extension for the above referenced two lots was certified by Donald Hamlin Consulting Engineers as part of Subdivision Permit #EC-4-1750. Thank you for your close attention to the permit conditions. Sincerely, Ernest P. Christianson Regional Engineer c Town of South Burlington Donald Hamlin Consulting Engineers EPC/IR Si r State of Vermont AGENCY OF NATURAL RESOURCES ! Department of Environmental Conservation .t yr • Wastewater Management Division Department of Fish and Wildlife 111 West Street Department of Forests, Parks and Recreation Essex J UrictlOri, Vermont 05452 Department of Environmental Conservation Telephone #(802) 879-5656 December 26, 1997 Robin McCormick, Esquire McCormick, Fitzpatrick, Kasper & Burchard, P.C. P.O. Box 638 Burlington, VT 05402 Dear Robin: Subject: EC-4-1773; Condition 97 - Certification of Sewer Line Extension located in South Burlington, Vermont. This letter is to confirm our discussions on December 9, 1997 regarding the need to have a professional engineer, registered in the State of Vermont, submit a certification of construction for the sewer line extension approved by Subdivision Permit EC-4-1773. We found that the section of the sewer line extension which the lots approved in Subdivision Permit EC-4-1773 are connected to is a segment of the sewer line extension approved by Subdivision Permit EC-4-1750. We further found the sewer line extension approved by Subdivision Permit EC-4-1750 has been certified by Donald L. Hamlin Consulting Engineers, Inc. Therefore, condition #7 of Subdivision Permit EC-4-1773 has been satisfied. Please contact me should you need anything further Sincerely, G Ernest Christianson Regional Engineer c City of South Burlington Donald L. Hamlin Consulting Engineers, Inc. STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET BURLINGTON, VERMONT 05401 (802) 660-2555 (VOICEITDD) STEVEN F. STPPZEL FAX (802) 660-2552 OF COUNSEL PATTI R. PAGE* ARTHUR W. CERNOSIA ROBERTE. FLETCHElt DIANNE L. KENNEY (*AI,SO All MI'MEU IN N.Y.) December 20, 1993 Gordon C. Gebauer, Jr., Esq. Saxer, Anderson, Wolinsky & Sunshine PO Box 1505 Burlington, VT 05402 Re: IBIS Corporation Property Dear Gordon: Please fax me a copy of the deed that will be delivered at the closing on Wednesday. I have arranged for the mylar to be recorded simultaneously with the deed. Please arrange to the have the mylar picked up in the Planning Office following the closing so it can be recorded with the deed. I do not want to record the mylar before the closing in the event that the closing does not occur. Very truly yours, XT Steven F. Stit SFS/mld cc: Raymond Belair SON1289.cor #840 Lmdav' c cffbRr,.13 -- 00Z&`Va'l Put 11 1993 14:41 From 1 DEC- 13-03 MON 14:41 SAXE! ID@�60N. WOL INS K IILI& NIX 410-a0le't" Y?_'2 SAXER, WQON;tKY A,NU SUM-S"ON C, A'r-r<;lnNx,.V4 AT Ljlw otqf�� LAW!,Om "m P. O� Dox 1505 I SOS tp(gi:,soza -trrT DATA:. MMDER OF PACjtSr intua,'mG ME!55ACE TO RULY W Operator:---- -11K TELEPHONE: (002) 658-2826 IF COPY is ILLEGIBEX OR lNQ0Mj,)tXTr4.,'Pi.PA.R'8 CALL lYYE0.XATXtY40R CLIENT: 10TURN TO: Dook)ccepin4l TAIS TWWVXITTA%,L 10 lVTEwvr.0 O)KLy.'loa T.9z 08r, 0:V THE XND OR tNTXTY TO W10H IT 19 KAY.COUTAIN 1*�O' TART X8 P9IVXL=aj. CONIFID-indlAt in wERPT FROM DUCLOS APPLIC"LS LAW, IF TUZ PP.DER Ok t4�.TA-hV4XXTTAL X0 NOT14i'� 1160DED PSCIPIENTt OR TEE I t"XI'Loyjay. AclrtWl RES-PONSIXILi iO:R IV DBLERINO T113 TRINNSOXITTALVO E I r2;Db'D lt.;PrPTEVTI YOU APA HEREBY NOTIFIED TAAAT IkSY 'DISTRIBUTION 'QR,C0VYX:KG OF THIS COMMUNICAVO."i 1.3 STRICTLY PROHIDXUD. xg YOU HAVE RECEIVED TUTS CG"MNICATIOU IN VZOP, 'PLEASH NOTIFY V3 IMMEDIATELY BY TELBYVUQN)gyp AN'!) Txii wORXGlbr4L X�ssaatl TO VS 2T T119 ADO" "DRY!19 V.TA T09 V-0, POSTAL SSRVICN. T11ANk y0ty. P. 01 I �- n - -4 " :71 ' .-A I --q !D " -A -1 :9 :77 -L T 1 5 ;7 1 : T FA t-1 1-J � F=. - !R T - 0 :3 rl 0 W01, I W; A DEC-B-93 MON 14:41 SC T FAX NOJ 8020,617"922 P. 102 T QUI-P CtAIM KNOW ALL KBM PY TVXS1, PHrSENTO# That 111�8NXUN XMOILLS BARK? a banYing corpo-4ation with ito pripcipal 1111acc of bur-livocs in Stip Albaus, County of F-::anklin and. Stn'to of Vem.ont, Crantor, in the consideration of Ten or. Marc Dollars paid 'te) is fell sati3faction by DO)CYNIQUE L, ST, VIVIRliQ and R2-32�,NNE X. ST6 pXE Rn, of shelburna., CQV,-TAtY of: ChItto r'00n wtd $-tate of Vormont, Grantees,, has RBMSED.. p-V,1"p,.wqBD AND 'QUITCLATMD unt,o t11110 said DOMIN'rQ1,12 L. ST. P-TtRIRE and )R-,RJ:F.A=R ),- ST. VIERROf hu*barW And wife as ton4nts by tho ettirety,'and ih4j.r. hnirs 4zid ASr'*i:cJn$f all right and tWe which V 7ZhN'XJTj12VLAM011AR BAN,$ r or its zucceoauora havp .in, and to a c.ortall-ti p� eco of, land in South Burlington, in the County of ChIttandca and'� State of Vs.'rmontp, described as; fQ110-,;-q, viz: Being a portion of the lei,44s alild.ptemi6i,,a acquired. by Franklin lamoille Ban% parsuan.t to that curtain "Cc;rtif Led' copy and CVX:t1fU0tC bt the matter'of Y-r�krLk .1-4rk Tbig vooke No. $1578 91 CttCr dated' A-riti.1 281 1993an'd recorded in Volum 34,2! at rage 353 of the Land ]RoOorda of the City of South 84rli�nqton -"J�idglmo)-tt and Decree of For I celpsut6" 4ated 14, 1991 aiid recorded in Volumo 342 at Page 364 of sai'd LAnd Records. Boing a portion of the lands, and premises conveyed to IPTS cox.poration by the followimp -inty 'Wil.1 'no -Mbtr Warr, ..iarM R. Sty da"d 'Septf' 27, 1984 ana recordod ja Vol-t*113 209 at : Page 155 of the Lwnd' Records of the City of Soath 41irlington; 2. ExacuLor's Dn*d of tho Cblttonden Trust C0mp,-,tnYf Executor of the Estate of: Au -rota W- NoW3.411d cited SOptculbOr ' 22, 1968 and r;worde--;a in Volqma 268 .it .gage 583 of the Land Records of the City of Sr)Ut.h MIX-lington; Uw Orrm SAxrR AmwiwN womme'Ry & St rw*1 1mr., '=I 'I tH A 1 'q --,' I T I I T k-A t-j W S- T - :73 :9 1:1 OnaaY DCCCInG!!f' 10� r�Y�M 14: V k � -T r•91l ' p �ir�4�:)Y•a', " �_. 'c' 7 DEC-1313 �iCt t,4 42 SA, FR ^' ;' :>Or1, I N" Y FPtX NO. W.R'71022 P. 03 .3. War-ranty Deg;d Qf 1-ilax•to V. t:tclao,rwcind and Dell. No, Oagn9a dated Sopt:r.4b;r: 22, 19fA 4110 ocoroed in vol.umc%. CGS at Page $9S 0 thQ; x,:al7d Reco'x43'bf tin C `ty of, South Burlington. Being Lot; 2, containing :1..5.5 hC� O-0 '70,crxq, Pr 1er's,, a.ot:ated (in the easterly side 'cif ' spear s rio , s+ ,w �a .lcd, said Lot 2 dopicted. 6n a Gurvt .;Y zxt Lt:7. 'cl, ", Ba'nk ' Property,, South Bij'rl.i gtor , A: w � � �.� tab 'i lQn Ploh"' drawn by 1993 4114 recordo.41 In Hap VciXarrra at Pa,e . of the Lzkn l; RecO d.2 of tho City of South Pub 6g.t;6-11. ,Also coOeyed here.i.n is that., e:ontai,rt ing 13 acres, more or l.os's, w1Ucb if$ �ti�.i��t. � qU nai.d survey as Mel A, Def rxal. Area." 5�� p,*r'C.gl s subjoct ..tcr cortain e4scmcrits anti an ttr'avolpobl.ca tferr cf DcdXr,;tjdd ;to the' ,di *y of Soilt.h Bnr]J,ng+ 4,o s set;;'forth .be.low. �h.e transfei.of Par' cel, A �.e jcrk� j:c». to ttio otyle possible future aocept:a ce a P .> )� l: `'t;he ut~ ze "Deerfield ,fix�v�s Extoneion" all as depicted 6*h he Abo`vo iu'rvcy. Refererkc,, ; is a,Itio :ao de. to th�4t l c�i xttaio uo:�;voy, entitled,,, "r-InA A—ati, tBIS corporat ions ,86 th 3u7C1 ,�Igt�s1, a me nt.' drawn bj GAt. Bodo rA* Inc,, a c� Dc6,otPb01r 181 1.986' and recorded.' Jn Map Volum»' 275 'ai kgo *' : df 'the Land RocorO Of the City of South Dur.lingtoh. Sari lan0 aad pr'c±mirm-o oxw.;iscp�j x l have tnhO "it of the te.irs and coz is lti.nns ;P:�1t out :1,0" the fol.l.a15.ng dortzm�:r� ta+� b 1. "Agzrecrim st" by And :hp.� rOpq '1)DIS' Corporat.ioti arid;'t;hG i.ty of ;South . tzr;l,ingtrn daV64 Via, t, s�z .'22, 1.988 hll! rccordrd in Volume 271, cxj this Land Rcc ords b� the City of South Purlington; 2. '"Final Olrdcro in Lho ioa,t;t:e.r, -of I. n .fie. 1,570 ASPA. X<`�C',.1 ('hit.t;clx�clez� au ;t' 'x�� (;�:u t, Vco:ketr No. S842�-S9 CnC, dated SO'PAember 21t 1990 and recprcjc�l' In Voleme 300 at V,-,vje 302of the Land Rc,-c.l arils, of t.hL:; Ci.ty of South Bur7ingLoa; 3. °"Fkndirig� of ract issuod by the South Burlington Manning d'.4tod ,A,vs uzst 24, 1933 and; recordo.-d in Vol um•i 349 at. !r a(le' '423 of the Land Redords of the City of South Bu rl i ngtciri * 4. State of Vcrmor.,t Slabdi i.sl6r, rex',m.it jFC-41.733, dated 17, 1993 and Volume ..��.at Page of the tand Rt.czords of. th+r `City of South Burlln'gtoni 5. protect"-i,trc: C'oveYt,mt! c onta1,:n'ed in the Warranty Deed of Aurora Fnwlanc:l, 170-:11-vo N. tlagw-.'f) and M:-crip. N. Underwood c^wOnxii dated July S, 1980 and .rc'+6`C,j�&--A in Vo.l.umO 163 at Page 1719 of SAxER ANI?I:ivAm 9(114%Y & SQNSHINF. �7I . _1 71 e-1 !-1 r4 "a 7 T I T : C T ).5 1 LA T — ^! =4 1T onday Dcccmbcr 13,_ 1993 _14:41 - from DEC-.13-93 hON 14:43 SAXER.. FPSON, WO(IINSK`.� FAX NO. 80MT11c -2 P. 04. 11 IAW 0 7as 5axrR AN01-A tiN 11(OUNSKr & 15,04c) qNU the Land Wt,00r as of the City of South Durl.i.n6tvn; G. jRo*tr c,UQei:q and covetxauts pot out. in the Oakri aty Deed of Marie W. and Mt lon..:.V. gxi8'nOn datgG Soptelid :r 22, 1988 and. err>.rrrrar,d it) vr;�itgttini ?68 at pAge;,59�5 of the Land Recor4G of the City of South' 0rrrl;i.ngton, 4hd : tbo Executor's Dcod of thrt` Chxtteinjell Tit'r~i10t Ce"7�apd,1ty, Executor' of the Estate of 4u�'ora1 W. Nowl.�nd. d t�.d Ocpt amber 22, 1088 and recorded in VoX`amo 268' at Pagge 583 01 try.: d Lond pec:6rds; 7. Restrictions and coVo amtt a' set out �n t:ho Warranty Dood of William R. $ nvf-:Vs d,Zilp"ti 27, 198f io-a recorded in Vol.umii 200 at P49e 155 of, said L4nd Records. 8, De~ fexra,l. Perm.i.t; No. PE-4-1914 dated Vovemboir 171 1993 and ra:cOrdod In Volam(I at INA90 of tla,(%", tkitid l't(,c=ds of the City of $aert,h"BU'rlfnrton. A portion. of ra.ld I. -ands may bo r ib 00tr to that ce.,rtoth reservation of '511 of rx�h� Of way;,, t0 f"�Ot l in;w.t,c�t:h, Whi.ol; sa.ld Casement.ar, d right of miv' - is locY<atnd zo as to be.an exteMxxt x-�tt try" :`"`Aci` r .1 a: Dx`:i.Veof r all xec6rvat.�.o�i. described in the above n��ynt»:i.ot<t�i�. W4�a''�;��1�#;y tie d of X, � N'« Underwood and xtolon 041' Gagnon► dated pept.�.��+bo 2:2 1088 a91 rCerordod In Volt nnQ 260. M.t Paige ,96 6.1f "th.+:, Land ReapxCIA 0.f the City of South )3kirliq , tand tf)t Executor's Deed !of .the Chitt onden Trust Crartp4by► 9.xdbhf'pi 64. the estate Of Mto';A W. vowl,and datod Se pt 6mberr 22, 2,988 'and xe Ot'Nied .inV; IUMe 268 at Page :583 of ea d 'tandRoro and is Chcwzi 6n the above mentioned seirvey.. SAId ��I:��tcCtt �� thy: cub j'q�t ;of th,,F c:czrl -ain Ixxcvcae �1.lalc Off >" of U Za 1t 10n to 06 sty of South Burlington arer;cs.rded NOc I: lbr er 7t 1908 ih V'olume' 27:1. at Page 602 of said Uncl 'Pocozl!d . laraol.uclod in this d+eacxiptign.., ir, A 20 fea, L wide eU.epeimt foa; the urcpCSe of %(oAi,rit:0tA(I0(-I, rciyaar and iwno.tallatrlon of ut:illties, lnrlud,i.,ng bz)f; not 3 r,tU.a.tx'tl to scw a�jo disposal. elec:t:rclei,t:;y, telephone 46,1 water, 6aid eGkseatic-.nt leading in a geriCral;l.y noxthcautcgly dir:COion Xrc,.o!"I Spoar $trect' over tiro northwezterly corn -or: of Lots 3 as shown on maid rc.r~VOy fox Franklin-Lairoille Bmik, The ri=rrd owr erz of i <i4 i I;oL 3 r and their buirs and assigns, will, be uLibjre-t to pad ha.vw the: bctx6fit of. a curb cut and dz l~, cw�a�rs easemort shared: with the ro.6ord owns ro of Lots 2, the;l ac and a.ssi q`tof alki d dr.•i.vuway leo.ciing ; cast;erl.y'from Spear stt,,-,Ct: nvc!r a poxti;on of "t?cr;,xf3dId Drive Extension- a :3 8hcth:1 an the above gear vE,y « Lot" l : will, have the boncf.i,t of trbe Use of the V-Or:t:10n Of said drivkwtlyl which leads froin Spemj 5t:re,et: as rotA out. a..a #7 l.ra tileabove mettti.oned viral Qrr,cx. The costs of the care. tructxon of the *hared drives„ay leading from Swear St:�r.e:r t Oiall bo Sh*Lr0d on a pro-rata basis het:wccn thO r6cord *w er s of Lots 2 and. 3, their bei.rs and asoigns, Yurt,il such time as said "Deerfield ON ' -4 '1 ...1 1 7 -1-1 J 1 1 • - - T 4_ I i • I _ 1 .__ r T - -- 7 - on_d9y_ December 14:41 — FrOM 'UOZ44j.59' z' SAXER, 'UCfl, 140L i NSKA FAX , HO. 80'286��"22 P. 05 DEC-11-93 MON 14:43 Drive Extension" is avcq.�tekl by t1h'e;C'iitY *U.South lotrlinqtoo ,i4 . . as a publi<; Etr-A *. vr.�` - coax ,-% 6f .of the shared drivoway lowing from Spc.,ar Stritptj 16ctiialq I)Ot xxot S�ar,�.,d Aft a pro- linsited to silow 1c)wing And rcpzjil� A411 21 aid 3 rata basis -morvj Lbe tots I !t imo its r f i e Id Drive tboir hoirs and: wi -gns, un'ttl 4 Extenziorl" 16 ace eptea ky thq;�-, City of 96 utt Bu'r1i.ngLon an; a. public street. Additionallyr Lot 3 will, bave. tho boniotlt: of a W wide dr. iveway. eamnt. sea,, rurin.1,14 sbuf.h�r:ly froitt the driveway ea.4=4z.lit portioll O'k, said, I. -Olt. 2, .for the purp6s4 4f i�:ngr'45,aid egxe�s. Siid 20' a driveway esmm�-,rit ii s1hau% di �K )Jjtioni6dZ117:Vt�Y4 .), I it t T110 posts of tho <,,Onstu4o#64 �;iro 21 L 0, 100,e of catc) dr1vcw4Yf.ihc1uding. bilt 1604'414'iit,-A�'t :- '�ruct,16'0,v t -% .1— - 0- (NiM, snowplo,wing and ropalr,,.$8411 bl-c -s'pax'(( 'A' 011;-4-xita boil between the record ownfirs of Lots 2. and 3-., ih-el.t heir i and P'. The r000rd owof 140t.L ,2 2. -ners '14 00d o chate, a c� r , litthe extenalbn o ex.il.�sit,�h:lg:��lm.40-��h'o,lie At. Whotel Y Road. Axi easement zut be C)U,,zi m�a li'M10' 'Aaim oxi! formerly of TQomcy for the p,orp-Q8&- t4p�ir and maintenance Of said i 0AA4 ;C:6i0r line, extondoh J.s depitto d an trio abovo. vlc I-:ttloi Fratil aiiv-L43-1-0 C,()�jt J 4 t 1 0 rL 9 f DaA a6 "Sanitor $ewear th�q, coo.$ for, installatioll, mail) to -�axt6'0' A44'' J'0�4�k':04 sewer::14n4 e*tf,ndon opal ah t C1 own0ro; Lots 2 anti 3, b-nd Reference ix hcroby m6de; to 00, OterA411ti,ohlo., and the records thereof* anct tlic� there L rk referred to and tho rc�otds'thbtVof -�hor 4 this I .. I , In fQ* Ai 0 description. TO HAVB AND TO BOLD a.)1 right. and! title in and to zjlid quitclalmed rrCmjS,;-:S, With tlho} applux.te nix lices to the said DOMINIQUE L. ST. PURRIT, an&A1r.JHAN111W1 A., $T. J?T1,R%iB0 tbeir heirs and assigns forever. AnD the said FRAN7XL1N-tAM0T.LL9 BANK, doca for itself and itp Successors and at:Atgns, covenant with the said DOMMQUE L. Sr. PIERVZ a-nd R(-J1,%ANW9 A. SI". I - -1 t mali:ts -by 'the entirety, the'rs PIERRE,, hiipbanm 11.1 wife o , t. - and assigns, that fror and dft� r tln crnsealiiig of these pm-i-cuts, LAW Qmcrs SAxLR WMIN-."KY & 51 Nsl IfNI! .=a " ' -4 - '-I - .-4 .. —4 -1 " .4 -:! —1 --4 " 1 T i -=: -. 7 f = T 1--j I-] L.,- 7 f-- -- ;;-- t — :-1 ---4 rr mduy Dcccmbcr t ,1�93 14:41 fr nn "80Z�F�57� DEC-13--53 WN 14:4�1� SRi�1.E? {�CRZSON,W.)1.IHS'K`I. FAX NQ� 8,028fi��12 P, LN the >vai.d k`AANKLIN Lit`, CILTM AAKIK. "Ij ' %a o . avid 01a im no right, in, or to the quitclaiw-d rrom3.nem. IN WIMM WJI;R 40Pf YRAN LIN, LMOrLi'X r-ANKr th.tough its duly authori Zed agent, hs} ceunt.o cc;tm 'it3.. SCA '! ha 8 „......,.�_. ,.._. dt)y of Deoe abort 1993. TN PPESENCE OF: d: ROAN IMSN ; i.M0'1 0.0. MNK VMM•..M.+.��y..�rti.rj.....WW.y.'MMw.Mrfw�+.wr+YMMM�,.�./�✓✓w�v,—�I Mriy�yT�4tM r'iN�+^�M.�iYti��'�..wNwwWr.+.MMwv..M�. r..nr�..� NN.N.MMWwWwrmy.�W`WY.M/ pu.T i utb6r,3ivcd .Lg4 STATe OF WAMONT CHITUNDRN COUNTY, $S. At - - ..... in said County;► this _w� day of rice,6m3er 1993, ^.per sonall par�3 "" A ww r � ♦. i ++wr.er.r... wwr.W,yww..•.o..rw. do,ly cuthor .zed anent of VRAM'ktl TW't rm b a ` c d k��?7" s tc"r ackx�owledt c d t;hais inr� rumcvA, �y� hit ,i�t'+�r . ea and 'o lbs�o to be hi.s/'hex fv�.o ac,t and: e1ecA ai- L �r i'r , ,e�dt a.nj d-c•d d I''RMXZ-XN LAMOILTX SANK. Beforemop ..._.�. �.yry. M^wM!w•Ynw^r.wn,N,y-F,v.+n .•rwr..wr.w.rw4y Nr�t�.ry Pub�:� SAxtA ANIM: twN 'VOLINS►:Y & S( NS}i r, I ra - J - -. - -, ' 7 a-1 1-4 -4 -1 4 1 T 1 T . _ _ C' T fJ fl LJ or,. — Y T — :-1 771 Q Vol. 271 Page 602 C/ IRREVOCABLE OFFER OF DEDICATION AGREEMENT by and between IBIS CORPORATION, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland, Helen N. Gagnon and Marie N. Underwood, hereinafter referred to as "Owner" and the CITY OF SOUTH BURLINGTON, hereinafter referred to as "Municipality". W I T N E S S E T H: WHEREAS, certain lands shown as Schedule A and attached hereto and/or interests therein are to be dedicated to the Municipality free and clear of all encumbrances. WHEREAS, the Owner has delivered to the Municipality appropriate deeds of conveyance for the above described lands and/or interests therein. NOW, THEREFORE, for good and valuable consideration, it is covenanted and agreed as follows: 1. The Owner herewith delivers to Municipality a deed of conveyance, the descriptive portions of which are attached as Exhibits A, hereinafter, said delivery constituting a formal offer of dedication to the Municipality to be held by the Municipality until the acceptance or rejection of such offer of dedication by the legislative body of the Municipality. 2. The Owner agrees that said formal offer of dedication is irrevocable and can be accepted by the Municipality in whole or part at any time. - 1 - Vol. 271 Page 603 C') 3. This irrevocable offer of dedication shall run with the land and shall be binding upon all assigns, grantees, successors and/or heirs of the Owner. Dated this 2 day of �� L , 1988 • Z //TIN E OF,* IBIS CORPORA N �B Agent� Duly Au or zed ��- CHITTENDEN TRUST COMPANY, Executor of the Estate of - Aurora W. Ngwland C—h`e—ryl�- "irzych, TrOt Officer � l He en N. Gagnon Marie N. Underwood CITY OF SOUTH BURLINGTON BY: CCJ Duly Autho z d-Agent , STATE OF VERMONT CHITTENDEN COUNTY, SS. At vrZC,rv�i.i�, this .4 day of 1988,Duly Authorized Agent, personally appeared and he/she acknowledged this instrument by her/him sealed and subscribed to be his/her free act and deed and the free act and deed of IBIS Corporation. Before me,� Notary Public - 2 - Vol. 271 Page 604 STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this �day of 1988, Cheryl Parzych, Trust Officer, persona ly appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed and the free act and deed of the Chittenden Trust Company. Before me, Sri _- � •�� -„�-!� Notary PL9blic—�"�� STATE OF VERMONT CHITTENDEN COUNTY, SS. 17 IL At (f this ;:? z day of 1988, Helen N. Gagnon personally appeared nd she acknowledged this instrument by her sealed and subscribed to be her free act and deed. Before me, /� r ,d _ m�� N ary 1 i c STATE OF VERMONT CHITTENDEN COUNTY, SS. At this _4- day of 1988, Marie N. Underwood personally appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed.,] Before me, NNta ry 1 c STATE OF VERMONT CHITTENDEN COUNTY, SS. At - ° �� - this �i' day of 1988, personally appeared and he/she acknowledged s nstrument by her/him sealed and subscribed to be her/his free act and deed and the free act and deed of the City of South Burlington. BFSREAL\Nowland.Off Before me, Notary Publ c - 3 - Vol. 271 Page 605 •nnrn. EnsTrwn. EVER 6 TET2v.EE l _ —Tp EIS ]:1C Nnln STREET R..n3Tp VERM — �h�C2-JSE6 IWANMOM1 The interests of all the Grantors herein in and to a certain strip of land having a frontage on the east side of Spear Street and a uniform width of 80 feet that runs easterly from Spear Street for a distance of 397 feet, more or less. This strip of land is located so as to be an extension of "Deerfield Way" and the northwesterly corner of said right of way as it intersections with the easterly line of Spear Street is 48.86 south of the northwest corner of a parcel of land conveyed by Helen Gagnon, Marie Underwood and the Chittenden Trust Company as Executor of the Estate of Aurora W. Nowland to IBIS Corporation by two deeds of approximate even date. The herein Grantors join together in this conveyance to convey to the City of South Burlington the entire fee title in and to said strip of land that has a uniform width of 80 feet and runs easterly from Spear Street approximately 397 feet. This conveyance is for street purposes and the warranties herein are only to the extent of the interest of the herein Grantors in and to said strip of land. Chittenden Trust Company executes this deed as Executor of the Estate of Aurora W. Nowland and this deed is to act only as an Executor's Deed for the Chittenden Trust Company for the interest of the late Aurora W. Nowland in said strip of land but as a Warranty Deed to the other Grantors but only to the extent of their various interests. The four Grantors herein have a title to all of the interests in said strip of land. Reference is hereby made to the herein conveyed parcel as it is shown on a Plan of Land entitled "Land To Be Conveyed to IBIS Corporation, South Burlington, Vermont", G. E. Bedard, Inc., Hinesburg, VT., dated December 18, 1986, revised July 27, 1988, and recorded in Volume , Page of the Land Records of the City of South Burlington. Reference is hereby made to the above instruments, the records thereof and the references therein made in aid of this description. South Burlington City Clerk's Office Received for Record . 19 C5 0 O'CLOCK Minutes M. ATTEST: ur �" State of Vermont w DEFERRAL OF PERMIT LAWS/REGULATIONS INVOLVED: 18 V.S.A. E1218-1220 and Environmental Protection Rules, Chapter 3-Subdivisions, 9 3.06 Deferral of Permit PERMIT NO.: DE-4-1914 APPLICANT & ADDRESS: Franklin Lamoille Bank/Bank North Group P.O. Box 2429 West Brattleboro, VT 05303 LOCATION OF SUBDIVISION: Located off Spear Street in the City of South Burlington. DESCRIPTION OF SUBDIVISION: Retain Parcel A being 73 acre parcel for ROW. CONDITIONS: ( 1 1 The deed for a parcel purchased tinder the provisions of this permit must include the following "Waiver of Development Rights." All subsequent deeds, leases or contracts of sale must also contain the waiver unless a subdivision permit is obtained. Notice of the purchaser's name anci address must be filed with the Division of Protection. "WAIVER OF DEVELOPMENTAL RIGHTS" "In order- to comply with the. State of Vermont; Environmental Protection Rules on the subdivision of lr_tnciF, and disposal of waste includ.in;; sewacye, the Grantee shall_ not:: construct or erect a str�.icture or buiIdi-ri_;' on the pr_ircc-i of' land conveyed herein, the a ef'u] occupancy of which will require the inst.al.iat.i.or; of I.Atilrit_;iri� :and sewa<-e tre itrnent t:acilities or convex, tl;is ]and wit'r,out first complving w i Lh ;aid State re_;ulat:i.oris. iie Yraritee b1 acceptance of this deed acknowledcves that, this I-ot m; x- not qualify.- for approvai for development; uride r the appropr:iate eriv:i- ronmentai. protection or health re�g;ilati.ons .:and that the State may der;v an apiAi;ation to develop the lot-" Deferral of Permit t DE-4-1914, Franklin Lamoille Bank Bank North Croup Page 2 (2) If the parcel being acquired is to be considered for building development at some future date, the purchaser understands that the information required by Section 3-08 of the rules must be submitted for evaluation. If such information does not meet the Environmental Protection Rules, permission to build on the lot will be denied.. (3) 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 the "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. Dated at Esser. Junction, Vermont this 7%day of �pz��yl � 1993. .Tack Lon„ Commissioner Department of Environmental Con ervation I retie` L . Rober.ge Administrative Secretary CC: City of South Burlington Planning Commission City of South Burlington Selectmen For the Record Fitzeatrlck-Llewellyn, Inc. i State of Vermont 1 Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation State Geologist Natural Resources Conservation Council Franklin Lamoille Bank/ Bank North Group P.O. Box 2429 W. Brattleboro, VT 05303 Dear Permittee: /-E,& )145�'If AGENCY OF NATURAL RESOURCES Department or Environmental Conservation 111 West Street Essex Jct., VT 05452 Tel. #879-6563 TDD 1-800-253-0191 November 17, 1993 HE-4-0009 A parcel of land consisting of 1.88 +/- acres, located on Spear Street in city of South Burlington, Vermont. I have reviewed your information concerning the creation of a lot of less than 10 acres in size. You indicate that on this lot exists a single family residence which was constructed prior to March 5, 1973, that the house sewage system is over 100 feet to any newly created property line and the sewage disposal system is functioning in a proper manner which means that sewage is not surfacing on top of the ground or being discharged into the waters of the State. The dwelling is served by municipal water services. Therefore, in keeping with the Environmental Protection Rules, Chapter 3 - Subdivisions, Subsection 3-04(A), the house lot described above is exempt from review by the Agency of Natural Resources. Please note, should it be determined that the information provided is inaccurate or false, this letter will be considered null and void and the house lot will have to be re-evaluated. Should there be any questions, please contact this office. c city of South Burlington EC-4-1773 DE-4-1914 D-4-1236 Paul Arnot Sincerely, r� Irene L. Roberge Administrative Secretary T D D: 1-800-253-0191 Regional Offices - Barre/Essex Jct./Pittsford/N. Springfield/St. Johnsbury State of Vermont CASE NO. EC-4-1773 APPLICANT Franklin Lamoille Bank North Group ADDRESS P.O. Box 2429 West Brattleboro, SUBDIVISION PERMIT LAWS REGULATIONS INVOLVED Environmental Protection Rules Bank/ Effective September 10, 1982 VT 05303 This project, consisting of a two lot subdivision, identified as Lot 2 being 1.55 acres and Lot 3 being 2.60 acres located off 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) The project shall be completed as shown on the plans P.ro.ject. Number 93068 Sheet 1 of 2 "Subdivision Plan dated September 1993; Sheet 2 of 3 "Details/Specifications" dated September 1993 and Sheet 3 of 3 "Profile MH S-7 to Whately Road" dated September 1993 prepared by FitzPatrick-Llewellyn, Inc. and which have been stamped "approved" by the Wastewa+l-er Management Division. The project shall not deviate from the approved plans c•:itho:it prior written approval_ from tyre Division of Protection. (2) Each prospective purchaser of each lot shall be shown a copy of the approved plot plan and this Subdivision Permit prior to conveyance of the lot. (3 This project has been reviewed and is approvedfor the construction of one single family residence on each of the approved lots No. 2 and 3. Construction o1: other dwellings, including public btiildings, duple,..es, and condominium units, is not allowed witi:out prior rep• i.ew <inci approval b-,- the Division of Protection, and such approval will not. be granted unless the7.- proposal conforms to t.ile applicable laws and reu.lations. ( 1 1 The conditions cr t.his perms t sha_i.l run with t:.}ie l-nd :riri(.t will be bindiri- upon and enforcer-ib.le a�ai.nst t E:e i-)er•ri;ii and all assigns and successor-s in i_ritere.st.. ;'he per.mi.tt.ee, shall be resp�:�nsible for: the re cord irr_f of this; perrni t. arc the "-\()tier,, of Per•uk.it. fl(:�cor•dinIC irk the Sol.tt:.h B(.rrl i ng ton 1.anri kecor•ds w i t.hii n 30 dais of issuance of t li i permit and prior- to the corivc , r:inc( of arry lot, sril>•iect to th:: ir.rr•isdict-i.or) of rliis PE r•niit;. Subdivision Permit 'IEC-4-1773, Franklin Lamoille Bank `Bank North Group Page 2 WATER SUPPLY (5) Each 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 Wastewater Management Division. SEWAGE DISPOSAL (6) Each 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 Wastewater Management Division, and such approval will. not be granted unless the proposal conforms to the applicable laws and regulations. (7) A professional engineer, registered in the State of Vermont, is to generally supervise the construction of the sanitary sewer line extensions and, upon completion of construction, the supervising engineer is to submit to the Wastewater Management Division a written certification stating all construction has been completed in accordance with the stamped approved plans. The engineer's certification is to be submitted to the Division prior to the occupancy of' any unit and the certification shall include, but not be limited to, the numerical results of all. leakage testing performed on each segment of the sanitary sewer extension and all manholes, as described in Appendix: A, of the Environmental Protection Rules. / Dated at Essex Jct. , Vermont this /%7 Al(day of 1993. Jack Long, Commissioner Department, of 14-Invironmental Conse.rvat.:i.on 13y�• Ernest P. Christianson Regional Engineer c•c : For the Record Ci.t.� of South 13ur•.l.ingt:orr P.larnnirig Commission City of Sout1l flu r•Lirigtori Selectmeri Water Supply Di%isi.on Dept.. of I.-Hh-0r ;irld i 110LIS t r•X- l it:zPat:r•i<:--k-1.1ei ei.L:,ri, 1.iic. r 1 ._Q1. Butte of Vern�aa��t Department of Fish and Wildlife Department of Forests, Parks and Recreation Department of Environmental Conservation State Geologist Natural Resources Conservation Council FRANKLIN LAMOILLE BANK/ BANK NORTH GROUP P.O. Box 2429 W. Brattleboro, VT 05303 AGENCY OF NATURAL RESOURCES Department of Environmental Conservation 111 West Street Essex Jct.,Vermont 05452 Telephone # 879-6563 October 12, 1993 RE: EC-4-1773 ; 2 lot single fam.subdivision Lot 2-1.55A, Lot 3-2.60A mun. water & sewer located Spear Street in South Burlington, Vermont. Dear Applicant: We received your completed application for the referenced permit on 10/01/93, including a fee of $300 paid for by Check Number 161. This application falls under the Multi -Lot Subdivision Program Area, and under the Performance Standards for this program area, we have 45 days of 'in- house' time for our review of your application. If we need further information from you in order to reach a decision on your application, the time we wait for your submittal of that information does not count against the allowable in-house time specified in the performance standards. If you have any questions about the review process, or it you have not received a decision on your application within the 45 days in-house, please contact this office at 879-6563. Please note that this does not constitute receipt of your application under the requirements of Act 250. If you have questions relating to Act 250 jurisdiction, a District Coordinator may be reached at 879-6563. The Homestead Exemption and Deferral of Permit Applications will be processed with the Subdivision Permit Application. gr the Division of Protection, 1 � Trene berge Administrative Secretary CC: Fitz -Llewellyn, Inc. ,?10'uth Burlington Planning Commission SAXER ANDERSON WOLINSKY & SUNSHINE A T T O R N E Y S A T L A W ONE LAWSON LANE P.O. BOX 1505 ARTHUR P. ANDERSON" BURLINGTON, VERMONT 05402-1505 DAVID C. BURAN'' TEL: (802) 658-2826 GORDON C. GEBAUER, )R.' FAX: (802) 865-3922 MARY P. KEHOE' 32 CORNELIA STREET C.J. MADONNA PLATTSBURGH, NY DAVID PUTTER" (518) 561-6800 PHILIP D. SAxER' FAX:(518) 563-1196 August 13, 1993 Joe Weith, City Planner City of South Burlington 575 Dorset Street So. Burlington, VT 05403 JULIA E. SINGLETON' DAVID M. SUNSHINE' DEBORAH WEISS" GAIL E. WESTGATE' DOUGLAS J. WOLINSKY' ' ADMITTED IN VERMONT ADMITTED IN NEW YORK 'OF COUNSEL Re: IBIS Corporation property, 1570 Spear Street, So. Burlington Dear Joe: As you know, on July 13, 1993, the South Burlington Planning Commission heard the request of the Franklin Lamoille Bank for an extension of time to sell Lots No. 2 and 3 of the IBIS property. At that hearing the Planning Commission granted the Bank a one year extension of time to sell one of the lots, so the lots end up in separate, non-affiliated ownership. I am now requesting from you a document, witnessed and notarized properly for filing in the Land Records, which indicates the action taken on the part of the Planning Commission on the evening of July 13, 1983 as it relates to this property. The reason I need this is so that any prospective purchaser searching the Land Records can see that the Planning Commission has granted the Bank additional time in which to sell these lots. I am not sure if you have a special form for this type of matter or if the Planning Commission has certain language it would like to use in the document. That is why I have not forwarded a draft of a document for your perusal. Should you have any questions or wish to discuss this matter further, please do not hesitate to contact me. Thank you very much for your anticipated cooperation. Very trul yours, Gordon C. Gebauer, Esq. GCG:K PLANNER 658-7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 August 31, 1993 Gordon Gebauer, Jr., Esquire P.O. Box 1505 Burlington, Vermont 05402-1505 Re: IBIS Corporation property, 1570 Spear Street Dear Mr. Gebauer: ZONING ADMINISTRATOR 658-7958 Enclosed is a copy of the July 13, 1993 Planning Commission meeting minutes. If you have any questions, please give me a call. in ere YV J Weith, City Planner 1 Encl JW/mcp PLANNING COMMISSION (� 13.JULY 1993 page 4 5. Any changes to the site plan shall require approval the South Burlington Planning Commission. Mrs. Maher seconded. Motion passed unanimously. 5. Request of Franklin Lamoille Bank for a 2-year extension of the subdivision approval of 6.71 acres of land into 3 lots of 1.83, 2.28 and 2.6 acres, Spear St. opposite Deerfield Dr: Mr. Gebauer said the bank financed purchase of the property for Ibis. The city and Ibis were in a legal dispute. The Court ordered lots 2 & 3 to be sold to different owners by September, 1993. In 1991, the bank foreclosed. The Court issued a foreclosure order in 1991. In 1992 (Feb.), Ibis filed for bankruptcl which kept the bank from getting the property. The bank had to go to court and was eventually granted the right to continue foreclosure proceedings. The bank got title to the property in April 1993. They have now begun marketing the property but are concerned they won't find a buyer by September, 1993. The real estate agent and prospective buyers are concerned that the first person to buy a lot would not be able to build until the other lot is sold. Members felt this would not be a problem as this was not the intent of the court order. Mr. Burgess said there is a question of whether the city wants to extend the agreement for two years for the sale of one lot. Mr. Gebauer said the bank has been diligent in trying to sell the properties. Mr. Weith said the City Attorney says the Commission should view the court order the same as they would a Commission approval. Mr. Burgess said the court felt three years a reasonable amount of time. It is in the city's interest to enforce the three-year limit. If there was some period of time that conditions, made it impossible to se 1 the lots, that amount of time sh6kl4be added. If the city id anything to prevent the sale of the lots, that time sh uld be given back as well. Mr,.�Austin suggested giving them one year And then letting them come back in if they still are having a problem. Others agreed. Mr. Austin moved the Planning Commission approve the request of Franklin Lamoille Bank for an extension of the subdivision approval of 6.71 acres of land1`nto three lots of 1.83, 2.28, and 2.6 acres as depicted on a plan entitled "Final Plat, IBIS Corporation South Burlington, VErmont," prepared by G.E. Bedard, Inc., and dated 12 18/86, last revised 1 14%91, with the following stipulations: PLANNING COMMISSION 13 July 1993 page 5 1. All previous approvals and stipulations affecting the subject property which are not superseded by this approval shall remain in effect. 2. This approval shall expire on September 27, 1994, if the applicant shall not have, within such time, conveyed either lot 2 or lot 3, or both, so that they are in separate and nonaffiliated ownership. Mr. Sheahan seconded. Motion passed unanimously. 6. Site plan application of Jim Wood for construction of a 5,000 sq. ft. building for manufacturing and warehouse use, lot 15, 38 Commerce Avenue: Mr. Wood said the lot is located in the Belter Industrial Park. They had gotten approval for an 8,000 sq. ft. build- ing but are changing it to a 5,000 sq. ft. building. The building will be the main office of Sheet Metal Specialists, a light manufacturing company. There will be three full time employees and two owners on site. Other employees come and go. There are 10 proposed parking spaces, one a handicapped space. No issues were raised. Mr. Austin moved the Planning Commission approve the site plan application of Jim Wood for construction of a 5,000 sg. ft. building for manufacturing and warehouse use as depicted on a plan entitled "Lot 15 Ethan Allen Drive, 5000' SF. Sheet Metal Fabrication Building," prepared 2y Jim Wood and dated 5/11/93, with the following stipulations: 1. All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2. The applicant shall post a 1800 landscaping bond prior to issuance of a zoning/building permit. the bond shall remain in effect for three years to assure that the planted land- scaping takes root and has a good chance of surviving. 3. A sewer allocation of 210 qpd is granted. The .applicant shall pay the required sewer alllocation fee prior to issuance of a zoning/building permit. 4. All exterior lighting shall be downcasting and'shielded and shall not cast light beyond the property line. Any change in lighting shall be approved by the City Planner prior to installation. PLANNER 658-7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 August 26, 1993 Gordon C. Gebauer, Jr., Esquire P.O. Box 1505 Burlington, Vermont 05402-1505 Re: IBIS Corporation property, 1570 Spear Street Dear Mr. Gebauer: ZONING ADMINISTRATOR 658-7958 Enclosed please find a copy of the Findings of Fact & Decision on the above referenced project approved by the Planning Commission on 7/13/93. If you have any questions, please give me a call. i cerely, w Z"--- J e Weith, City Planner 1 Encl JW/mcp - ------- ------------ pi 4-e-29 f . ... .. .. ... .. ........ MOTION OF APPROVAL a>` FRANKLIN LAMOILLE BANK I move the South Burlington Planning Commission approve the request of Franklin Lamoille Bank for a t.� -^', ,� extension of the subdivision approval of 6.71 acres of land into three (3) lots of 1.83, 2.28, and 2.6 acres as depicted on a plan entitled "Final Plat, IBIS Corporation, South Burlington, Vermont", prepared by G.E. Bedard, Inc., and dated 12/18/86, last revised 1/14/91, with the following stipulations: 1. All previous approvals and stipulations affecting the subject property which are not superseded by this approval shall remain in effect. 2. This approval shall expire on September 27, 13133 if the applicant shall not have, within such time, conveyed either lot 2 or lot 3, or both, so that they are in separate and nonaffiliated ownership. (ibis) Memorandum - July 13, 1993 July 9, 1993 Page 3 Planning agenda items deadline on when the landscape plan must be submitted and installed. 5) FRANKLIN LAMOILLE BANK - APPROVAL EXTENSION This application is a request for a two (2) year extension of the subdivision approval of three (3) lots on Spear Street. The approval for this subdivision was granted by the Superior Court on 9/27/90 on appeal from the Planning Commission's denial (see enclosed). This property located on the east side of Spear Street opposite Deerfield Drive lies within a restricted area in the Southeast Quadrant District. Condition #10 of the Final Order requires lots #2 and 3 to be sold to separate, non-affiliated entities on or before September 27, 1993. The applicant acquired title to this property via foreclosure action on 4/28/93 and wishes to have adequate time to sell these lots as is explained in his letter dated 5/17/93 (enclosed). The Planning Commission has authority to grant this two (2) year extension under Section 605 of the subdivision regulations. The Commission must determine that the developer has, since final plat approval, been diligently and consistently pursuing financing or other approvals necessary for the project. In addition to the request for a two year extension, the applicant will also be requesting relief from another problem associated with condition #10 (see letter from applicant dated 7/l/93). Apparently, the bank is having a difficult time selling the lots because prospective buyers are concerned that if the second lot is not sold by the September 27, 1993 deadline, then they will not be able to get a building permit. The applicant will be discussing this issue further with the Commission at the meeting. I will also obtain advise from the City Attorney on how the Commission should deal with this issue. 3 .ourN BURLINGTON PLANNING COMMISSION The South Burlington Planning Commission will hold a public hearing at the South Burlington City Hall, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesdayy, July 13, 1993 at 730 P.M. to consider the following: 1. Final Plat application of One Timber Lane for sub- division of a 2.48 acre lot currently developed with 21,798 square feet of medical office use into three (3) lots. Two (2)) of the lots (0.27 and 0.23 acres) are proposed to . ollow the footprints of the Wo (2) existinc wings of he building wlly-3 the third of (1.98 acre] will con- ain the remaAng com- non land, O-)e Timber .ane. I Request of Franklin amoille Bank for a two ') year extension of the ubdivision approval of .71 acres of land into vee (3)lots of 1.83, 2.28 nd 2.6 acres, Spear treat opposite Deerfield rive. Revised final lat appli- rtion of John arkin to nend conditions #7 and 8 of the approval for a >0 seat ballroom add! - in to the hotel/restau- nt planned commercial ivelopment located at 20 Shelburne Road oward Johnson's/Quali- Suites). Cond0ons #7 d #8 address 'lours of oration and submission ., a report regarding us- e of the ballroom gacili- pies of the application available for public pection at the South •lington City Hall. Wiliam Burgess Chairman Burlinon Planningu Comm sslon e 26, 19 g3 SAXER, ANDERSON, WOLINSKY AND SUNSHINE ATTORNEYS AT LAW ONE LAWSON LANE P. O. Box 1505 BURLINGTON, VERMONT 05402-1505 ARTHUR P. ANDERSON t' DAVID C. BURAN 1'"` GORDON C. GEBAUER, JR. t MARY P. KEHOE t C. J. MADONNA ' DAVID PUTTER t' PHILIP D. SAXER t Joe Weith, City Planner City of South Burlington 575 Dorset Street So. Burlington, VT 05403 TELEPHONE (802) 658-2826 TELECOPIER (802) 865-3922 32 CORNEL.IA STREET PLATTSBURGH, NY (518) 561-6800 FAX(518)563-1196 July 1, 1993 Re: IBIS Corporation property, 1570 Spear Street, South Burlington, Vermont Dear Joe: JUL.IA E. SINGLETON t DAVID M. SUNSHINE t DEBORAH WEISS t ° GAIL E. WESTGATE t DOUGLAS J. WOLINSKY t t ADMITTED IN VERMONT ADMITTED IN NEW YORK " OF COUNSEL I am writing this letter as a supplement to my May 17, 1993 letter. Currently, this matter is set to be heard by the Planning Commission on July 13, 1993. At that hearing I am going to have to ask the Commission for additional relief as discussed below. When the Franklin Lamoille Bank took over this property and when I wrote my May 17, 1993 letter to you, neither the Bank or I were aware of another severe impediment to marketing these properties. Since the May 17, 1993 letter the Bank has hired a real estate broker to market the properties and it was in this context that a new wrinkle was discovered. The Final Order in question issued by Judge Frank Mahady on September 27, 1990 requires Lots #2 and 3 to be sold to separate, non-affiliated entities on or before September 27, 1993. This is a specific condition of zoning approval and one which I originally sought to extend pursuant to the information contained in my May 17, 1993 letter. What we have discovered is that unless this condition is met, any new purchasers will not be able to obtain building permits. Basically, if someone is interested �.�^ lots, P is no guarantee that the other in buying one of +�a lot will be sold within the time allotted and, even if it is, the first purchaser may not want to wait until the second lot is sold before being able to obtain a building permit and certainly would not want to gamble on the second lot being sold within the time frame allowed. Even though several people have expressed "interest" in the properties, each of the prospective purchasers LAW OFFICES OF SAXER, ANDERSON, WOLINSKY & SUNSHINE Joe Weith July 1, 1993 Page 2 have been extremely hesitant because there is no guarantee that the second lot will be sold to a separate, non-affiliated individual within the mandated time limits. This issue was raised by the real estate broker and several individuals who have looked at the property. Currently, the Bank has the ability to sell one of the lots, but only if the purchasing party can be assured of obtaining a building permit without having to wait or rely on the second lot being sold without within a specific time period. As you can see, this presents a perplexing problem which places the Bank in a situation where it is almost impossible to satisfy the conditions of the Final Order and the demands of prospective purchasers. We request relief from the Commission regarding this dilemma and I intend to address this issue at the upcoming hearing. I am providing this letter to you in advance so that you and the Commissioners are aware of the outstanding issues concerning this property. Please feel free to call me with any questions. Thank you for your assistance in this matter. I look forward to seeing you on July 13. Very truly yo s, Gordon C. Gebauer, Esq. GCG:K SAXER, ANDERSON, WOLINSKY AND SUNSHINE ATTORNEYS AT LAW ONE LAWSON LANE P. O. Box 1505 BURLINGTON, VERMONT 05402-1SOS ARTHUR P. ANDERSON t' DAVID C. BURAN t' ° GORDON C. GEBAUER, JR. t MARY P. KEHOE t C. J. MADONNA DAVID PUTTER t PHILIP D. SAXER t Joe Weith, City Planner City of South Burlington 575 Dorset Street So. Burlington, VT 05403 TELEPHONE(802)65B-2826 TELECOPIER (802) 865-3922 32 CORNELIA STREET PLATTSBURGH, NY (518) 561-6800 FAX (5IS) 563-1196 May 17, 1993 Re: IBIS Corporation property, 1570 Spear Street, South Burlington, Vermont Dear Joe: JULIA E. SINGLETON t DAVID M. SUNSHINE t DEBORAH WEISS t° GAIL E. WESTGATE t DOUGLAS J. WOLINSKY t 1ADMITTED IN VERMONT ADMITTED IN NEW YORK OF COUNSEL Pursuant to our recent telephone conversation, I am writing to you with regard to the property located at 1570 Spear Street, South Burlington, Vermont, formerly owned by IBIS Corporation. This property is subject to an agreement between the City of South Burlington and IBIS Corporation and a Final Order signed by Judge Frank Mahady in September, 1990. I represent the Franklin Lamoille Bank which acquired title to this property on April 28, 1993 via a foreclosure action. The Bank commenced its foreclosure action in 1991 and received a Judgment and Decree of Foreclosure on December 23, 1991, which set a redemption date of June 23, 1992. In February, 1992 IBIS Corporation filed for bankruptcy protection which tolled the running of the redemption period. The Bank obtained relief from the Bankruptcy Court's automatic stay on December 23, 1992. The Chittenden County Superior Court issued a Certificate of Non - Redemption on April 28, 1993 which was recorded in the South Burlington Land Records on April 29, 1993. As you know, the Bank could take no action to market or sell the property until after it acquired title. t Judge Mal,-�dy's Final nrder requires Lots Condition No. i0 a� uuuyc a•iu..u...Y No. 2 and 3 to be sold to separate, non-affiliated entities on or before September 27, 1993. Now that the Bank has acquired title it will need adequate time to market and sell the property. The Bank was not privy to the arrangements between the City and IBIS Corporation and was not a party to the Final Order signed by Judge Mahady. Nevertheless, the Bank realizes it is subject to LAW OFFICES OF SAXER, ANDERSON, WOLINSKY & SUNSHINE Joe Weith May 17, 1993 Page 2 the conditions of the Final Order but is concerned that it may not have enough time to sell the property pursuant to the terms of Condition No. 10. The Bank is especially concerned that four months will not be sufficient time to sell both lots to separate, non-affiliated entities. Pursuant to Section 605 of the South Burlington Subdivision Regulations, I request that, if necessary, you schedule this matter for a hearing, at which time I will present the Bank's request for an extension of Condition No. 10. If a hearing is not necessary, I request that you as City Planner, or the appropriate municipal commission, approve the Bank's request. If a hearing is necessary, I understand it will occur on or before July 13, 1993. Thank you for your cooperation in this matter. Please contact me at your earliest possible convenience. Very truly yours, Gordon' C. Gebatier Jr: Es . q GCG:K cc: Joel Dube City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 July 9, 1993 Gordon Gebauer, Jr., Esquire P.O. Box 1505 Burlington, Vermont 05402-1505 Re: IBIS Corporation property, 1570 Spear Street Dear Mr. Gebauer: ZONING ADMINISTRATOR 658-7958 Enclosed is the agenda for next Tuesday's Planning Commission meeting and my comments to the Planning Commission. Please be sure someone is present on .Tuesday, July 13, 1993 at 7:30 P.M. to represent your request. If you have any questions, please give me a call. S n en, y r J e Weith, it Planner Encls JW/mcp -)�- - 6(S STEVEN F. STITZEL PATTI R. PAGE' DIANNE L. KENNEY (*ALSO ADMIT'I'FI) IN N.Y.) STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET BURLINGTON, VERMONT 05401 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 April 21, 1993 Mr. Joseph Weith, Planner South Burlington Offices 575 Dorset Street South Burlington, Vermont 05403 Re: IBIS Corporation Property, 1570 Spear Street Dear Joe: OF COUNSEL ARTHUR W.CERNOSIA By Final Order of the Chittenden Superior Court dated September 27, 1990, (copy attached), lots 2 and 3 shown on the plan attached to the Order were approved as separate lots for the development of single family residences. Condition No. 10 of the Order required that these lots be conveyed into separate and non- affiliated ownership within three years of the date of the Order. I have attached a letter dated March 13, 1993 from Attorney Gordon Gebauer. As described in the attached letter, the lots have not yet been conveyed into separate ownership. The new owner of the property, the Franklin Lamoille Bank, wants to obtain an extension of the expiration provided for in Condition No. 10 of the Court's Order. This request should be reviewed by the Planning Commission under Section 605 of the Subdivision Regulations. Very truly yours, A3. j 1 7 Steven F. Stitz SFS/jsb Enclosures 1:\son697.let CHITTENDEN COUNTY COURT FILED IN CLERKS OFFICE SEP 2 8 Ny u STATE OF VERMONT DIANE A. LAVALLEE CLERK COUNTY OF CHITTENDEN, SS. IN RE: 1570 SPEAR STREET ) CHITTENDEN SUPERIOR COURT SOUTH BURLINGTON, ) VERMONT ) Docket No. S842-89 Cnc FINAL ORDER This matter came before the Chittenden Superior Court, the Honorable presiding on a Stipulation for Entry of Order filed with the Court on September 1990. Based upon said Stipulation, this Court ORDERS, ADJUDGES and DECREES as follows: The proposed three lot subdivision of IBIS Corporation, as shown on a plat entitled "Final Plat, IBIS Corporation, South Burlington, Vermont" dated December 18, 1986, a copy of which is attached hereto as Exhibit A, is hereby approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the proposed City right of way that adjoins the north boundary of Lot 2 which must be located in the location shown on the plan attached to this Stipulation as Exhibit A. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition 9 below. Until such time as the proposed City right of way is constructed as a City Street, Lots 2 and 3 shall construct and maintain a driveway within the STITZEL & PAGE. P.C. ATTORNEYS AT LAW 171 BATTERY STREET t URL1NGTON. VERMONT 05401 00' •j 1. Cat• limits of said right of way with a single entrance onto Spear Street. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 3, the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residences to be constructed on lots 2 and 3 shall be located in building envelopes as shown on the plan attached to this Stipulation as Exhibit A. These building envelops shall be shown on the plan required by condition 9 below. 5. Neither residence shall exceed a height of 29 feet measured from pre -construction grade. 6. Those portions of lots 1, 2 and 3 located within the view protection zones specified on the plan attached to this Stipulation as Exhibit A shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each too feet that such improvements or landscaping -'TITZEL & PAGE, P.C. ATTORNEYS AT LAW - 2 - 171 BATTERY STREET 1URLINOTON. VERMONT"I are located west of the lots' eastern boundary. This view protection zone shall be shown on the plan required by condition 9 below. 7. At such time as the driveway required to be constructed to serve lots 2 and 3 pursuant to condition 1 above is constructed, Applicant agrees to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the driveway. Thereafter, the curb cut for Lot 1 shall be maintained on said driveway and on the proposed City right of way when such is constructed. 8. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 9. Within 60 days of the date of this approval, Applicant shall prepare and deliver to the City Planner for his review and approval, as well as approval by the City Council, a survey of the subject property that incorporates the requirements imposed by conditions 1, 4, and 6 above. 10. This approval shall expire within three (3) years of the date set forth below if the applicant shall not have, within such time, conveyed lots 2 and 3 into separate and nonaffiliated ownership. 11. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. STITZEL & PAGE, P.C. ATTORNEYS AT LAW - 3 171 BATTERY STREET 1 URLINOTON, VERMONT 06401 12. Upon approval of the plat required under Condition 9 above by the City Council, said plat may be signed by the City Clerk and recorded in the South Burlington Land Records as a plat approved pursuant to the provisions of 24 V.S.A. Chapter 117. 13. A copy of the Court's Final Order entered in this matter may be recorded in the South Burlington Land Records. t- Dated at Burlington, Vermont, this�a day of 1990. Presiding Judge j Approved as to form: Steven F. Stitz�, Es�S. At rney for City'-Tf South Burlington uhq�� P K� MXry-Kehpe, E q. .� Attorne for IBI Corporation ,7 till 'Z- e, Brian F. Jos l'n, Esq. Attorney for City of South Burlington H:\SON023.od STITZEL & PAGE, P.C. ATTORNEYS AT LAW - 4 - 171 BATTERY STREET BURLINGTON, VERMONT06401 �S: 1 HCUSE ON LOT 2 CAN BE OCCUPIED '� 1 NR STREET INTO LOT I MUST BE 3 2 SHALL BE FRCM THE 90' al5 PLAN AS '80' R.O.W. TO BE 3URLINGTON FOR FUTURE STREET ON LOT 2 CAN BE OCCUPIEO. 05403 S 2G = 1 170. 00' ' :r 9 T I spr5 J0 :. S ° I _ C 0 raC)-w �y QO� �i1d t.e� R�s•� � F 1' I � �� `� 152, 12- 150-. F-r. f 0 LL 150. oo' 43.3c: 90.00 V70.00 2.9 SW\FT' •ST_.. , �` �-P c'.�Z .�T�E�1C" '� —TO ALLEY 'FLU. -�-.. .' rvo SAXER, ANDERSON, WOLINSKY AND SUNSHINE ATTORNEYS AT LAW ONE LAWSON LANE P. O. Box 1505 BURLINGTON. VERMONT 05402-1505 ARTHUR P. ANDERSON t' DAVID C. BURAN ' ° GORDON C. GEBAUER, JR. t MARY P. KEHOE t C. J. MADONNA ' DAVID PUTTER t' PHILIP D. SAXER t Steven F. Stitzel, Esq. Stitzel & Page, P.C. 171 Batter St., 2nd Floor Burlington, VT 05401 TELEPHONE(802)658-2826 TELECOPIER (802) 865-3922 32 CORNELIA STREET PLATTSBURGH, NY (518) 561-6800 FAX (SIB) 563-1196 March 13, 1993 Re: IBIS Corporation property, 1570 Spear Street, South Burlington, Vermont Dear Steve: JULIA E. SINGLETON t DAVID M. SUNSHINE t DEBORAH WEISS t ° GAIL E. WESTGATE t DOUGLAS J. WOLINSKY t t ADMITTED IN VERMONT ADMITTED IN NEW YORK ° OF COUNSEL Pursuant to our telephone conversation of March 11, 1993, I am writing you with regard to the property owned by IBIS Corporation located at 1570 Spear Street, South Burlington, Vermont. This property is subject to an Agreement between South Burlington and IBIS Corporation and a Final Order signed by Judge Frank Mahady in September, 1990. I represent the Franklin Lamoille Bank which anticipates acquiring title to this property in late April or early May of this year. The Bank commenced a foreclosure action in 1991 and received a Judgment and Decree of Foreclosure on December 23, 1991 which set a redemption date of June 23, 1992. In February, 1992 IBIS Corporation filed for bankruptcy protection which tolled the running of the redemption period. The Bank obtained relief from automatic stay on December 23, 1992 and, therefore, the redemption date should expire on or about April 23, 1993. As you know, the Bank can not take any action to sell the property until it receives a Certificate of Nonredemption from the Court. Condition no. 10 of Judge Mahady's Final Order requires Lots no. 2 and 3 to be sold to separate, nonaffiliated entities on or before September 27, 1993. When the Bank does acquire title to the property it will need adequate time to market and sell these lots. The Bank was not privy to the arrangements between the City and IBIS Corporation and was not a party to the Final Order signed by Judge Mahady. Nevertheless, the Bank realizes it is subject to the conditions of the Final Order but is concerned that it may not have enough time to sell the property pursuant to the terms of condition no. 10. RECEIVrD MAR 16 1993 Stitzel Rcc LAW OFFICES OF SAXER, ANDERSON, WOLINSKY & SUNSHINE Page 2 Steven F. Stitzel, Esq. March 13, 1993 The Bank requests that it and the City agree to amend the Final Order such that Condition no. 10 be extended for one year in order to give Bank adequate time to market and sell Lots no. 2 and 3. The other conditions of the Final Order are satisfactory to the Bank. Please let me know the City's position as soon as it has had an opportunity to review this matter. Please let me know if you need any additional information. Very truly yours, i i ordon C."Gebauer, GCG:K cc: Joel Dube, Franklin Lamoille Bank PUBLIC HEARING SOUTH BURLINGTON PLANNING COMMISSION The South Burlington Planning Commission will hold a public hearing at the South Burlington City Hall, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, July 13, 1993 at 7:30 P.M. to consider the following: 1. Final Plat application of One Timber Lane for subdivision of a 2.48 acre lot currently developed with 21,798 square 'feet of medical office use into three (3) lots. Two (2) of the lots (0.27 and 0.23 acres) are proposed to follow the footprints of the two (2) existing wings of the building while the third lot (1.98 acres) will contain the remaining common land, One Timber Lane. ' 2. Request of Franklin Lamoille Bank for a two (2) year extension of the subdivision approval of 6.71 acres of land into three (3) lots of 1.83, 2.28 and 2.6 acres, Spear Street opposite Deerfield Drive. 3. Revised final plat application of John Larkin to amend conditions #7 and #8 of the approval for a 250 seat ballroom addition to the hotel/restaurant planned commercial development located at 1720 Shelburne Road (Howard Johnson's/Quality Suites): Conditions #7 and #8 address hours of operation and submission of a report regarding usage of the ballroom facility. Copies of the application are available for public inspection at the South Burlington City Hall. William Burgess Chairman, South Burlington Planning Commission June 26, 1993 �� . � �� a 9 STEVEN F. STITZEL PATTI R. PAGE• DIANNE L. KENNEY (*ALSO ADMIVIED IN N.Y.) STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET BURLINGTON, VERMONT 05401 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 OF COUNSEI. ARTHUR W.CERNOSIA March 19, 1993 Mr. Joseph Weith, Planner South Burlington Offices 575 Dorset Street South Burlington, Vermont 05403 Re: IBIS Corporation Property Dear Joe: I have enclosed a copy of a letter I received from Gordon Gebauer regarding the above -referenced property. Please give me a call to discuss this. SFS/jsb Enclosure 1:\son695.let Very truly yours, Steven F. Sti el SAXER, ANDERSON, WOLINSKY AND SUNSHINE ATTORNEYS AT LAW ONE LAWSON LANE P. O. Box 1505 BURLINGTON, VERMONT 05402-1505 ARTHUR P. ANDERSON t ` DAVID C. BURAN • ° GORDON C. GEBAUER, JR. t MARY P. KEHOE t C. J. MADONNA DAVID PUTTER t• PHILIP D. SAXER t Steven F. Stitzel, Esq. Stitzel & Page, P.C. 171 Batter St., 2nd Floor Burlington, VT 05401 TELEPHONE(802) 658-2826 TELECOPIER (802) 865-3922 JULIA E. SINGLETON t 32 CORNELIA STREET DAVID M. SUNSHINE t PLATTSBURGH, NY DEBORAH WEISS t ° (518) 561-6800 GAIL E. WESTGATE t FAX (518) 563-1196 DOUGLAS J. WOLINSKY t t ADMITTED IN VERMONT March 13, 1993 ADMITTED NEW YORK ° OF COUNSEL Re: IBIS Corporation property, 1570 Spear Street, South Burlington, Vermont Dear Steve: Pursuant to our telephone conversation of March 11, 1993, I am writing you with regard to the property owned by IBIS Corporation located at 1570 Spear Street, South Burlington, Vermont. This property is subject to an Agreement between South Burlington and IBIS Corporation and a Final Order signed by Judge Frank Mahady in September, 1990. I represent the Franklin Lamoille Bank which anticipates acquiring title to this property in late April or early May of this year. The Bank commenced a foreclosure action in 1991 and received a Judgment and Decree of Foreclosure on December 23, 1991 which set a redemption date of June 23, 1992. In February, 1992 IBIS Corporation filed for bankruptcy protection which tolled the running of the redemption period. The Bank obtained relief from automatic stay on December 23, 1992 and, therefore, the redemption date should expire on or about April 23, 1993. As you know, the Bank can not take any action to sell the property until it receives a Certificate of Nonredemption from the Court. Condition no. 10 of Judge Mahady's Final Order requires Lots no. 2 and 3 to be sold to separate, nonaffiliated entities on or before September 27, 1993. When the Bank does acquire title to the property it will need adequate time to market and sell these lots. The Bank was not privy to the arrangements between the City and IBIS Corporation and was not a party to the Final Order signed by Judge Mahady. Nevertheless, the Bank realizes it is subject to the conditions of the Final Order but is concerned that it may not have enough time to sell the property pursuant to the terms of condition no. 10. RECEIVEF' MAR 16 1993 Stitzel el P(ar P.C' N LAW OFFICES OF SAXER, ANDERSON, WOLINSKY & SUNSHINE Page 2 Steven F. Stitzel, Esq. March 13, 1993 The Bank requests that it and the City agree to amend the Final Order such that Condition no. 10 be extended for one year in order to give Bank adequate time to market and sell Lots no. 2 and 3. The other conditions of the Final Order are satisfactory to the Bank. Please let me know the City's position as soon as it has had an opportunity to review this matter. Please let me know if you need any additional information. Very truly yours, cordon C .-Gebauer, GCG:K cc: Joel Dube, Franklin Lamoille Bank City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 January 11, 1993 Rosario V. Cannizzaro 950 Shelburne Road South Burlington, Vermont 05403 Re: IBIS Subdivision, Spear Street Dear Mr. Cannizzaro: ZONING ADMINISTRATOR 658-7958 In regards to your request to connect the IBIS Corporation lots to the City sewer system please be advised that the Superior Court's decision of September 27, 1990 authorized the connection'of lots 2 and 3 to the sewer system. The sewer to serve these lots must be extended from Deerfield Drive. The City hereby allocates a total of 900 gpd for these two (2) lots. These lots will be served by the City's Bartlett Bay Treatment Facility which has sufficient capacity to handle this additional demand. You will be required to pay the $2.50 per gallon sewer allocation fee. Please submit the fee payment to Zoning Administrator Richard Ward at time of application for a zoning/building permit. If you have any questions, please give me a call. Si cerd y, J e Weith, City Planner JW/mcp cc: Richard Ward 113'�M ISTING SERVICE CANNIZZARO REAL ESTATE REALTOR MULTIPLE L 950 SHELBURNE ROAD SOUTH BURLINGTON, VERMONT 05403 802-658-2931 .anuaiy ') ,jr.', -L J 993 City of South Burlington ATTIT: Joseph Weith, City Planner 575 Dorset Street So., Burlington, Vermont 05403 RE: IBIS Corporation (2 lot subdivision) 1570 Spear Street So. Burlington, Vermont 05403 Dear Mr. Weith: we have the above property listed for sale. It has come to our attention that we need an Act 250 subdivision permit, as per Carolyn Root, Permit Specialist. Specifically we need a letter allowing the IBIS Corporation lots to connect to the South Burlington Sewer System. Your attention to this request is appreciated. Very Truly Yours, Rosario V. Cannizzaro RVC/pap M E M O R A N D U M To: South Burlington Planning Commission From: William J. Szymanski, City Manager Re: January 10, 1989 agenda items Dfi t:e : Januri ry 6, 1989 2) I-NOWLAND 1:5"1'ATE 3-LOT SUBDIVISION, SPEAR STREET 1. Sewer to serve these lots must be extended from Deerfield Way. No on site sew iao disposal will be permitted. 2. Driveways should be shared. Size of culverts for these driveways shall be determined by the City. 3. Houses should be limited to one story type. STEVEN F. STITZEL PATTI R. PAGE- ADAM E. BRIDGE (*ALSO ADMITTED IN N.Y.) STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET BURLINGTON, VERMONT 05401 TELEPHONE (802) 660-2555 FAX (802) 660-2552 January 22, 1991 Mr. Joseph Weith, Planner South Burlington Offices 575 Dorset Street South Burlington, Vermont 05403 Re: IBIS Corporation Property Dear Joe: OF COUNSEL ARTHUR W. CERNOSIA I have attached a copy of page 4 of the final Order entered in the above -referenced matter. Pursuant to paragraph 13, the Court's final Order may be recorded in the land records. Pursuant to paragraph 12, the final plat is to be approved by the City Council and signed by the City Clerk for recording in the City land records. Very truly yours Steven F. Stitzel C) i" � rd Enclosure L:\SON207.cor City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 6547955 February 11, 1991 NO. George Bedard Box 320, RD1 Hinesburg, Vermont 05461 Dear George: ZONING ADMINISTRATOR 658-7958 Below is the wording which the City Attorney suggeyt.ed be added to the IBIS survey: Approved by the South Burlington City Council purs,:ant to final order of Chittenden Superior Court dated 27 September, 1990 and recorded in Volume 300, pages 302-306 of. the South Purlington Land Records. Please call if you have any questions. Si _. erely, Joe Weith, City Planner JW/mcp No Text M E M 0 R A N U U M To: Charles Hafter, City Manager From: Joe Weith, City Planner Re: I.B.I.S. application Date: January 3, 1991 The findings of fact and decision entitled "City Council, City of South Burlington, In Re: Application of I.B.I.S. Corporation" included a condition (#9) requiring the Planner and City Council to approve a survey of the I.B.I.S. property that incorporated other conditions imposed by the Council. These other conditions specifically address: o location of shared driveway for lots 2 and 3 off the 80 foot r.o.w., o building envelopes for lots 2 and 3 as shown on the plan attached to the above document, and o view protection zones. I have reviewed the submitted survey and find that it satisfacto- rily complies with the conditions above. City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 ; TEL. (802) 658-7953 ( OFFICE OF CITY MANAGER CHARLES E. HAFTER August 3, 1990 Chairman and City Council City of South Burlington South Burlington, VT 05403 Re: Deliberation in IBIS request; Proposed findings; Special Meeting 6:30 PM To All Members: The Council will meet at 6:30 PM on Monday, August 6, in special session at the site of the IBIS interim zoning request on Spear Street. Attached are proposed findings for Council to review during the regular meeting to follow. They can be adopted at that time. The findings establish a view protection zone and a planting height limita- tion. Bill Szymanski and I spent considerable time on site shooting angles and developing these zones. They present maximum view protection from the top of the City's right-of-way on Deerfield Drive and the potential park site south of the property in discussion. The two resultant building envelopes are shown on the attached plat. Sincerely, Chuck Hafter City Manager CEH/peh Draft: August 3, 1990 CITY COUNCIL CITY OF SOUTH BURLINGTON IN RE: APPLICATION OF IBIS CORPORATION 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 IBIS Corporation, hereinafter "Applicant", for approval to construct single family residences on Lots 2 and 3 on a plan entitled "Final Plat, IBIS Corporation, South Burlington, Vermont," dated December , 19 The proposed residences fail to comply with the "Interim Zoning Regulations" adopted by the Council on April 17, 1989. The City Council conducted public h e a r i n g s o n t h i s a p p l i c a t i o n o n The president of IBIS Corporation, Frederick Moulton, was present at some of these hearings and was represented at all of the hearings by Attorney Mary Kehoe. Based upon the evidence submitted at the hearings mentioned above, and the site visit conducted by the Council on August 6, 1990, the Council hereby renders the following decision on this application: Findings of Fact 1. IBIS Corporation is the record owner of the property 11 which is the subject of this application which is commonly known as 1570 Spear Street. This property consists of Lots 1, 2 and 3 and a proposed 80 foot wide right of way proposed for city street purposes, all as shown on the above -referenced plan. 2. The subject property is located on the easterly side of Spear Street, so-called. By its application, IBIS Corporation seeks approval to construct single family residences within the building envelopes located on Lots 2 and 3 of the above -referenced plan. 3. The height and dimensions of the proposed buildings are specified in a Memorandum submitted in support of this request dated July 23, 1990 and signed by Mary P. Kehoe, attached to this Decision as Exhibit A. The structures will be connected to municipal sewer in accordance with the approximate design specifications set forth in a letter from Kevin M. Dragon of Trudell Consulting Engineers, Inc., to Mary Kehoe, dated July 18, 1990, attached to this Decision as Exhibit B. Conclusions The Interim Zoning Regulations prohibit the construction of new structures. Since the applicant proposes to construct two new residences, the proposed construction fails to comply with the Interim Zoning Regulations. For this reason the 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 2 existing or planned community facilities, services or lands.,' The applicant proposes to connect both new residences to public sewer and water services. Both of these contain adequate capacity for two new residences. The applicant proposes to provide access to Lots 2 and 3 by a shared right of way off of the proposed new city right of way located between Lots 1 and 2. This shared driveway will be in the approximate location of the easterly boundary of Lots 2 and 3. By establishing this shared driveway off of the proposed city right of way, applicant has eliminated the need to establish two new curb cuts onto Spear Street, a heavily traveled public street. Applicant has also agreed to close the Spear Street curb cut which is located on Lot 1 and establish a new driveway for Lot 1 off of the proposed city right of way. The subject property is located in the vicinity of the intersection of Spear Street and Swift Street. The city is presently considering plans to upgrade this intersection. Applicant has agreed to contribute to the city that portion of the upgrade cost which is reasonably attributed to the establishment of two new residences. Based on the matters discussed above, and if development of the residences occurs in accordance with the conditions set forth below, the Council concludes that construction of the proposed residences 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 3 consider the proposed use with respect to "the existing patterns and uses of development in the area." The proposed residences are 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 expansion 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 residences will be served by public water and public sewer, this Council concludes that there are no environmental limitations on this site which preclude the proposed development. The subject property is surrounded by city improvements both proposed and under consideration. The survey of the property shows a proposed city street within an 80 foot wide right of way along the northern boundary of Lot 2. The City may establish parking and other improvements in this 80 foot wide right of way to provide the public access to the views to the west. The city is presently considering the establishment of a new north/south city street to the east of the subject property. It is possible that the right of way for this proposed north/south city street could adjoin the eastern boundary of the subject property. The city is further considering the acquisition of land that adjoins the 4 subject property to the south for park purposes. Given these possible public improvements, new structures located on Lots 2 and 3 could have an impact on views to the west from such properties. The Council further notes that landscaping and accessory structures could also have an adverse impact on views. The applicant has agreed to confine the proposed residences to defined building envelopes located on Lots 2 and 3 to minimize the impact such structures will have on such possible public views. If limited in such matter, the Council concludes that such residences can be constructed without a significant impact on such views. If additional limitations are placed on vegetation, landscaping and accessory structures, these views can be further protected. Based on these matters, and if development of the residences and related landscaping and accessory structures occur in accordance with the conditions set forth below, the Council concludes that the development of the lots will not have an adverse impact on the significant natural resource aspects of this area and particularly the available views. 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 Adirondacks, with a strong emphasis on City acquisition of scenic turnouts. (Comprehensive Plan, dated 1985- 5 Esthetics, History and Cultural Resources Chapter). As already noted, the proposed development, if accomplished in accordance with the conditions of this approval, will not adversely impact these views. 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 and establish front yard, side year and,rear yard setbacks. The structures proposed in this case will comply with these dimensional requirements. Based on this, this Council concludes that the proposed development complies with the zoning regulations of the City of South Burlington. 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 (e)". For the reasons set forth in conclusions 1-4 above, this Council concludes that the proposed project can be constructed consistent with the health, safety and welfare of the City of South Burlington. Decision and conditions The request of IBIS Corporation pursuant to 24 V.S.A. Section 4410 to construct single family residences on Lots 2 and 3 of the above state plan, is approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the 31 proposed City right of way that adjoins the north boundary of Lot 2. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition c"J' below. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 3, the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residence to be constructed on lot 2 shall be located in a building envelope feet by �� feet that will 'Sl be 3 feet from the eastern boundary of the lot and ; feet from the southern boundary of the lot. This building envelope shall be shown on the plan required by condition 9 below. 5. The residence to be constructed on lot 3 shall be located in a building envelope ioO feet by Ind= feet that will be 3 CD feet from the eastern boundary of the lot and �`' feet ". _the, from the boundary of the lot. This building envelope shall be shown on the plan required. by condition below. 6. Neither residence shall exceed a height of ? from 7 pre -construction grade. 7. Those portions of lots'2 and 3 located within the view protection zones specified on the plan attached to this decision as Exhibit C shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each 100 feet that such improvements or landscaping are located west of the lots' eastern boundary. This view protection zone shall be shown on the plan required by condition below. 8. At such time as the proposed city right of way located between lots 1 and 2 is constructed in accordance with the standards applicable to the construction of city streets, Applicant agrees to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the new city street. 9. Within 60 days of the date of this approval, Applicant shall prepare and deliver to the City Planner for his review and approval a survey of the subject property that incorporates the information required by conditions 14'f r and % above. 10. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 11. This approval shall expire within six months of the date set forth below if the applicant shall not have, within such time, applied for zoning permits for lots e and /2' under the South 2 Burlington Zoning Ordinance. L 12. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. Dated at South Burlington, Vermont this day of August, 1990. K:\SON016.agr 01 �l p EZBb-.ZEFCV+-kiNf.. F...g S VOL. B f i•4 vol_. \a rc VOL. �O � 1•t VO L. �4• � V VOL. 20.) s vO L, \3-b i OWNC7t ITlSS G07.T O.7C qT 10N \3'\0 S7 Ln'R ST. 90. �Ult 1.\NC�TdN f V-T. 0540, a.a ' � •7 _f t r09 T�.UE iS ♦v rP A. w NOW LAND f CT AL �J'O^a� 10'W,^: oy rt.• Lw`L - \"� 200' r 1 WAW 81 .. i -!i�L J — I 'r A . W \10W x.2e A r I 77 f 2b1 }O. 1T. ,\ (i - LOT �P I fi.�o• no.�c•css' �� 1.at At�tA a+ O Flo -� �\�1 o`��/'� 11 • 62, 120 b4, Fr, I ' h " Id6o 'ems — 1070 gyp:• I !' I , 14 48.b4 80.00 1?0.00• so rrr\q\0vf 9�� ... ��' 1-.. B. G.EK17 '�� /( r•`'i' ��'p 4" frow Z$ZS _„ ' — T1lOTR'vITY L\Nt, t �•`'•+• CO-R'PO'RA—C' �\GHT-OF•WAY 1�\M\T 'r fell, ' �'�•----•�— w n-r ax L\ W d . • , .� .► S O U T X 7bU�'l L\ K G'•C O �1 V E:�C r1O KT --------- T+�o.-eAev -�e � .., \.,._ a,,,. �,r"�.. % Sa^\•ee- \"�fe0� 'n�.. \a .se. .� , 9 � � � } p i ); ' 7 t_. _._. _ ___. ___ .. _ ._.. _._. l �,��yyya'd.ev?5i liP�:rfi'3¢daflu...'. vo.�� •w�c�*+R�.'� �Mn��JfTa�1'�'fY/R4:�'r.�.. ��eM+^m��'rYMI�.. �.�.r�'�w-- _ N. �� J -.�r..i�aa'J"_�%�S� '4�" �+11`i y fi. k�a �us�+`A '�sIMP.lN.'yR('wFiIYSN's�o+'A'T�'.'�, �:'.. �'r- l.\ .,.. ' �4 ^ CITY COUNCIL CITY OF SOUTH BURLINGTON IN RE: APPLICATION OF IBIS CORPORATION SUPPLEMENTAL MEMORANDUM IN RESPONSE TO THE COUNCIL'S PROPOSED CONDITIONS ON IBIS' APPLICATION FOR RELIEF FROM INTERIM ZONING. At a continued hearing held on Monday August 6, 1990 on the above entitled matter, the Applicant received the City's proposed conditions for relief from interim stay. The Applicant has had an opportunity to review these conditions and respectfully provides the following response thereto. IBIS has no objections to conditions 1-3, 6-10 or condition 12. However, conditions 4 and 5, wherein the building envelopes for lots 2 and 3 as defined severely limit the owner's property rights and will greatly diminish the value and marketability of these two lots. Also, the six month period for relief from interim zoning will limit Applicant's ability to sell the lots. In an effort to preserve view corridors, the city has proposed building envelopes that will require that the two homes built on these two lots be constructed in close proximity to one another. This will drastically decrease the attractiveness of these two lots. At the same time, the views preserved by these restrictive envelopes do not represent significant gains to the City. Indeed, if the City's master plan is developed as presently conceived, some views will be lost. Two view corridors are contemplated by the City's conditions MPK/M86t on the application. The northerly view is from the center of the right of way conveyed to the City by IBIS Corporation when the parcel was acquired in September of 1988. This corridor expands from the center of the right of way north to the Hoehl house and south to a telephone pole on the west side of Spear Street approximately 320' south of existing Deerfield Way. This portion of the view corridor obstructs a significant portion of the proposed building envelope on lot two. However, the view of the lake and Adirondac Mountains from this portion of the corridor is partially obstructed by housing and vegetation (trees) on the westerly side of Spear Street. Only a slight portion of the lake is in view at this point. The Applicant proposes that this view corridor be shifted to be directed more to the north of the Hoehl house and away from the proposed envelope on Lot two. The Applicant would agree to vegetation height limitations on a larger portion of Lot 1. This would result in increased views of Appletree Point. At the same time, it would give the prospective purchaser of Lot 2 increased flexibility on where to place the house. The second view corridor is proposed to expand across more than two thirds of lot three and, accordingly, drastically reduces the size of the building envelope. The proposed envelope also completely eliminates any possibility that this lot may be subdivided and developed in the future. At the same time, the gains to the city are not as significant as may be imagined. A visit to the cite revealed that the views to the north from the vantage point chosen by the city is largely obstructed by the Hoehl MPK/M86t house. The visit also revealed that from that vantage point, the viewer's attention is immediately drawn to the spectacular views of Shelburne Bay directly west of the vantage point. Also, the vantage point chosen for this corridor unrealistically presumes that viewers will chose to take in the views from the corner of private property (that being the southeasterly corner of Lot 3). It is respectfully submitted that the vantage point chosen is outside a reasonable viewing zone. It is more realistic to assume, if the land southerly of lot 3 is ever developed as a city park, that viewers will most likel- view from tastefully prearranged viewing points, on the order of ,� the viewing points established by the overlook park currently under J( J construction on the corner of Deerfield and Spear. These points are not likely to be contiguous to private property boundary lines. If the vantage point is moved to the south a reasonable distance, perhaps 50 feet, and dropped to the west another 50 feet, the building envelope on lot 3 can be allowed as proposed by the Applicant without significantly affecting the views from the proposed city park. This, too, would preserve the southern part of Lot 3 for possible future development. Also, it is understood that the City's master plan calls for construction of a road behind the subject property. However the envelopes proposed in conditions 4 and 5 will force homes to be built in line with each other on lots 2 and 3. This will have the toil effect of blocking most views of the lake from this road, at a point where the views are most spectacular, since the proposed road 4�is on the highest point (ridge) of the involved land. If the homes V' Ur MPK/M86t I are staggered, as would be allowed by the envelopes proposed by the U Applicant, views from the road to the lake will be preserved. P Also, the City's proposed conditions fail to take into account easterly views of Mt. Mansfield and Camel's Hump. A staggering of houses will preserve views of these two mountains from Spear Street. Also, the Applicant requests assurances from the City that views of these two mountains from Lots 1, 2, and 3 will not be obstructed by future development on the Nowland property. Finally, the Applicant objects to Condition 11, which provides relief from interim zoning only for a period of 6 months. Given the restrictions placed on these lots, and in view of prevailing market conditions, it is unreasonable to assume these two lots will be sold within a six month period. Granting IBIS a one year relief from interim zoning will increase probability of sale without prejudicing the city. For these reasons, the Applicant respectfully requests the City Council amend conditions 4 and 5 to permit building envelopes as proposed and extend the relief period for one year. Dated at Burlington, Vermont, this �y day of August, 1990. &WRPORATION l� nary P. xenoe, Esq. Duly Authorized Agent cc: Steve Stitzel, Esq. Chuck Hafter, City Manager Frederick Molthen MPK/M86t City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658-7955 August 8, 1990 Paul Farrar Chairman, City Council City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 Re: I.B.I.S. Application Dear Paul: ZONING ADMINISTRATOR 658-7958 The Planning Commission reviewed the Draft Findings of Fact dated August 3, 1990 for the above referenced application. The Commis- sion fully supports the conditions attached to the approval. We strongly feel that the tremendous views offered from the Nowland Ridge are an important public asset and should be preserved. The building envelopes and height limitations contained in the above referenced document should work well to help accomplish this goal. The Commission also reviewed the proposal by Bill Cimonetti regarding a "Boulepark" along the 80 foot wide r.o.w. extending eastward from Spear Street through the I.B.I.S. subdivision. We feel this is an interesting concept and should be pursued. We suggest, however, that the Council look at a permanent facility rather than a temporary facility. This would require a larger r.o.w. (perhaps 1001) to allow a separated viewing facility from a future Holmes Road Extension (see attached sketch). Paul Farrar Chairman, City Council Re: I.B.I.S. Application August 8, 1990 Page 2 The Commission commends the Council in its efforts to protect for the public the spectacular views from the Spear Street corridor. Sincerely, Bill Burgess, Chairman, South Burlington Planning Commission 1 Encl BB/mcp ___._ f►7 4 Zj City of South Burlington 575 DORSET STREET J SOUTH BURLINGTON, VERMONT 05403 TEL. (802) 658-7953 OFFICE OF CITY MANAGER CHARLES E. HAFTER August 3, 1990 Chairman and City Council City of South Burlington South Burlington, VT 05403 Re: Deliberation in IBIS request; Proposed findings; Special Meeting 6:30 PM To All Members: The Council will meet at 6:30 PM on Monday, August 6, in special session at the site of the IBIS interim zoning request on Spear Street. Attached are proposed findings for Council to review during the regular meeting to follow. They can be adopted at that time. The findings establish a view protection zone and a planting height limita- tion. Bill Szymanski and I spent considerable time on site shooting angles and developing these zones. They present maximum view protection from the top of the City's right-of-way on Deerfield Drive and the potential park site south of the property in discussion. The two resultant building envelopes are shown on the attached plat. Sincerely, Chuck Hafter City Manager CEH/peh Draft: August 3, 1990 CITY COUNCIL CITY OF SOUTH BURLINGTON IN RE: APPLICATION OF IBIS CORPORATION 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 IBIS Corporation, hereinafter "Applicant", for approval to construct single family residences on Lots 2 and 3 on a plan entitled "Final Plat, IBIS Corporation, South Burlington, Vermont," dated December , 19 The proposed residences fail to comply with the "Interim Zoning Regulations" adopted by the Council on April 17, 1989. The City Council conducted public h e a r i n g s o n t h i s a p p l i c a t i o n o n �9 The president of IBIS Corporation, Frederick Moulton, was present at some of these hearings and was represented at all of the hearings by Attorney Mary Kehoe. Based upon the evidence submitted at the hearings mentioned above, and the site visit conducted by the Council on August 6, 1990, the Council hereby renders the following decision on this application: Findings of Fact 1. IBIS Corporation is the record owner of the property 1 which is the subject of this application which is commonly known as 1570 Spear Street. This property consists of Lots 1, 2 and 3 and a proposed 80 foot wide right of way proposed for city street purposes, all as shown on the above -referenced plan. 2. The subject property is located on the easterly side of Spear Street, so-called. By its application, IBIS Corporation seeks approval to construct single family residences within the building envelopes located on Lots 2 and 3 of the above -referenced plan. 3. The height and dimensions of the proposed buildings are specified in a Memorandum submitted in support of this request dated July 23, 1990 and signed by Mary P. Kehoe, attached to this Decision as Exhibit A. The structures will be connected to municipal sewer in accordance with the approximate design specifications set forth in a letter from Kevin M. Dragon of Trudell Consulting Engineers, Inc., to Mary Kehoe, dated July 18, 1990, attached to this Decision as Exhibit B. conclusions The Interim Zoning Regulations prohibit the construction of new structures. Since the applicant proposes to construct two new residences, the proposed construction fails to comply with the Interim Zoning Regulations. For this reason the 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 2 existing or planned community facilities, services or lands." The applicant proposes to connect both new residences to public sewer and water services. Both of these contain adequate capacity for two new residences. The applicant proposes to provide access to Lots 2 and 3 by a shared right of way off of the proposed new city right of way located between Lots 1 and 2. This shared driveway will be in the approximate location of the easterly boundary of Lots 2 and 3. By establishing this shared driveway off of the proposed city right of way, applicant has eliminated the need to establish two new curb cuts onto Spear Street, a heavily traveled public street. Applicant has also agreed to close the Spear Street curb cut which is located on Lot 1 and establish a new driveway for Lot 1 off of the proposed city right of way. The subject property is located in the vicinity of the intersection of Spear Street and Swift Street. The city is presently considering plans to upgrade this intersection. Applicant has agreed to contribute to the city that portion of the upgrade cost which is reasonably attributed to the establishment of two new residences. Based on the matters discussed above, and if development of the residences occurs in accordance with the conditions set forth below, the Council concludes that construction of the proposed residences 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 3 consider the proposed use with respect to "the existing patterns and uses of development in the area." The proposed residences are 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 expansion 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 residences will be served by public water and public sewer, this Council concludes that there are no environmental limitations on this site which preclude the proposed development. The subject property is surrounded by city improvements both proposed and under consideration. The survey of the property shows a proposed city street within an 80 foot wide right of way along the northern boundary of Lot 2. The City may establish parking and other improvements in this 80 foot wide right of way to provide the public access to the views to the west. The city is presently considering the establishment of a new north/south city street to the east of the subject property. It is possible that the right of way for this proposed north/south city street could adjoin the eastern boundary of the subject property. The city is further considering the acquisition of land that adjoins the 4 subject property to the south for park purposes. Given these possible public improvements, new structures located on Lots 2 and 3 could have an impact on views to the west from such properties. The Council further notes that landscaping and accessory structures could also have an adverse impact on views. The applicant has agreed to confine the proposed residences to defined building envelopes located on Lots 2 and 3 to minimize the impact such structures will have on such possible public views. If limited in such matter, the Council concludes that such residences can be constructed without a significant impact on such views. If additional limitations are placed on vegetation, landscaping and accessory structures, these views can be further protected. Based on these matters, and if development of the residences and related landscaping and accessory structures occur in accordance with the conditions set forth below, the Council concludes that the development of the lots will not have an adverse impact on the significant natural resource aspects of this area and particularly the available views. 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 Adirondacks, with a strong emphasis on City acquisition of scenic turnouts. (Comprehensive Plan, dated 1985- 5 Esthetics, History and Cultural Resources Chapter). As already noted, the proposed development, if accomplished in accordance with the conditions of this approval, will not adversely impact these views. 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 and establish front yard, side year and,rear yard setbacks. The structures proposed in this case will .comply with these dimensional requirements. Based on this, this Council concludes that the proposed development complies with the zoning regulations of the City of South Burlington. 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 (e)". For the reasons set forth in conclusions 1-4 above, this Council concludes that the proposed project can be constructed consistent with the health, safety and welfare of the City of South Burlington. Decision and Conditions The request of IBIS Corporation pursuant to 24 V.S.A. Section 4410 to construct single family residences on Lots 2 and 3 of the above state plan, is approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the 0 proposed City right of way that adjoins the north boundary of Lot 2. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition q below. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 3, the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residence to be constructed on lot 2 shall be located in a building envelope '16 feet by '�VP feet that will be 3 feet from the eastern boundary of the lot and 9 feet from the southern boundary of the lot. This building envelope shall be shown on the plan required by condition l below. 5. The residence to be constructed on lot 3 shall be located in a building envelope toO feet by ►DG feet that will be 3 O feet from the eastern boundary of the lot and .��'`�( feet MO 1+-- from the ern boundary of the lot. This building envelope shall be shown on the plan required by condition c� below. 6. Neither residence shall exceed a height of �-9 from 7 pre -construction grade. t 7. Those portions of lots'2 and 3 located within the view protection zones specified on the plan attached to this decision as Exhibit C shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each 100 feet that such improvements or landscaping are located west of the lots' eastern boundary. This view protection zone shall be shown on the plan required by condition below. 8. At such time as the proposed city right of way located between lots 1 and 2 is constructed in accordance with the standards applicable to the construction of city streets, Applicant agrees to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the new city street. 9. Within 60 days of the date of this approval, Applicant shall prepare and deliver to the City Planner for his review and approval a survey of the subject property that incorporates the information required by conditions 1 , `I r- and 7 above. 10. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 11. This approval shall expire within six months of the date set forth below if the applicant shall not have, within such time, applied for zoning permits for lots and ,2' under the South Burlington Zoning Ordinance. 8 12. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. Dated at South Burlington, Vermont this day of August, 1990. K:\SON016.agr Pi �v.aT� �ct:cv+,tt�a� •r=s s VOL, L, vG V O 1.� , 1 3 , T• C. voL. VO L. VOL, 3A Y VOL. 209 1 VO\1, 13S , OWNC�I Lela C.OT.T O'A AT\OW 13 •r O ti7 L A1t ST, 2.6 } .0 t3 •3 + ry w r A.W �1OW pAt LAND 1 , 6'f A 1_ T�eij S 2G:4 G•.tp.w C Mf '7�N� 11\,fit G1.------------ L )-o-r Lo 1.6a 7tia1 J 000 �J, \ j�o•Aaptsr• �VI � C t Y 0 0 � /� �,.• 1Sa0 '�.-TO AW\�T aT7--� 1?0.00• _ 2.11,1ti• � .IM 1•I.I.K•1•,. W AK �\\annmgrr � I- ECGtET rr.0l V(* I 1rOw — — _ pro-Y•e.�T� L\>•►a. �" Kw.. Zi3I.S CO"R'PO'RA'T\OT1 wA-cax L\Naa. I •,.,.•' + SOU's'X 731.1'R\.\?JG"COIi , V�'R1'\Ow>T 1XON T\4 '.I O 70\�\T �G Su•\1•, -tr T- City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 TEL. (802) 658-7953 OFFICE OF CITY MANAGER CHARLES E. HAFTER August 3, 1990 Chairman and City Council City of South Burlington South Burlington, VT 05403 Re: Deliberation in IBIS request; Proposed findings; Special Meeting 6:30 PM To All Members: The Council will meet at 6:30 PM on Monday, August 6, in special session at the site of the IBIS interim zoning request on Spear Street. Attached are proposed findings for Council to review during the regular meeting to follow. They can be adopted at that time. The findings establish a view protection zone and a planting height limita- tion. Bill Szymanski and I spent considerable time on site shooting angles and developing these zones. They present maximum view protection from the top of the City's right-of-way on Deerfield Drive and the potential park site south of the property in discussion. The two resultant building envelopes are shown on the attached plat. Sincerely, Chuck Hafter City Manager CEH/peh Draft: August 3, 1990 CITY COUNCIL CITY OF SOUTH BURLINGTON IN RE: APPLICATION OF IBIS CORPORATION 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 IBIS Corporation, hereinafter "Applicant", for approval to construct single family residences on Lots 2 and 3 on a plan entitled "Final Plat, IBIS Corporation, South Burlington, Vermont," dated December , 19 The proposed residences fail to comply with the "Interim Zoning Regulations" adopted by the Council on April 17, 1989. The City Council conducted public h e a r i n g s o n t h i s a pq p 1 in c a t i o n o n li r The president of IBIS Corporation, Frederick Moulton, was present at some of these hearings and was represented at all of the hearings by Attorney Mary Kehoe. Based upon the evidence submitted at the hearings mentioned above, and the site visit conducted by the Council on August 6, 1990, the Council hereby renders the following decision on this application: Findings of Fact 1. IBIS Corporation is the record owner of the property 1 which is the subject of this application which is commonly known as 1570 Spear Street. This property consists of Lots 1, 2 and 3 and a proposed 80 foot wide right of way proposed for city street purposes, all as shown on the above -referenced plan. 2. The subject property is located on the easterly side of Spear Street, so-called. By its application, IBIS Corporation seeks approval to construct single family residences within the building envelopes located on Lots 2 and 3 of the above -referenced plan. , 3. The height and dimensions of the proposed buildings are specified in a Memorandum submitted in support of this request dated July 23, 1990 and signed by Mary P. Kehoe, attached to this Decision as Exhibit A. The structures will be connected to municipal sewer in accordance with the approximate design specifications set forth in a letter from Kevin M. Dragon of Trudell Consulting Engineers, Inc., to Mary Kehoe, dated July 18, 1990, attached to this Decision as Exhibit B. conclusions The Interim Zoning Regulations prohibit the construction of new structures. Since the applicant proposes to construct two new residences, the proposed construction fails to comply with the Interim Zoning Regulations. For this reason the 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 2 existing or planned community facilities, services or lands." The applicant proposes to connect both new residences to public sewer and water services. Both of these contain adequate capacity for two new residences. The applicant proposes to provide access to Lots 2 and 3 by a shared right of way off of the proposed new city right of way located between Lots 1 and 2. This shared driveway will be in the approximate location of the easterly boundary of Lots 2 and 3. By establishing this shared driveway off of the proposed city right of way, applicant has eliminated the need to establish two new curb cuts onto Spear Street, a heavily traveled public street. Applicant has also agreed to close the Spear Street curb cut which is located on Lot 1 and establish a new driveway for Lot 1 off of the proposed city right of way. The subject property is located in the vicinity of the intersection of Spear Street and Swift Street. The city is presently considering plans to upgrade this intersection. Applicant has agreed to contribute to the city that portion of the upgrade cost which is reasonably attributed to the establishment of two new residences. Based on the matters discussed above, and if development of the residences occurs in accordance with the conditions set forth below, the Council concludes that construction of the proposed residences 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 3 consider the proposed use with respect to "the existing patterns and uses of development in the area." The proposed residences are 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 expansion 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 residences will be served by public water and public sewer, this Council concludes that there are no environmental limitations on this site which preclude the proposed development. The subject property is surrounded by city improvements both proposed and under consideration. The survey of the property shows a proposed city street within an 80 foot wide right of way along the northern boundary of Lot 2. The City may establish parking and other improvements in this 80 foot wide right of way to provide the public access to the views to the west. The city is presently considering the establishment of a new north/south city street to the east of the subject property. It is possible that the right of way for this proposed north/south city street could adjoin the eastern boundary of the subject property. The city is further considering the acquisition of land that adjoins the 4 subject property to the south for park purposes. Given these possible public improvements, new structures located on Lots 2 and 3 could have an impact on views to the west from such properties. The Council further notes that landscaping and accessory structures could also have an adverse impact on views. The applicant has agreed to confine the proposed residences to defined building envelopes located on Lots 2 and 3 to minimize the impact such structures will have on such possible public views. If limited in such matter, the Council concludes that such residences can be constructed without a significant impact on such views. If additional limitations are placed on vegetation, landscaping and accessory structures, these views can be further protected. Based on these matters, and if development of the residences and related landscaping and accessory structures occur in accordance with the conditions set forth below, the Council concludes that the development of the lots will not have an adverse impact on the significant natural resource aspects of this area and particularly the available views. 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 Adirondacks, with a strong emphasis on City acquisition of scenic turnouts. (Comprehensive Plan, dated 1985- 5 Esthetics, History and Cultural Resources Chapter). As already noted, the proposed development, if accomplished in accordance with the conditions of this approval, will not adversely impact these views. 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 and establish front yard, side year and,rear yard setbacks. The structures proposed in this case will .comply with these dimensional requirements. Based on this, this Council concludes that the proposed development complies with the zoning regulations of the City of South Burlington. 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 (e)". For the reasons set forth in conclusions 1-4 above, this Council concludes that the proposed project can be constructed consistent with the health, safety and welfare of the City of South Burlington. Decision and Conditions The request of IBIS Corporation pursuant to 24 V.S.A. Section 4410 to construct single family residences on Lots 2 and 3 of the above state plan, is approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the 0 proposed City right of way that adjoins the north boundary of Lot 2. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition � below. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 3, the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residence to be constructed on lot 2 shall be located in a building envelope '�5 I- feet by lip feet that will be 2 C� feet from the eastern boundary of the lot and -S-� feet from the southern boundary of the lot. This building envelope shall be shown on the plan required by condition 9 below. 5. The residence to be constructed on lot 3 shall be located in a building envelope voO feet by ID(o feet that will be 3 O feet from the eastern boundary of the lot and ifeet "O U "9'- r h e i- . from the ern boundary of the lot. This building envelope shall be shown on the plan required by condition 9 below. 6. Neither residence shall exceed a height of 9 from pre -construction grade. 7. Those portions of lots'2 and 3 located within the view protection zones specified on the plan attached to this decision as Exhibit C shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each 100 feet that such improvements or landscaping are located west of the lots' eastern boundary. This view protection zone shall be shown on the plan required by condition 1 below. 8. At such time as the proposed city right of way located between lots 1 and 2 is constructed in accordance with the standards applicable to the construction of city streets, Applicant agrees'to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the new city street. 9. Within 60 days of the date of this approval, Applicant shall prepare and deliver to the City Planner for his review and approval a survey of the subject property that incorporates the information required by conditions 1 `i S� and 7 above. 10. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 11. This approval shall expire within six months of the date set forth below if the applicant shall not have, within such time, applied for zoning permits for lots ,2.1" and ,2' under the South z 3 Burlington zoning Ordinance. 8 12. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. Dated at South Burlington, Vermont this day of August, 1990. K:\SON016.agr Q7 �\zaT� �ttr•cti+.vcWc �' t vo1., e, +•a 1ti!. VOL. moo, TF s0 voL. 104) , �s • voL. 1sa OWli t'R MIS 1_101.TOTlAT10N A3'74 bTL^w, S-r, sO. �tt'R 1,1N4Td4, V"t', 06403, 3 r � )1 fi .w•u.la ^r 1 1 A.W. �10W LAH� 1 /del � i tT Ai �i YI Q A W. . �4•.; �� tivLwn� gcn`s.. _ \". 200^' GL74' Imo-- 1'70. 00 + S•iit ?S '- \1 '� � IV�x 1� I 1 l.• 1' � W7�� Y o �., Aped I L,0 r +► / A. w, •+-TO MWt.T oh-rr— L 1-.S.GaE�JT� ""•� � • ' ON T\N O 1T a� r rr ooPo �, I (�.�aw�cs w..�n i+� � . a+..�o•�a�csss,' •1 I11 t.ss k,Orr .� Fl\taboo rT. V11 t a-7o �so.00 s.ea W A�f s�t.t4. S O V T K 7bt1'R1..\ H Cw'C O 1�1 � V LR T1 O H'T No Text 1 Draft: August 3, 1990 CITY COUNCIL CITY OF SOUTH BURLINGTON IN RE: APPLICATION OF IBIS CORPORATION 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 IBIS Corporation, hereinafter "Applicant", for approval to construct single family residences on Lots 2 and 3 on a plan entitled "Final Plat, IBIS Corporation, South Burlington, Vermont," dated December , 19 The proposed residences fail to comply with the "Interim Zoning Regulations" adopted by the Council on April 17, 1989. The City Council conducted public h e a r i n g s o n t h i s a p p 1 i c a t1 i/ o n o n The president of IBIS Corporation, Frederick Moulton, was present at some of these hearings and was represented at all of the hearings by Attorney Mary Kehoe. Based upon the evidence submitted at the hearings mentioned above, and the site visit conducted by the Council on August 6, 1990, the Council hereby renders the following decision on this application: Findings of Fact 1. IBIS Corporation is the record owner of the property 1 which is the subject of this application which is commonly known as 1570 Spear Street. This property consists of Lots 1, 2 and 3 and a proposed 80 foot wide right of way proposed for city street purposes, all as shown on the above -referenced plan. 2. The subject property is located on the easterly side of Spear Street, so-called. By its application, IBIS Corporation seeks approval to construct single family residences within the building envelopes located on Lots 2 and 3 of the above -referenced plan. 3. The height and dimensions of the proposed buildings are specified in a Memorandum submitted in support of this request dated July 23, 1990 and signed by Mary P. Kehoe, attached to this Decision as Exhibit A. The structures will be connected to municipal sewer in accordance with the approximate design specifications set forth in a letter from Kevin M. Dragon of Trudell Consulting Engineers, Inc., to Mary Kehoe, dated July 18, 1990, attached to this Decision as Exhibit B. conclusions The Interim Zoning Regulations prohibit the construction of new structures. Since the applicant proposes to construct two new residences, the proposed construction fails to comply with the Interim Zoning Regulations. For this reason the 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 2 existing or planned community facilities, services or lands." The applicant proposes to connect both new residences to public sewer and water services. Both of these contain adequate capacity for two new residences. The applicant proposes to provide access to Lots 2 and 3 by a shared right of way off of the proposed new city right of way located between Lots 1 and 2. This shared driveway will be in the approximate location of the easterly boundary of Lots 2 and 3. By establishing this shared driveway off of the proposed city right of way, applicant has eliminated the need to establish two new curb cuts onto Spear Street, a heavily traveled public street. Applicant has also agreed to close the Spear Street curb cut which is located on Lot 1 and establish a new driveway for Lot 1 off of the proposed city right of way. The subject property is located in the vicinity of the intersection of Spear Street and Swift Street. The city is presently considering plans to upgrade this intersection. Applicant has agreed to contribute to the city that portion of the upgrade cost which is reasonably attributed to the establishment of two new residences. Based on the matters discussed above, and if development of the residences occurs in accordance with the conditions set forth below, the Council concludes that construction of the proposed residences 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 3 consider the proposed use with respect to "the existing patterns and uses of development in the area." The proposed residences are 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 expansion 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 residences will be served by public water and public sewer, this Council concludes that there are no environmental limitations on this site which preclude the proposed development. The subject property is surrounded by city improvements both proposed and under consideration. The survey of the property shows a proposed city street within an 80 foot wide right of way along the northern boundary of Lot 2. The City may establish parking and other improvements in this 80 foot wide right of way to provide the public access to the views to the west. The city is presently considering the establishment of a new north/south city street to the east of the subject property. It is possible that the right of way for this proposed north/south city street could adjoin the eastern boundary of the subject property. The city is further considering the acquisition of land that adjoins the 4 subject property to the south for park purposes. Given these possible public improvements, new structures located on Lots 2 and 3 could have an impact on views to the west from such properties. The Council further notes that landscaping and accessory structures could also have an adverse impact on views. The applicant has agreed to confine the proposed residences to defined building envelopes located on Lots 2 and 3 to minimize the impact such structures will have on such possible public views. If limited in such matter, the Council concludes that such residences can be constructed without a significant impact on such views. If additional limitations are placed on vegetation, landscaping and accessory structures, these views can be further protected. Based on these matters, and if development of the residences and related landscaping and accessory structures occur in accordance with the conditions set forth below, the Council concludes that the development of the lots will not have an adverse impact on the significant natural resource aspects of this area and particularly the available views. 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 Adirondacks, with a strong emphasis on City acquisition of scenic turnouts. (Comprehensive Plan, dated 1985- 5 Esthetics, History and Cultural Resources Chapter). As already noted, the proposed development, if accomplished in accordance with the conditions of this approval, will not adversely impact these views. 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 and establish front yard, side year and,rear yard setbacks. The structures proposed in this case will comply with these dimensional requirements. Based on this, this Council concludes that the proposed development complies with the zoning regulations of the City of South Burlington. 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 (e)". For the reasons set forth in conclusions 1-4 above, this Council concludes that the proposed project can be constructed consistent with the health, safety and welfare of the City of South Burlington. Decision and Conditions The request of IBIS Corporation pursuant to 24 V.S.A. Section 4410 to construct single family residences on Lots 2 and 3 of the above state plan, is approved subject to compliance with the following conditions: 1. Lots 2 and 3 must share a common curb cut onto the 10 proposed City right of way that adjoins the north boundary of Lot 2. The location of this curb cut and the driveway for lots 2 and 3 must be shown on the plan required under condition `) below. 2. If the City establishes an intersection improvement fee for the intersection of Swift Street and Spear Street which is levied on residential development, Applicant agrees to pay the fee assessed for two single family residences. 3. Prior to the occupancy of residences constructed on lots 2 and 31 the building sewer for such residences shall be connected to the City sewer system located in the vicinity of the intersection of Spear Street and Deerfield Drive. Applicant shall pay for the cost of constructing all improvements necessary to accomplish such connection in accordance with applicable City standards, including, if necessary, the upgrade of such improvements to accommodate such connections. 4. The residence to be constructed on lot 2 shall be located in a building envelope � feet by feet that will be feet from the eastern boundary of the lot and ' ' feet from the southern boundary of the lot. This building envelope shall be shown on the plan required by condition 9 below. 5. The residence to be constructed on lot 3 shall be located in a building envelope toff feet by ►OG feet that will be ?y feet from the eastern boundary of the lot and � 0 1Y feet from the southern boundary of the lot. This building envelope l shall be shown on the plan required by condition ( below. 6. Neither residence shall exceed a height of 9 from 7 pre -construction grade. 1 7. Those portions of lots12 and 3 located within the view protection zones specified on the plan attached to this decision as Exhibit C shall be subject to the restriction that no improvements, including fences, or landscaping located within such zones shall exceed an elevation of 399.5 feet, minus 3.1 feet for each 100 feet that such improvements or landscaping are located west of the lots' eastern boundary. This view protection zone c shall be shown on the plan required by condition I below. 8. At such time as the proposed city right of way located between lots 1 and 2 is constructed in accordance with the standards applicable to the construction of city streets, Applicant agrees to eliminate the curb cut from lot 1 onto Spear Street and locate the curb cut for lot 1 on the new city street. 9. Within 60 days of the date of this approval, Applicant shall prepare.and deliver to the City Planner for his review and approval a survey of the subject property that incorporates the information required by conditions I� `/ 5'— and above. 10. This approval does not relieve the applicant of the responsibility of complying with other City regulations and ordinances applicable to the proposed development. 11. This approval shall expire within six months of the date set forth below if the applicant shall not have, within such time, applied for zoning permits for lots ," and ,2' under the South z 3 Burlington Zoning Ordinance. E3 12. The conditions of this approval shall run with and bind the land and shall, therefore, be binding on Applicant, and Applicant's heirs, successors and assigns. Dated at South Burlington, Vermont this day of August, 1990. K:\SON016.agr 9 July 16, 1990 SUBJECT: IBIS Property TO: City Council City Manager FROM: Bill Cimonetti 1. I have walked the IBIS property on Spear Street extensively, paying particular attention to the easterly and westerly views, and attempting to visualize how any public view might be retained if the three lots are developed. As has been stated previously, the views today are spectacular, but the terrain is such that once you get to the top of the rise it is very flat for long distance. Hence it will not be possible to see over one story structures that are west of any north -south ridge road. Similarly, it will not be easy to see the Green Mountain range to the east over any one story structures east of the ridge road. If "overlook" is to be preserved while allowing development in this area, it can only be done by view corridors. 2. What ever is allowed on the three IBIS lots will surely set the theme for the proposed development of the large Nowland lands south of IBIS. 3. The City wishes to acquire a right of way for an easterly extension of Deerfield street; IBIS has indicated a willingness to grant this. 4. I am struck with the observation that the view which WILL REMAIN after development of the IBIS lots is the westerly view from Deerfield street extended. All of the view being provided from the new city park and protected by the view corridor ordinances will be available from the new street as it goes east from Spear Street. Thus I propose the following for consideration: a. Create a "BOULEPARC", a boulevard park. Acquire sufficient ROW for the new Deerfield street to allow two adequate street lanes, and in addition, a sidewalk and separated recreation path on one side, perhaps the south, for the initial length of the new street. ALSO acquire sufficient ROW for vehicles to park on the diagonal along the other, (north), side of the street. Provide an adequate turn -around space at the top of the new street. b. People visiting the bouleparc by auto could drive up the new street, turn around, and then back into a diagonal parking space on the hill, facing west. The view from a parked vehicle would be great; access to the new city park from the parking space would be quite good. c. Cyclists and walkers could enjoy the westerly view from the new recreation path. One or two bike racks might be installed. A sitting bench or two might be provided. d. The bouleparc concept might be extended to provide views to the east as considerations for the further extension of Deerfield Drive emerge. 5. The original stipulations proposed by the Planning Commission should be placed on the development of the IBIS lots; no curb cuts on Spear Street for all three lots; all access to all three IBIS lots from the new street. 6. The new street should be constructed to city standards, and include the bouleparc features simultaneous with anv development of the IBIS lots. Utilities and sanitary connections should be buried in the ROW, logically on the sidewalk and rec.. path side. 7. It should be noted that this concept of view preservation is ENHANCED by locating structures on the IBIS lots near the back, i.e. easterly side, of the properties. This is a feature that should have appeal to the owners. 8. This area of South Burlington will very soon benefit from the very expensive new city park. The "bouleparc" concept adds some nice features at very modest cost. 9. I propose that the City Council consider this idea, solicit opinions from the Planning Commission and the SEQ Committee, and propose the issue to IBIS. file:CNCL716.DOC -FA- 45rr. d 5FL-VO �rt N4Y•Lt •L \ q.i4\hiY '.).h• 9yc1R�1N1N _-.__ _'�).11a�►tl 2l g1 9 O.) 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Iso.00•-- I I li 1 ,� •\ Ex7 r,�inqq ,,,� I I I r I57o S�C�12X 1 L v t AI I r {1 b I ° % 1 ,•.. y}'..a"r_. 0 N�1 I io I %Z.YM 7g2LV00D •+�.�z• - 7-1 A .�a I Aa I Qrdd, I atA I 2,•H.6AG{von/ R.,TRA(LKER / i�, a d9� I. t ► Jon W4 I AAC pAll-� I W fA I Yn♦. t ov O� I A . .I A. W• NO WLA.aL � .- A\- •� W J . I Aft ,•...ovv.,.\ , A 000 I upo (�c1♦Qn�c ,..��uv•.s el.+ t4 „ I I I r I VI 1"10 i of A(-' sn" w. I 1 T 1 so no' � ti6.DO Do. oo' n � 1 11' so } J . •�'lMuwy �J ..• .. �Kc n �.•, \ b\11�, �C • 1•u 10 v / __.. _... _ '1lObC L• M.O. vI wIN\• A �� •µ�{ /N, LARD TO -ZyC COhv C-<ETi 'r0 i$•LS COS -POMP.- \ON SOUTH Suomi\—\V-4 , VERh0NT S�n•.�.t. — \�� Ce0' pcc. 18 1986 crier._..-:c-: �o• o co' 17 o Imo' 7.10 .00 6. IL.aL'PART)1 \NC V-V. TCVIf EL \ '7. 1'1. an GEAR AND DAVIS, INC. ATTORNEYS AT LAW P.O. BOX 412 BURLINGTON, VERMONT 05402-0412 802-863-3491 ALLEN F. GEAR CHRISTOPHER L. DAVIS MARY P. KEHOE June 28, 1989 Clerk So. Burlington Planning Commission City of South Burlington 575 Dorset Street So. Burlington, VT 05403 OFFICES LOCATED AT FIVE BURLINGTON SQUARE VERMONT FEDERAL BANK BLDG. BURLINGTON, VERMONT RE: Appeal of Planning Commission Decision re: IBIS Corporation In Re: 1570 Spear Street, So. Burlington Dear Clerk: Enclosed please find the Notice of Appeal and 10 copies together with a check in the amount of $35.00 payable to Chittenden Superior Court. Pursuant to 24 V.S.A. Sections 4464 and 4475 and Rule 74 of the Vermont Rules of Civil Procedure, I am filing this notice with you. Please serve the Notice of Appeal upon all interested parties and send the original Notice of Appeal together with the enclosed check to the following address for filing with the Court: Diane A. Lavallee, Clerk Chittenden Superior Court P.O. Box 187 Burlington, VT 05402 Please also file all papers, exhibits, plans, minutes of meetings and transcripts of any oral proceedings that you have in the file on this matter to the Court Clerk for filing in this Appeal within 30 days of the date hereof as provided in said Rule 74. afg\a29\b If you have any questions, please call me. Very truly yours, GEAR AND DAVIS, INC. Allen F. Gear, Esq. AFG/drb cc: bJoseph Weith, City Planner Robert J. Perry, Esq. Attorney for So. Burlington Planning Commission Frederick Molthen, President IBIS Corporation afg\a29\b STATE OF VERMONT CHITTENDEN COUNTY, S.S. IN RE: ) CHITTENDEN SUPERIOR COURT 1570 Spear Street ) DOCKET NO. So. Burlington, Vermont ) APPEAL NOW COMES IBIS Corporation by and through its attorney's Gear and Davis, Inc. and appeals the decision of the South Burlington Planning Commissions denying the subdivision application of IBIS Corporation for a three lot subdivision of its land known and designated as 1570 Spear Street. The South Burlington Planning Commission denied the application of IBIS Corporation at the meeting of said Planning Commission on June 13, 1989. The appellant, IBIS Corporation files this appeal for the following reasons: 1. It complied with all the requirements of the South Burlington subdivision regulations and should have been granted a subdivision permit. 2. It complied with all the requirements of the South Burlington Planning Commission and said Commission should have granted its request for a subdivision permit. 3. The reasons for the denial of the appellant's application for subdivision permit had nothing to do with it and were reasons attributed to the previous owners. afg\a29\b 4. The City of South Burlington breached an agreement between itself and IBIS Corporation dated September 22, 1988. A photocopy of which is attached hereto and made a part hereof by reference which says in part as follows: "From the date of this agreement, the above -described parcel and the adjoining property of IBIS CORPORATION shall constitute a single lot for purposes of compliance with City of South Burlington Zoning Regulations and subdivision regulations. At any time after the date hereof, IBIS CORPORATION shall have the full right to use, develope and subdivide said merge property in compliance with applicable City regulations." The City breached this agreement by not considering the affect of said agreement whereby the property was merged into one parcel of land for subdivision purposes. 5. The Planning Commission exceeded its authority in attempting to bring into this subdivision proceeding the prior owner of the appellant's real estate. The Planning Commission has no power in its by-laws or under state law to.bring in a previous land owner under its jurisdiction in this instant action. 6. Wherefore, the appellant, IBIS Corporation requests the Court to grant it a permit for a subdivision as applied for. Dated at Burlington, Vermont, this 0n J day of 1989. afg\a29\b OR PO TIO �/ BY: C�c. �1142 Gear and Davis, Inc. Attorney's for IBIS Corporation Appellant AGREEMENT 7h�� AGREEKENT entered into and effective this ;21, day of :ember, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Howland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS CORPORATION by Deed dated September 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington subdivision Regulations and their applicability to this transactions In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance. under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that the above -mentioned parcel of land conveyed to _them b " crr:CTZ ..`. Tthe CHITTENDEN TRUST COMPANY, Executor of the Estate of "i.Aurora W. Howland and Helen N. Gagnon and Marie N. Underwood shall be merged with other lands which they own in the City, which lands lie northerly of and adjoin the.above-described parcel. From the date of this Agreement, the above -described parcel and the ""-0"' adjoining property of IBIS CORPORATION shall constitute M a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable city regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. — I SE OF ZBIS CORPO y thor fired Agent CITY OFSOUTHB jTRLI NGTON i Duly Au�yor d Agent STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this 21 6L day of September, 1988, personally appeared F/i) , duly authorized agent of IBIS CORPORATION and aeknow a ged this instrument by him sealed andubscribF d to be his free act and deed and the free act d o BICORPORATION. e Bfore as, Notary c STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of September, 1986, personally appeared _ �- ""-// __T 11--._�, l , duly authorized agent of e City Of South Burlington and acknowledged this instrument by him/her sealed and subscribed to be his/her free act and deed and the free act G TR ZWY and deed of the City of South Burlington. Before ice, Notary Public BFSWILLS\Nowland.Agr South Burlington City Clerk's Office Received for Recordjj'�71':� 19 O'CLOCK �30 Minutes ATTEST: C R Vo1. 271 Pa76o-,- 1 M E M O R A N D U M To: Chuck Hafter, City Manager From: Joe Weith, City Planner Re: I.B.I.S. Subdivision Date: July 6, 1990 The Boyle report recommends public facilities on most of the land owned by I.B.I.S. As shown on exhibit A, the report proposes a pubic park which includes lots 2 and 3 of the I.B.I.S. subdivi- sion as well as a large portion of Nowland land located immedi- ately south. The report also proposes an arterial roadway through the I.B.I.S. property which is consistent with the pro- posed 80 foot r.o.w. on the subdivision plan. I strongly recommend that the City acquire land in this area of the City for a public park. The ridge offers spectacular unob- structed views which should be preserved for the public. I understand that acquiring lots 2 and 3 of the I.B.I.S. subdivi- sion is unlikely, however, the Nowland property to the south is valuable as a public resource and should be preserved. The new Overlook Park is a great asset to the community. The City should not stop here in its commitment to protect important public views. A 15 acre park on the Nowland Ridge would greatly enhance the Spear Street view protection efforts. A 15 acre parcel park would allow for more activities than just viewing. The Boyle report recommends a recreation path to follow the east -west arterial and also a north -south link along the ridge (Exhibit B). The 80 foot r.o.w. through the I.B.I.S. property would adequately accommodate the path. The path along the ridge is proposed on Nowland property. The primary objective for a north -south path, I feel, is that it serve the future City Park on the Nowland property. Therefore, it does not really matter from a view standpoint whether the path travels over the back of the I.B.I.S. lots or if it travels over the Nowland Ridge. In either case, views from the path will be obstructed by houses on the I.B.I.S. lots. My recommendations for the I.B.I.S. subdivision are as follows: 1. The lot configuration as shown should be approved including the proposed 80 foot r.o.w. 1 Memorandum Re: I.B.I.S. Subdivision July 6, 1990 Page 2 2. Building envelopes should be designated on the plan and should be pushed as far east an north as possible. This will better preserve view lines from a future City Park to be located on Nowland property immediately south (Exhibit C). I recommend that the building envelope for lot 3 be reduced as shown on Exhibit D to preserve maximum views from a future City Park. 3. Height limits on vegetation, fences, etc. should be placed on lot #3 outside of the building envelope to preserve view lines from a future City Park. 4. I do not feel it is necessary to acquire a recreation path easement over the I.B.I.S. lots. This easement could be acquired when the Nowland parcel comes in for subdivision approval. The recreation path network could be better coordinated with future roads and connections when a subdivision plan is presented for the 100 + acre Nowland property. 4 a r V. #a r r<! cn• � �I ,�l t� �'`� • ' I I� 0 1 iPm 1K nrwril - zA°rmrrMF.lri �ta A°EMEI1 Cf04n nl EN '�� 1� l y • rd.50IT f31 KE ;T'} 1 ' C7 I ammob I g lr- •�� rovow•saw• Cb ' 3T V - • I • I 1 ° o o �j� �� f _�_ � wr+ • 4� Y LJ O u V PIIEASAIIT WAY- (1 ' Ll Ix Icv:w 10, V \ `\ kiC• I� ��. E X14 1VIT' C 80, To goo , I 'ED STREETS r---- SWIFT ST. ;ED PARK "TED NATURAL N D CFpq R GeV pR. ti Q . �v a rA S 2e- = 4 6'- Sg' fin/ 7,k9 0_C) -- 1-70. 0 0' �r O S O O ;z ; 25 _} 1 �ov5 r J I W z� 0 r 82� 120 15Q_ FT. � a 1570 P 0a �3oW Q cod IL y I 52�-4!o-SS~W S0. DO' 1 (0. 00' x► l arr 'Z _ =1 -r 3 -- � c� r C DN ELafra L 3 o r 3 2-.GO F%C'Z ES t ' (� OCoS SQ. vi (9 2.9 � ►� �s ��lS ._ .. f i CA ao M p 1-2/CG£ 0 � I - • I N I O' I O 1 ji 1 0-7 � i z� v d � M31A .1l W 1—( �p/ `srl �y s � 5!?/b��;l �1o�7z13ro �o'00' ; 11 a� j S 09t? 31b'�143�. ,zK) O° b • qp 1 1 3 � 0 I a I I 1 ` f I • 0 f rlvELOPES Ll as Pu ,45 Po Ssi 4 'f� AS Fad PKES�� Vie --ro L.crr z- LoT 1 I 5PE,4 (Z ST 2G E T 5>—e-rc,H Q3 4� r f®r • AW D I Cs3TE * 3°I 4a 0 'F^b Gr T y Fo 2 I bVEt2.LooK P/3-R.K, ��' Mtn x I i I 1 (�aM I SP5;Ar R STREET SKETCH C M. �= too' �o pEJStk�� ,ep�K ESE1Zv� VIEW ,:NT at O N LpTZ LcsT- -sk 3 JOSEPH C. M)NEIL (1919-1978) JOSF,PH E. McNEII, FRANCIS X. MURRAY WILLIAM H. SORRELL .101IN T. LEDDY NANCY GOSSSHEAHAN STEVEN F. STITZE1, PATTI R. PAGE.• l5'ILLIAM F. ELIAS LINDA R. LFROY ADVI=FI) IN N.Y.) MCNEIL, MURRAY & SORRELL, INC. ATTORNEYS AT LAW 271 SOUTH UNION STREET BURLINGTON, VERMONT 05401 TELEPIIONE (802) 883-4531 FAX (802l 883-1743 March 17, 1989 ECEIVEL MAR 2 0 1989 MANAGF.::'S OFFICE ._,, OF SO. 13UP INGT('' OF COUNSEL ARTHUR W.CERNOSIA Allen F. Gear, Esq. Gear & Davis P.O. Box 412 Burlington, VT 05402-0412 RE: IBIS Corporation - Nolan Estate - City of South Burlington Land Swap Dear Al: I have enclosed a conceptual sketch of the land swap we discussed earlier today. Please keep in mind that this is a concept proposal, not a specific design. The City is interested in discussing this proposal or alternatives with your clients at their earliest convenience. Very truly yours, Steven F. Stitzel SFS/tmr Enclosure cc: William Szymanski M/gear.sfs r LA V D 5W A P 5 PE4 r- sT. i MCNEIL, MURRAY & SORRELL, INC. ATTORNEYS AT LAW 271 SOUTH UNION STREET BURLING'I'ON, VERMONT 05401 TELEPHONE (802) 8634531 JOSEPH C. McNEIL (1919-19781 JOSEPH E. McNEIL FRANCIS X. MURRAY WILLIAM H. SORRELL JOHN T. LEDDY NANCY GOSS SHEAHAN STEVEN F. STITZEL PATTI R. PAGE• WILLIAM F. ELLIS LINDA R. LLROY 1•AL80 ADMirml) IN N.Y.) October 31, 1988 Richard Ward South Burlington Offices 575 Dorset Street South Burlington, VT 05403 Re: Noland to IBIS Corporation Dear Dick: OF COUNSEL ARTHUR W.CERNOSIA I have enclosed the following executed legal documents in connection with the above -referenced conveyance: 1. Irrevocable Offer of Dedication (for extension of Deerfield Way) 2. Warranty Deed with Transfer Tax Return (for extension of Deerfield Way) 3. Agreement (merging 5.38 acres parcel with adjoining lands of IBIS Corporation) The Offer of Dedication and Merger Agreement should be executed at this time and recorded. The Warranty Dead and Transfer Tax Return should be held in escrow. Very truly yours, Steven F. Stitzel SFS/kb Enc. AGREEMENT AGREEMENT entered into and effective this '21)tJ day of September, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS CORPORATION by Deed dated September , 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington Subdivision Regulations and their applicability to this transaction: In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that the above -mentioned parcel of land conveyed to them by HWEYER 6 TETZI>.FF HWEYE,&TTZLA the CHITTENDEN TRUST COMPANY, Executor of the Estate of ATTORNEYS Aurora W. Nowland and Helen N. Gagnon and Marie N. 9 IN STREET Underwood shall be merged with other lands which they ONxS" � own in the City, which lands lie northerly of and ^`I"o" adjoin the above -described parcel. From the date of this 5" Agreement, the above -described parcel and the adjoining property of IBIS CORPORATION shall constitute a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable City regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. YXISEN OF• IBIS CORPO BY: a- i my thor d Agent CITY OF SOUTH BURLINGTON BY: Duly Author zed Agent STATE OF VERMONT CHITTENDEN COUNTY, SS. At this Burlington s �� q �, �Z day of September, 1988, personally appeared ,F/ e�) aldGUmd ig , duly authorized agent of IBIS CORPORATION and acknowledged this instrument by him sealed and JFubscribed to be his free act and deed and the free act a 7,,d-, of-'IBI CORPORATION. Before me, ' Notary Pub c STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of September, 1988, personally appeared duly authorized agent of the City of South Burlington and acknowledged this instrument by him/her sealed and subscribed to be his/her free act and deed and the free act tWEY R&TT ZL-A and deed of the City of South Burlington. IW EVER & TETZLAFF ATTORNEYS )O' `IN STREET Before me, .40X 569 Notary Public tLINGTON, VERK4 NJT os4o2-os6a BFS WI LLS \Novel and . Agr IRREVOCABLE OFFER OF DEDICATION AGREEMENT by and between IBIS CORPORATION, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland, Helen N. Gagnon and Marie N. Underwood, hereinafter referred to as "Owner" and the CITY OF SOUTH BURLINGTON, hereinafter referred to as "Municipality". W I T N E S S E T H: WHEREAS, certain lands shown as schedule A and attached hereto and/or interests therein are to be dedicated to the Municipality free and clear of all encumbrances. WHEREAS, the Owner has delivered to the Municipality appropriate deeds of conveyance for the above described lands and/or interests therein. NOW, THEREFORE, for good and valuable consideration, it is covenanted and agreed as follows: 1. The Owner herewith delivers to Municipality a deed of conveyance, the descriptive portions of which are attached as Exhibits A, hereinafter, said delivery constituting a formal offer of dedication to the Municipality to be held by the Municipality until the acceptance or rejection of such offer of dedication by the legislative body of the Municipality. 2. The Owner agrees that said formal offer of dedication is irrevocable and can be accepted by the Municipality in whole or part at any time. - 1 - 3. This irrevocable offer of dedication shall run with the land and shall be binding upon all assigns, grantees, successors and/or heirs of the Owner. Dated this !_ day of I SEN E OF,; STATE OF VERMONT CHITTENDEN COUNTY, SS. 1988. IBIS CORPORA N B �- I Duly Au or zed Agent CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland t Cheryl Parzych, Tr it Officer He en N. Gagnon / Marie N. Underwood CITY OF SOUTH BURLINGTON BY: Duly Authorized Agent At U11C Inil`i('w" X, �._ this L 7 1 _ day of �(✓Fr�=��l1�C-/�. , 1988, j!!f,� �:, c�i�N%i'�=�Ic'tN; Duly Authorized Agent, personally appeared and he/she acknowledged this instrument by her/him sealed and subscribed to be his/her free act and deed and the free act and deed of IBIS Corporation. Before me, Notary Pu 1 c - 2 - STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this day of 1988, � Cheryl Parzych, Trust Officer, persona ly appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed and the free act and deed of the Chittenden Trust Company. Before me, Notary PJVT-" .,,- '-t- STATE OF VERMONT CHITTENDEN COUNTY, SS. At this �� day of , 1988, Helen N. Gagnon personally appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed. Before me, N ary 1 c STATE OF VERMONT CHITTENDEN COUNTY, SS. At this day of 1988, Marie N. Underwood personal y appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed. Before me, N ary P 1 c STATE OF VERMONT CHITTENDEN COUNTY, SS.. RTq this day of , 1988, Personally appeared and he/she acknowledged th s nstrument by her/him sealed and subscribed to be her/his free act and deed and the free act and deed of the City of South Burlington. BFSREAL\Nowland.Off Before me, Notary Publ c - 3 - EXHIBIT A The interests of all the Grantors herein in and to a certain strip of land having a frontage on the east side of Spear Street and a uniform width of 80 feet that runs easterly from Spear Street for a distance of 397 feet, more or less. This strip of land is located so as to be an extension of "Deerfield Way" and the northwesterly corner of said right of way as it intersections with the easterly line of Spear Street is 48.86 south of the northwest corner of a parcel of land conveyed by Helen Gagnon, Marie Underwood and the Chittenden Trust Company as Executor of the Estate of Aurora W. Nowland to IBIS Corporation by two deeds of approximate even date. The herein Grantors join together in this conveyance to convey to the City of South Burlington the entire fee title in and to said strip of land that has a uniform width of 80 feet and runs easterly from Spear Street approximately 397 feet. This conveyance is for street purposes and the warranties herein are only to the extent of the interest of the herein Grantors in and to said strip of land. Chittenden Trust Company executes this deed as Executor of the Estate of Aurora W. Nowland and this deed is to act only as an Executor's Deed for the Chittenden Trust Company for the interest of the late Aurora W. Nowland in said strip of land but as a Warranty Deed to the other Grantors but only to the extent of their various interests. The four Grantors herein have a title to all of the interests in said strip of land. Reference is hereby made to the herein conveyed parcel as it is shown on a Plan of Land entitled "Land To Be Conveyed to IBIS Corporation, South Burlington, Vermont", G. E. Bedard, Inc., Hinesburg, VT., dated December 18, 1986, revised July 27, 1988, and recorded in Volume , Page of the Land Records of the City of South Burlington. Reference is hereby made to the above instruments, the records thereof and the references therein made in aid of this description. ✓.THAM, EASTMAN. NWEYER & TETZLAFF ATTORNEYS f %IN STREET .."0!M RLINOTON, VERMONT 05402-0566 WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS; THAT We, IBIS CORPORATION, a Virginia Corporation with office and principal place of business in Herndon, County of Fairfax, State of Virginia, and CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and HELEN N. GAGNON and MARIE N. UNDERWOOD, of South Burlington, in the County of Chittenden, and State of Vermont, GRANTORS, in the consideration of TEN AND MORE DOLLARS paid to their full satisfaction by CITY OF SOUTH BURLINGTON, a Vermont municipality, GRANTEE, by these presents, does freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the said GRANTEE, CITY OF SOUTH BURLINGTON, and its successors and assigns forever, a certain piece of land in the City of South Burlington, in the County of Chittenden and State of Vermont, described as follows, viz: The interests of all the Grantors herein in and to a certain strip of land having a frontage on the east side of Spear Street and a uniform width of 80 feet that runs easterly from Spear Street for a distance of 397 feet, more or less. This strip of land is located so as to be an extension of "Deerfield Way" and the northwesterly corner of said right of way as it intersections with the easterly line of Spear Street is 48.86 south of the northwest corner of a parcel of land conveyed by Helen Gagnon, Marie Underwood and the Chittenden Trust Company as Executor of the Estate of Aurora W. Nowland to IBIS Corporation by two deeds of approximate even date. The herein Grantors join together in this conveyance to convey to the City of South Burlington the entire fee title in and to said strip of land that has a uniform width of 80 feet and runs easterly from Spear Street approximately 397 feet. This conveyance is for street purposes and the warranties herein are only to the extent of the interest of the herein Grantors in and to said strip of land. Chittenden Trust Company executes this deed as Executor of the Estate of Aurora W. Nowland and this deed is to act only as an Executor's Deed for the Chittenden Trust Company for the interest of the late Aurora W. Nowland in said strip of land but as a Warranty Deed to the other Grantors but only to the extent of their various interests. The four Grantors herein have a title to all of the interests in said strip of land. Reference is hereby made to the herein conveyed parcel as it is shown on a Plan of Land entitled "Land To Be Conveyed to "TMA&tE"TMANL IBIS Corporation, South Burlington, Vermont", G. E. Bedard, Su cvueTETZLAr Inc., Hinesburg, VT., dated December 18, 1986, revised July ATTON&Y$ 27, 1988, and recorded in Volume , Page of the XG AW§Tw[[T Land Records of the City of South Burlington. Po Wx( M ft4 TOK V[J1M T os4W-M" 1 Reference is hereby made to the above instruments, the records thereof and the references therein made in aid of this description. TO HAVE AND TO HOLD said granted premises, with all the privileges and appurtenances thereof, to the said GRANTEE, CITY OF SOUTH BURLINGTON,its successors and assigns, to its own use and behoof forever; and we the said GRANTORS, IBIS CORPORATION, CHITTENDEN TRUST COMPANY and HELEN N. GAGNON and MARIE N. UNDERWOOD, for ourselves and our heirs, executors and administrators, successors and assigns, do covenant with the said GRANTEE, CITY OF SOUTH BURLINGTON, its successors and assigns, that until the ensealing of these presents, we are the sole owners of the premises, and have good right and title to convey the same in manner aforesaid, that they are FREE FROM EVERY ENCUMBRANCE; EXCEPT as above stated. And we do hereby engage to WARRANT AND DEFEND the same against all lawful claims whatever, EXCEPT as above stated. IN WITNESS WHEREOF, We hereunto set our hands and seals this -;2-,1— day of ��y f. .1988 In Presence of: IBIS CORPORA & / �`ts7C"I�` Duly Author zed Agen C CHITTENDEN TRUST COMPANY, Executor of the Estate of Aur a� W. yowl n$ f � BY: Cheryl Barzych, T ustx Off icer Helen N. Gagnon Marie N. Underwood CHITTENDEN COUNTY, SS. At this Z day of 1988, F� r/7c '! '' ".Vln c2rut , Duly LATNAM. EASTMAN. Authorized Agent, personally appeared an he/she SCN KVIERaTiTZLAFF acknowledged this instrument by her/him sealed and ATTO"S subscribed to be his/her free act and dead and the free act ]O! MAIN Sri ET D.O. box 5" 6f IN6TO . VERMONT osw2 o56e 2 - LATNAM, EASTMAN, SC—K(V & TSTZLAI/ ATTp WYS ) MAIN STN T ao.a xe W-.NOTON, VENMONT OS.O.Z-OSlA and deed of IBIS Corporation. Before me, 4 ,�V Notary Public STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this day of 1988, Cheryl Parzych, Trust Officer, persona ly appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed and the free act and deed of the Chittenden Trust Company. Before me, Notary P)abllcy� � `L STATE OF VERMONT CHITTENDEN COUNTY, SS. At this 2PYI-1 day of 5irr r!� ) I ?W, ?- , 1988, Helen N. Gagnon personally appeared and she acknowledged this instrum nt by her sealed and subscribed to be her free ac a d deed Before me, '.c L L-.. Notary Publ c STATE OF VERMONT CHITTENDEN COUNTY, SS. At this '12" `L day of Slit, TFi-01-5 /-- 1988, Marie N. Underwood personally appeared and she acknowledged this instrument by her sealed and subscribed to be yfxee ti aid deed. �ji i Before me, L�-[�:.l��L Notary Publ c BFSREAL\ROW2.WD - 3 - y 1 - A. lJ 't J J PROPERTY TRANSFER TAX RETURN RMONO. A 910 4 5 5 VEMONTI EL EH, VERMONT 0560215 A. SE L R (TRANSFEROR) NAM tS) MAILING A RESS IN LL - L D ZIP CODE SOCIAL SECURITY NUMBER BUYE (TRAM. FIE) ) SOCIAL SECURITY NUMBEH MAILING ADDRESS IN FULL - INCLUDING ZIP CODE ' • LOCATION (Such as "173 M" SI.. Burkn0lon" OR "TM Smah Farm, Old MiN Rod, Tuhbrle0a") 11 papally is Wo d in two towns. plaese kel both. If the buyer. ticflrkd Ia& pur IM M1re intare&I (Fa Stmpe) b UN poperl V. plesse stale Ilse iMwN1 ac9r✓•• (srd1 as "L1N Eaalr.""Puprlwl Eu•m•nl;' •l6.) APPROXIMATE LAND SIZE : ACREAGE : AND LOT SIZE : FRONTAGE : DEPTH Q ^� Pleae t dteck the eW at is W.(a) tleaamin0 eu&Itrte buA ivill. , ` 1� NONE ] ❑ HOUBe 5 ❑ BARN 7 ElMOBILE HOME 9 ❑ STORE 2 OvFACTORY 4 ❑ CAMP. VACATION HOME 6 ❑ APARTMENT, NO. UNITS e ❑ CONDOMINIUM. NO. UNnS 10 ❑ OTHER (EXPLAIN) PMaas Check the calepory wh" heat dea x"a IM use of the poporly BEFORE TRANSFER as shown n the GRAND LIST BOON. — 1 ❑ PRIMARY RESIDENCE 2 ❑ TW13EMAND a ❑ GOVERNMENT USE 6 ❑ OPEN LAND a ❑ OTHER (EXPLAIN) ei-A 0lna Rr.b" 110RIea) ❑ NEWLY Op,ISIRUCTEO 0 ❑ OPERATING FARM 5 ❑ COMMERCIAL 7 ❑ INDUSTRIAL (haver occtat Ma man 1 .a def e ❑CAMP OR VACATION DUSTM Plea&& cflaa the Calapory which low deii-Isa& the plopoead use of the prol mr AFTER TRANSFER. — t ❑ PRIMARY RESIDENCE e ❑ OPERATING FARM 5 ❑ COMMERCIAL 7 ❑ INDUSTRIAL 9 ❑ CAMP OR VACATION 2 ❑ TIMBERLAND a ❑ GOVERNMENT USE 6 ❑ OPEN LAND e ❑ OTHER (EXPLAIN) e • THIS SECTION MUST BE COMPLETED IF TRANSFER IS CLAIMED TO BE EXEMPT FROM PROPERTY TRANSFER TAX a s n an aemylxn is daatwd, you need nd _Vic" the &action KW "TAX.- bA you MUST COMPLETE the &&Ginn titled "VALUE." GTE EXEMPTION aM E%pUtIN; REAL PROPEA VALUE 110ES ale vakM d arty nMw, poputy, elocka. OpttYr, . ()hen b &eaer. ar10 ate v d arty morq.pea a Irr aswntrd W the bWn Y 1M trar111« was a 0✓1 W wa br honlrtal OOMIdMal w. give the eallrhitt" Ir Markel vat's 01 the real proPeny 1-51 rred. TOTAL PRICE PAID j LESS PERSONAL PROPERTY S REAL PROPERTY VALUE S TA% PAYMENT DUE. FIVE TENTHS OF ONE PERCENT 40 OD6) OF THE AMOUNT SHOWN ABOVE. BUT NOT LESS TRi W j 1 00 (FOR EXAMPLE IF THE VALUE WAS $10.000 THE TAX DUE IS 1140.011E IF THE VALUE WAS 8100., THE TAX DUE 18 $1.001. AMOUNT WE: )0-- 4 Make checks payalthie b: VERMONT DEPARTMENT OF TAXES. a are were txrCtYnslarlosa hate TrarWr which su00tlw •NI M pro& pnd b air prape.ry wa& ealr more a Pea elan b w mrkM vast•. pleas eaplawL a DATE SELLER ACQUIRED. IF BY GIFT, DATE DONOR ORIGINALLY ACQUIRED' IF A VERMONT LAND GAINS TAX RETURN IS BEING FILED, CHECK RE: IF A VERMONT LAND GAINS TAX RETURN is NUT BEING FILED. INDICATE REASON BELOW: tMUST BE ONE OF REASONS GIVEN IN INSTRUCTIONS.) Real Estate Broker's nettle III any): If purchasers pnnclpal Les dance exemption is claimed and purcf set la JS to comply with exemption requireoKnils. pu haser will be liable for full amount of Land Gams Tax. NOTE: Rg gnte PaA-Year Residents Non -Residents - If you realized a gain on the sale of your property Iha1 was included in your Federal Adjusted Gross Income, Ormcint ax turn must be fled. CERTIFICATE PURSUANT TO 32 V.S.A. §9606 (c) FOR SUBDIVISION REGULATIONS (18 V.S.A. §1218 at seq.) This karlslet is in CORVILiBROO with 01e Sllbdfly" Regtlations of the Agency of Environmental Corservalion and any ptmrws issued thereurder. Yes No _ 1 The property has ever received a perml, "city the W" a _ . P1rmLs must be obtained PRIOR TO TRANSFER d ex0rpt. Specify which rears bered barn from the In truction applies or. on a separate sheet. explain other circumstances lot exemption Y _ . CERTIFICATE —Pursuant to 32 V.S.A. §9606 (a) we hereby swear and affirm that we have investigated and have disclosed to each party, involved in this transfer &A of our knowledge regarding FLOOD. REGULATIONS, if any, which affect the site hereinbefore described. We hereby swear"aflirrn that thls return and above certificates are true, correct and complete to the best of our knowledge as required by 32 V.S.A. §9606 (b), (c) and (a). W81tul falalflcallon of any statement contained herein may result In a fine of not more than 111000. -- t� _o -4'1-;t b CERTIFICATE URSUANT 2 9 qt T'S LAND7USE AND DEVELOPMENT LAW - ACT 250 (10 V.S.A. §6001 at seq.) This conveyance of real properly and any development (hereon is in Compliance with or exempt Itom 10 V.S.A. Chapter 151 (Act 250). Vermont's Land Use and Development Law and any permits Issued thereunder. Yes No If this property has ever received an Act 250 permit, please spocily permit a __ It exempt, specify which numbered item from the instructions applies or, on a separate sheet, explain other circumstances. IMh (the Sel er(s)j hereby swear and alllrm that this certificate is true and complete to the best of my/our knowledge u required by 32 V.S.A. §9608, Knowing falsliication of any statement contained herein Is punishable by a line of not more than $500 Or Imprisonment for not more than one year. L ) ITiAATQiIEf) ATE— si•L7ER(3i S�NTRE(3j — DATE—__ l CCV2-t� TrCtir __— � — PREPAREH S SIGNATURE j,-fir sPHE PARED BY _ (PHiIRT OR TYPE < � PREPARERS ADDRESS TO BE COMPLETED I OR ALI.NOWIEDGEA1fiN1 TOwN/CIiY TOWN NUMBER -- RETURN RECEIVED TAX PAID. BOARD OF HEALTH CERTIFICATE DATE OF RECORD RECEIVED VERMONT LAND USE AND DEVELOPMENT PLANS ACT CERTIFICATE RECEIVED, A 910 4 5 5 '.. BOOK NUM BE PAGE NO .. RETURN NO. LISTED VALUE It _ GRAND LIST OF 19 —_ BIONED _ CLERH MAP AND PAWFI Nns -- —_ — _ - _ TiATF -- --- a�soUtM BURLIRCroN Y 4* F a o+ J ��t'et r 1M,66 Nfo A rowN TA PLANNER 658-7955 1 P City of South: -Burlington 575 DORSET STREET SOUTH BURLINGTON; VERMONT 05403 June .9, 1989 ZONING ADMINISTRATOR 658-7958 Mr. Allen Gear P.O. Box 423 Burlington, Vermont 05402 Re: IBIS Subdivision, 1570 Spear Street Dear Mr. Gear: Enclosed is the agenda for next Tuesday's Planning Commission meeting and my comments to the Planning Commission. Please be sure someone is present on Tuesday, June 13, 1989 at 7:30 P.M. to represent your request. Sincerely, Joe Weith, City Planner Encls cc: Mr. Richard Lamb Encls PLANNING COMMISSION 13 JUNE 1989 paqe 3 6. Based on expressed representation of the applicant- there will be no outside storage. 7. A revised plan addressinq stipulation 4 shall be submitted to the City Planner for approval prior to permit. 8. The zoninq permit shall be obtained within 6 months or this approval is null and void Mrs. Maher seconded. Motion passed unanimously. 4. Public Hearinq: Continue Final Plat application of IBIS Corporation for subdivision of a 6.8 acre parcel into 3 lots of 1.9, 2.3, and 2.6 acres, 1570 Spear Street Mr. Gear, representing the applicant, said he felt they had complied with the Commission's concern on the plan and that the matter was now out of his client's hands. He presented members with documents on issues other than the plan and noted that his client bought the land from Marie Underwood and Helen Gaqnon, as indicated on documents on the land transfer and on discussions with the Citv Attornev and former City Planner. He said his clients would not have bought the land had they known it would arouse the present controversy. He requested the Commission allow the subdivision permit as he felt his clients had compled with all requlations. Mr. Jacob noted the Commission had been taken by surprise by this plan. He said they had been thinkinq of this land for some time from the point of view of scenic corridors and were confused as to what happened and why. He said the Commission had asked the advice of independent Counsel, Mr. Robert Perry. Mr. Craig said he didn't want to give the impression he had any- thinq against any of the parties and wished that the boundary line revision had gone through the subdivision review. He felt everyone concerned had some degree of responsibility for the current situation. Mrs. Maher wanted to make it clear that applicant is aware that when subdividion of the northern lots had happened, it was the Commission's understanding the land under consideration now was still part of the larger parcel. She stressed that it was shown to the Commission that way. Members were firm in their feeling that the view should be main- tained and that a heiqht limitation on structures should be con- sidered. Mr. Burqess said he wanted to aet 150 of the land for views instead of a cash amount. PLANNING COMMISSION 13 JUNE 1989 page 4 A poll of members indicated a preference for a motion to deny. Ms. Peacock moved the Planninq Commission deny the Final Plat ap- plicatin of IBIS Corporation for subdivision of a 6.8 acre parcel into three lots of 1.9, 2.3 and 2.6 acres as depicted on a plan entitled "Final Plat, IBIS Corporation, South Burlington Vermont" prepared by Geor^e Bedard and dated 12/18/86. last revised 4/14/89 based on the followinq findings: 1. The proposed subdivision consists of a 1.3 acre parcel acquired by IBIS Corporation on September 27, 1984 and a 5.3 acre parcel acquired on September 22, 1988 from the Estate of Aurora W. Nowland, Marie N. Underwood, and Helen N. Gagnon. 2. The Nowland Estate, et al, own substantial additional land on the southerly and easterly sides of the subject parcel They did not seek subdivision approval prior to conveyance of the parcel to IBIS but rather treated it as a L.oundary line adju t_ment 3. As part of the transfer from the Nowland Estate, et al to IBIS, the parties executed deeds and an offer of irrevocable ded- i ra f-4 nn +-, 4-1,o 114 !-c, .-.F c, ,, 4- 1- n..-I _ .. -i_- r--- --- n- .- . I . of land opposite Deerfield Way for hi^hway purposes 4. Neither the Planninq Commission, nor any of its members indi- vidually, had knowledge of the transfers until January, 1989 when IBIS applied for sketch plan review. 5. The conveyance from the Nowland Estate, et al, to IBIS Corpora- tion is not considered a boundary line adjustment in as much as potential developable lots are created. .6., The conveyance from the Nowland Estate, et al to IBIS Corpora- tion without Planning Commission review forecloses meaningful re view of the subdivision and imposition of conditions reasonably aLrJopriate under relevant statutes and ordinan es 7. Review of the subject IBIS Subdivision cannot occur until sub- division approval has been obtained for the subdivision of the Nowland Estate, et al - Mr. Craiq seconded. Motion passed unanimously Mr. Jacob expressed the hope that all parties can qet together coollv and qet this matter resolved as soon as possible. 5. Continue discussion with Wriqht & Morrissey to consider changinq the zoninq of 2 lots totalinq 94.000 sq ft. from R-4 to C-1, south side of Swift St, immediately_east of Farrell Street, City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658-7955 June 20, 1989 Mr. Allen Geer P.O. Box 423 Burlington, Vermont 05401 Re: IBIS Subdivision, Spear Street Dear Mr. Gear: Enclosed are the May 30, 1989 Planning Commission meeting minutes. Please call if you have any questions. cerely, / Joe Weith, City Planner 1 Encl cc: Mr. Robert Perry JW/mcp ZONING ADMINISTRATOR 658-7958 PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON, VERMONT 05403 ROBERT J. PERRY RONALD C. SCHMUCKER SUZANNE R. BROWN July 10, 1989 Diane Lavallee, Clerk Chittenden Superior Court P.O. Box 187 Burlington, VT 05402 Re: IBIS Corporation / City of South Burlington Dear Diane: Please enter the appearance of Perry & Schmucker in the zoning appeal dated June 28, 1989, as filed by Attorney Allen Gear with the City of South Burlington. Sincerely, Robert J. Perry, Esq. RJP/nlm cc: Joe Weith v i Allen F. Gear, Esq. TELEPHONE (802) 863-4558 TELECOPIER (802) 862-0937 ' State of Vermont T �f ° DEFERRAL OF PERMIT LAWS/REGULATIONS INVOLVED: 18 V.S.A. 151218-1220 and Environmental Protection Rules, Chapter 3-Subdivisions, 9 3.06 Deferral of Permit PERMIT NO.: D-4-1236 APPLICANT/SELLER & ADDRESS: PURCHASER(S) & ADDRESS: Estate of Aurora W. Nowland IBIS Corporation 2 Burlington Square c/o Gear & Davis Burlington, VT 05401 5 Burlington Square, Box 412 Burlington, VT 05401 LOCATION OF SUBDIVISION: Spear Street, South Burlington, Vermont. DESCRIPTION OF SUBDIVISION: Convey 5.38 acres, not improved, retain 115+/- acres. CONDITIONS: (1) The deed for a parcel purchased under the provisions of this permit must include the following "Waiver of Development Rights." All subsequent deeds, leases or contracts of sale must also contain the waiver unless a subdivision permit is obtained. Notice of the purchaser's name and address must be filed with the Division of Protection. "WAIVER OF DEVELOPMENTAL RIGHTS" "In order to comply with the State of Vermont Environmental Protection Rules on the subdivision of lands and disposal of waste including sewage, the grantee shall not construct or erect a structure or building on the parcel of land conveyed herein, the useful occupancy of which will require the in- stallation of plumbing and sewage treatment facilities or convey this land without first complying with said State regulations. The grantee by acceptance of this deed ac- knowledges that this lot may not qualify for approval for development under the appropriate environmental protection or health regulations and that the State may deny an appli- cation to develop the lot." (2) If the parcel being acquired is to be considered for building development at some future date, the purchaser understands that the information required by Section 3-08 of the rules must be submitted for evaluation. If such information does not meet the Environmental Protection Rules, permission to build on the lot will be denied. (3) 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 the "Notice of Permit Recording" in the 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. Dated at Essex Junction, Vermont this 3rd day of October, 1988. Patrick A. Parenteau, Commissioner Department of Environmental Conservation By 1�azZ C.�ZsLcf�CZ�lzy. Ernest P. Christianson Regional Engineer cc: Town Planning Commission o'll Donald Robisky Latham,Eastman,Schweyer, & Tetzlaff a�� su�uMcroK � 4,4, t F Jt or `,dyEo • iowN 90A PLANNER 658-7955 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 May 26, 1989 Attorney Robert Perry Perry & Schmucker 1480 Williston Road South Burlington, Vermont 05403 Cear : IBIS Subdivision Bob: - ZONING ADMINISTRATOR 658-7958 Enclosed is the agenda for next Tuesday's (5/30/89) Planning Commission meeting . The meeting will begin at 7:30 P.M. I look forward to seeing you there. S ' ncereJ9ly , /) Joe Weith, City Planner Encls JW/mcp acres. The exact area to be dedicated has not been identified by the applicant. Another consideration will be to make sure the Memorandum - Planning May 30, 1989 agenda items May 26, 1989 Page 5 multi -family lot meets density requirements if this lot is re- duced in size due to the dedication. The details of this issue will be worked out once the applicant defines the exact area to be dedicated. At this point, however, the applicant wants to know if the Commission is receptive to this concept of dedicating land in lieu of the fee. I shall meet with Bruce O'Neill before the meeting to get his input. Sidewalk fee: As explained in the letter, the applicant feels that lot 18 (the existing home) should be omitted from the calcu- lations of the sidewalk fee. Omitting this lot from the frontage calculations on Patchen Road would decrease the sidewalk fee from $11,745 to $7,305 (by the way, the fee would decrease even fur- ther with the dedication of the pond area to the City). Since there is no clear policy on the City's sidewalk fund, I feel the Commission can decide either way on how much frontage to include in the fee calculation. However, based on past practice (Oak Creek Village is the only other subdivision assessed a sidewalk fee), the entire frontage along the roadway in question was used in calculating the fee. 7) IBIS CORPORATION. BOUNDARY ADJUSTMENT Attorney Robert Perry will be present at Tuesday's meeting.) to clisauss the IBIS Corporation subdivision application. 8) PROPOSED AMENDMENT TO SECTION 18.113 Section 18.113 "Maximum Size of Dwelling Units" currently reads: "Minimum floor area, excluding unfinished basements and attics, porches, garage, and other space not customarily used for living space, shall be 425 square feet for a one bedroom unit and 864 square feet per unit for single, two family and multi -family units. Floor area shall be computed measuring the outside dimen- sions of the building." Apparently, the current ordinance has resulted in the construc- tion of a number of one -bedroom apartments throughout the City. 6� Memorandum - Planning June 13, 1989 agenda items =: June 9, 1989 Page 3 Other: The applicant shall contribute $1800 to the City sidewalk fund based on 120 feet of frontage on Ethan Allen Drive at $15 per linear foot. Also, a change in square footage of office space by more than 25% should require Planning Commission approval. See Bill Szymanski's and Chief Goddette's comments. 5) IBIS CORPORATION. 3-LOT SUBDIVISION. 1570 SPEAR STREET IBIS Corporation proposes to subdivide a 6.8 acre parcel into 3 lots of 1.9, 2.3 and 2.6 acres. The property is located on the east side of Spear Street directly across Deerfield Drive. Lot #1 has an existing single-family house. At the 4/18/89 meeting, it was decided to table the hearing in order for the Commission to hire independent counsel to prepare an opinion regarding the original boundary adjustment of the land in question. The Commission has received two letters regarding the issue which were discussed with the attorney in executive session on May 30, 1989. Other issues which were raised in the past included the authority of the Commission to regulate the size and placement of struc- tures in order to preserve views. It appears that the Commission has authority to do this under Sections 411, 412, and 505 of the Subdivision Regulations. These sections were described in my memo dated 1/14/89 (enclosed). Another issue which was raised in past meetings was the access to the lots. This has been addressed by the applicant through the inclusion of notes on the plat. 6) PROPOSED ZONE CHANGE, SWIFT STREET Mr. Wright and Mr. Morrisey request that the zoning for the 94,000 square feet property located at 99 Swift Street be changed from R-4 to C-1. There is currently a house and autobody repair shop located on the property. This lot is bounded on the east by an electronics business (R4), on the south by Farrell Park and Vermont. Gas (C-2) and on the north by Swift Street. Directly across Swift Street to the nort.:i is a business (C2). A natural area owned by UVM (zoned conserva- tion) is located across Swift Street to the northeast. 3 Memoraridum - Pl.anrii.ng May 23, 1989 agenda items May 1.9, 1989 Page 7 Another consideration might be to change the zoning to R-7. The applicants want to construct an office building and office is a conditional_ use in the R7 zone. Changing the zoning to R7 would allow for a logical progression from higher density uses to lower density uses movie. westward, from C1 to R7 to R4 to Agricultural res:idential. This ori(, is a c•l.ose call. I urge the Commission meiiiher•s to visit the site prior to Tuesday's meeting. 9) DISCUSSION OF LETTER FROM ATTORNEY ROBERT PERRY Enclosed is a letter from Attorney Robert Perry regarding the IBIS Corpor•at.iorr "boundary adjustment." I have warned the agenda item as a possible execut i.ve session. GEAR AND DAVIS, INC. ATTORNEYS AT LAW P.O. BOX 412 BURLINGTON, VERMONT 05402-0412 802-863-3491 ALLEN F. GEAR CHRISTOPHER L. DAVIS MARY P. KEHOE June 28, 1989 Clerk So. Burlington Planning Commission City of South Burlington 575 Dorset Street So. Burlington, VT 05403 OFFICES LOCATED AT FIVE BURLINGTON SQUARE VERMONT FEDERAL BANK BLDG. BURLINGTON, VERMONT RE: Appeal of Planning Commission Decision re: IBIS Corporation In Re: 1570 Spear Street, So. Burlington Dear Clerk: Enclosed please find the Notice of Appeal and 10 copies together with a check in the amount of $35.00 payable to Chittenden Superior Court. Pursuant to 24 V.S.A. Sections 4464 and 4475 and Rule 74 of the Vermont Rules of Civil Procedure, I am filing this notice with you. Please serve the Notice of Appeal upon all interested. parties and send the original Notice of Appeal together with the enclosed check to the following address for filing with the Court: Diane A. Lavallee, Clerk Chittenden Superior Court P.O. Box 187 Burlington, VT 05402 Please also file all papers, exhibits, plans, minutes of meetings and transcripts of any oral proceedings that you have in the file on this matter to the Court Clerk for filing in this Appeal within 30 days of the date hereof as provided in said Rule 74. afg\a29\b If you have any questions, please call me. Very truly yours, GEAR AND DAVIS, INC. Allen F. Gear, sq. AFG/drb cc: Joseph Weith, City Planner Robert J. Perry, Esq. Attorney for So. Burlington Planning Commission Frederick Molthen, President IBIS Corporation afg\a29\b 0 STATE OF VERMONT CHITTENDEN COUNTY, S.S. IN RE: ) CHITTENDEN SUPERIOR COURT 1570 Spear Street ) DOCKET NO. So. Burlington, Vermont ) APPEAL NOW COMES IBIS Corporation by and through its attorney's Gear and Davis, Inc. and appeals the decision of the South Burlington Planning Commissions denying the subdivision application of IBIS Corporation for a three lot subdivision of its land known and designated as 1570 Spear Street. The South Burlington Planning Commission denied the application of IBIS Corporation at the meeting of said Planning Commission on June 13, 1989. The appellant, IBIS Corporation files this appeal for the following reasons: 1. It complied with all the requirements of the South Burlington subdivision regulations and should have been granted a subdivision permit. 2. It complied with all the requirements of the South Burlington Planning Commission and said Commission should have granted its request for a subdivision permit. 3. The reasons for the denial of the appellant's application for subdivision permit had nothing to do with it and were reasons attributed to the previous owners. afg\a29\b 4. The City of South Burlington breached an agreement between itself and IBIS Corporation dated September 22, 1988. A photocopy of which is attached hereto and made a part hereof by reference which says in part as follows: "From the date of this agreement, the above -described parcel and the adjoining property of IBIS CORPORATION shall constitute a single lot for purposes of compliance with City of South Burlington Zoning Regulations and subdivision regulations. At any time after the date hereof, IBIS CORPORATION shall have the full right to use, develope and subdivide said merge property in compliance with applicable City regulations." The City breached this agreement by not considering the affect of said agreement whereby the property was merged into one parcel of land for subdivision purposes. 5. The Planning Commission exceeded its authority in attempting to bring into this subdivision proceeding the prior owner of the appellant's real estate. The Planning Commission has no power in its by-laws or under state law to bring in a previous land owner under its jurisdiction in this instant action. 6. Wherefore, the appellant, IBIS Corporation requests the Court to grant it a permit for a subdivision as applied for. Dated at Burlington, Vermont, this 0�1 day of 1989. afg\a29\b rORn,OTIBY: Gear and Davis, Inc. Attorney's for IBIS Corporation Appellant AGREEMENT AGREEMENT entered into and effective this Z L day of ember, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS CORPORATION by Deed dated September 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington Subdivision Regulations and their applicability to this transactions In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance, under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that the above -mentioned parcel of land conveyed .to these by the CHITTENDEN TRUST COMPANY, Executor of the Estate of " "`T`T` Aurora W. Nowland and Helen N. Gagnon and Marie N. Underwood shall be merged with other lands which they own in the City, which lands lie northerly of and adjoin the above -described j parcel. From the date of this Agreement, the above -described parcel and the adjoining property of IBIS CORPORATION shall constitute �_J n a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable City regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. Z SE OF• IBIS CORPO BY: 'Ouly/4dthori,zed Agent CITY OF SOUTH BPRLINGTON i BY: old eL,-- Duly Au�y6r cAd Agent STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this 2L day of September, 1988, personally appeared _Fl4+) 1111LTftfil(. twz—"Drev Q,ud' duly authorized agent of IBIS CORPORATION and acknowledged this instrument by him sealed and ubserib d to be his Erse act and deed and the free act a d o IBZ CORPORATION. Before as, t� Li Notary Public STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of 64pteaber, 1986, personally appeared �c�cU duly authorized agent of e City of South Burlington and acknowledged this instrument by him/her sealed and subscribed to be his/her free act and deed and the free act C, C. L TRZ.JJi 6,T(-T and deed of the City of South Burlington. Before ice,-- ` Notary Public BFSWILLS\Nowland.Agr South Burlington Ctty Clerk's Office Received for Record a 19 -_O'CLOCK Minutes ATTEST: C C R VO1. 271 Pa 7 �6o1"-, PLANNING COMMISSION 30 MAY 1989 PAGE 5 9. Discuss proposed City of South Burlington Public/Private Roadway Policy Members considered a proposal made by Mr. Craig. Mr. Burgess said he had no objection to what is proposed. It seems to make common sense. Mr. Audette said the question he had was of having private roads built to city specs, excluding curbs and width. Mr. Jacob said private roads could be limited to a certain length. Mr. Audette felt commercial roads should never be private. The Commission agreed to take commercial out of this policy completely. Wording will be added to make this specific. 10. Executive Session Mr. Burgess moved the Commission adjourn and reconvene in Executive Session to deliberate on the IBIS Corp. subdivision application from the point of view of possible legal action and to take no action in Executive Session and to reconvene in regular session only for the purpose of adjournment. Mrs. Maher seconded. Motion passed unanimously. CITY OF SOUI`H BURLI NG IION Subdivision Application - FINAL. PLAT 1) Name of Applicant 2) Name of Subdivision IBIS Corporatio IBIS Corporation 3) Indicate any changes to name, address, or phone number of owner of record, applicant, contact person, engineer, surveyor, attorney or plat designer since preliminary plat application: None 4) Indicate any changes to the subdivision, such as number of lots or units, property lines, applicant's legal interest in the property, or developmental timetable, since preliminary plat application: None S) Submit f ive copies of a final set of plans consisting of a final plat plus engineering drawings and containing all information required under section 202.1 of the subdivision regulations for a minor subdivision and under section 204.1(a) for a major subdivision. 6) Submit tto draft copies of all legal documents required under section 202.1 (11) and (12) of the subdivision regulations for a minor subdivision and under section 204.1(b) for a major subdivision. IBIS CORPORATION '1 � -� B Y : �' IB Sn ORPOReATfON orney or (Signa ure� applicant or contact person Da to City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 6517955 January 6, 1989 IBIS Corporation c/o Allen F. Gear, Esq. P.O. Box 412 Burlington, Vermont 05402 Re: 3-Lot. Subdivision, Spear Street Dear Mr. Gear: ZONING ADMINISTRATOR 65&7958 Enclosed is the agenda for next Tuesday's Planning Commission meeting and my comments to the Planning Commission. Also enclosed are Bill Szymanski's comments. Please he, sur(-1 is present on Tuesday, January 10, 1989 at. 7:30 P.M. Lo r,.r>:•r,s:. nL your request. �Sincerely, ' Joe Weith, kiky Planner dIti/mr p City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658-7955 May 2, 1989 Mr. Allen Gear P.O. Box 412 Burlington, Vermont 05402 Re: 3-Lot Subdivision, Spear Street Dear Mr. Gear: ZONING ADMINISTRATOR 658-7958 Enclosed are the April 1g, 1989 Planning Commission meeting minutes. Please call if you have any questions. Sincerely, Joe Weith, City Planner 1 Encl cc: Richard Lamb JW/mcp MCNEIL & MURRAY ATTORNEYS AT LAW A PROFESSIONAL CORPORATION 271 SOUTH UNION STREET BURLINGTON, VERMONT 05401 TELEPHONE (802(863-4531 FAX (802( 863-1743 JOSEPH C. McNEIL (1919-1978) JOSEPH E. McNEIL FRANCIS X. MURRAY JOHN T. LEDDY NANCY GOSSSHEAHAN STEVEN F. STITZEL PATTI R. PAGE* WILLIAM F. ELLIS LINDA R. LEROY (*ALSO ADMITTED IN N.Y.( March 30, 1989 Mr. Ben Schweyer, Esq. Latham, Eastman, Schweyer & Tetzlaff 308 Main Street, P.O. Box 568 Burlington, VT 05402-0568 RE: Nolan Estate - City of South Burlington Dear Ben: OFCOUNSEL ARTHUR W. CERNOSIA I am writing in respollee -lto pour ,March 10 letter regarding the above -referenced matter. It is the City's customary practice to retain the originals of the documents you identified in your letter. I have attached copies of the documents as recorded in the City Land Records for your records. Please let me know if this is not adequate. Very truly yours, • . V1 Steven F. Stiff SFS#8/214 Attachments ol. 411 age 602 Q) IRREVOCABLE OFFER OF DEDICATION AGREEMENT by and between IBIS CORPORATION, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Howland, Helen N. Gagnon and Marie N. Underwood, hereinafter referred to as "Owner" and the CITY OF SOUTH BURLINGTON, hereinafter referred to as "Municipality". W I T N E 8 S E T H: WHEREAS, certain lands shown as Schedule A and attached hereto and/or interests therein are to be dedicated to the Municipality free and clear of all encuebrances. WHEREAS, the owner has..deLiverad,tmoo the Municipalit appropriate deeds of conveyance for the above described lands and/or interests therein. NOW, THEREFORE, for good and valuable consideration, it is covenanted and agreed as follows: 1. The Owner herewith delivers to Municipality a deed of conveyance, the descriptive portions of which are attached as Exhibits A, hereinafter, said delivery constituting a formal offer of dedication to the Municipality to be held by the Municipality until the acceptance or rejection of such offer of dedication by the legislative body of the Municipality. 2. The Owner agrees that said formal offer of dedication is irrevocable and can be accepted by the Municipality in whole or part at any tile. ( ( Vol, 603.C-') 3. This irrevocable offer of dedication shall run with the land and shall be binding upon all assigns, grantees, successors and/or heirs of the Owner. Dated this day of s,G 1988. Z / V.ESEN E OF) ZBIS CORPORA N AIL B _ / •Z y AuVnorized Agent CHITTENDEN TRUST COMPANY, Executor of the Estate of • tr Aurora W. Ngwland By: ! Li Chetyl-ftrzych,`-Trgat . =� Officer � l . Helen N . Gagnon ..l..�' Marie N. Underwood CITY OF SOUTH B LIHGTOH i / Duly Authq z d Agent i. STATE OF VERMONT CHZTTENDEN COUNTY, SS. At ✓�'t1C�rvuii�v this ZZh� day of 1988, T�F�7 �L�ihFN'.t'I•'FSi�tn�MJ Duly Authorized Agent, personally appeared and he/she acknowledged this instrument by her/him sealed and subscribed to be his/her free act and deed and the free act and deed of IBIS Corporation. Before m®, Notary Public c3w= Ul. 4 /1 age 604 �j STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this day of 1988, Cheryl Parzych, Trust Officer, personaXly appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed and the free act and deed of the Chittenden Trust Company: Before me, Notary 1 c / Z STATE OF VERMONT CHITTENDEN COUNTY, SS. At this day of 1988, Helen H. Gagnon personally appeared/and she acknowledged this instrument by her sealed and subscribed to be her free act and deed.. Before me,_ N6tary 1 c STATE OF VERMONT CHITTENDEN COUNTY, SS. At this `4 day of 1988, Marie N. Underwood personally appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed. Before me,«., N6a ry Pdblic STATE OF VERMONT CHITTENDEN COUNTY, SS. At . ` • /� .f �- this os nay or v personally appeared and he/she acknowledged -this instrument by her/him sealed and subscribed to be her/his free act and deed and the free act and deed of the City of South Burlington. Before me, Notary Public BFSREAL\Howland.Off M "01. Z11 Page 605 EXHIBIT A The interests of all the Grantors herein in and to a certain strip of land having a frontage on the east side of Spear Street and a uniform width of 80 feet that runs easterly from Spear Street for a distance of 397 feet, more or less. This strip of land is located so as to be an extension of "Deerfield Way" and the north oste-rly corner of said right of way as it intersections with the easterly line of Spear Street is 48.86 south of the northwest corner of a parcel of land conveyed by Helen Gagnon, Marie Underwood and the Chittenden Trust Conpany as Executorof the Estate of Aurorr W. Nowland to IBIS Corporation by two deeds of approximate even date. The herein Grantors join together in this _ conveyance to convey to the City of South Burlington the entire fee title in and to said strip of land that has a uniform width of 80 feet and runs easterly from Spear Street appzoxiy.at=ly ,97 t •C� L TCTZ� .- —c.s .s .uw s.wrt+ �...•a. Vcn.o.+ This conveyance is for street purposes and the warranties herein are only to the extent of the interest of the herein Grantors in and to said strip of land. Chittenden Trust Company executes this deed as Executor of the Estate of Aurora W. Nowland and this deed is to act only as an Executor's Deed for the Chittenden Trust Company for the interest of the late Aurora W. Nowland in said strip of land but as a Warranty Deed to the other Grantors but only to the extent of their various interests. The four Grantors herein have a title to all of the interests in said strip of land. Reference is hereby made to the herein conveyed parcel as it is shown on a Plan of Land entitled "Land To Be Conveyed to IBIS Corporation, South Burlington, Vermont", G. E. Bedard, Inc., Hinesburg, VT., dated December 18, 1986, revised July 27, 1988, and recorded in Volume , Page of the Land Records of the City of South Burlington. Reference is hereby made to the above instruments, the records thereof and the references therein made in aid of this description. South Burlington City Clerk's Office Received for Record 19 3 O'CLOCK :3C) Minutes M. ATTEST: CITY C )l. ;4 /1 ige-600 I AGREEMENT AGREEMENT entered into and effective this 2-�ti� day of September, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Howland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS -CORPORATION, by Deed -dated September 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington Subdivision Regulations and their applicability to this transactions In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance_ under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that the above -mentioned parcel of land conveyed to them by T the CHITTENDEN TRUST COMPANY,. -Executor: of. the Estate of "`"EIZ "' j Aurora W. Howland and Helen N. Gagnon and Marie H. Underwood shall be merged with other lands which they own in the City, which lands lie northerly of and adjoin the above -described parcel. From the date of this Agreement, the above -described parcel and the adjoining property of IBIS CORPORATION shall constitute Vol. 271 Pa 601'� _� a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable City regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. - Z SET OF, IBIS CORPO BY: o -1)uly/4dth,ria4d Agent CITY OF SOUTH B URLINGTON Duly AuTr d Agent STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this 2L 6rj day of September, 1988, personally appeared r11+) Iwcutm- I'��;�DFn'- 14Ld, , duly authorized agent of IBIS CORPORATION and aeknow a ged this instrument by his sealed and ubserib d to be his free act and deed and the free act a d o IBI CORPORATION. Bofors se, tv Notary c STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of 84pteaber, 1988, personally appeared 16Z— ,.--._-,-1 , duly authorized agent of the City Of South Burlington and acknowledged this instrument by his/her sealed and subscribed to be his/her free act and deed and the free act and deed of the City of South Burlington. ( • C� G rR Zllsl ///) Before me, Notary Public BFSWILLS\Nowland.Agr South Burlington Ctty Clerk's Office Received for Record C� 19fff _OZZ#=A- ATTEST: j + LoT s'I a -fGxl +oo 5MA,jz.. 15-rX56-r �T 4s; � -J T PkE-.S E K-V°E to to S'KeTu+ � -41 STREET �ao ) 0 0 —E Vr- L 0 U:5,op VIEW L rat I T.WE I G tA -r YIS\A) 1--O T '*- ( no • MION, &` so 15naA tZ ST Ms c- T z A* .. i ft(Sid' e.u4 v.b 4v Puf - `5))) 7T- Y'J�, k �-,, ', lie 6/7/89 JW MOTION OF APPROVAL I move the South Burlington Planning Commission approve the Final Plat application of IBIS Corporation for subdivision of a 6.8 acre parcel into three lots of 1.9, 2.3 and 2.6 acres as depicted on a plan titled "Final Plat, IBIS Corporation, South Burlington, Vermont," prepared by George Bedard and dated 12/18/86, last revised 4/14/89 with the following stipulations: 1) A sewer allocation of 900 gpd for lots 2 and 3 is granted (existing house on lot 1 already has sewer allocation). The applicant shall pay the $2.50 per gallon fee prior to permit. 2) The applicant shall pay prior to permit a $200 per unit recreation fee for the 2 new units to be built on lots 2 and 3. 3) The lots shall be served by the City sewer system which will require the main to be extended up Deerfield Road. Plans for this extension shall be submitted to the City Engineer for approval prior to permit. 4) The Final Plat must be recorded within 90 days or this approval is null and void. 6/13/89 JW MOTION OF DENIAL I move the South Burlington Planning Commission deny the Final Plat application of IBIS Corporation for subdivision of a 6.8 acre parcel into three lots of 1.9, 2.3 and 2.6 acres as depicted on a plan titled "Final Plat, IBIS Corporation, South Burlington, Vermont," prepared by George Bedard and dated 12/18/86, last revised 4/14/89 based on the following findings: 1. The proposed subdivision consists of a 1.3 acre parcel ac- quired by IBIS Corporation on September 27, 1984 and a 5.3 acre parcel acquired on September 22, 1988 from the Estate of Aurora W. Nowland, Marie N. Underwood, and Helen N. Gagnon. 2. The Nowland Estate, et al., own substantial additional land on the southerly and easterly sides of the subject parcel. They did not seek subdivision approval prior to conveyance of the parcel to IBIS but rather treated it as a boundary line adjust- ment. 3. As part of the transfer from the Nowland Estate, et al., to IBIS, the parties executed deeds and an offer of irrevocable dedication to the City of South Burlington for an 80 foot wide strip of land opposite Deerfield Way for highway purposes. 4. Neither the Planning Commission, nor any of its members individually, had knowledge of the transfers until m Wiv� 5. The conveyance from the Nowland Estate, et al., to IBIS Corporation is not considered a boundary line adjustment in as much as potential developable lots are created. 6. The conveyance from the Nowland Estate, et al., to IBIS Corporation without Planning Commission review forecloses mean- ingful review of the subdivision and imposition of conditions reasonably appropriate under relevant statutes and ordinances. 7. Review of the subject IBIS subdivision cannot occur until subdivision approval has been obtained for the subdivision of the Nowland Estate, et al. Memorandum - Planning April 18, 1989 agenda items April 14, 1989 Page 2 Access & Circulation: Access from Patchen Road is via an existing 15' paved drive. Circulation is shown towards the rear of the building to a paved parking lot. Access from this paved drive provides circulation to the northwest and southeast portions of the lot to a gravelled parking area. An existing 17 foot wide curb cut would be closed. I would suggest increasing the entrance drive to 20 feet wide. Also the 29 foot wide gravel aisle should be reduced to 24 feet to preserve green space. Parking: Parking required for this combination of uses is 6 spaces, including 1 handicapped space. The plan shows 16, including 1 handicapped space. Are 16 spaces necessary? Traffic: The property is allowed 7 peak hour trips (Traffic Overlay Zone. 1). The current use (retail/residential) generates 6 peak hour trips based on ITE. The new use will generate 4 peak hour trips based on ITE. Landscaping: The project requires $450 in landscaping value. Applicant intends to save all existing trees, (oak, spruce, elm and tamarack) plants and shrubbery (yew and crab) and plant some perennial flowers. The existing site is well. landscaped. 3) IBIS CORPORATION, 3-LOT SUBDIVISION, SPEAR STREET IBIS Corporation proposes to subdivide a 6.8 acre parcel into 3 lots of 1.9, 2.3 and 2.6 acres. The property is located on the east side of Spear Street directly across Deerfield Drive. Lot. #1 has an existing single-family house. At the 3/21/89 meeting, it was decided to postpone the hearing in order to obtain an opinion from the City Attorney on the Planning Commission's authority to regulate the location and size of houses on a lot in order to preserve views. I met the City Attorney to discuss this issue. It is not clear whether the Planning Commission has authority under Sections 417(g) and (m) of the subdivision regulations since the introduction to this section references only "major" subdivisions. This subdivision is a minor subdivision. However, the Planning Commission may have authority to limit building size and location under SEctions 411, 412, and 505. These sections are described below: 2 Memorandum - Planning April 18, 1989 agend items April 14, 1989 Page 3 Section 411: Under this section, the Planning Commission may require dedication of land "up to a maximum of 15% of the area of any plat" for recreational purposes. This would result in a dedication of 1 acre for this plat (does not include land for road r.o.w.) This dedicated land could be used for an overlook park. Section 505: This section requires subdivisions to "conform to the Comprehensive Plan." Dedication of land for an overlook park would promote the Comprehensive Plans's recommendation for the City to "incorporate scenic turnouts" and provide "Scenic lookouts on the summit of ridges and hills." Section 412: This section requires the "preservation of site amenities which the Commission feels are an asset to the site and/or community. It further says that this preservation "shall be effected insofar as possible through harmonious design and appropriate construction methods." It could be argued that limiting placement and size of buildings is an appropriate design method to preserve the view. Other: At the 3/21/89 meeting, I indicated that there was a 45 day time limit from the date the Commission first hears the application in which the Commission must make a decision. This was incorrect. The 45 day time limit starts when the Public hearing is closed. This hearing was postponed and, therefore, has not yet been officially closed. I am meeting again with STeve Stitzel to further discuss this application on Monday, 4) 18 UNIT PRD, HOLMES ROAD EXTENSION Dennis Blodgett proposes to construct an 28 unit planned residential development on a 4.5'acre parcel of land on Holmes Road Extension east of Shelburne Road. This plan is a revision to the original Final Plat which was approved on 8/17/88 (minutes enclosed.) The original Final Plat was never recorded, therefore, it is null and void. Technically, Mr. Blodgett must go through the entire approval process again. The applicant has requested that the Preliminary and Final plat hearing be held on the same day. Incidentally, the applicant has decided to pursue a residential development instead of pursuing a zone change and office development on the property. 3 2 M E M O R A N D U M To: South Burlington Planning Commission From: Joe Weith, City Planner Re: January 10, 1989 agenda items Date: January 6, 1989 1) SPEEDEE OIL CHANGE, 1085 SHELBURNE ROAD Enclosed is a letter from Bob Miller' request-irig Ll►at. R.E.M.'s site plan application for constr'uctlori Ot' a 5peedee Oil Change and Tune -Up facility be withdrawn. Mt-. Miller has informed me that they will. be doing this project in Essex. 2) 3-LOT SUBDIVISION, 1570 SPEAR STREET IBIS Corporation proposes a 3-'1ot subdivision of a pat•cel containing approximately 6.8 acres located on t.11e east. side ul' Spear Street directly opposite Deerfield l;r'ive (see enclosed plan). Lot 1 has an existing single-f'amil.,Nhc,use and is approximately 1.9 acres with a 199 fool l'r'onlrt e on Spear Street.. Lot 2 is approximately 1.5 acres and has a fill foot frontage. Lot 3 is approximately 2.7 acres and has a 291 1'oot frontage. An 80 foot right of way to be deeded to Lhe City of Sorlt:h Burlington is proposed across from Deerfield Drive. The enclosed plan actually shows a 4-Lc:,L stihdivi.5ion (:onsistirlg of 3 residential lots and one lot to be deed.eci to t.hEe City. I would recommend that the proposed r.o.w. be irwitided in either' lot 1 or lot 2 with the stipulation that it, k)e deeded to the City upon subdivision of the remaining Nowland 1'r caper t.y . This would keep the proposed r.o.w. under private ownevsh.ip until t'uttlre development and would correctly represent ?1 3-.Lot subdi.v is i on. The City's- subdivision regulations define a 3-.lot. stibelivision as a minor subdivision and a 4-lot subdivision as a major - subdivision. Lot Size/Frontage: The parcel is zoned re.sidentia.l 1. T11e proposed plan meets minimum lot size and Jot; t'ronta>e requirements. Access: Proposed access to the three lot: is riot stlown on t.tle plan. I recommend that access to lots 1 and 2 be provided by a shared driveway from the 80 foot r.o.w. This would require relocation of the existing driveway for the house on lot: 1 and the curb cut on Spear Street to be closed. L.oL 3 would require access from Spear Street. The driveway for lot :3 should be placed so that headlights do not shine into windows of houses located across Spear Street. The proposed drive for- the 3 lots should be shown on the plan along with a n„Le indicating that lots 1 and 2 shall have shared access. 1 Memorandum - Planning- Page 2 View: The two new homes to be put on lots 2 and :3 wil.1 partially block the view of the Adirondack Mountains and Lake Champlain from the ridge on the Nowland property. This is an area from which the City has a great interest, in preserving scenic views. There is still a signific�arit. amount, of the Nowland ridge from which the view will be unol>st.r•uOt,ed. I suggest that before any decisions is made, the proposed subdivision be staked so that the Commission can see exactly how mu(:;h of the ridge view will be lost by this subdivision. l also suggest that the commission work out an agreement with Lhe applicant to require any structure on lot 3 to be placed as close to lot 2 as possible. This will preserve a greater amount of view from► the ridge. Other: The plat should clearly show lot, .Line d.i►nensions and the square footage of each new lot. The plat, is confusing as is. The plat; should also show the footprint. of the e_xi.sting house. 3) PROPOSED AMENDMENTS, SECTION 103 "DEFINITIONS" OF SUBDIViS[(.)N REGULATIONS Enclosed is the first: draft of proposed anieridments to the Subdivision Regulations to clarify the tN pes of pr•u•jec.t.s considered to be subdivisions and, therefore, be required to go through the subdivision review process. Basi.call•y, I have included in the definition of subdivision, planned c;onuuer•cial developments and large retail developments. Tlier•el'ore, 1A, is now clear that PCD's ( more than one use) must go through the subdivision review process. Adding large re -tail. developments I.o the definition will now make it clear that, projects like the S.B. Tangor & Company project on Shelburne Road will have to go through the subdivision review process even though it is only one use -retail. Issues which still need to be addressed, and wli:ieh I will loolc into further, include the following: 1. How many square feet of G.L.A. should trigger subdivision review for a retail complex? 2. Should large office complexes be included in t..he definition of subdivision? 3. Should larger retail complexes be required to meet the satire requirements applied to PCD's, such as minimum frontage, minimum 400 foot distance between PCD's, m.iriimum lot size, etc.? 4. Does the current definition of PCD's require i'ur•t.her• clarification? Steve Stitzel is reviewing the draft amendments and hopeft.il O, will provide some feedback prior to Tuesday's meeting. 2 Memorandum - Planning March 21, 1989 agenda items March 17, 1989 Page 3 5) IBIS CORPORATION, 3-LOT SUBDIVISION, SPEAR STREET IBS Corporation proposes to subdivide a 6.8 acre parcel into 3 lots of 1.9, 2.3 and 2.6 acres. The property is located on the east side of Spear Street directly across Deerfield Drive. Lot #1 has an existing single-family house. The property is zoned Residential 1. Lot Size/Frontage: The plat meets minimum lot size and frontage requirements. The plat shows building envelopes which meet the required setbacks. Access: Lot 2 contains an 80 foot row to be deeded to the City. The note should read "80' r.o.w. to be deeded to the City of South Burlington for future street." This applicant has agreed to access lots 1 and 2 via a shared driveway along the reserved right of way as originally recommend- ed. This should be indicated on the plan in the form of a note. This will also require closing the existing curb cut on Spear Street for lot 1 and relocating the driveway. It should also be noted on the plan that the existing curb cut will be closed. Access to lot 3 will be from Spear Street. Recreation: The applicant shall be required to pay a $200 per unit recreation fee for the 2 new units to be built. Sewer: A sewer allocation of 900 gpd shall be granted for the 2 new units to be built. The $2.50 per gallon fee shall be paid. Other: The Commission had asked the applicant to show a 100 x 100 foot building envelope on lot 3 (southernmost) placed as north and east or possible to help preserve views from the ridge to the south. The plat shows a building envelope (230 x 170 ) as far east as possible but not as far north as possible. See Bill Szymanski's and Chief Goddette's continents. 6) PUBLIC HEARING: CITY CENTER TRAFFIC OVERLAY ZONE Enclosed are the proposed amendments to Article XVII and Table III of the zoning regulations. As directed at the 2/21/89 meet- ing, the amendments were revised to require a maximum of 45 peak hour trips rather than 50 trips. Also, allowable trips are based on 40,000 square feet of land rather than minimum lot size. I will provide at Tuesday's meeting the revised Table III showing updated numbers. 3 PLANNING COMMISSION la JANUARY 1989 The South Burlington Planning Commission held a regular meeting on Tuesday, 10 January 1989, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset Street. Members Present Peter Jacob, Chairman; William Burgess, Mary -Barbara Maher, Ann Pugh, William Craig, John Belter Also Present Joe Weith, City Planner; Sid Poger, The Other Paper; Chip Burr, Paul Savas, Fred Brynn, Peter Brynn, Allen F. Gear 1. Minutes of 6 December 1988 Ms. Pugh moved the Minutes of 6 December be approved as written. Mr. Burgess seconded. Motion passed 6-0, Ms. Peacock abstaining. 2. Continue Site Plan Application of R.E.M. Development Co. for construction of a 2520 sq. ft. building for an oil change and tune up business, 1085 Shelburne Rd. The City Planner advised that a letter had been received from the applicant withdrawing their application. 3. Sketch plan application _ IBIS Cori> for a division of a 6.8 acre lot located on the east Street directly opposite Deerfield Drive 3-lot sub- side of Spear Mr. Gear noted that an irrevocable offer of dedication and deed has been given to the City for the extension on Deerfield Drive. Mrs. Maher asked if this parcel was part of the larger Nowland lot. Mr. Weith said it is not. Mr. Gear explained that there had been a boundary adjustment which created this lot. Members questioned how there could have been a "boundary adjustment" creating a 750 ft. lot from what had been a 150 ft. lot. Mr. Gear said Fred Moulton bought the Bill Stevens house and then bought an additional 5.33 acre piece of land. The city allowed the boundary adjustment because Deerfield Drive was to be extended with the irrevo- cable dedication of land. Members were concerned that pieces were being whittled away from the larger Nowland lot with no plan in place for the whole parcel. Mr. Burgess questioned whether a 600 ft. "boundary adjustment" is legal. Mr. Weith said he will talk with the City Attorney in greater detail. Mrs. Maher noted that the Commission had given approval to a subdivision several weeks ago and questioned whether the piece of land in the present plan had been shown as part of the larger Nowland piece at that time. Mr. Weith will also check on this. PLANNING COMMISSION 10 January 1989 PAGE 2 Mr. Jacob noted that this parcel of land is directly across from the city overlook park. He asked that the lots be staked so the Commission can make a site visit. The question of the view from the ridge on the eastern boundary of these lots was also raised. Mr. Poger noted that Mrs. Lafleur had a sketch of what land would be set aside as a park in that area. Mr. Weith said he would try to find that sketch. Mr. Jacob noted that the City Manager asked that lots 1 & 2 be accessed from the Deerfield Drive Extension. Mr. Gear suggested as an alternative that lots 2 & 3 be served from Deerfield Drive. Mr. Weith said there would then have to be a right-of-way for lot 3 to cross lot 2. Ms. Pugh asked why there is such a big difference in lot size. Mr. Gear said one buyer wanted a samller lot and one a larger lot. Mrs. Maher said she would like to see a plan that shows a clearly defined building envelope. Ms. Peacock asked it the Commission could stipulate that only ranch style homes be built on the lots. Mr. Gear will advise when the lots have been staked and the Commission will then visit the site. 4. Work Session: Discussion of proposed amendments to the City Subdivision and Zoning Regulations to clarify the def- inition of subdivision and Planned Commercial Development and the proper review process Mr. Weith presented proposed wording for these amendments. Members questioned the amount of square footage of gross leasable area that would trigger subdivision review. Mr. Craig suggested 20,000 sq. ft. Mrs. Maher suggested a combination of square footage and/or number of trips to be generated. Mr. Weith will provide a list of buildings in the city that are from 10,000 to 20,000 sq. ft. Mr. Weith then asked if members wanted to include office complexes as well as retail uses. Mr. Craig noted a large medical complex could generate a lot of traffic. Mr. Weith said that PCD re-quirements include minimum frontage and minimum lot size and asked if these should be required for larger retail developments as well. The Concensus of the Commission was that they should be. PLANNING COMMISSION 21 MARCH 1989 page 5 3. A sewer allocation of 825 gpd is granted and will be subtracted from the entire Green Tree Park sewer allocation. The $2.50 per gallon fee shall be paid prior to permit. 4. The plan shall be revised to show a depressed concrete curb across the entrance drive. 5. The driveway and loading area shall be constructed with a gravel base of at least 18 inches and a 3-inch bituminous surface. 6. The applicant shall add another hydrant at a location to be determined by the Fire Chief. 7. A revised plan addressing stipulations 1, 4 and 6 shall be submitted to the City Planner for approval prior to issuance of a zoning permit. 8. A zoning permit shall be obtained within 6 months or this approval is null and void. 9. This approval is based on the expressed representation by the applicant that: a) all shipping and receiving shall be between 8:00 am and 5:00 pm., b) no trailers shall be used for storage or be present for more than 24 hours without the approval of the Planning Commission. Mr. Burqess seconded. Motion passed unanimously. 57 Public Hearing: Final Plat application of IBIS Corp. for a 3- lot subdivision of a 6.8 acre lot located on the east side of Spear Street directly opposite Deerfield Drive Mr. Geer noted the following changes since skc+C_k pla n, the existing house is shown, the lot line between lots 1 & 2 is shown as the north ^dge of the right-of-way which has already been deeded, building envelopes on lots 2 & 3 are shown, contour lines are shown. `T'kcy have agreed that access to lots 1 & 2 will be off the new city street. Existing curb cut will be closed when this is built. The minicipal sewer hookup for lots 2 & 3 is shown and it is presumed that lot #1 owner will want to hook on as well. Mr. Jacob raised the view question and stressed that the Com- mission would like a view remaining that is not blocked. He suggested the building envelopes be removed from the plan as this may not be where the Commission wants houses put. PLANNING COMMISSION 21 MARCH 1989 page 6 Mr. Weith noted the City Attorney feels the Commission should table the hearing for further consideration of the right to determine where on the lot building envelopes should be. Mr. Lamb, option holder on lot 3, said he felt they were complying. Mr. Geer asked if zoning could be changed after they have applied for this subdivision. Mr. Jacob said the Commission wants the attorney to consider preservation of the view pursuant to Section 417g with regard to placement of a house on a lot, building height, etc. Mrs. Maher moved to postpone the hearing until 4/18/89. Mr. Burgess seconded. Motion passed unanimously. Mrs. Maher said she felt the Commission needed expert advise in this matter. Other Business a) Chris Cavin would like to appear at a meeting to talk about green belts. Mr. Weith felt the Natural Resources and Recreation people should also be present. 7: Discuss proposed zoning change alternatives for the Queen City Park neighborhood Mr. Weith noted that the neighbors held a meeting recently and there is a lot of enthusiasm. He enumerated possible options for the area: 1) Do nothing which would reinforce the City's goal of making this a conforming R-4 zone in the future; 2) creating a new zone which reduces minimum setback and lot size requirements (which Mr. Craig felt only moves the point at which the problem starts), 3) create a zero lot line zone, 4) create a new zone which reduces minimum lot size and setback requirements and also allows non -conforming structures to exceed the 35% rule (which Mrs. Maher noted could make things worse and have houses even closer together), 5) create a new zone which reduces minimum setback and lot size requirements and offers as a conditional use further reduced setback requirements. Mr. Crowley said the neighbors want to allow people in their neighborhood to have reasonable maintenance, upkeep, etc. They also feel they want to retain the character of the neighborhood, architecturally and socially. -Some of theft ideas include: lifting the 35% rule so people can accomplish a lot of projects they have in mind (he noted a lot of the properties are very low in value so you hit 35% very quickly); finding some method of PLANNING COMMISSION 18 APRIL 1989 PAGE 3 4. Continue Public Hearing to consider the Final Plat ap- plication of Ibis Corporation for subdivision of a 6.7 acre parcel into 3 lots of 1.8, 2.3, and 2.6 acres, 1570 Spear ,qtYPPt Mr. Weith noted that he had met with the City Attorney briefly and he had nothing new to tell him. Notes have been added to the plan regarding access to lots 1 & 2 which would access off the 80 ft. right of way. Lot 3 would access off Spear Street. Mr. Jacob asked what would happen to these lots if the city takes 15% for recreation/open space/view. Mr. Weith showed suggested sketches on how this might happen . Mr. Craig said he is still concerned about the so-called boundary adjustment. He cited what he felt were possible deviations from the city's subdivision regulations: a) in the creation of the right-of-way, 2 lots were created, so there should have been subdivision review; b) a boundary adjustment should be a minor adjustment and this was major; c) subdivision regulations say that any extension of a street requires subdivision review; d) no new developable lots should result and there are new lots. Mr. Craig said he spoke with the City Attorney who said he could not comment because he had thought the action was proper at the time. He suggested the Commission seek independent counsel. Mr. Craig felt the Commission should do this. Mr. Jacob asked Mr. Cimonetti if he felt the City Council would object to the Commission doing this. Mr. Cimonetti said he didn't feel there would be any objection. Mr. Craig moved that the hearing be continued and that the Planning Commission hire independent counsel to address issues. He further moved that the item be back on the agenda as soon as possible after the issues are addressed. Ms. Peacock seconded. Mr. Gear objected to this action as the issues occurred before his clients bought the land and he thought they had complied with everything. He felt the process was uncertain and unfair. Mr. Jacob replied that there has been a question ever since the Commission saw the application for the first time. He said the Commission has to protect the City. The City has expressed interest in a park at that location and the applicant wants to put lots where the city wants a park. He felt the Commission needed to get legal advice. In the vote which followed, the motion passed unanimously. IxJA-L", IBISCORPORATION . 131 ELDEN STREET . SUITE 200 . HERNDON, VA 22070.1703) 478-0300 29 May 1989 Mr. Peter Jacob, Chairman Planning Commission South Burlington, Vt. 05403 Dear Mr. Jacob, The purpose of this letter is to request the understanding of the planning commission in my acquisition of the IBIS property on Spear Street in South Burlington. I bought the property in good faith and expected to be able to subdivide so that family members could have lots near our home. To date the delay by the city planning commissin and city council have cost me over S23,000 in interest and several thousand dollars in taxes and additional, attorney fees. Over the many months in which we worked to acquired the land, we openly discussed with members of the City of South Burlington our plans for the property. In none of those discussions was it revealed that our acquisition of the property and building on the _ property was so contraversal. If we had known that the city had other plans for this property we would not have purchased it and created this financial and emotional burden. We have been living in our present home for over 3 years and had not seen anything as unsettling as this, or as I have stated, we would not have entered into this trying experience. We do not believe that we are being fairly treated and would request that you consider a prompt response to our request and favorably consider our application, which as we have stated, meets all the subdivision regulations. We started this subdivision process in January 10, 1989 and by June it will be over 5 months old. What we had considered as a plesant experience has turned out to be very frustrating, and emotionally draining, to say nothing of the financial burden. We wish to thank your for your consideration would appeal to your good faith and judgement on our request. Sincerely, Fret T . Moa. then ►ON 4-11 : SE�-no ti 5o 5- wk p / ei,t'-u.,• l .rc� L,4'� — c du o roo,y I- 504vc*c lZ 4or- Or3�r+vws k-� GEAR AND DAVIS, INC. ATTORNEYS AT LAW P. O. BOX 412 BURLINGTON, VT. 05402-0412 ALLEN F. GEAR OFFICES LOCATED AT: CHRISTOPHER L. DAVIS 802 - 863-3491 FIVE BURLINGTON SQUARE VERMONT FEDERAL BANK BLDa MARY P. KEHOE BURLINGTON, VERMONT March 22, 1989 Peter Jacobs, Chairman South Burlington Planning Commission 575 Dorset Street So. Burlington, VT 05403 RE: IBIS Corr. o- ation Dear Peter: I am writing this letter to you and the Commission to hopefully clarify the issue that is the reason why the IBIS Corporation application or Final Plat was tabled last night at the public hearing. It is my understanding that the commission has requested that the City attorney determine how much control the commission has under Section 417(G)+(M) of the Subdivision Regulations concerning building location, building size and building height. It is also my understanding that action must be taken by your Commission on my client's application within 45 days of March 21, 1989. Therefore, within that 45 day period from March 21, 1989 my client should know whether or not its application for the subdivision of the land will be approved or disapproved. If any of the foregoing assumptions are incorrect or incomplete, please let me know. Very truly yours, "T 1 7p7}1� .C! Allen F. Gear, Esq. AFG/drb cc: Steven S. Stitzel, Esq. afg\a8 City of South BtiIII i ngton 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658.7955 March 17, 1989 IBIS c/o Allen F. Gear, Esq. P.O. Box 412 Burlington, Vermont 05401 Re: 3-lot Subdivision, Spear Street Dear Mr. Gear: ZONING ADMINISTRATOR 658-7958 Enclosed is the agenda for next Tuesday's Planning Commission meeting and my comments to the Planning Commission. Also en- closed are Bill Szymanski's and Chief Goddette's comments. Please be sure someone is present on Tuesday, March 21, 1989 at 7:30 P.M. to represent your request. ncerely, C/lam oe Weith, City Planner Encls JW/mcp cc: Mr. Richard Lamb F *vittb +furlingtun Fire Departincut 575 i9orset '*treet 5�nutb t 4 irlington, Vermont 115,1111 OFFICE OF JAMES W. GODDETTE, SR. CHIEF (802) 658.7960 TO: SO. BURLINGTON PLANNING COMMISSION FROM: RE: DATE: 2. A. 91 CHIEF GODDETTE TUESDAY MARCH 21,1989 AGENDA ITEMS FRIDAY MARCH 19,1989 I.B.I,S. CORP. SPEAR STREET 3-LOT SUB -DIVISION PLANS WERE REVIEWED BY THIS DEPARTMENT AND AT THIS I DO NOT SEE A PROBLEM WITH THE SUS -DIVISION. RESOLUTION INC. LOT #2 GREEN TREE PARK PLANS WERE REVIEWED AND THE FOLLOWING WAS FOUND WHICH NEEDS TO BE CORRECTED IF WE ARE TO GIVE FIRE PROTECTION: AT LEAST TWO HYDRANTS ARE REQUIRED AT A LOCATION APPROVED BY THIS DEPARTMENT. PROBLEM WITH THE ROAD WAY FOR ACCESS FOR EMERGENCY EQUIPMENT WHICH MUST BE ADDRESSED. MEMORANDUM GEAR AND DAVIS, INC. ATTORNEYS AT LAW FIVE BURL.INGION SQUARE. BURLINGTON. VT. 05402 ALLEN F. GEAR CHRISTOPHER L. DAVIS MARY P. KEHOE IF CHECKED: DATE: February 17, 1989 Information Copy Enclosed FROM: Allen F. Gear, Esq. Record and Return to us the Instruments Listed below TO: Joe Weith So. Burlington City P 1 a n n e rplease find the Documents 575 Dorset Street Listed below So. Burlington, VT 05403 Check Enclosed SUBJECT IBIS Corporation P. 0. 130X 412 802-863-3491 ❑■ Enclosed please find the Subdivision Application -Final Plat and attachment with five copies of the Final Plat. 1Jo--'Es i6 D ➢FED �E¢Q�IENCES 3 VOi-- 3\4 VOL. 13 YGc• 525 VOL. 30� TG.. 320 -,/OL. 34.E pGc. -- VOL- '3.0, 09 v- -7- — 324'-4G =SB`W pI-oros•c4 s p 0 R s BARkt o� ..0 �.poM000 o �-a h `o A h .1 H Isao dn ,ql, / I � --�-- T O —�- W\-- ) 5'70 SPr+r S F- _ / 1R se it-- —� T R 4 H. UN�le a.os A �d R 4 //. G' 4 G 041 1J I 1 p"Ilpo. -d f I 1 1 1 1 i 1 � ^o N4 `- 4Ce'-56" E. � 6 1 ! S ZCo• 1 SO . oo' 413,�V 90.00 " S�EA-lqml W 1 r 0 ro W� Wa W� Aa OQ F� .0 0 �Y of r''"po5- 4 A/ Lo r I I I S E FLAN 'E aC- — \ "> 2000' A,vd \� r �t 14' -�- "pE6/2•1-I-E/4 way —1 ' r M E M OR A N D 13 M To: South Burlington Planning Commission From: William J. Szymanski, City Manager Re: March 21, 1989 agenda items Date: March 17, 1989 3) SITE PLAN PROPERTY SOUTH-WEST CORNER OF CHARLES STREET - WHITE STREET The site plan dated 11/11/88 and revised 2/14/89, prepared by Mike 'Dugan is acceptable with the following revision: That the sewer service clean out shall be placed just before the service branch and not in Charles Street. 4) LOT NO. 2 GREEN TREE PARK, SHUNPIKE ROAD 1. A depressed concrete curb shall be constructed across the entrance drive. 2. Large trucks must be anticipated at this facility, the drive- way and parking area for the large trucks must be of sufficient strength to accommodate these trucks. It is recommended that the gravel base be at least 18 inches thick with a 3 inch bituminous surface. 3. The plans are well done. I question the need for the reten- tion pond since the area is so close to Muddy Brook, the dis- charge point. Any quick runoff from the site will have an insig- nificant impact on this brook. 5) I.B.S. CORPORATION SPEAR STREET These lots shall be served by the city sewer system which will require the main to be extended up Deerfield Road. Plans for this extension shall be furnished to the City for approval. City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658-7955 February 6, 1989 IBIS Corporation c/o Allen F. Gear, Esq. P.O. Box 412 Burlington, Vermont 05402 Re: 3-lot Subdivision, Spear Street Dear Mr. Gear: ZONING ADMINISTRATOR 658-7958 Enclosed are the January 17, 1989 Planning Commission meeting minutes. Please call if you have any questions. Sincerely, ' Jo�eW e4i tt/if City Planner JW/mcp 1 Encl cc: Mr. Peter Brynn 1,-,;e - "2 C"-7 '4, 4.0e" .7oo, 4d c,�,,cv c,,Pp --o —Ljt--r- lats s,�tiiE,�lscV N `ems - � �� K 3----- a�� IDA,> f MCNEIL, MURRAY & SORRELL, INC. ATTORNEYS AT LAW 271 SOUTH UNION STREET BURLINGTON, VERMONT 05401 TELEPHONE (802) 863-4531 JOSEPH C. McNEIL (1919.1978) JOSEPH E. MCNEIL FRANCIS X. MURRAY WILLIA M H.SORRELL JOHN T. LEDDY NANCY GOSS SHEAHAN STEVEN F. STITZEL PATTI R. PAGE• WILLIAM F. ELLIS LINDA R. LEROY (*ALSO ADMIYTCD IN N.Y.) October 31, 1988 Richard Ward South Burlington Offices 575 Dorset Street South Burlington, VT 05403 Re: Noland to IBIS Corporation Dear Dick: OF COUNSEL ARTHUR W. CERNOSIA I have enclosed the following executed legal documents in connection with the above -referenced conveyance: 1. Irrevocable Offer of Dedication (for extension of Deerfield Way) 2. Warranty Deed with Transfer Tax Return (for extension of Deerfield Way) 3. Agreement (merging 5.38 acres parcel with adjoining lands of IBIS Corporation) The Offer of Dedication and Merger Agreement should be executed at this time and recorded. The Warranty Deed and Transfer Tax Return should be held in escrow. Very truly yours, Steven F. Stitzel, SFS/kb Enc. AGREEMENT entered into and effective this .-* h' I day of September, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS CORPORATION by Deed dated September 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington Subdivision Regulations and their applicability to this transaction: In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that LEASTMAN, the above -mentioned parcel of land conveyed to them by :HWEYE,R 6a TETZLAFF EVE the CHITTENDEN TRUST COMPANY, Executor of the Estate of ATTORNEYS Aurora W. Nowland and Helen N. Gagnon and Marie N. 3 IN ET Underwood shall be merged with other lands which they O"x S" own in the City, which lands lie northerly of and JRLI V[RMONT adjoin the above -described parcel. From the date of this OS402- �2-� Agreement, the above -described g � parcel and the adjoining property of IBIS CORPORATION shall constitute a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable City regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. YI SEN OF• .c IBIS C RRPO BY: a - my thor d Agent CITY OF SOUTH BURLINGTON BY: STATE OF VERMONT CHITTENDEN COUNTY, SS. Duly Authorized -Agent At this Burlington ( q ZZN day of September, 1988, personally appeared r/?,Ftim/y f'ic&-•;,OC/V;- �{ ,/% duly authorized agent of IBIS CORPORATION and acknowledged this instrument by him sealed and ubscribed to be his free act and deed and the free act a ed of- IBI CORPORATION. Before me, ; L, Notary Pub is STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of September, 1988 personally appeared , duly authorized agent of the City of South Burlington and acknowledged this instrument by him/her sealed and .ATMAM. EASTMAN, subscribed to be his/her free act and deed and the free act iWEVER & TETZ V.FP and deed of the City of South Burlington. ATTORNEYS 30' `IN STREET Before me, -iox568 Notary Public RLINOTON, VERMONT 05.02-4356a BFSWILLS\Nowland . Agr IRREVOCABLE OFFER OF DEDICATION AGREEMENT by and between IBIS CORPORATION, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland, Helen N. Gagnon and Marie N. Underwood, hereinafter referred to as "Owner" and the CITY OF SOUTH BURLINGTON, hereinafter referred to as "Municipality". W I T N E S S E T H: WHEREAS, certain lands shown as Schedule A and attached hereto and/or interests therein are to be dedicated to the Municipality free and clear of all encumbrances. WHEREAS, the Owner has delivered to the Municipality appropriate deeds of conveyance for the above described lands and/or interests therein. NOW, THEREFORE, for good and valuable consideration, it is covenanted and agreed as follows: 1. The Owner herewith delivers to Municipality a deed of conveyance, the descriptive portions of which are attached as Exhibits A, hereinafter, said delivery constituting a formal offer of dedication to the Municipality to be held by the Municipality until the acceptance or rejection of such offer of dedication by the legislative body of the Municipality. 2. The Owner agrees that said formal offer of dedication is irrevocable and can be accepted by the Municipality in whole or part at any time. - 1 - 3. This irrevocable offer of dedication shall run with the land and shall be binding upon all assigns, grantees, successors and/or heirs of the Owner. Dated this day of 1988 I SEN E OF,; IBIS CORPORA N B I Duly Auk or zed Agent t-- CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland Cheryl Parzych, Tr !jt _ Officer Helen N. Gagnon Marie N. Underwood CITY OF SOUTH BURLINGTON BY: Duly Author zed Agent STATE OF VERMONT CHITTENDEN COUNTY, SS. I,�U r 1 c �� 7��.ti' -7. A;L� At this 1 day of Sfili-['/�jl�C�l:tN /%�'t �IJ'fN( /�..) Duly Authorized Agent, personally appeared and he/she acknowledged this instrument by her/him sealed and subscribed to be his/her free act and deed and the free act and deed of IBIS Corporation. Before me, �� , ,: Notary Pu 11c - 2 - STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this day of c��J 1988, Cheryl Parzych, Trust Officer, persona lY y appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed and the free act and deed of the Chittenden Trust Company. Before me Notary Pu'nlic 1 STATE OF VERMONT CHITTENDEN COUNTY, SS. �c At (,� this day of 1988, Helen N. Gagnon personally appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed. Before me, N6tary lic STATE OF VERMONT CHITTENDEN COUNTY, SS. At this day of 1988, Marie N. Underwood personally appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed. Before me, Notary Pdblic STATE OF VERMONT CHITTENDEN COUNTY, SS.. At this day of 1988, personally appeared and he/she acknowledged th s instrument by her/him sealed and subscribed to be her/his free act and deed and the free act and deed of the City of South Burlington. BFSREAL\Nowland.Off Before me, Notary Publ c - 3 - EXHIBIT A The interests of all the Grantors herein in and to a certain strip of land having a frontage on the east side of Spear Street and a uniform width of 80 feet that runs easterly from Spear Street for a distance of 397 feet, more or less. This strip of land is located so as to be an extension of "Deerfield Way" and the northwesterly corner of said right of way as it intersections with the easterly line of Spear Street is 48.86 south of the northwest corner of a parcel of land conveyed by Helen Gagnon, Marie Underwood and the Chittenden Trust Company as Executor of the Estate of Aurora W. Nowland to IBIS Corporation by two deeds of approximate even date. The herein Grantors join together in this conveyance to convey to the City of South Burlington the entire fee title in and to said strip of land that has a uniform width of 80 feet and runs easterly from Spear Street approximately 397 feet. This conveyance is for street purposes and the warranties herein are only to the extent of the interest of the herein Grantors in and to said strip of land. Chittenden Trust Company executes this deed as Executor of the Estate of Aurora W. Nowland and this deed is to act only as an Executor's Deed for the Chittenden Trust Company for the interest of the late Aurora W. Nowland in said strip of land but as a Warranty Deed to the other Grantors but only to the extent of their various interests. The four Grantors herein have a title to all of the interests in said strip of land. Reference is hereby made to the herein conveyed parcel as it is shown on a Plan of Land entitled "Land To Be Conveyed to IBIS Corporation, South Burlington, Vermont", G. E. Bedard, Inc., Hinesburg, VT., dated December 18, 1986, revised July 27, 1988, and recorded in Volume , Page of the Land Records of the City of South Burlington. Reference is hereby made to the above instruments, the records thereof and the references therein made in aid of this description. LATHAM, EASTMAN. NWEYER & TETZLAFF ATTORNEYS f %IN STREET .."4ka IRLINOTON, VERMONT OS402-0568 WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS; THAT We, IBIS CORPORATION, a Virginia Corporation with office and principal place of business in Herndon, County of Fairfax, State of Virginia, and CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and HELEN N. GAGNON and MARIE N. UNDERWOOD, of South Burlington, in the County of Chittenden, and State of Vermont, GRANTORS, in the consideration of TEN AND MORE DOLLARS paid to their full satisfaction by CITY OF SOUTH BURLINGTON, a Vermont municipality, GRANTEE, by these presents, does freely GIVE, GRANT, SELL, CONVEY AND CONFIRM unto the said GRANTEE, CITY OF SOUTH BURLINGTON, and its successors and assigns forever, a certain piece of land in the City of South Burlington, in the County of Chittenden and State of Vermont, described as follows, viz: The interests of all the Grantors herein in and to a certain strip of land having a frontage on the east side of Spear Street and a uniform width of 80 feet that runs easterly from Spear Street for a distance of 397 feet, more or less. This strip of land is located so as to be an extension of "Deerfield Way" and the northwesterly corner of said right of way as it intersections with the easterly line of Spear Street is 48.86 south of the northwest corner of a parcel of land conveyed by Helen Gagnon, Marie Underwood and the Chittenden Trust Company as Executor of the Estate of Aurora W. Nowland to IBIS Corporation by two deeds of approximate even date. The herein Grantors join together in this conveyance to convey to the City of South Burlington the entire fee title in and to said strip of land that has a uniform width of 80 feet and runs easterly from Spear Street approximately 397 feet. This conveyance is for street purposes and the warranties herein are only to the extent of the interest of the herein Grantors in and to said strip of land. Chittenden Trust Company executes this deed as Executor of the Estate of Aurora W. Nowland and this deed is to act only as an Executor's Deed for the Chittenden Trust Company for the interest of the late Aurora W. Nowland in said strip of land but as a Warranty Deed to the other Grantors but only to the extent of their various interests. The four Grantors herein have a title to all of the interests in said strip of land. Reference is hereby made to the herein conveyed parcel as it is shown on a Plan of Land entitled "Land To Be Conveyed to LATHAM. EASTMAN. IBIS Corporation, South Burlington, Vermont", G. E. Bedard, So.WEVER 6 TETZLAFF Inc., Hinesburg, VT., dated December 16, 1986, revised July ATTORNEYS 27, 1988, and recorded in Volume Page of the >aMAINSTRLLT Land Records of the City of South Burlington. P O BO% 54 M ftLINGTON. VLRMONT 05�02-OSEO - 1 - Reference is hereby made to the above instruments, the records thereof and the references therein made in aid of this description. TO HAVE AND TO HOLD said granted premises, with all the privileges and appurtenances thereof, to the said GRANTEE, CITY OF SOUTH BURLINGTON,its successors and assigns, to its own use and behoof forever; and we the said GRANTORS, IBIS CORPORATION, CHITTENDEN TRUST COMPANY and HELEN N. GAGNON and MARIE N. UNDERWOOD, for ourselves and our heirs, executors and administrators, successors and assigns, do covenant with the said GRANTEE, CITY OF SOUTH BURLINGTON, its successors and assigns, that until the ensealing of these presents, we are the sole owners of the premises, and have good right and title to convey the same in manner aforesaid, that they are FREE FROM EVERY ENCUMBRANCE; EXCEPT as above stated. And we do hereby engage to WARRANT AND DEFEND the same against all lawful claims whatever, EXCEPT as above stated. IN WITNESS WHEREOF, We hereunto set our hands and seals this day of In PrVence of: i IBIS CORPORA ON K! I Duly Au�horf�zedgen CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurgra\, W. powl n� BY• L. „ ��, I c, .. � � �Of Cheryl arzych, T uscer Helen N. Gagnon Marie N. Underwood CHITTENDEN COUNTY, SS. At ()WLW Jrt'N this N da of NIlSzi- , 1988, fk d �/1d1:/lE�� !'ir>,t:�� Ize Duly LATNA/.t KASTMAN. Authorized Agent, personally appeared and he/she Sr -ay" & TETZ-F acknowledged this instrument by her/him sealed and ATTOZYII subscribed to be his/her free act and deed and the free act ! MAIN STREET no. sox sae WRLMq TON, VER T OS.Oi-0SG! 2 - and deed of IBIS Corporation. Before me, 6 �� C Notary Publ c STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this -,7 day of 1988, Cheryl Parzych, Trust Officer, personally appeared and she acknowledged this instrument by her sealed and subscribed to be her free act and deed and the free act and deed of the Chittenden Trust Company. Before me Notary P)2blic 7 — 7 `L STATE OF VERMONT CHITTENDEN COUNTY, SS. At this 2Z�ti"/ day of SFr"F�nlc�L 1988, Helen N. Gagnon personally appeared and she acknowledged this instrum nt by her sealed and subscribed to be her free al a d deed ' Before ma, c� Notary Public STATE OF VERMONT CHITTENDEN COUNTY, SS. At Dol''Llxo;r'N this LEA—`r day of SrEr)TFl�1hfI-- , 1988, Marie N. Underwood personally appeared and she acknowledged this instrument by her sealed and subscribed to bjer yfxeeaaid deed. Before mery Publ c BFSREAL\ROW2.WD LATNAK EASTMAN. Sr —EVER 6 T[TILAPI ATTO CYS ] MAIN STRE T P.O. YO% See B —NQTON, VERwKN.T OS�O.i-OS6E — 3 — PROPERTY TRANSFER TAX RETURN NO. A 910 4 5 5 VEMONT ELIER. VERMONT 05 02LS A. SE L R (TRANSFEROR) NAM (S) MALING A RESS IN LL - CL G 21P CODE SOCIAL SECURITY NUMBER BUYER (TRAN , EE) I,f.1Erg�D - !�7 r SDCIAL SECURITY NUMBER MAILING ADDRESS IN FULL • INCLUDING ZIP CODE V ' • LOCATION (Such N "1T3 M•pl 5r., Burkrplan" OR "TM S Ih Frm, OW M,H Rob, Tunbrq V•") 11 propsny rA kx'AIW n Iwo towns. pbu• k•1 both. / ��; �� f If n• WYu• •Gqukb loss U— t11• •nlw• nI.—I IF- Sunp•) n IM jx p•ny, pleas• •Mb Ui• nl•r••1 AcQuuW (•uM •• "LH• E•MI•..•.'P•rpoluN E•Nm•n1; •Ic.) APPROXIMATE LAND SIZE] ACREAGE: _ AND LOT SIZE FRONTAGE _19 —0 DEPTH �.- Pi— cnw.w ul• •PPticbb DOAI•a) o•scrnin9 • w.n9 b0d..9s. �f IpQ NONE 3 ❑ HOUSE 6 ❑ BARN 7 ❑ MOBILE HOME 9 ❑ STORE 2 ❑ FACTORY A ❑ CAMP or VACATION HOME 6 ❑ APARTMENT, NO. UNITS 6 ❑ CONDOMINIUM, NO. UNITS 10 ❑ OTHER (EXPLAIN) Plans• chant the ut•g«y whwh b•M d"u"s IM uu or the Ixopany BEFORE TRANSFER as shown In Iry GRAND LIST BOOK. 1 ❑ PRIMARY RESIDENCE 2 ❑ TIMBERLAND N ❑ GOVERNMENT USE 6 ❑ OPEN LAND a ❑ OTHER (EXPLAIN) (.-A. WV mobil• homes) ❑ NEWLY OON5TRl1CTID 3 ❑ OPERATING FARM 6 ❑ COMMERCIAL 7 ❑ INDUSTRIAL 9 ❑ CAMP OR VACAnoN ❑ IJ08TI10 Pleas• Unci I1• cu*9wY 'rum but d—lb" Ih4 prop—d uu of tM popeny AFTER TRANSFER. 1 ❑ PRIMARY RESIDENCE 3 ❑ OPERATING FARM 5 ❑ COMMERCIAL 7 ❑ INDUSTRIAL 9 ❑ CAMP OR VACATION 2 ❑ TIMBERLAND A ❑ GOVERNMENT USE 6 ❑ OPEN LAND 6 ❑ OTHER (EXPLAIN) • • THIS SECTION MUST BE COMPLETED IF TRANSFER IS CLAMED TO BE EXEMPT FROM PROPERTY TRANSFER TAX If •urn w • 4x,wr s cWrwo. you 1w10 not uu Wk" Iu Nunn Mbd "TAX," but you MUST COMPLETE the —I— WWII "VALUE." GTE EXEMPTION W EXPLAIN REAL PROPER VALUE INCLUDES"vakm of any r - popYysway. bald•, . 9A'W b seer, and INN v d rH marp.9w a kru assorted by Vw buy. Y Ir Iwlr wr a 941 a wN la r W 00owdMubn. 9110 tM •uimalW laic mukN v" or II• rw Pop ny IrMat•fr•d. TOTAL PRICE PAID If A LESS PERSONAL PROPERTY f REAL PROPERTY VALUE f TAX PAYWJfT DUE. FIVE TENTHS OF ONE PERCENT (0006) OF THE AMOUNT &fOLYN ABOVE. BUR NOT LESS THAN f 100 (FOR EXAMPLE IF THE VALUE WAS $10.000 THE TAX DUE W f60.00; IF THE VALUE VALUE WAS 9100.. THE TAX DUE 16 $1,00). AMOUNT DUE: �— V -e May ch_k•payablo b: VERMONT DEPARTMENT OF TAXES. 11fW ww ara.nrWlos• � M TrawM wtk� su99•M Ie1 Ir prlu prober properly wr aflw ma• r leas Ilan ib lea nwxw va.• Pl— •apbn: 1 DATE SELLER ACQUIRED: IF BY GIFT, DATE DONOR ORIGINALLY ACOUIRED: IF A VERMONT LAND GAINS TAX RETURN IS BEING FILED, CHECK HfAE: IF A VERMONT LAND GAINS TAX RETURN IS NUT BEING FILED, INDICATE REASON BELOW - (MUST BE ONE OF REASONS GIVEN IN INSTRUCTIONS.) 9" Esbb Brolyr'• Awn• (Y •ny): p— urTi chaser a pnnclpal residence exemphon Is cl��ithzemphon ruquiro nt�p�hjserwill be liable for full amount of Land Gains Tax. d NOT ' ResidenIS Pan -Year Residents Non-fiesWenl$ - H you realized a gain On the sale Of your properly that was included in your Federal Adfusted Gross Income, A Vemwnt Tr ie axtFietum must toiled. CERTIFICATE PURSUANT TO 32 V.S.A. §9606 (c) FOR SUBDIVISION REGULATIONS (18 V.S.A. §1218 at seq.) This transfer 6 in 00npfanD9 With the Subdivision Regulations of the Agency of Environmental Coriservation and any Permits issued thereunder. Yes _ No If to Pop" has ever received ■ permit, specify 91e peonk i _ . Permits must be obtained PRIOR TO TRANSFER ff erampl, specify which numbered hem from the instruction applies or, on a separate sheet. MOM Dow cranwSION for exemption P _ . CERTIFICATE —pursuant to 32 V.S.A. §9606 (s) we hereby swear and affirm that we have Investigated and have disclosed to each party involved in this transfer all of out knowledge regarding FLOOD. REGULATIONS, it any, which affect the site hereinoefore described. Ws hsrsby +Wear aria affirm that this return and above certificates are true, correct and complete to the best of our knowledge as required by 32 V.S.A. 69606 (b), (c) and (a). Willful fatal fcatlon of any statement contained Herein may result In a fine of not more than $1000. 1 .DATE 1 G ) .Jullppiij Na "12 F}rc - ---- - 408 CERTIFICATE UO�A�I�T 2 !'�T'S LAND USE AND DEVELOPMENT LAW -ACT 250 (10 V.S.A. §6001 et seq.) This conveyance of real properly and any development thereon is in compliance with or exempt from 10 V.S.A. Chapter 151 (Act 250), Vermont's Land Use and Development Law and any permits Issued thereunder. Yes No . If this property has ever received an Act 250 permit, please specify permit N _____. It exempt, specify which numbered item from the Instructions applies or, on a separate shoot, explain other circumstances. VWe (the Seller(s)) hereby swear and affirm that this certificate Is true and complete to tfle best of my/our knowledge as required by 32 V.S.A. §9608. Knowing fafslfication of any statement contained herein Is punistlable by a line of not more than S500 or Imprisonment for not more than one year. L ) ) A iil`R(31 SIi;N�TUAF(i DATE cif. l pN fI L cC IS r — PREPAREq'S SIGNATU EJA _ jf - •yPREPARED BY (PRINT OR TYPE - PREPAREWS ADDRESS ACKNOW Lf OGCA1f NT TOWNAC17V TOWN NUMBER ._ RETURN RECEIVED TAX PAID. BOARD OF HEALTH CERTIFICATE DATE OF RECORD RECEIVED VERMONT LAND USE AND DEVELOPMENT PUNS ACT CERTIFICATE RECEIVED BOOK NUMBER CA. A 9 10 4 5 5 PAGE NO RETURN LISTED VALUE a GRANO LIST OF 19 __ SIGNED CLERK -- -"-- - MAP AND PARCEL NOS __-, �- _ rIATF y1�1►KIN4!i (\N•lU L\L'�.'`.IGRy qKE Y�UT'�K"U y. 1 Y .K r_rrc •a �. ..•.1_• +G� r 1 F4. :2. v0/_. 1! ra. A" v0 ►-. :.%f � Y11. �1..+ Vol_. 1.1 Yc.. -L97 i 17.+M, VvDf4ZW000 ANv R,+14. UAGNanI 00 I ��L �SYrgR if,n� 1 I I •, J I11 �� / I f � L-U T # 2 y 0 MAJ I p1 ro I I� ..• ns'. 1a' r,. R.+T. BARKER Il� I / �poMa I Ail SAC JA i it I I i Jf Aar ups Yam« . GY e�x ."ZIO1aUa•.%, �.o .• Op no r0 I(A'--A.f. I __- el IA 0 N A I I ; r 1 p I / 14 n I ry I I64 A I f -.nau � � �y•in I of I I /70--- • �4.' .104•- ��' sue-•= I I I AA 1 � �.�•, wa•-se.. iso boo' +- ♦e.ea lo.00 +..1 . �•►• . 1 ,. a!w • � T ?.T: -- �� Y B-AIR � TTf� T��.—C� • 60 W A`l c• L , t ----•-- -- pNOYObr•v N.o.w �1n.< A �� u' I %l,-rM - V.V DE2 WOOD AND J , k• AAGrvo&J I t �Ir o e -----_'-moo (I, ILN J LT•ND 'ro -mac coNvc• c'r+ •co _ $ZS G0B-F'0-TRIP.-7 \OH SsOUT1.1 '$U�i1-\NGTOH � VE�tY�OHT S CP.L rL — \"� �.O• -D cc. 19 r 196(o u o �•o »o' moo' G. IL. -mt-PANp 1 T6V1%C34 \ •1. I". an CITY OF SOUTH BURLINGTON Subdivision Application - SKETCH PIAN 1) Name, address, and phone number of: a. Owner of record IBIS Corporation c/o Allen F. Gear, Esq. P.O. Box 412, Burlington, VT 05402 b. Applicant IBIS Corporation c. Contact person Peter Brynn (w) 864-6819 (h) 985-2262 Allen Gear..(w) 863-3491 (h) 862-2492 2) Purpose, location, and nature of subdivision or development, including number of lots, units, or parcels and proposed use(s). 3 lot subdivision for 3 homes, one home is presently existin on one lot no. 1, see plan. 3) Applicant's legal interest in the property (fee simple, option, etc) fee simple 4) Names of owners of record of all contiguous properties SEE ATTACHED 5) Type of existing or proposed encumbrances on property such as easements, covenants, leases, rights of way, etc. 80 ft. right of way that has been deeded to city of So. Burlington as shown on plan 6) Proposed extension, relocation, or modification of municipal facilities such as sanitary sewer, water supply, streets, storm drainage, etc. Sanitary sewer must be extended from present location to proposed lots. 7) Describe any previous actions taken by the Zoning Board of Adjustment or by the South Burlington Planning Commission which affect the proposed sub- division, and include the dates of such actions: NONE KNOWN 8) Submit five copies of a sketch plan showing the following information: 1) Name of owners of record of contiguous properties. 2) Boundaries and area of: (a) all contiguous land belonging to -owner of record and (b) proposed subdivision. 3) Existing and proposed layout of property lines; type and location of existing and proposed restrictions on land, such as easements and cove- nants. 4) 7ype of, location, and approximate size of existing and proposed streets, utilities, and open space. 5) Date, true north arrow and scale (numerical and graphic). 6) Location map, showing relation of proposed subdivision to adjacent property and surrounding area. IBIS Corporation G La ( ignature) ape licant or contact person /L �z Af to (North) Richard & Julie Barker 1560 Spear Street So. Burlington, VT 05403 Mail Address: 775 Huntington Drive Erie, PA 16505 (East & South) Richard & Marie Underwood 1589 Spear Street So. Burlington, VT 05403 -Rbeal & Helen Gagnon 1520 Spear Street So. Burlington, VT 05403 AGREEMENT AGREEMENT entered into and effective this 2?N4 day of September, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS CORPORATION by Deed dated September , 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington Subdivision Regulations and their applicability to this transaction: In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that the above -mentioned parcel of land conveyed to them by LATNAM.EASTMAN. the CHITTENDEN TRUST COMPANY, Executor of the Estate of 7iN/EYER & TErZL'F�F Aurora W . Nowland and Helen N. Gagnon and Marie N. ATTORNEYS Underwood shall be merged with other lands which they -108 MAIN STREET own in the City, which lands lie northerly of and P.O. BOX 568 adjoin the above -described parcel. From the date of URLINGTON. VERMONT this Agreement, the above -described parcel and the 05602-0568 adjoining property of IBIS CORPORATION shall constitute a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable City regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. I SEN OF• Z/ IBIS CORPO BY: a- 7 'Vuly horia6d Agent CITY OF SOUTH BURLINGTON BY: STATE OF VERMONT CHITTENDEN COUNTY, SS. Duly Authorized Agent 27-(2 day of September, 1988 At Burlington this y p ,, , personally appeared F/�I) `190LTft�,l , PK'FsiD�nl� 114 {' , duly authorized agent of IBIS CORPORATION and acknowledged this instrument by him sealed and ubscribed to be his free act and deed and the free act a ed o Z;'u" ORPORATION. Before me, ✓ Notary Public STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of September, 1988, personally appeared duly authorized agent of the City of South Burlington and acknowledged this instrument by him/her sealed and subscribed to be his/her free act and deed and the free act LAT"AM. EASTMAN. and deed of the City of South Burlington. HWEYER & TETZLAFF ATTORNEYS 308 MAIN STREET P.O. BOX 568 JRLINGTON. VERMONT BFSWILLS\Nowland. Agr OSn02-0569 Before me, Notary Public STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION M CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT NOTICE TO: PETER JACOB, CHAIRMAN, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, 575 Dorest Street, South Burlington, VT 05403 Enclosed are a Summons and Complaint which are served on you under Rule 4(1) of the Vermont Rules of Civil Procedure. They have been sent to you because you are a Defendant in this civil action. Part of this form is an acknowledgement that you have received the enclosed Summons and Complaint. You must sign and date the acknowledgement. On or before the 31st day of August, 1989, one completed copy of this acknowledgement must be received by the sender at the following address: Gear and Davis, Inc., P.O. Box 412, Five Burlington Square, Burlington, Vermont 05402-0412. A pre -addressed and stamped envelope is included herein for this purpose. If you do not complete and return the form to the sender so it is received within twenty (20) days after mailing of this notice, you may be required to pay any expenses incurred in serving a Summons and Complaint in any other manner permitted by law. If you do complete and return this form, you must answer the enclosed Complaint within twenty (20) days from the date that you signed the acknowledgement. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. mpk\m61\b I declare that this Acknowledgement of Receipt of Summons and Complaint was mailed on the date shown below. Dated at Burlington, Vermont, this 14th day of August, 1989. GEAR AIND DA , INC. By: ary Ke oe, Esq. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT I declare and certify that I received a copy of the Summons and Complaint in the above entitled action at the following address: DATED: Peter Jacob, Chairman of the Planning Commission for the City of South Burlington NOTE: You must date this acknowledgement or it is ineffective. mpk\m61\b STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT NOTICE oo� TO: PETER JACOB, CHAIRMAN, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, 575 Dorest Street, South Burlington, VT 05403 Enclosed are a Summons and Complaint which are served on you under Rule 4(1) of the Vermont Rules of Civil Procedure. They have been sent to you because you are a Defendant in this civil action. Part of this form is an acknowledgement that you have received the enclosed Summons and Complaint. You must sign and date the acknowledgement. On or before the 31st day of August, 1989, one completed copy of this acknowledgement must be received by the sender at the following address: Gear and Davis, Inc., P.O. Box 412, Five Burlington Square, Burlington, Vermont 05402-0412. A pre -addressed and stamped envelope is included herein for this purpose. If you do not complete and return the form to the sender so it is received within twenty (20) days after mailing of this notice, you may be required to pay any expenses incurred in serving a Summons and Complaint in any other manner permitted by law. If you do complete and return this form, you must answer the enclosed Complaint within twenty (20) days from the date that you signed the acknowledgement. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. mpk\m61\b I declare that this Acknowledgement of Receipt of Summons and Complaint was mailed on the date shown below. Dated at Burlington, Vermont, this 14th day of August, 1989. i GE R ,AND DA I INC. By: ary Ke oe, Esq. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT I declare and certify that I received a copy of the Summons and Complaint in the above entitled action at the following address: DATED: Peter Jacob, Chairman of the Planning Commission for the City of South Burlington NOTE: You must date this acknowledgement or it is ineffective. mpk\m61\b STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH and ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. DEMAND FOR JURY TRIAL The Plaintiff in the above entitled matter by and through its attorney, Mary P. Kehoe, Esq. of Gear and Davis, Inc., and hereby demands a jury trial in this matter. Dated at Burlington, Verm t this 1989. _� GE AIR ` D DAV , By: Mary'P. K hoe, Esq. Attorney for Plaintiff mpk\m61\b day of STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION CVA CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. NOTICE TO TAKE DEPOSITION TO: CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) PLEASE TAKE NOTICE that on September 26, 1989 at 1:00 p.m. at the offices of Gear and Davis, Inc., Attorneys at Law, Five Burlington Square, Burlington, Vermont, IBIS Corporation, by and through its undersigned attorneys of record will take the deposition of William Symanski pursuant to V.R.C.P. 30(b) by oral examination before a court reporter or other officer authorized by law to administer oaths, pursuant to the Vermont Rules of Civil Procedure. Pursuant to Rule 30(b)(5), the deponent is requested to produce at the deposition for inspection and copying, the following documents: 1. All notes, correspondence and writings of any kind documenting or relating in any way to an agreement between IBIS Corporation and the City of South Burlington dated September 22, 1988 and attached as Exhibit A. 2. All documents relating to any communication with any of the above named Defendants or Plaintiff or any agent for any of the Defendants or Plaintiff. 3. All documents relating to any communications with Helen N. Gagnon, Marie N. Underwood, their spouses, and any representative for the Estate of Aurora Nowland and Attorney Benjamin Schweyer and/or Attorney Neil Wheelwright. For the purposes of this notice, "documents" refers to, and includes, but is not limited to, writings, calendars, diaries, memoranda, letters, proposals, whether typed, printed or mpk\m61\b handwritten, whether originals, carbon copies or other copies, drawings graphs, charts, phonograph records, photographs, computer or other recording tape and every other type of physical evidence or data compilation including all forms of computer storage and retrieval. Dated at Burlington, Vermont, this 14th day of August, 1989. GEAR M mpk\m61\b VIS, INC. Ma�KAhoe, Esq. Plaintiff's Attorney STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI and JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. SUMMONS TO THE ABOVE -NAMED DEFENDANT(S): You are hereby summoned and required to serve upon Mary P. Kehoe, Esq. of Gear and Davis, Inc., Plaintiff's attorney, whose address is P.O. Box 412, Burlington, Vermont 05402, an answer to the complaint which is herewith served upon you, within 20 days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. Your answer must be filed with the Court. Unless the relief demanded in the Complaint is for damage covered by a liability insurance policy under which the insurer has the right or obligation to conduct the defense, or unless otherwise provided in Rule 13(a), your answer must state as a counterclaim any related claim which you may have against the Plaintiff, or you will thereafter be barred from making such claim in any other action. Dated at Burlington, Vermont, this �\ day of August, 1989. GEAR AN DAVIS, IN . By: �I (1 J mpk\m61\b M r -'P. kehoe, Esq. Attorney for Plaintiff STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. ) CHITTENDEN SUPERIOR COURT DOCKET NO. CITY OF SOUTH BURLINGTON, ) PLANNING COMMISSION OF THE ) CITY OF SOUTH BURLINGTON, ) CITY PLANNER JOE WEITH, ) ZONING ADMINISTRATOR RICHARD ) WARD, WILLIAM SYMANSKI, AND ) JANE BECHTEL (LEFLEUR) ) COMPLAINT NOW COMES Plaintiff, IBIS Corporation, by and through its attorneys, Gear and Davis, Inc., and brings this Complaint against Defendants City of South Burlington, City of South Burlington Planning Commission, City Planner Joe Weith, Zoning Administrator Richard Ward, former City Manager William Symanski and former City Planner Jane Bechtel. Plaintiff seeks an order to compel Defendants to issue a subdivision permit, permitting Plaintiff to subdivide its property located on Spear Street in South Burlington. Plaintiff also seeks a declaratory judgment and damages. This action is brought pursuant to the fifth and fourteenth amendments to the United States Constitution; Chapter 1, Articles 2 and 9 of the Vermont Constitution; 42 U.S.C. Section 1983; V.R.C.P. 57 and 12 V.S.A. Sections 4711 - 4725. JURISDICTION 1. This Court has jurisdiction over this Complaint pursuant to 24 V.S.A. Section 901(a) and pursuant to 4 V.S.A. Section 113. mpk\m61\b 1 FACTS 2. Plaintiff IBIS Corporation is a corporation organized under the laws of the Commonwealth of Virginia with its principal place of business at Herndon, County of Fairfax, Commonwealth of Virginia. 3. Defendant City of South Burlington ("City") is a municipal corporation chartered by the State of Vermont. 4. Defendant City of South Burlington Planning Commission ("Commission") is a duly organized governmental body of the City of South Burlington pursuant to Title 24, Vermont Statutes Annotated. 5. Defendant Joe Weith is, and at times relevant hereto, has been the City Planner for the City of South Burlington. Defendant Jane Bechtel (Lefleur) was, during times relevant hereto, City Planner for the City of South Burlington. 6. Defendant Richard Ward is, and at all times relevant hereto, has been the Zoning Administrator for the City of South Burlington. 7. Defendant William Symanski, at all time relevant hereto, was City Manager of the City of South Burlington. 8. In September of 1988, Plaintiff purchased approximately 5 acres of land (hereinafter "the Land") located on the easterly side of Spear Street in South Burlington, Vermont. Plaintiff purchased said land from the Chittenden Trust Company, Executor of the Estate of Aurora W. Nowland, Helen N. Gagnon and Marie N. Underwood (hereinafter "Grantors"). mpk\m61\b 2 9. Before acquisition of the land, Plaintiff entered into an agreement (the "Agreement") with the City in which the City agreed to waive its right to review the above -mentioned conveyance under its subdivision regulations. The Agreement is annexed hereto as Exhibit A and incorporated herein by reference. 10. The Agreement provided that the Land would be merged with 1.5 adjacent acres of land with dwelling house thereon known and designated as 1570 Spear Street which Plaintiff already owned. 11. The Agreement further stated that "at any time after the date hereof, IBIS Corporation shall have full right to use, develop and subdivide said merged property in compliance with the applicable city regulations". 12. After acquisition of the Land from the Grantors, the Land merged with Plaintiff's adjacent property creating a 6.8 acre Parcel (hereinafter "the Parcel"). 13. In consideration of the City's Agreement to waive the subdivision regulations, the Grantors deeded to the City a strip of land from the Parcel. This strip of land has 80 feet of frontage on Spear Street and extends easterly the depth of the Parcel. Further, the Grantors gave the City an Irrevocable Offer of Dedication with respect to said strip of land for the purpose of creating a city street at a future date. 14. Defendant William Symanski, then City Manager for the City of South Burlington, executed the Agreement on behalf of the City. Defendant Richard Ward, then Zoning Administrator for the City of South Burlington, witnessed the signature of William Symanski on said Agreement. William Symanski, Richard Ward, and mpk\m61\b 3 Jane Bechtel (now Lefleur), then Town Planner for the City of South Burlington, were all involved in the negotiations leading to the Agreement. 15. Jane Bechtel (Lefleur) advised the Grantors or their representatives that the City's master plan called for the construction of a road, that being an extension of Deerfield Street, through the Land and that a subdivision permit would not be necessary if the Grantors would convey a strip of the Land for the extension of the street to the City. See paragraph 12, supra. At this time, the parties discussed the terms of the Agreement which they eventually entered into. Specifically, Ms. Bechtel was advised that IBIS would be applying for subdivision permits after transfer of the Land to it. In response, Ms. Bechtel assured Grantors or their representatives that no subdivision permit would be necessary under the circumstances. 16. In January of 1989, Plaintiff applied for a 3 lot subdivision permit with respect to the 6.8 acre Parcel. The Commission did not properly warn the hearings it held on IBIS' application for subdivision permits. Indeed, a hearing held on April 18, 1989 was adjourned without announcing the date or place of the adjourned hearing. 17. The Commission held its final hearing on IBIS' application on June 13, 1989. At that time, the Commission denied IBIS' application. In its findings of fact, the Commission concluded that it could not grant a subdivision permit because the Grantors did not apply for and receive a subdivision permit before they transferred the Land to Plaintiff. The Defendant Commission's mpk\m61\b 4 findings of fact are attached hereto as Exhibit B and incorporated herein by reference. 18. Defendant Commission further found that neither it, nor any of its members individually, had knowledge of the September 1988 transfer of the Land from the Grantors to Plaintiff until January 1989 when Plaintiff made its initial application for a subdivision permit. 19. Defendant Commission also found and held that the "conveyance from the Nowland Estate, et. al., (the "Grantors") to. IBIS Corporation is not considered a boundary line adjustment in as much as potential developable lots are created". 20. During the course of the serial hearings held by the Planning Commission, then City Attorney Steve Stitzel, on behalf of the Planning Commission, approached Plaintiff, indicating that the City of South Burlington wished to swap the Land with the City of South Burlington in exchange for additional property, not yet owned or acquired by the City of South Burlington, lying contiguous to the Parcel. COUNT I BREACH OF CONTRACT 21. Paragraphs 1 through 20 above are incorporated herein and made a part hereof by reference. 22. Through the representations and actions of the parties as set forth above, a contract was created which required Defendants to grant Plaintiff's application for a subdivision permit, provided IBIS met all requirements for a permit under the mpk\m61\b 5 City's subdivision regulations. IBIS met all the requirements for a permit and, thus, the City was required to issue a permit under the terms of the Agreement, notwithstanding the fact that the Grantors did not apply for or receive a permit before conveying the Land to IBIS. 23. Defendants' actions in denying Plaintiff its subdivision permit application constitute a breach of said contract. 24. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. COUNT II IMPLIED CONTRACT 25. Paragraphs 1 through 24 above are incorporated herein and made a part hereof by reference. 26. The representations of Defendants and actions of the parties as set forth above constitute and implied contract by which = Defendants were obligated to grant a subdivision permit to Plaintiff, provided Plaintiff met all requirements therefor, notwithstanding the fact that the Grantors did not apply for or receive a subdivision permit when they sold the Land to Plaintiff. 27. The actions of Defendants, as set forth above, in denying Plaintiff a subdivision permit because the Grantors did not apply for a subdivision permit when they transferred the Land to Plaintiff constitute a breach of implied contract. 28. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. mpk\m61\b 6 COUNT III NEGLIGENT MISREPRESENTATION 29. Paragraphs 1 through 28 above are incorporated herein and made a part hereof by reference. 30. Defendants' representations to Plaintiff, as set forth above, were false representations relating to material portions of the parties' written and implied contracts. 31. Defendants knew or should have known that said representations were false and misleading and further knew or should have known that Plaintiff would rely on said false and misleading representations to its detriment. 32. In making these false and misleading representations to Plaintiff, Defendants breached a duty of care they owed Plaintiff. 33. Plaintiff relied on said misrepresentations to its detriment. As the sole and proximate result of Defendants negligent, misleading, and false representations to Plaintiff, Plaintiff has suffered irreparable, severe economic loss and damages. COUNT IV ""I Xwk 34. Paragraphs 1 through 33 above are incorporated herein and made a part hereof by reference. 35. The misrepresentations, as set forth above, were made by Defendants with intent to defraud, with reckless disregard for the truth thereof, wrongfully and maliciously. 36. Defendants knew that said misrepresentations were false and made said misrepresentations with the intent that Plaintiff mpk\m61\b 7 would rely thereupon to its detriment. 37. In making these false misrepresentations, Defendants intended to induce Plaintiff to act and rely thereupon to its detriment. 38. Plaintiff did, in fact, rely on said misrepresentations to its detriment. 39. As the sole and proximate result of Defendants' intentional misrepresentations, Plaintiff has suffered severe economic loss and damages. COUNT V PROMISSORY ESTOPPEL 40. Paragraphs 1 through 39 above are incorporated herein and made a part hereof by reference. 41. The representations of Defendants, as set forth above, constitute promises on the part of Defendants which they should reasonably have expected to induce action or forbearance on Plaintiff's part and which did, in fact, induce action or forbearance on the part of Plaintiff. As such Defendants are estopped from requiring Grantors to apply for a subdivision permit and from denying their promises and obligations to grant a subdivision permit to Plaintiff notwithstanding the fact that the Grantors did not apply for subdivision permit when they sold Plaintiff the Land. COUNT VI EQUITABLE ESTOPPEL 42. Paragraphs 1 through 39 above are incorporated herein and made a part hereof by reference. mpk\m61\b 8 43. The representations of Defendants, coupled with Plaintiff's obvious reliance thereon as set forth above, created an obligation on the part of Defendants to refrain from repudiating the consequence of such actions, inducements, and representations. As such, Defendants are estopped from denying their obligations to grant Plaintiff a subdivision permit provided IBIS met all requirements for a permit under the City's subdivision negotiations. IBIS met all the requirements for a permit and, thus, the City was required to issue a permit to IBIS under the Agreement, notwithstanding the fact that the Grantors herein did not apply for a subdivision permit prior to conveying the Land to Plaintiff. 44. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. COUNT VII - UNAUTHORIZED CONDUCT 45. Paragraphs 1 through 44 above are incorporated herein and made a part hereof by reference. 46. The actions of Defendants, as described above, including their attempts to persuade Plaintiff to swap land with the City in lieu of subdividing the Land, constitute unauthorized conduct on the part of the Planning Commission. 47. Because Plaintiff refused to "swap" land with the City, the Planning Commission took retaliatory steps by denying Plaintiff its subdivision application. 48. The Planning Commission's conduct in this case was mpk\m61\b 9 unauthorized, outside the scope of its powers pursuant to 24 V.S.A. Sections 4461-4475 and in violation of 24 V.S.A. Section 4325. The Planning Commission's conduct was also outside the scope of its own subdivision regulations, adopted by the City. 49. As a direct and proximate result of the Planning Commission's illegal and unauthorized conduct, Plaintiff has suffered substantial economic loss and damages. COUNT VIII UNAUTHORIZED REFUSAL TO ISSUE Subdivision PERMIT 50. Paragraphs 1 through 49 above are incorporated herein and made a part hereof by reference. 51. Pursuant to 24 V.S.A. Section 4467, a Planning Commission may continue a hearing, but only if it announces a new date and place for the adjourned hearing, at the time of adjournment. _ 52. One of the hearings in this case was held on April 18, 1989. However, that hearing was continued "indefinitely" by the Planning Commission. 53. This indefinite adjournment of the hearing on Plaintiff's subdivision permit application was in violation of 24 V.S.A. Section 4467. 54. Because this hearing was not properly adjourned pursuant to the terms of 24 V.S.A. Section 4467, it must be considered the last duly warned noticed hearing on Plaintiff's subdivision permit application. As such, the Commission was required, pursuant to the terms of 24 V.S.A. Section 4470, to issue a written decision and findings of fact within 45 days from that date. 55. Instead, the Planning Commission held a new hearing at mpk\m61\b 10 a later time without providing proper prior notice to Plaintiff pursuant to Section 4467. 56. Because no decision was issued by the Commission within 45 days from April 18, 1989, the last duly warned hearing of the Commission with respect to Plaintiff's subdivision permit application, a subdivision permit is deemed to have been granted to the Plaintiff. 57. The Commission's failure to issue a subdivision permit pursuant to the terms of 24 V.S.A. Section 4470 was the sole and proximate cause of the Plaintiff's injuries, which include significant economic harm and damages. COUNT IX UNCONSTITUTIONAL EXERCISE OF POLICE POWER 58. Paragraphs 1 through 57 above are incorporated herein and made a part hereof by reference. 59. The Defendant's actions in this case are unconstitutional, in that the Planning Commission's denial of a subdivision permit in this case establishes an arbitrary, capricious, unreasonable, unfair, and discriminatory exercise of the City's police power in violation of the United States Constitution and the Vermont Constitution. 60. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. mpk\m61\b 11 COUNT X DEPRIVATION OF RIGHTS 61. Paragraphs 1 through 60 above are incorporated herein and made a part hereof by reference. 62. The actions of Defendants, as set forth above, were committed under color of law and constitute a deprivation of the rights and privileges of Plaintiffs secured by the United States Constitution and the law of the State of Vermont and are a direct violation of the Civil Rights Act of 1964, 42 U.S.C. Section 1983. 63. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. COUNT XI UNCONSTITUTIONAL AND ILLEGAL TARING 64. Paragraphs 1 through 63 above are incorporated herein and made part hereof by reference. 65. The actions of Defendants as set forth above constitute an illegal taking of Plaintiff's property without compensation or due process of law in violation of the United States Constitution, the Vermont Constitution, and Vermont law. 66. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. DAMAGES (AS TO ALL COUNTS) As a result of the actions of the Defendants as set forth above, Plaintiff has suffered economic loss in that reasonable use and development of the property has been entirely denied Plaintiff mpk\m61\b 12 by Defendants and in that Plaintiff has been forced to expend massive sums of money for planning, attorney's fees, real estate taxes, and interest payments. As a result of Defendants' actions Plaintiff's lands have been rendered virtually worthless. WHEREFORE, Plaintiff prays that the Court order: 1. Defendants to issue a subdivision permit to Plaintiff permitting it to subdivide the Parcel into three lots. 2. That the Court declare that City's contract with Plaintiff requires the City and the Commission to waive the Grantors' obligation, if any, to apply for a subdivision permit and to grant Plaintiff a subdivision permit provided it met all requirements therefore, notwithstanding the fact that the Grantors did not apply for subdivision when they conveyed the Land to Plaintiff. 3. That Defendants' conduct be declared void, unauthorized and unconstitutional as applied to Plaintiff. 4. That the Plaintiff be awarded damages, both compensatory and punitive in an amount to be determined by the Jury. 5. That the Plaintiff be awarded costs, interest and attorney's fees. 6. That the Jury award such other relief as it deems just. Dated at Burlington, Vermont, this (,A'- , t- day of August, .;. GEA D DAVIS NC. r By:�L_-- ar P. Kehoe, Esq. At orne for Plaintiff mpk\m61\b 13 EXHIBIT B 9 PLANNING COMMISSION 13 JUNE 1989 The South Burlinqton Planninq Commission held a meetinq on Tuesday. 13 June 1989, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset Street. Members Present Peter Jacob, Chairman: Mary -Barbara Maher, William Burqess, Ann Puqh, William Craiq 1, Minutes of 2 May 1989 Mrs. Maher moved the Minutes of 2 May be approved as written. Mr._ Burqess seconded. Motion passed unanimously. 2. Continue Site Plan application of W. W. Grainger- Inc,- for_ construction of a 14,982 s , ft. building for wholesale dis tri ution use, lot 13, Green Tree Park Industrial Subdivision, Greqory Drive. Members continued the discussion of parkinq. Mr. Burqess said he would like to see pavinq kept to a minimum. Members aqreed on 21 parkinq spaces. Mr. Weith said there was no problem with traffic. Members also felt there was no problem with landscaping. Mr. Jacob emphasized that the developer of the whole subdivision should do the landscaping he's supposed to do, and the specific businesses should have to do only what is required of them. Mr. Burqess moved the Planninq Commission approve the Site Plan application of W.W. Grain^er- Tnc- for construction of a 14,982 sq. ft. buildinq (PhaseI) for wholesale/distribution use as de- picted on a plan entitled "W.W. Grainger, Inc, lot 13. Green Tree Park, South Bullington, Vermont," prepared by Trudell Consultina Engineers. Inc. and dated 4/24/89, last revised 5/1/89, with the followinq stipulations: 1. The applicant shall post a $10,050. 3-year landscaping bond_ prior to permit. 2. A sewer allocation of 120 qpd is qranted based on 8 employees. The applicant shall pay the $2.50 per qallon fee prior to permit. 3. The applicant shall contribute__599 to the Williston Road Traffic Improvement Fund (Impact Area 2) based on the 10 peak hour ft trips to be generated by this development. ?LANNING COMMISSION 13 June 1989 Page 2 4. This approval is only for Phase not Phases II and III or Y_a future expansion area shown on the Plan, 5. plan shall be revised to show only 21 parking spaces and no future parking spaces. The paved parking area shall be re- vi5ed accordingly and approved by the City Planner Prior �L_o permit. 6. The zoning permit shall be obtained within 6 months or this approval is null and void, Mrs, Maher seconded. Motion passed unanimously. 3. Continue Site Plan application of Rene Berard for construc- tion of a 13,600 square foot building 7600 sq. ft. footprint) for storage/distribution use, lot 414, Ethan Allen Drive. Joe Ingram explained they had a problem with front yard coverage which they have now solved by redesign. Fire hydrants have been located, and drainage has been worked out with the City Engineer. Members had no problems with the revised plan. Mr. Burgess moved the Planning Commission approve the Site Plan application of Rene Berard for construction of a 13,600 sq. ft. building (7,600 5q, ft. footprint) for storage/distribution use as depicted on a plan entitled "Storage/Distribution Facility, of 14, Ethan Allen Drive" prepared by Graphic Construction Management Services, Inc., dated 3/23/89, last revised 6 8 89 with the following stipulations: 1. The applicant shall post a $6,700, 3-year landscaping bond prior to Permit. 2. A_ sewer allocation of 255 gpd is granted based on the esti- mated 17 employees. The applicant shall pay the $2.50 per gallon fee prior to permit. 3. The applicant shall contribute 1$ 800 to the City's sidewalk fund based on 120 feet of frontage on Ethan Allen drive at $15 per linear foot. 4. The plan shall be revised to show the proposed drainage system as shown on the attached sketch date 6/13/89. 5. The applicant expressed that 1.600 sq. ft. is to be devoted to office use. It is the applicant's responsibility to come before the Commission for approval if the square footage for office use changes by more than 25%. tp PLANNING COMMISSION i 13 JUNE 1989 page 3 6. Based on expressed representation of the applicant- there will be no outside storage. 7. A revised plan addressinq stipulation 4 shall be submitted to the City Planner for approval prior to permit. 8. The zoning permit shall be obtained within 6 months or this approval is null and void Mrs. Maher seconded. Motion passed unanimously. 4. Public Hearinq: Continue Final Plat application of IBIS Corporation for subdivision of a 6.8 acre parcel into 3 lots of 1.9, 2.3, and 2.6 acres, 1570 Spear Street Mr. Gear, representinq the applicant, said he felt they had complied with the Commission's concern on the plan and that the matter was now out of his client's hands. He presented members with documents on issues other than the plan and noted that his client bought the land from Marie Underwood and Helen Gaqnon, as indicated on documents on the land transfer and on discussions with the Citv Attornev and former City Planner. He said his 1 clients would not have bouqht the land had they known it would arouse the present controversy. He requested the Commission allow the subdivision permit as he felt his clients had compled with all regulations. Mr. Jacob noted the Commission had been taken by surprise by this plan. He said they had been thinkinq of this land for some time from the point of view of scenic corridors and were confused as to what happened and why. He said the Commission had asked the advice of independent Counsel, Mr. Robert Perry. Mr. Craig said he didn't want to give the impression he had any- thinq aqainst any of the parties and wished that the boundary line revision had qone through the subdivision review. He felt everyone concerned had some deqree of responsibility for the current situation. Mrs. Maher wanted to make it clear that applicant is aware that when subdividion of the northern lots had happened, it was the Commission's understandinq the land under consideration now was still part of the larger parcel. She stressed that it was shown to the Commission that way. Members were firm in their feelinq that the view should be main- tained and that a heiqht limitation on structures should be con- sidered. Mr. Burqess said he wanted to get 15% of the land for views instead of a cash amount. PLANNING COMMISSION 13 JUNE 1989 page 4 A poll of members indicated a preference for a motion to deny. Ms Peacock moved the Planninq Commission deny the Final Plat ap- plicatin of IBIS Corporation for subdivision of a 6.8 acre parcel into three lots of 1.9. 2.3 and 2.6 acres as depicted on a plan_ entitled "Final Plat, IBIS Corporation, South Burlington, Vermont" prepared by Geor^e Bedard and dated 12/18/86, last revised 4/14/89 based on the followinq findings: 1 The proposed subdivision consists of a 1.3 acre parcel acquired by IBIS Corporation on September 27 1984 and a 5.3 acre parcel acquired on September 22, 1988 from the Estate of Aurora W Nowland, Marie N. Underwood, and Helen N. Gagnon. 2. The Nowland Estate, et al. own substantial additional land on the southerly and easterly sides of the subject parcel. They did not seek subdivision approval prior to conveyance of the parcel to TRTS but rather treated it as a boundary line ad�ustment__ 3 As part of the transfer from the Nowland Estate, et al, L�L IBIS. the parties executed deeds and an offer of irrevocable ded- ication to the City of South Burlington for an 80 foot wide strip. of land o2posite Deerfield Wav for hi^hwav purposes 4. Neither the Planninq Commission, nor any of its members indi- vidually had knowledge of the transfers until January, 1989, when IBIS applied for sketch plan review. 5. The conveyance from the Nowland Estate, et al, to IBIS Corpora- tion is not considered a boundary line adjustment in as much as potential developable lots are created. 6 The conveyance from the Nowland Estate et al to IBIS Corpora- tion without Planning Commission review forecloses meaningful re- view of the subdivision and imposition of conditions rPaSonably apopriate under relevant statutes and ordinances- 7.Review of the subject IBIS_Subdivision cannot occur until sub- division approval has been obtained for the subdivision of the Nowland Estate, et al Mr. Craiq seconded. Motion passed unanimously Mr. Jacob expressed the hope that all parties can qet together coollv and qet this matter resolved as soon as possible. 5. Continue discussion with Wriqht & Morrissey to consider chanqinq the zoninq of 2 lots totalinq 94,000 sq ft. from R-4 to C-1, south side of Swift St, immediately east of Farrell Street, 1 PLANNING COMMISSION 13 JUNE 1989 page 5 Mr. Webster noted the Gas Company is at one end of the street. The other end is residential. He said they are askinq that the body shop property be rezoned to commercial. They feel it is a commercial use now and that by zoninq it properly, the owner can upgrade the property. The land in the immediate area is also commercial and there are qood natural boundaries that separate the first 3 properties. He felt there would be a minimal impact of commercial land encroaching on residential. They are hopinq to locate a building at the west end of the site and screen parkinq and drop it down so it can be partly hidden. Mr. Burqess raised the question of spot zoning. Mr. Jacob felt the property up the hill should be included in order to avoid spot zoning. Mr. Craiq said he had no problem puttinq the dividinq line between the ranch and the micradish place. Mrs. Maher agreed. Members felt the property on which the raised ranch is located should remain residential. A poll of members showed all in favor of the C-1 proposal. Mr. Weith will warn it for Public Hearinq. 6. Review Draft #3 of the proposed South Burlington Public Road- way Policy Mr. Jacob read the draft. In Section A members aqreed on 4 or more units requiring a public road. Mr. Burqess moved to adopt Draft #3 of the proposed South Burlington Public Roadway Policy as amended Mrs Maher seconded. Motion passed unani-ously. Other Business Mrs. Maher raised the question of the Zayre lot. Mr. Weith said the rows with substandard aisles are for compact cars. It is a problem because people are parkinq lar-er cars there, and there have been some fender benders. He recommended better signage. Mrs. Maher also raised the question of whether the new mall stores will be open before the new road is built. Mrs. Maher noted that she and Mr. Ward walked through the Benson land near the Post Office. Their bond is up in July, and Mrs. Maher noted Mr. Benson hasn't fulfilled his landscapinq plan. She felt the property is a "slum in the makinq." As there was no further business to come before the Co--ission the meetinq adjourned at 10:00 pm. s Clerk STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION AA CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT NOTICE TO: JOE WEITH, CITY PLANNER FOR THE CITY OF SOUTH BURLINGTON, 575 Dorest Street, South Burlington, VT 05403 Enclosed are a Summons and Complaint which are served on you under Rule 4(1) of the Vermont Rules of Civil Procedure. They have been sent to you because you are a Defendant in this civil action. Part of this form is an acknowledgement that you have received the enclosed Summons and Complaint. You must sign and date the acknowledgement. On or before the 31st day of August, 1989, one completed copy of this acknowledgement must be received by the sender at the following address: Gear and Davis, Inc., P.O. Box 412, Five Burlington Square, Burlington, Vermont 05402-0412. A pre -addressed and stamped envelope is included herein for this purpose. If you do not complete and return the form to the sender so it is received within twenty (20) days after mailing of this notice, you may be required to pay any expenses incurred in serving a Summons and Complaint in any other manner permitted by law. If you do complete and return this form, you must answer the enclosed Complaint within twenty (20) days from the date that you signed the acknowledgement. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. mpk\m61\b I declare that this Acknowledgement of Receipt of Summons and Complaint was mailed on the date shown below. Dated at Burlington, Vermont, this 14th day of August, 1989. GE DAVIINC. By: Mary P. ehoe, Esq. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT I declare and certify that I received a copy of the Summons and Complaint in the above entitled action at the following address: DATED: Joe Weith, City Planner for City of South Burlington NOTE: You must date this acknowledgement or it is ineffective. mpk\m61\b t STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI and JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. SUMMONS TO THE ABOVE -NAMED DEFENDANT(S): You are hereby summoned and required to serve upon Mary P. Kehoe, Esq. of Gear and Davis, Inc., Plaintiff's attorney, whose address is P.O. Box 412, Burlington, Vermont 05402, an answer to the complaint which is herewith served upon you, within 20 days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. Your answer must be filed with the Court. Unless the relief demanded in the Complaint is for damage covered by a liability insurance policy under which the insurer has the right or obligation to conduct the defense, or unless otherwise provided in Rule 13(a), your answer must state as a counterclaim any related claim which you may have against the Plaintiff, or you will thereafter be barred from making such claim in any other action. Dated at Burlington, Vermont, this , day of August, 1989. GEAR AN DAVIS' IN . By : �. � (I � mpk\m61\b Mgr�-'P. I ehoe, Esq. Attorney for Plaintiff STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI, AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. COMPLAINT NOW COMES Plaintiff, IBIS Corporation, by and through its attorneys, Gear and Davis, Inc., and brings this Complaint against Defendants City of South Burlington, City of South Burlington Planning Commission, City Planner Joe Weith, Zoning Administrator Richard Ward, former City Manager William Symanski and former City Planner Jane Bechtel. Plaintiff seeks an order to compel Defendants to issue a subdivision permit, permitting Plaintiff to subdivide its property located on Spear Street in South Burlington. Plaintiff also seeks a declaratory judgment and damages. This action is brought pursuant to the fifth and fourteenth amendments to the United States Constitution; Chapter 1, Articles 2 and 9 of the Vermont Constitution; 42 U.S.C. Section 1983; V.R.C.P. 57 and 12 V.S.A. Sections 4711 - 4725. JURISDICTION 1. This Court has jurisdiction over this Complaint pursuant to 24 V.S.A. Section 901(a) and pursuant to 4 V.S.A. Section 113. mpk\m61\b 1 FACTS 2. Plaintiff IBIS Corporation is a corporation organized under the laws of the Commonwealth of Virginia with its principal place of business at Herndon, County of Fairfax, Commonwealth of Virginia. 3. Defendant City of South Burlington ("City") is a municipal corporation chartered by the State of Vermont. 4. Defendant City of South Burlington Planning Commission ("Commission") is a duly organized governmental body of the City of South Burlington pursuant to Title 24, Vermont Statutes Annotated. 5. Defendant Joe Weith is, and at times relevant hereto, has been the City Planner for the City of South Burlington. Defendant Jane Bechtel (Lefleur) was, during times relevant hereto, City Planner for the City of South Burlington. 6. Defendant Richard Ward is, and at all times relevant hereto, has been the Zoning Administrator for the City of South Burlington. 7. Defendant William Symanski, at all time relevant hereto, was City Manager of the City of South Burlington. 8. In September of 1988, Plaintiff purchased approximately 5 acres of land (hereinafter "the Land") located on the easterly side of Spear Street in South Burlington, Vermont. Plaintiff purchased said land from the Chittenden Trust Company, Executor of the Estate of Aurora W. Nowland, Helen N. Gagnon and Marie N. Underwood (hereinafter "Grantors"). mpk\m61\b 2 9. Before acquisition of the land, Plaintiff entered into an agreement (the "Agreement") with the City in which the City agreed to waive its right to review the above -mentioned conveyance under its subdivision regulations. The Agreement is annexed hereto as Exhibit A and incorporated herein by reference. 10. The Agreement provided that the Land would be merged with 1.5 adjacent acres of land with dwelling house thereon known and designated as 1570 Spear Street which Plaintiff already owned. 11. The Agreement further stated that "at any time after the date hereof, IBIS Corporation shall have full right to use, develop and subdivide said merged property in compliance with the applicable city regulations". 12. After acquisition of the Land from the Grantors, the Land merged with Plaintiff's adjacent property creating a 6.8 acre Parcel (hereinafter "the Parcel"). 13. In consideration of the City's Agreement to waive the subdivision regulations, the Grantors deeded to the City a strip of land from the Parcel. This strip of land has 80 feet of frontage on Spear Street and extends easterly the depth of the Parcel. Further, the Grantors gave the City an Irrevocable Offer of Dedication with respect to said strip of land for the purpose of creating a city street at a future date. 14. Defendant William Symanski, then City Manager for the City of South Burlington, executed the Agreement on behalf of the City. Defendant Richard Ward, then Zoning Administrator for the City of South Burlington, witnessed the signature of William Symanski on said Agreement. William Symanski, Richard Ward, and mpk\m61\b 3 Jane Bechtel (now Lefleur), then Town Planner for the City of South Burlington, were all involved in the negotiations leading to the Agreement. 15. Jane Bechtel (Lefleur) advised the Grantors or their representatives that the City's master plan called for the construction of a road, that being an extension of Deerfield Street, through the Land and that a subdivision permit would not be necessary if the Grantors would convey a strip of the Land for the extension of the street to the City. See paragraph 12, supra. At this time, the parties discussed the terms of the Agreement which they eventually entered into. Specifically, Ms. Bechtel was advised that IBIS would be applying for subdivision permits after transfer of the Land to it. In response, Ms. Bechtel assured Grantors or their representatives that no subdivision permit would be necessary under the circumstances. 16. In January of 1989, Plaintiff applied for a 3 lot subdivision permit with respect to the 6.8 acre Parcel. The Commission did not properly warn the hearings it held on IBIS' application for subdivision permits. Indeed, a hearing held on April 18, 1989 was adjourned without announcing the date or place of the adjourned hearing. 17. The Commission held its final hearing on IBIS' application on June 13, 1989. At that time, the Commission denied IBIS' application. In its findings of fact, the Commission concluded that it could not grant a subdivision permit because the Grantors did not apply for and receive a subdivision permit before they transferred the Land to Plaintiff. The Defendant Commission's mpk\m61\b 4 findings of fact are attached hereto as Exhibit B and incorporated herein by reference. 18. Defendant Commission further found that neither it, nor any of its members individually, had knowledge of the September 1988 transfer of the Land from the Grantors to Plaintiff until January 1989 when Plaintiff made its initial application for a subdivision permit. 19. Defendant Commission also found and held that the "conveyance from the Nowland Estate, et. al.', (the "Grantors") to IBIS Corporation is not considered a boundary line adjustment in as much as potential developable lots are created". 20. During the course of the serial hearings held by the Planning Commission, then City Attorney Steve Stitzel, on behalf of the Planning Commission, approached Plaintiff, indicating that the City of South Burlington wished to swap the Land with the City of South Burlington in exchange for additional property, not yet owned or acquired by the City of South Burlington, lying contiguous to the Parcel. COUNT I BREACH OF CONTRACT 21. Paragraphs 1 through 20 above are incorporated herein and made a part hereof by reference. 22. Through the representations and actions of the parties as set forth above, a contract was created which required Defendants to grant Plaintiff's application for a subdivision permit, provided IBIS met all requirements for a permit under the mpk\m61\b 5 City's subdivision regulations. IBIS net all the requirements for a permit and, thus, the City was required to issue a permit under the terms of the Agreement, notwithstanding the fact that the Grantors did not apply for or receive a permit before conveying the Land to IBIS. 23. Defendants' actions in denying Plaintiff its subdivision permit application constitute a breach of said contract. 24. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. COUNT II IMPLIED CONTRACT 25. Paragraphs 1 through 24 above are incorporated herein and made a part hereof by reference. 26. The representations of Defendants and actions of the parties as set forth above constitute and implied contract by which Defendants were obligated to grant a subdivision permit to Plaintiff, provided Plaintiff met all requirements therefor, notwithstanding the fact that the Grantors did not apply for or receive a subdivision permit when they sold the Land to Plaintiff. 27. The actions of Defendants, as set forth above, in denying Plaintiff a subdivision permit because the Grantors did not apply for a subdivision permit when they transferred the Land to Plaintiff constitute a breach of implied contract. 28. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. mpk\m61\b 6 COUNT III NEGLIGENT MISREPRESENTATION 29. Paragraphs 1 through 28 above are incorporated herein and made a part hereof by reference. 30. Defendants' representations to Plaintiff, as set forth above, were false representations relating to material portions of the parties' written and implied contracts. 31. Defendants knew or should have known that said representations were false and misleading and further knew or should have known that Plaintiff would rely on said false and misleading representations to its detriment. 32. In making these false and misleading representations to Plaintiff, Defendants breached a duty of care they owed Plaintiff. 33. Plaintiff relied on said misrepresentations to its detriment. As the sole and proximate result of Defendants negligent, misleading, and false representations to Plaintiff, r Plaintiff has suffered irreparable, severe economic loss and damages. COUNT IV tai i10 34. Paragraphs 1 through 33 above are incorporated herein and made a part hereof by reference. 35. The misrepresentations, as set forth above, were made by Defendants with intent to defraud, with reckless disregard for the truth thereof, wrongfully and maliciously. 36. Defendants knew that said misrepresentations were false and made said misrepresentations with the intent that Plaintiff mpk\m61\b 7 would rely thereupon to its detriment. 37. In making these false misrepresentations, Defendants intended to induce Plaintiff to act and rely thereupon to its detriment. 38. Plaintiff did, in fact, rely on said misrepresentations to its detriment. 39. As the sole and proximate result of Defendants' intentional misrepresentations, Plaintiff has suffered severe economic loss and damages. COUNT V PROMISSORY ESTOPPEL 40. Paragraphs 1 through 39 above are incorporated herein and made a part hereof by reference. 41. The representations of Defendants, as set forth above, constitute promises on the part of Defendants which they should reasonably have expected to induce action or forbearance on Plaintiff's part and which did, in fact, induce action or forbearance on the part of Plaintiff. As such Defendants are estopped from requiring Grantors to apply for a subdivision permit and from denying their promises and obligations to grant a subdivision permit to Plaintiff notwithstanding the fact that the Grantors did not apply for subdivision permit when they sold Plaintiff the Land. COUNT VI EQUITABLE ESTOPPEL 42. Paragraphs 1 through 39 above are incorporated herein and made a part hereof by reference. mpk\m61\b 8 43. The representations of Defendants, coupled with Plaintiff's obvious reliance thereon as set forth above, created an obligation on the part of Defendants to refrain from repudiating the consequence of such actions, inducements, and representations. As such, Defendants are estopped from denying their obligations to grant Plaintiff a subdivision permit provided IBIS met all requirements for a permit under the City's subdivision negotiations. IBIS met all the requirements for a permit and, thus, the City was required to issue a permit to IBIS under the Agreement, notwithstanding the fact that the Grantors herein did not apply for a subdivision permit prior to conveying the Land to Plaintiff. 44. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. COUNT VII UNAUTHORIZED CONDUCT 45. Paragraphs 1 through 44 above are incorporated herein and made a part hereof by reference. 46. The actions of Defendants, as described above, including their attempts to persuade Plaintiff to swap land with the City in lieu of subdividing the Land, constitute unauthorized conduct on the part of the Planning Commission. 47. Because Plaintiff refused to "swap" land with the City, the Planning Commission took retaliatory steps by denying Plaintiff its subdivision application. 48. The Planning Commission's conduct in this case was mpk\m61\b 9 unauthorized, outside the scope of its powers pursuant to 24 V.S.A. Sections 4461-4475 and in violation of 24 V.S.A. Section 4325. The Planning Commission's conduct was also outside the scope of its own subdivision regulations, adopted by the City. 49. As a direct and proximate result of the Planning Commission's illegal and unauthorized conduct, Plaintiff has suffered substantial economic loss and damages. COUNT VIII UNAUTHORIZED REFUSAL TO ISSUE Subdivision PERMIT 50. Paragraphs 1 through 49 above are incorporated herein and made a part hereof by reference. 51. Pursuant to 24 V.S.A. Section 4467, a Planning Commission may continue a hearing, but only if it announces a new date and place for the adjourned hearing, at the time of adjournment. 52. One of the hearings in this case was held on April 18, 1989. However, that hearing was continued "indefinitely" by the Planning Commission. 53. This indefinite adjournment of the hearing on Plaintiff's subdivision permit application was in violation of 24 V.S.A. Section 4467. 54. Because this hearing was not properly adjourned pursuant to the terms of 24 V.S.A. Section 4467, it must be considered the last duly warned noticed hearing on Plaintiff's subdivision permit application. As such, the Commission was required, pursuant to the terms of 24 V.S.A. Section 4470, to issue a written decision and findings of fact within 45 days from that date. 55. Instead, the Planning Commission held a new hearing at mpk\m61\b 10 a later time without providing proper prior notice to Plaintiff pursuant to Section 4467. 56. Because no decision was issued by the Commission within 45 days from April 18, 1989, the last duly warned hearing of the Commission with respect to Plaintiff's subdivision permit application, a subdivision permit is deemed to have been granted to the Plaintiff. 57. The Commission's failure to issue a subdivision permit pursuant to the terms of 24 V.S.A. Section 4470 was the sole and proximate cause of the Plaintiff's injuries, which include significant economic harm and damages. COUNT IX UNCONSTITUTIONAL EXERCISE OF POLICE POWER 58. Paragraphs 1 through 57 above are incorporated herein and made a part hereof by reference. 59. The Defendant's actions in this case are unconstitutional, in that the Planning Commission's denial of a subdivision permit in this case establishes an arbitrary, capricious, unreasonable, unfair, and discriminatory exercise of the City's police power in violation of the United States Constitution and the Vermont Constitution. 60. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. mpk\m61\b 11 COUNT X DEPRIVATION OF RIGHTS 61. Paragraphs 1 through 60 above are incorporated herein and made a part hereof by reference. 62. The actions of Defendants, as set forth above, were committed under color of law and constitute a deprivation of the rights and privileges of Plaintiffs secured by the United States Constitution and the law of the State of Vermont and are a direct violation of the Civil Rights Act of 1964, 42 U.S.C. Section 1983. 63. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. COUNT XI UNCONSTITUTIONAL AND ILLEGAL TARING 64. Paragraphs 1 through 63 above are incorporated herein and made part hereof by reference. 65. The actions of Defendants as set forth above constitute an illegal taking of Plaintiff's property without compensation or due process of law in violation of the United States Constitution, the Vermont Constitution, and Vermont law. 66. As a direct and proximate result of Defendants' actions, Plaintiff has suffered severe damages, including but not limited to economic and other consequential damages. DAMAGES (AS TO ALL COUNTS) As a result of the actions of the Defendants as set forth above, Plaintiff has suffered economic loss in that reasonable use and development of the property has been entirely denied Plaintiff mpk\m61\b 12 by Defendants and in that Plaintiff has been forced to expend massive sums of money for planning, attorney's fees, real estate taxes, and interest payments. As a result of Defendants' actions Plaintiff's lands have been rendered virtually worthless. WHEREFORE, Plaintiff prays that the Court order: 1. Defendants to issue a subdivision permit to Plaintiff permitting it to subdivide the Parcel into three lots. 2. That the Court declare that City's contract with Plaintiff requires the City and the Commission to waive the Grantors' obligation, if any, to apply for a subdivision permit and to grant Plaintiff a subdivision permit provided it met all requirements therefore, notwithstanding the fact that the Grantors did not apply for subdivision when they conveyed the Land to Plaintiff. 3. That Defendants' conduct be declared void, unauthorized and unconstitutional as applied to Plaintiff. 4. That the Plaintiff be awarded damages, both compensatory and punitive in an amount to be determined by the Jury. 5. That the Plaintiff be awarded costs, interest and attorney's fees. 6. That the Jury award such other relief as it deems just. Dated at Burlington, Vermont, this day of August, GEA A D` DAVIS NC. By: 'MaiP. Kehoe, Esq. At orne for Plaintiff mpk\m61\b 13 EXHIBIT A A r_nPpm_pmm AGREEMENT entered into and effective this 2_ day of September, 1988, by and between IBIS CORPORATION, A Virginia Corporation with office and place of business in Herndon, County of Fairfax, State of Virginia, and the CITY OF SOUTH BURLINGTON, a municipal corporation of Chittenden County and State of Vermont; WHEREAS, CHITTENDEN TRUST COMPANY, Executor of the Estate of Aurora W. Nowland and Helen N. Gagnon and Marie N. Underwood are the co -owners of a parcel of land lying easterly of Spear Street from which they have conveyed a strip of land to IBIS CORPORATION by Deed dated September 1988 and to be recorded in the City of South Burlington Land Records, and WHEREAS, said strip of land contains approximately 5.38 acres and has 590 feet of frontage on Spear Street and abuts other lands in the City of South Burlington owned by IBIS CORPORATION; NOW THEREFORE, the parties agree as follows with respect to the South Burlington Subdivision Regulations and their applicability to this transaction: In consideration of the City of South Burlington waiving its right to review the above -mentioned conveyance under the subdivision regulations in effect in the Town, IBIS CORPORATION covenants and agrees that the above -mentioned parcel of land conveyed to them by LAi-KAM. EASTMAN. the CHITTENDEN TRUST COMPANY, Executor of the Estate of SCHWEYER & TETZLAFF Aurora W. Nowland and Helen N. Gagnon and Marie N. ATTORNEYS Underwood shall be merged with other lands which they _V4 MAIN STREET own in the City, which lands lie northerly of and P.O. BOX 568 adjoin the above -described parcel. From the date of BURLINGTON. VERMONT this Agreement, the above -described parcel and the 05102-0566 adjoining property of IBIS CORPORATION shall constitute a single lot for purposes of compliance with City of South Burlington Zoning Regulations and Subdivision Regulations. At any time after the date hereof, IBIS CORPORATION shall have full right to use, develop and subdivide said merged property in compliance with applicable City regulations. This Agreement shall be binding upon the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals as of the day and year first above written. I SEN OF' IBIS CORPO BY* a- ly thori d Agent CITY OF SOUTH BURLINGTON BY: Duly Authorized Agent STATE OF VERMONT CHITTENDEN COUNTY, SS. At Burlington this 27, day of September, 1988, personally appeared % l) tT9WftZ/41 , Pr2Fs� PCnf, -,�' , duly authorized agent of IBIS CORPORATION and acknowledged this instrument by him sealed and Z;ubscribed to be his free act and deed and the free act ad o S;, ORPORATION. Before me,✓ 1/ Notary Public STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this day of September, 1988, personally appeared 01 duly authorized agent of the City of South Burlington and acknowledged this instrument by him/her sealed and subscribed to be his/her free act and deed and the free act `ATHAK E`'STMAN. and deed of the City of South Burlington. ScwwEYER & TETZLAFF ATTORNEYS Before me, 308 MAIN STREET Notary Publ P.O. BOX 568 BURLINGTON, VERMONT BFSWILLS\Nowland . Agr 05402-0566 EXHIBIT B is • PLANNING COMMISSION 13 JUNE 1989 The South Burlinqton Planninq Commission held a meetinq on Tuesday, 13 June 1989, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset Street. Members Present Peter Jacob, Chairman: Mary -Barbara Maher, William Burqess, Ann Puqh, William Craiq 1 Minutes of 2 May 1989 Mrs. Maher moved the Minutes of 2 May be approved as written. Mr. Burqess seconded. Motion passed unanimously. 2. Continue Site Plan application of W._W. Grainger- Inc,_ for construction of a 14,982 s , ft. building gfor wholesale dis- - tri ution use, lot 13, Green Tree Park Industrial Subdivision, Gregory Drive, Members continued the discussion of parkinq. Mr. Burqess said he would like to see pavinq kept to a minimum. Members aqreed on 21 parkinq spaces. Mr. Weith said there was no problem with traffic. Members also felt there was no problem with landscaping. Mr. Jacob emphasized that the developer of the whole subdivision should do the landscapinq he's supposed to do, and the specific businesses should have to do only what is required of them. Mr. Burqess moved the Planninq Commission approve the Site Plan application of W.W. Grain^er- Tnc- for construction of a 14.982 sq. ft. buildinq (PhaseI) for wholesale/distribution use as de- picted on a plan entitled "W.W. Grainger, Inc, lot 13, Green Tree Park, South Bulrinqton, Vermont," prepared by Trudell Consultina Eno-Ineers. Inc. and dated 4/24/89, last revised 5/l/89, with the followinq stipulations: 1 The applicant shall post a $10,050, 3-year landscaping bond_ prior to permit. 2. A sewer allocation of 120 qpd is qranted based on 8 employees. The applicant shall pay the $2.50 per qallon fee prior to permit. 3. The applicant shall contribute-_, _to_the Williston Road Traffic Improvement Fund (Impact Area 2) based on_the 10 peak hour trips to be qenerated by this development: PLANNING COMMISSION 13 June 1989 1 Page 2 4. This approval is only for Phase I� not Phases II and III or _th.e future expansion area shown on the plan.. 5. The plan shall be revised to show onl 21 parking spaces and re ftiture parking spaces. The paved parking area shall bt re- vi5ed accordingly and approved by the City Planner prior to Permit. 6. The zoning permit shall be obtained within 6 months or this approval is null and void. Mrs. Maher seconded. Motion Passed unanimously. 3. Continue Site Plan application of Rene Berard for construc- tion of a 13,600 square foot building 7600 sq. ft. footprint) for storage/distribution use, lot 14 Ethan Allen Drive. Joe Ingram explained they had a problem with front yard coverage which they have now solved by redesign. Fire hydrants have been located, and drainage has been worked out with -the City Engineer. Members had no problems with the revised plan. • Mr. Burgess moved the Planning Commission approve the Site Plan application of Rene Berard for construction of a 13,600 sq. ft. building (7,600 sq, ft. footprint) for storage/distribution use as depicted on a plan entitled "Storage/Distribution Facility, of 14, Ethan Allen Drive" prepared by Graphic Construction Management Services, Inc., dated 3/23/89, last revised 6 8 89 with the following stipulations: 1. The applicant shall post a $6,700, 3-year landscaping bond prior to permit. 2. A_ sewer allocation of 255 gpd is granted based on the esti- mated 17 employees. The applicant shall pay the $2.50 per gallon fee prior to permit. 3. The applicant shall contribute 1$ 800 to the City's sidewalk fund based on 120 feet of frontage on Ethan Allen drive at $15 per linear foot. 4. The plan shall be revised to show the proposed drainage stem as shown on the attached sketch date 6/13/89. 5. The applicant expressed that 1,600 sq. ft. is to be devoted to office use. It is the applicant's responsibility to come before the Commission for approval if the square footage for office use changes by more than 25%. •y PLANNING COMMISSION 13 JUNE 1989 page 3 6. Rased on expressed representation of the applicant- there will be no outside storage. 7. A revised plan addressing stipulation 4 shall be submitted to the City Planner for approval prior to permit. 8. The zoning permit shall be obtained within 6 months or this approval is null and void Mrs. Maher seconded. Motion passed unanimously. 4. Public Hearinq: Continue Final Plat application of IBIS Corporation for subdivision of a 6.8 acre parcel into 3 lots of 1.9, 2.3, and 2.6 acres, 1570 Spear Street Mr. Gear, representinq the applicant, said he felt they had complied with the Commission's concern on the plan and that the matter was now out of his client's hands. He presented members with documents on issues other than the plan and noted that his client bought the land from Marie Underwood and Helen Gagnon', as indicated on documents on the land transfer and on discussions with the Citv Attornev and former City Planner. He said his S clients would not have bouqht the land had they known it would arouse the present controversy. He requested the Commission allow the subdivision permit as he felt his clients had compled with all regulations. Mr. Jacob noted the Commission had been taken by surprise by this plan. He said they had been thinking of this land for some time from the point of view of scenic corridors and were confused as to what happened and why. He said the Commission had asked the advice of independent Counsel, Mr. Robert Perry. Mr. Craig said he didn't want to give the impression he had any- thinq against any of the parties and wished that the boundary line revision had gone throuqh the subdivision review. He felt everyone concerned had some degree of responsibility for the current situation. Mrs. Maher wanted to make it clear that applicant is aware that when subdividion of the northern lots had happened, it was the Commission's understanding the land under consideration now was still part of the larqer parcel. She stressed that it was shown to the Commission that way. Members were firm in their feeling that the view should be main- tained and that a height limitation on structures should be con- sidered. Mr. Burqess said he wanted to qet 15% of the land for views instead of a cash amount. C PLANNING COMMISSION 13 JUNE 1989 page 4 A poll of members indicated a preference for a motion to deny. Ms. Peacock moved the Planninq Commission den plicatin of IBIS Cor oration for subdivision into three lots of 1.9. 2.3 and 2.6 acres as entitled "Final Plat IBIS Corporation, South prepared by Geor^e Bedard and dated 12/18/86, based on the following findings: the Final Plat ap- of a 6.8 acre ap rcel depicted on a plan Burlington, Vermont" last revised 4/14/89 1 The proposed subdivision consists of a 1.3 acre parcel acquired by IBIS Corporation on September 27, 1984 and a 5.3 acre parcel acquired on September 22, 1988 from the Estate of Aurora W Nowland, Marie N. Underwood, and Helen N. Gagnon. 2. The Nowland Estate, et al, own substantial additional land on the southerly and easterly sides of the subject parcel They did not seek subdivision a proval prior to conveyance of the parcel to IBIS but rather treated it as a boundary lin a Lustm nt 3 As _part of the transfer from the Nowland Estate, et al. zv IBIS the parties executed deeds and an offer of irrevocable ded- ication to the City of South Burlington for an 80 foot wide strip of land opposite Deerfield Way -for hi^hwav purposes 4. Neither the Planninq Commission, nor any of its members indi- vidually had knowledne of the transfers until January, 1989, when IBIS applied for sketch plan review. 5. The conveyance from the Nowland Estate, tion is not considered a boundary line ad- potential developable lots are created. et al, to IBIS Corpora- ustment in as much as 6 The conveyance from the Nowland Estate et al, to IBIS Corpora- tion without Planning Commission review forecloses meaningful re view of the subdivision and imposition of conditions appropriate under relevant statutes and ordinances_ 7. Review of the subject IBIS Subdivision cannot occur until sub- division approval has been obtained for the subdivision of the Nowland Estate, et al Mr. Craiq seconded. Motion passed unanimously Mr. Jacob expressed the hope that all parties can qet together coolly and qet this matter resolved as soon as possible. 5. Continue discussion with Wriqht & Morrissey to consider hanginq the zoning of 2 lots totaling 94,000 sq ft.from R-4 to c ') C-1, south side of Swift St, immediately east of Farrell Street, PLANNING COMMISSION 13 JUNE 1989 page 5 Mr. Webster noted the Gas Company is at one end of the street. + The other end is residential. He said they are askinq that the body shop property be rezoned to commercial. They feel it is a commercial use now and that by zoninq it properly, the owner can upqrade the property. The land in the immediate area is also commercial and there are qood natural boundaries that separate the first 3 properties. He felt there would be a minimal impact of commercial land encroachinq on residential. They are hopinq to locate a buildinq at the west end of the site and screen parkinq and drop it down so it can be partly hidden. Mr. Burqess raised the question of spot zoning. Mr. Jacob felt the property up the hill should be included in order to avoid spot zoning. Mr. Craiq said he had no problem putting the dividing line between the ranch and the micradish place. Mrs. Maher agreed. Members felt the property on which the raised ranch is located should remain residential. A poll of members showed all in favor of the C-1 proposal. Mr. Weith will warn it 'for Public Hearinq. 6. Review Draft #3 of the proposed South Burlington Public Road- way Policy Mr. Jacob read the draft. In Section A members aqreed on 4 or more units requirinq a public road. Mr. Burqess moved to adopt Draft #3 of the proposed South Burlington Public Roadway Policy as amended. Mrs. Maher seconded. Motion passed unanimously. Other Business Mrs. Maher raised the question of the Zayre lot. Mr. Weith said the rows with substandard aisles are for compact cars. It is a problem because people are parking lar-er cars there, and there have been some fender benders. He recommended better signage. Mrs. Maher also raised the question of whether the new mall stores will be open before the new road is built. Mrs. Maher noted that she and Mr. Ward walked through the Benson land near the Post Office. Their bond is up in July, and Mrs. Maher noted Mr. Benson hasn't fulfilled his landscapinq plan. She felt the property is a "slum in the makinq." . As there was no further business to come before the Co--ission the meeting adjourned at 10:00 pm. Clerk STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH and ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) CHITTENDEN SUPERIOR COURT DOCKET NO. DEMAND FOR JURY TRIAL The Plaintiff in the above entitled matter by and through its attorney, Mary P. Kehoe, Esq. of Gear and Davis, Inc., and hereby demands a jury trial in this matter. Dated at Burlington, 1989. mpk\m61\b i Verm t this ��{ day of .I GEAIR� A D DAV , I�IJC. By: /i- Mary P. Kdhoe, Esq. Attorney for Plaintiff STATE OF VERMONT CHITTENDEN COUNTY, S.S. IBIS CORPORATION V. CITY OF SOUTH BURLINGTON, ) PLANNING COMMISSION OF THE ) CITY OF SOUTH BURLINGTON, ) CITY PLANNER JOE WEITH, ) ZONING ADMINISTRATOR RICHARD ) WARD, WILLIAM SYMANSKI AND ) JANE BECHTEL (LEFLEUR) ) CHITTENDEN SUPERIOR COURT DOCKET NO. NOTICE TO TAKE DEPOSITION TO: CITY OF SOUTH BURLINGTON, PLANNING COMMISSION OF THE CITY OF SOUTH BURLINGTON, CITY PLANNER JOE WEITH, ZONING ADMINISTRATOR RICHARD WARD, WILLIAM SYMANSKI AND JANE BECHTEL (LEFLEUR) PLEASE TAKE NOTICE that on September 26, 1989 at 1:00 p.m. at the offices of Gear and Davis, Inc., Attorneys at Law, Five Burlington Square, Burlington, Vermont, IBIS Corporation, by and through its undersigned attorneys of record will take the deposition of William Symanski pursuant to V.R.C.P. 30(b) by oral examination before a court reporter or other officer authorized by law to administer oaths, pursuant to the Vermont Rules of Civil Procedure. Pursuant to Rule 30(b)(5), the deponent is requested to produce at the deposition for inspection and copying, the following documents: 1. All notes, correspondence and writings of any kind documenting or relating in any way to an agreement between IBIS Corporation and the City of South Burlington dated September 22, 1988 and attached as Exhibit A. 2. All documents relating to any communication with any of the above named Defendants or Plaintiff or any agent for any of the Defendants or Plaintiff. 3. All documents relating to any communications with Helen N. Gagnon, Marie N. Underwood, their spouses, and any representative for the Estate of Aurora Nowland and Attorney Benjamin Schweyer and/or Attorney Neil Wheelwright. For the purposes of this notice, "documents" refers to, and includes, but is not limited to, writings, calendars, diaries, memoranda, letters, proposals, whether typed, printed or mpk\m61\b handwritten, whether originals, carbon copies or other copies, drawings graphs, charts, phonograph records, photographs, computer or other recording tape and every other type of physical evidence or data compilation including all forms of computer storage and retrieval. Dated at Burlington, Vermont, this 14th day of August, 1989. GEAR M mpk\m6l\b DAVIS,'INC. ti Ma�K�hoe, Esq. Plaintiff's Attorney ' PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON. VERMONT 05403 ROBERT J. PERRY RON/'LD C. SCHMUCKER SUZANNE R. BROWN August 24, 1989 Diane Lavallee, Clerk Chittenden Superior Court P.O. Box 187 Burlington, VT 05402 Re: 1570 Spear Street Dear Diane: Enclosed for filing please find our Motion to Dismiss and Memorandum in Support of Motion to Dismiss relative to the above - entitled action. Sincerely, Robert J. Perry, Esq. RJP/nlm Enclosures cc: Mary Kehoe, Esq. Joe Weith ,/' TELEPHONE (802) 863-4558 TELECOPIER (802) 862-0937 0 PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. 0. BOX 2323 SOUTH BURLINGTON, VERMONT 05403 STATE OF VERMONT CHITTENDEN COUNTY, SS. IN RE: 1570 SPEAR STREET SOUTH BURLINGTON, VERMONT CHITTENDEN SUPERIOR COURT DOCKET NO. MOTION TO DISMISS NOW COMES the City of South Burlington, by and through its attorney, Robert J. Perry, and moves to dismiss the Amended Appeal of Appellant dated August 14, 1989. The amendment alleges a new claim or cause of action after the expiration of appeal rights on the issue. Factually, the Appellant's claim is incorrect. As is clear from the minutes of the April 13, 1989, meeting which is claimed to be the final hearing, the motion was made and passed by the Commission "... that the hearing be continued and that the Planning Commission hire independent counsel to address issues. He further moved that the item be back on the agenda as soon as possible after the issues are addressed." There is no legal requirement that the meeting be continued from one regularly scheduled meeting to another and no practical reason when the Planning Commission had no idea of the time frame to have review of the issues by independent counsel. ANSWER To the extent an answer is required, the City of South Burlington and City of South Burlington Planning Commission deny all allegations of Paragraphs 7 through 11 of the Amended Appeal. AFFIRMATIVE DEFENSES Appellant has waived and is estopped from raising the issues set forth in the Amended Appeal. As evidenced by a copy of the Planning Commission minutes of June 13, 1989, Appellant fully participated in the final plat hearing on June 13 r without suggesting that the April 18, 1989, hearing was improperly adjourned, that the Appellant had a subdivision permit as of right, or that there was any error or deficiency in any aspect of the proceedings. Respectfully submitted this 16th day of August, 1989. 0 PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON, VERMONT 05403 PERRY & SCHMUCKER Robert J. Perry, Esq. STATE OF VERMONT CHITTENDEN COUNTY, SS. IN RE: 1570 SPEAR STREET SOUTH BURLINGTON, VERMONT CHITTENDEN SUPERIOR COURT DOCKET NO. MEMORANDUM IN SUPPORT OF THE CITY OF SOUTH BURLINGTON'S MOTION TO DISMISS NOW COMES the City of South Burlington, by and through its attorney, Robert J. Perry, and hereby files its Memorandum in Support of its Motion to Dismiss the Amended Appeal dated August 16, 1989. IBIS Corporation claims that the June 13, 1989 meeting of the Planning Commission was a nullity, so that the Town then failed to render a decision within the 45 day period set forth for the issuance of decisions in 24 V.S.A. § 4470(a). The instant case is quite similar to a recent Vermont Supreme Court decision, In Re: Barbara Knapp, Vt. (No. 88-383, June 30, 1989). In Knapp, the Town, after an initial July hearing, discovered that an element necessary to the granting of a zoning permit was not supported by sufficient proof. It therefore chose to reopen Ms. Knapp's application so that she could present the required evidence. An additional meeting, held on September 10, was duly noticed and continued as if it was an original one. A written decision was then issued in October of 1986, 42 days after the September 10 hearing. The Vermont Supreme Court concluded that "the Board's actions in noticing a new hearing on the same application within 45 days tolled its obligation to issue a written decision until after the conclusion of the final hearing." The Court based its decision on the construction of Section 4470(a) to avoid a result that would render the act ineffective or lead to irrational results. In Re: PERRY & SCHMUCKER Fish, Vt. (554 A. 2d 256, 258 (1988)). ATTORNEYS AT LAW 14130 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON, VERMONT 05403 In the instant case, an initial Planning Commission meeting was conducted regarding appellant's subdivision permit on April 18, 1989. As evidenced by a copy of the Planning Commission minutes attached hereto, the Planning Commission adjourned, but clearly noted that it was scheduling an additional meeting to consider additional evidence. This additional meeting was conducted on June 13, 1989, and the appellant received notice of such meeting and fully participated in the meeting. Within 45 days of the June 13, 1989 hearing, a printed decision was issued by the Planning Commission denying the applicant's subdivision permit. The City of South Burlington's actions in noticing of further hearing within the 45 day period in which the written decision was to have issued was sufficient to meet its obligation under Section 4470(a). Prompt consideration within a time certain was undeniably had. City of Rutland v. McDonald's Corp,,, 146 Vt. 324, 330 (1985). Since the Board's action and noticing a new hearing on the same application within 45 days tolled its obligation to issue a written decision until after the conclusion of the final hearing, the Board's written decision should post June 13, 1989 comply with the requirements set forth in 24 V.S.A. § 4470(a). WHEREFORE, for all the foregoing reasons, the City of South Burlington respectfully requests that the appeal by IBIS Corporation be dismissed. Dated at South Burlington, Vermont this day of August, 1989. PERRY & SCHMUCKER By: Robert J. Perry, Esq. PERRY & SCHMUCKER ATTORNEYS AT LAW 1480 WILLISTON ROAD P. O. BOX 2323 SOUTH BURLINGTON. VERMONT 05403 PLANNING COMMISSION 18 APRIL 1989 The South Burlington Planning Commission held a regular meeting on Tuesday, 18 April 1989, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset Street. Members Present Peter Jacob, Chairman; William Burgess, William Craig, Mary - Barbara Maher, Catherine Peacock, John Belter, Ann Pugh Also Present Joe Weith, City Planner; Sid Poger, The Other Paper; Bill Cimonetti, Deborah Burton, Jill Coffrin, Chris Cavin, Richard Lucia, Richard Farnham, Allen Gear, Richard Lamb, Sue Brynn, Robert Molthen, Mary Davico, Linda Schneider, Denny Blodgett, Lance Llewellyn, Jim Wood, Joe Ingram, David Austin, Laurie Parker, Sylvia Smith, Tom Hubbard 1. Minutes of 21 March 1989 Ms.Peacock moved to approve the Minutes of 31 March as written. Mr. Craig seconded. Motion passed unanimously. 2. Public Hearing: Final Plat Amended application of Richard Lucia for construction of a 2 story, 4 room addition (826 sq. ft. building footprint) to the Maple Leaf Motel, 907 Shelburne Road Mr. Ingram ISey will expand parking, limit exiting Shelburne Rd. traffic to southbound only and have northbound traffic exit through the deeded right-of-way. The angle of exit has been increased to the widest it can be. The adjacent pro- perty owner won't allow all exiting traffic to go over his land. The divider at the entrance will be made of concrete. Mr. Weith said Mr. Szymanski asks that it be a mountable 6" curb. With regard to landscaping, Mr. Ingram said they have no ob- jection to planting trees along the north property line to separate this property from the Gulf Station. Mr. Craig said there should be a sidewalk as there is a lot of pedestrian traffic there. Mr. Jacob suggested checking with the City Engineer as to what kind of sidewalk. The plan should also show the CWD water main location, and there should be no plantings over this main. Mr. Weith said the K-Mart attorney has asked to address the Commission as to their concerns. Since he had not anticipa- ted the hearing being so early on the agenda, Mr. Weith sug- gested tabling the item until the attorney could arrive. A quick poll of members indicated all members were in favor of PLANNING COMMISSION 18 APRIL 1989 PAGE 3 4. Continue Public Hearing: to consider the Final Plat ap- plication of Ibis Corporation 'for subdivision of a 6.7 acre parcel into Sots-�f--Y:8, 2.3, and 2.6 acres, 1570 Spear Street Mr. Weith noted that he had met with the City Attorney briefly and he had nothing new to tell him. Notes have been added to the plan regarding access to lots 1 & 2 which would access off the 80 ft. right of way. Lot 3 would access off Spear Street. Mr. Jacob asked what would happen to these lots if the city takes 15% for recreation/open space/view. Mr. Weith showed suggested sketches on how this might happen . Mr. Craig said he is still concerned about the so-called boundary adjustment. He cited what he felt were possible deviations from the city's subdivision regulations: a) in the creation of the right-of-way, 2 lots were created, so there should have been subdivision review; b) a boundary adjustment should be a minor adjustment and this was majpr; c) subdivision regulations say that any extension of a street requires subdivision review; d) no new developable lots should result and there are new lots. Mr. Craig said he spoke with the City Attorney who said he could not comment because he had thought the action was proper at the time. He suggested the Commission seek independent counsel. Mr. Craig felt the Commission should do this. Mr. Jacob asked Mr. Cimonetti if he felt the City Council would object to the Commission doing this. Mr. Cimonetti said he didn't feel there would be any objection. Mr. Craig moved that the hearing be continued and that the Planning Commission hire independent counsel to address issues. He further moved that the item be back on the agenda as soon as possible after the issues are addressed. Ms. Peacock seconded. Mr. Gear objected to this action as the issues occurred before his clients bought the land and he thought they had complied with everything. He felt the process was uncertain and unfair. Mr. Jacob replied that there has been a question ever since the Commission saw the application for the first time. He said the Commission has to protect the City. The City has expressed interest in a park at that location and the applicant wants to put lots where the city wants a park. He felt the Commission needed to get legal advice. In the vote which followed, the motion passed unanimously. PLANNING COMMISSION 13 JUNE 1989 The South Burlinqton Planninq Commission held a meetinq on Tuesday, 13 June 1989, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset Street. Members Present Peter Jacob, Chairman: Mary -Barbara Maher, William Burqess, Ann Puqh, William Craiq 1. Minutes of 2 May 1989 Mrs. Maher moved the Minutes _of_2 May be approved as written. Mr. Burqess seconded. Motion passed unanimously. 2. Continue Site Plan application of W. W. Grainger- Inc,- for construction of a 14,982 sq, ft. building for wholesale dis- tribution use, lot 13, Green Tree Park Industrial Subdivision, Greqory Drive. Members continued the discussion of parking. Mr. Burgess said he would like to see pavinq kept to a minimum. Members agreed on 21 parkinq spaces. Mr. Weith said there was no problem with traffic. Members also felt there was no problem with landscaping. Mr. Jacob emphasized that the developer of the whole subdivision should do the landscapinq he's supposed to do, and the specific businesses should have to do only what is required of them. Mr. Burgess moved the Planninq Commission approve the Site Plan application of W.W. Grainner- Tnc- for construction of a 14,982 sq. ft. buildinq (PhaseI) for wholesale/distribution use as de- picted on a plan entitled "W.W. Grainger, Inc, lot 13. Green Tree Park, South Bulrington, Vermont." prepared by Trudell Consultina Engineers. Inc. and dated 4/24/89, last revised 5/l/89, with the following stipulations: 1. The applicant shall post a $10,050, 3-year landscaping bond_ prior to permit. T 2. A sewer allocation of 120 qpd is qranted based on 8 employees. The applicant shall pay the $2.50 per gallon fee prior to permit. 3. The applicant shall contribute $99-to_t_he Williston Road Traffic Improvement Fund_(Impact Area 2) based_ on the 10 peak hour trips to be qenerated by this development. PLANNING COMMISSION 13 JUNE 1989 page 3 6. Based on expressed representation of the applicant- there .vill be no outside storage. 7. A revised plan addressing, stipulation 4.shall be submitted to the City Planner for approval prior to permit. 8. The zoning permit shall be obtained within 6 months or this approval is null and void Mrs. Maher seconded. Motion passed unanimously. 4. Public Hearinq: Continue Final Plat application of IBIS Corporation for subdivision of a 6.8 acre parcel into 3 lots of 1.9, 2.3, and 2.6 acres, 1570 Spear Street Mr. Gear, representing the applicant, said he felt they had complied with the Commission's concern on the plan and that the matter was now out of his client's hands. He presented members with documents on issues other than the plan and noted that his client bouqht the land from Marie Underwood and Helen Gaqnon, as indicated on documents on the land transfer and on discussions with the Citv Attornev and former City Planner. He said his clients would not have bouqht the land had they known it would arouse the present controversy. He requested the Commission allow the subdivision permit as he felt his clients had compled with all regulations. Mr. Jacob noted the Commission had been taken by surprise by this plan. He said they had been thinkinq of this land for some time from the point of view of scenic corridors and were confused as to what happened and why. He said the Commission had asked the advice of independent Counsel, Mr. Robert Perry. Mr. Craig said he didn't want to give the impression he had any- thinq against any of the parties and wished that the boundary line revision had gone through the subdivision review. He felt everyone concerned had some degree of responsibility for the current situation. Mrs. Maher wanted to make it clear that applicant is aware that when subdividion of the northern lots had happened, it was the Commission's understanding the land under consideration now was still part of the larger parcel. She stressed that it was shown to the Commission that way. Members were firm in their feelinq that the view should be main- tained and that a height limitation on structures should be con- sidered. Mr. Burqess said he wanted to aet 150 of the land for views instead of a cash amount. PLANNING COMMISSION 13 JUNE 1989 page 4 A poll of members indicated a preference for a motion to deny. Ms. Peacock moved the Planninq Commission deny the Final Plat ap- plicatin of IBIS Corporation for subdivision of a 6.8 acre parcel into three lots of 1.9. 2.3 and 2.6 acres as depicted on a plan entitled "Final Plat, IBIS Corporation, South Burlington, Vermont" prepared by Geor^e Bedard and dated 12/18/86, last revised 4/14/89 based on the following findings: 1. The proposed subdivision consists of a 1.3 acre parcel acquired by IBIS Corporation on September 27. 1984 and a 5.3 acre parcel acquired on September 22, 1988 from the Estate of Aurora W. Nowland, Marie N. Underwood, and Helen N. Gagnon. 2. The Nowland Estate, et al, own substantial additional land on the southerly and easterly sides of the subject parcel. They did not seek subdivision approval prior to conveyance of the parcel to IBIS but rather treated it as a boundary line adjustment 3. As part of the transfer from the Nowland Estate, et al,_ to IBIS, the parties executed deeds and an offer of irrevocable ded- ication to the City of South Burlington for an 80 foot wide strip of land opposite Deerfield Way for hi^hwav purposes 4. Neither the Planninq Commission, nor any of its members indi- vidually, had knowledge of the transfers until January, 1989 when IBIS applied for sketch plan review. 5. The conveyance from the Nowland Estate, et al, to IBIS Corpora- tion is not considered a boundary line adjustment in as much as potential developable lots are created. 6. The conveyance from the Nowland Estate, et al, to IBIS Corpora- tion without Planninq Commission review forecloses meaningful re- view of the subdivision and imposition of conditions reasonably appropriate under relevant statutes and ordinances_ 7. Review of the subject IBIS Subdivision cannot occur until sub- division approval has been obtained for the subdivision of the Nowland Estate, et al. Mr. Craiq seconded. Motion passed unanimously Mr. Jacob expressed the hope that all parties can qet together coolly and qet this matter resolved as soon as possible. 5. Continue discussion with Wright & Morrissey to consider changing the zoninq of 2 lots totaling! 94,000_sq, ft_from R-4 to C-1, south side of Swift St. immediately east of Farrell Street, M E M O R A N D U M To: Chuck. Hafter, City Manager From: Joe Weith, City Manager Re: T.J. Boyle's Nowland Farm Scenario Date: Septeml,er 7, 1989 I reviewed Terry's plan and, overall, I feel the plan is good. It preserve; an overlook park from the ridge and pushes develop- ment back from Spear Street, thereby, preserving the low density character of Spear Street. I do, however, have a couple con- cerns. According to the tax maps, approximately 32 acres of the 160 acre parcel (this assumes the I.B.I.S. land is not included in the 160 acres) are zoned R-1 while the remainder is zoned R-2. This allows a maximum density of 288 units for the parcel under our existing zoning ordinance. Terry's plan proposes 320 units. Legally, I do not think the City can approve this without a variance or amendment to the zoning regulations (i.e., increase density on the parcel or include some sort of T.D.R.). Finally, Terry mentions in his letter that a modification of the P.U.D. requirements is necessary to carry out an "on -parcel" T.D.R. I do not think this is correct. The purpose of, and concept behind, a P.U.D. is to allow "on -parcel" T.D.R's. This should be clarified.